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CANADIAN STUDIES 
 
 IN 
 
 COMPARATIVE POLITICS 
 
 By JOHN GEORGE BOURINOT, C.M.G.. LL.D., D.C.L. 
 
 Clerk of the House of Commons of Canada ; Author of Parliamentary Procedure 
 and Practice ; Constitutional History of Canada, etc., etc. 
 
 1. THE ENGLISH CHAKACTER OF CANADIAN INSTITUTIONS. 
 
 II. COMPAEISON BETWEEN THE POLITICAL SYSTEMS OF CANADA AND TH|; UNITED STATES. 
 III. FEDERAL GOVERNMENT IN SWITZERLAND COMPARED WITH THAT IN CANADA. 
 
 MONTREAL : 
 DAWSON BROTHERS, PUBLISHERS. 
 
 1890. 
 
 ■^ 
 
5rff/ 
 
 CORNELL^N 
 liUNIVERSJTY 
 LIBRARY^ 
 
 Entbkbd according to Act of Parliament by John Gbokge Boueinot, in tho year 1890, in the OflSce 
 
 of the Minister of Agriculture. 
 
 FEINTED BY THE GAZBITB PEINTING COMPANY, MONTEKAL. 
 
COMPARATIVE POLITICS. 
 CHAPTER 1. 
 
 THE ENQLISH CHARACTER OF CANADIAN INSTITUTIONS. 
 
 The history of tlie political development of the several provinces which now consti- 
 tute that wide Dominion, extending from Cape Breton on the Atlantic coast to Vancouver 
 on the Pacific shores, possesses many features of considerable interest for the student of 
 comparative politics. Canada may be considered with obvious truth to be " the heir of 
 all the ages." In the language, the civil law, and the religion of French Canada wc see 
 the powerful influence of that Rome which has made so permanent and remarkable an 
 impress on the communities of the old world even from times when America was wrapped 
 in impenetrable mystery, and there existed only vague traditions of a lost Atlantis, an 
 island continent lying in the Atlantic ocean over against the Pillars of Hercules. In the 
 language, in the common law, in the capacity for self-government, and in the spirit of 
 liberty we find a noble heritage which the English inhabitants of Canada derive from 
 their Teutonic ancestors who acquired Britain and laid the foundations of institutions 
 which have been the source of the greatness of England and of all countries which have 
 copied her constitutional example. The French Canadians, like the English Canadians, 
 can trace their history back to times when the Teutonic people, the noblest offspring of 
 the Aryan family of nations,' conquered the original Celtic inhabitants of Gaul and 
 Britain. But the results of this momentous conquest were very different in the ancient 
 homes of the two races that now constitute the Canadian people. The Teuton became in 
 the course of time absorbed in the mass of the conquered, and Eome was able to make an 
 impress on the language and institutions of the country, now known as France, which 
 was never made among the inhabitants of the parent state ^ of the English Canadian. 
 
 ' High authorities now argue, and the theory is gaining ground, that the Aryan race is really of European 
 origin, and not an immigrant from the East. Penka maintains that it is represented' only hy the North Germans 
 and Scandinavians. — Penka, " Die Herkunft der Arier" (Wien, 1886). 
 
 '^ " The conquest of the British Isles by the Saxons, Angles and Jutes from the middle of the fifth century i as 
 the character of a gradually advancing occupation. The disunited Britons, some of them grown effeminate, while 
 others have become savage, are overcome after numerous battles with varying issue; the civic settlements, dating 
 from^the^days of the Roman sway, fall into ruins ; the old Roman culture disappears, and with it Christianity ; 
 the aboriginal population is either driven into the hills or reduced by oppression to a state of slavery or to the 
 position of impoverished peasants. Hence, in England, those peculiar conditions are wanting which in Western 
 Europe arose from a mixture of the Germanic races with a Romanized provincial population, with Roman culture, 
 and with the Roman provincial and ecclesiastical constitution."— Gneist, " (Constitutional History of England," 
 ii. 1, 2. Stubbs says " Select Charters," p. 3 : " From the Briton and Roman of the fifth century we have received 
 nothing.' Our whole internal history testifies unmistakably to our inheritance of Teutonic institutions from the 
 first immigrants. The Teutonic element is the paternal element in our system, national and political." 
 
4 JOHN GEOEGB BOUEINOT ' 
 
 The Teuton gave his name and language to England, and from the day he left his original 
 home on the lowlands about the Elbe and Weser his history in the land he conquered 
 is the evolution of the great principles of self-government and free speech from the 
 germs of the institutions he brought with him from his fatherland.^ The Norman himself, 
 who came in later times to conquer the new home of the Anglo-Saxons and Jutes, was of 
 the same descent as the people over whom he ruled, but his history is of itself an illustra- 
 tion of the remarkable influence of Rome over the peoples of the continent of Earope. 
 Like the Frank who belonged to ancient Germania^ and has given his name to France, 
 the Norman who came from Scandinavia, eventually succumbed to the powerful in- 
 fluence of the Eoman tongue and the Eoman code. The Norman brought into England 
 the institutions he had absorbed from Eome, but despite his influence on the govern- 
 ment, the courts, and the aristocratic system of the country, it remained English in 
 all those essential respects calculated to give stability and happiness to a nation. The 
 language of the people was enriched by many new words applicable to the work of 
 administration, legal procedure, and ecclesiastical institutions. The great national assem- 
 bly of the English, the Witenagemot, became eventually a Parliament because William 
 the Conqueror had "deep speech" with his assembly of wise men. French was long 
 used in English legislative records ; it was the language of the Court, as indeed it con- 
 tinued to be in Europe down to recent times ; but the vigorous English tongue, racy of the 
 soil, instinct with the social and political life of the people, ever remained the speech of 
 England, while incorporating such new terms as were necessary to a changed order of 
 things,' The representative system which gradually evolved itself in the hundreds and 
 shires as a natural sequence of the English primary assemblies in the townships was essen- 
 tially English. "* We can see the impress of the famous code of Eome in the system of 
 
 ^ See Guizot, " Histoire du Gouvernement Repr^sentatif," i. 42, 43. " C'estle peuple moderne qui a le plus v6cu, 
 pour ainsi dire, dans son propre fonds, et enfant^ lui-mSme sa civilisation. Ce caractere delate dans toute son 
 histoire, et meme dans sa litt^rature. Chez les Francs et les Visigoths les anciennes assemblies nationales 
 ' germaniques ont ^t^ ou longtemps suspendues ou transform^es ; chez les Anglo-Saxons elles n'ont jamais cess6 ; 
 elles venaient d'annle en annge perpetuer les anciens souvenirs et exercer sur le gouvernement une influence 
 directe. C'est done chez les Anglo-Saxons que, du cinquiSme au onzieme siScle, les institutions ont pris le d6ve- 
 loppement le plus naturel et le plus com plet." 
 
 ^ " II y a lieu de croire qu'ils (les Francs) ne formaient pas an Germanie une nation unique et homogfene. 
 C'6tait une confederation de tribus etablies entre le Ehin, le Mein, le Weser etl'Elbe." — Guizot, " Histoire du Gou- 
 vernement Eepr^sentatif," i. 128. 
 
 ' " The language, the personal and local names, the character of the customs and common law of English, are 
 persistent during historic times. Every infusion of new blood since the first migration has been Teutonic ; the 
 Dane, the Norseman, and even the French-speaking Norman of the Conquest serve to add intensity to the distinct- 
 ness of the national identity. The language, continuous in its perfect identity from the earliest date, unchanged 
 in structure and tenacious in vocabulary, has drawn in from the Latin services of the Church, and from the French 
 of the courts, new riches of expression."— Stubbs, " Select Charters," p. 2. 
 
 * " The village community which appears in Germany as the mark reappears as the tun or township in 
 Britain, where it becomes ' the unit of the constitutional machinery' Stubbs, " Const. Hist.," i. 71. The township, 
 like the mark, is at once a cultivating and a political community, and in its qualified members resides the power 
 to order their own village and agricultural life. This power is vested in the village assembly or tun-moot, in 
 which the townsmen regulate the internal aflairs of the township by the making of ' by-laws,' a term which is said 
 to mean laws enacted by a ' by,' as the township was called in the northern shires. The tun-moot elected its own 
 officers and provided for the representation of its interests in the courts of the hundred or shire, where the gerefa 
 and four discreet men appeared for the township. In this arrangement appears the earliest form of the repre- 
 sentative principle." — Hanuis Taylor, " Origin and Growth of the English Constitution," i. 12. See also Stubbs, 
 " Select Charters," pp. 8, 9. 
 
ON COMPAEATIVB POLITICS. S 
 
 equity jurisprudence, but it was never formally adopted as one of the institutions of the 
 country, as on the continent of Europe. That great system of common law which has 
 been handed down to us from the earliest times of which we have accurate records, 
 broadening from precedent to precedent, ever continued to grow in strength as being 
 in harmony with the political and social instincts of a people loving liberty and self- 
 government, and having had exceptional opportunities of keeping free from the domi- 
 nating influences of Eome. 
 
 By the beginning of the seventeenth century, when England and France had entered 
 into that great contest for the possession of an empire in the new world of America, 
 which was not to end until the middle of the next century, the leading institutions of 
 the two countries were in essential respects based on opposite principles, originating in 
 a measure from their respective social and political conditions, but mainly from the funda- 
 mental ideas which governed in the one case a people clinging to Teutonic self-govern- 
 ment, and in the other a people who had lost all control over their original local 
 institutions and yielded to the centralizing influences of the regal power. In the course 
 of time the feudal system, which so long dominated and divided France, became gra- 
 dually weakened under the persistent efforts of the ablest of the feudal chiefs, who were 
 long known as dukes of France, and who out of the ruin of the feudatories built up a 
 monarchy which gradually centralized all power in the king. ^ In the old provinces of 
 France there existed for centuries, a system of local government, which, if it never attained 
 the significance of the institutions of England, at all events gave the people a small 
 share in the administration of such local afiairs as were necessary to their comfort, con- 
 venience and security, and which, in many communities, especially in certain cities 
 and towns, was a bulwark against the rapacity and oppression of great nobles. Some 
 of the provinces even possessed local representative bodies of the nature of similar 
 English institutions. As in all countries which had been overrun and conquered by 
 the hordes of Germany, there grew up, in the course of time, a representative body in 
 which the three estates of nobles, clergy and people were able to assemble for certain com- 
 mon purposes, although they never appear to have possessed the legislative power or to have 
 reached the practical usefulness of the great national council known as the parliament 
 of England. The Etats-0Sn6raux, or States-G-eneral, gradually diminished in influence 
 according as the centralizing tendencies of the Crown increased, jintil at last by the 
 beginning of the seventeenth century they ceased to meet. ^ During the century and a 
 half France exercised dominion over that vast region watered by the St. Lawrence, 
 the Great Lakes, the Ohio, and the Mississippi rivers, and reaching as far as the Gulf of 
 
 ' The German tribes which conquered Gaul possessed free local institutions lilie the Angles, Saxons and Jutes, 
 but their local freedom soon succumbed under the influence of the great feudal proprietors. '1 hen, says Guizot, 
 came a contest between the feudal system and monarchy. Local institutions, conserving a measure of freedom 
 struggled for existence amid these conflicts of great social and political powers. Charlemagne made use of them 
 to give strength to his power in France, but eventually they almost perished except in a few towns and corners of 
 provinces, where they showed signs of existence until an all-powerful monarchy crushed them to all intents and 
 purposes. " Nous avons observe quelque chose d'analogue dans I'histoire des Anglo-Saxons ; mais \k le systSme 
 des institutions libres n'a jamais p^ri; la deliberation commune des propri^taires libres, dans les cours de com 16, 
 a toujours subsiste."— Guizot, i. 239, 240. 
 
 '' The States-General of France, which owed their origin to Philip the Fair in 1302, ceased to meet from 1614 
 to 1789. See ' Ch6ruel, Dictionaire Historique des Institutions de la France ; ' Art. " Assembles Politiques." 
 
6 JOHN G-EOEGE BOUEINOT 
 
 Mexico, the States-G-eneral of France were never called together, and the king possessed 
 an absolute, uncontrolled authority. The policy of the Capets had borne its legitimate 
 fruit ; in the course of centuries the power of the great nobles, once at the head of prac- 
 tically independent feudatory provinces, had been effectually broken down ; withdrawn 
 from the provinces, they ministered to the ambition of the king and added grace and 
 lustre to a voluptuous court. A shadow of local government lingered in a few towns 
 which had wrung charters from the necessities of great nobles in feudal times, but the 
 provincial estates merely existed in name, since they met only on the order of the king, 
 and their proceedings were of no effect unless they were approved by the same absolute 
 authority. G-reat nobles were nominally governors of provinces, but their power was 
 virtually a nullity since they had no control over the affairs of these local divisions. 
 Officers, known as intendants, were, in the coarse of time, invested with large authority 
 over questions of finance, justice, and police, and were among the most important func- 
 tionaries evolved out of the autocratic system designed to concentrate all power in the 
 king. ^ The parliaments of the provinces, of which the parliament of Paris was the chief, 
 in no respect bore an analogy to the great bodies which in England exercised legisla- 
 tive powers and voted the taxes. They were strictly judicial bodies which always per- 
 formed important functions with due deliberation and caution ; but even they, in the 
 discharge of such legal duties, could be forced to register the decrees of the king. ^ The 
 council of state which long exercised judicial powers, like the permanent council of the 
 Norman kings, found itself, in the course of time, divested of its functions in this parti- 
 cular by the parliament of Paris, and was gradually confined to purely political duties 
 as the king's " cabinet council," to use a political expression which was coined in the 
 days of the Stuarts. In short, in all matters which concerned the state, the king had 
 centred all substantial power in the Crown. The frequently quoted saying of Louis 
 Quatorze, Vetat dest moi, summed up the government of France. 
 
 In striking contrast with the centralization and absolutism of France was the 
 development of free institutions in England, the land of the Teutonic people whose 
 original home was in the district now known as Sleswick. ' Despite the efforts of the 
 kings to increase their power and repress what were, in their opinion, the unwarrantable 
 
 ' The office of inten(^nt originated in the days of Richelieu, and appears to have been connected with the 
 revenue. It is probable he was intended to have functions like those discharged originally by the sheriff or scir- 
 gerefa of England (see infra, p. 33). Guizot tells us that these officials became, in the course of time, " magistrates 
 whom the king sent into different parts of the kingdom to look to all that concerned the administration of justice, 
 of police, and of the finances ; to maintain good order and to execute such commissions as the king or council laid 
 upon them." See Chfiruel, on the subject of the Etats Provinciaia:. 
 
 ^ See Parkman, " Old B6gime in Canada,'' p. 268; Lareau, " Histoire du Droit Canadien," i. 59 et seq. 
 
 " The Angles migrated bodily from " the land of Angeln ; " that is, the territory between the Schley and Flensborg, 
 and surrounding districts, so that this part of Schleswig is described as remaining long afterwards uninhabited. 
 In the petty states north of the Thames, such as East Anglia and West Anglia, this tribal name survived for cen- 
 ttiries, and at last gave the name of Anglia to the whole land, either in contradistinction to the continental Saxons, 
 or because in their secluded settlements the Angles had preserved a firm coherence.— Gneist, " Student's History of 
 the English Parliament," p. 4. The Jutes were men of a tribe " which has left its name to Jutland, at the extremity 
 of the peninsula that projects from the shores of North Germany, but who were probably akin to the race that was 
 fringing the opposite coast of Scandinavia and settling in the Danish Isles" The settlement of the Jutes was soon 
 followed by Saxon descents on either side of the Caint. But the names of Jutes and Saxons were destined to be 
 absorbed in that of the Angles or Bngle or Englishmen.— Green, " The Making of England," chap. i. 
 
ON COMPAEATIYB POLITICS. 7 
 
 pretensions of their parliaments whenever they did not coincide with their claim of 
 prerogative rights, the English people had, succeeded by the time the great English 
 emigration to New England took place during the first part of the seventeenth century 
 in developing from the free institutions of their Teutonic ancestors a parliamentary 
 system which gave expression to the people's will and preserved the people's liberties in 
 the end. Nothing strikes the political student more forcibly than the fact that while in 
 France and other countries conquered by the Grerman tribes there was a steady decline 
 in local self-government and a steady increase of regal power, on the other hand, there 
 was a continuity and expansion of the free institutions of England from the earliest 
 times. Crises have arisen to threaten the continuity of that development, but despite 
 many checks to free speech and thought, and many diversities in the methods of govern- 
 ment, the current was ever in the direction of the establishment, on firm foundations, of 
 the most perfect system of parliamentary government the world has ever seen.' 
 
 "We may trace the evolution of that system through the history of the primary assem- 
 blies of the village communities of early English times, of the folk-moots of the ancient 
 kingdoms and shires, of the Witenagemot or assembly of the wise men, of the great 
 council of the Norman kings, down to the first parliament under Edward I. in 1295, when 
 we see, at last, a complete organization of the machinery of that famous national council 
 which is the prototype of the legislative bodies which have exercised such a dominant 
 influence on the destinies of England and her colonial dependencies.^ The spirit of a 
 people accustomed to free institutions was ever ready to assert itself in all national crises, 
 and, with the disappearance of the Stuart dynasty and the coming of William the Third 
 to England, parliament became practically the sovereign authority in the state and the 
 English monarchy itself depended thenceforth, not on any assertion of divine right, but 
 on an act of the great legislature of the nation, which, while recognizing the necessity of 
 the hereditary principle, gave full expression to the national will — that national will 
 which has always governed England from the earliest times of her history.' 
 
 ^ " Des deux systSmes d'ordre social et politique contenus dans le bergeau des peuples modernes le systeme 
 feodal et le systSme repr^sentatif, le dernier a longtemps pr6valu en Angleterre, le premier a longtemps doming 
 ea France. Les anciennes institutions nationales des Francs se sent abimdes dans le regime ffiodal, ft la suite 
 duquel est venu le pouvoir absolu. Celles des Saxons sont, au contraire, plus ou moins maintenues et 
 perp6tu6es, pour aboutir enfin au regime representatif, qui les a rendues claires en les d^v^loppant.'' — Guizot, i. 162. 
 
 '^ Simon de Montfort must always be remembered by the English people and their descendants as the founder 
 of the House of Commons, but it is not until 1295 (23rd Edward I.) that the transitionary period of the constitutional 
 history of England closes, and the three estates of the realm are represented in a really national parliament. Ever 
 since that year, " parliaments, after the model of Simon de Montfort's famous assembly, have been regularly 
 summoned in continuous, or almost continuous succession. The essential basis of the English constitution, 
 government by King, Lords, and Commons, may be said to have been definitely fixed in the reign of the Great 
 Edward." — ^Taswell-Langmead, " English Constitutional History," pp. 246-251. See also Stubbs, "Select Charters," 
 pp. 35-51. 
 
 ^ " For nothing is more certain than that the Crown is more strictly and undoubtedly hereditary now than it 
 was in the days of the Normans, Angevins, and Tudors. . . . In the existing state of our institutions the hereditary 
 character of our modern kingship is no falling away from ancient principles ; it, in truth, allows us to make a fuller 
 application of them in another shape. In an early state of things, no form of government is so natural as that which 
 we find established among our forefathers. A feeling which was not wholly sentimental, demanded that the 
 king should, under all ordinary circumstances, be the descendant of former kings. But a sense that some personal 
 qualification was needed in a ruler, required that the electors should have the right of freely choosing within the 
 royal house. In days when kings governed as well as reigned, such a choice, made with some regard to the 
 
8 JOHN GEOEGB BOUEINOT 
 
 Th.e great conflict which was to end in the ruin of the Stuarts, and in the complete 
 triumph of parliamentary government, was fought out during the times when the people 
 of the thirteen colonies were establishing themselves on the Atlantic seaboard. While 
 Charles the First was fighting that battle with parliament, which was to end in his 
 downfall and death. New England was founded. That critical period which elapsed from 
 the indiscreet assertion of royal prerogative by Charles the First down to the flight of 
 James the Second and the coronation of "William of Orange, was fraught with results of 
 great importance to the English people both in Europe and America. The contest in 
 England was between the undue claims of royal prerogative and the principles of parlia- 
 mentary government. The real strength of the stern Puritanism which founded New 
 England, and gave strength to the Ironsides of Cromwell, lay in the fact that it was 
 associated, in the minds of the yeomanry and the lesser gentry, with the principle of 
 self-government. The uncompromising self-asserting spirit represented by Calvin, aptly 
 called " the constitutional lawyer of the Keformation," ' gave religious fervour and mental 
 vigour to English Puritanism in its struggles with royal arrogance. "While in the course 
 of time it developed harsh and narrow features, which were in the main antagonistic to the 
 real character of the English people, but which have nevertheless made their influence felt 
 until the present time, it certainly succeeded in leaving the deepest impression on Scot- 
 land, the temperament of whose people was well suited to the controversial spirit and 
 dogmatic theology of Calvinism as it was preached in the trying days of the seventeenth 
 century. Puritanism became at last in its practical working the remonstrance of the 
 people against the efforts of the Stuarts to crush the liberties of the nation.^ It gave 
 expression to the individualism of the English people in whose hearts there was ever 
 existent that spirit of liberty, which is natural to communities sprung from the Teutonic 
 people. 
 
 The colonies of England and France were accordingly founded under very dissimilar 
 conditions ; in the one case antagonistic to the establishment of self-government, and in 
 the other well adapted to develop a spirit of sturdy independence natural to the English 
 people. From the day the king of France assumed the government of New France, there 
 was never given an opportunity to the people of tne colony to govern themselves, or even 
 express their opinions with freedom. The same illiberal, autocratic system, that was so 
 fatal to representative institutions in the parent state, prevailed down to the cession of 
 
 personal qualities of the king chosen, was the best means for securing freedom and good government. Under the 
 rule of a conventional constitution, when kings reiga but do not govern, when it is openly professed in the 
 House of Commons that it is to that House that the powers of government have passed, the objects which were 
 once best secured by making kingship elective are now best secured by making kingship hereditary. It is as the 
 Spartan King said : By lessening the powers of the Crown, its possession has become more lasting. . . . The will 
 of the people, the source of all law and all power, has been exercised, not in the old form of personally choosing 
 a king at every vacancy of the Crown, but by an equally lawful exercise of the national will, which has thought 
 good to entail the Crown on a particular family . "—Freeman, " The Growth of the English Constitution," pp. 145-155. 
 
 ' Fiske, " The Beginnings of New England," p. 57. 
 
 ^ " With the belief of the Calvinist went necessarily a new and a higher conception of political order. The 
 old conception of personal rule, the dependence of a nation on the arbitrary will of its ruler, was jarring every- 
 where more and more with the religious as well as the philosophic impulses of the time.-.. The Puritan could 
 only conceive of the kingly power as of a power based upon constitutional tradition, controlled by constitutional 
 law, and acting in willing harmony witli that body of constitutional councillors in the two Houses, who represented 
 the wisdom and will of the realm."— Green, "History of the English People," iii. 16, 18. 
 
ON COMPAEATIVE POLITICS. 9 
 
 Canada to England. The government was, practically, that of a province in France. The 
 governor was generally a noble and a soldier ; but while he was invested with large 
 military and civil authority, under the royal instructions, he had ever by his side a 
 vigilant guardian, in the person of the intendant, who possessed, for all practical pur- 
 poses, still more substantial power, and who was always encouraged to report to the 
 king every matter that might appear to conflict with the principles of absolute government 
 laid down by the king. 
 
 The superior council ^ of Canada, like the great council of state in France, before its 
 duties were distributed among other bodies, possessed judicial, administrative and even 
 legislative powers, but its action was limited by the decrees and ordinances of the king, 
 and its decisions were subject to the control of the royal council. It was not possible to 
 expect that representative institutions could be established in a colony of a kingdom 
 where the states-general themselves had ceased to meet. A country, governed as a 
 province, like Canada, had no right to look for even a semblance of those municipal institu- 
 tions of which a vestige still existed in France. It was a government of decrees and 
 ordinances which regulated the political, religious and every day life of the inhabitants. 
 Public assemblies for the discussion of even the most trivial affairs were consistently 
 repressed, and the only opportunity ever given the people of a parish of talking over 
 matters interesting to them was at the door of the village church after mass. The Church 
 of Eome had, from the earliest times in the colony, made its influence all powerful, even at 
 the council board, and in the affairs of the country generally. Protestantism was unknown, 
 for the king had decided to keep the colony perfectly free of all heretics.^ If men were so 
 bold as to take exception to Rome's infallible dogmas, the Church, with the approval, and 
 even aid, of the State, was ever ready to assert its control over the conscience and thought 
 of the people committed to its care, but its power was evoked only in the very rare cases 
 when it was necessary to punish some indiscreet member of its flock for some hasty asser- 
 tion of the right of free speech. No Roger Williams was forced to fly from French Canada 
 into the western wilderness to found a state where men of all creeds and beliefs would be 
 allowed to remain ; no Quakers were persecuted and hanged as in the land of the 
 Puritans ; but if these things did not happen, it must not be assumed that there was in 
 Canada, more than in any other part of the world in those days, a spirit of toleration and a 
 readiness to admit men of all opinions and beliefs, but it was simply because the country 
 was open only to the adherents of the religion of Rome.^ 
 
 In the thirteen English colonies which stretched, on the Atlantic coast, from 
 French Canada to Spanish Florida, there were representatives of all classes of Englishmen, 
 
 '■ The change of name from the " supreme " to the " superior " council indicates the spirit of monarchical pre- 
 tensions in those days; Canadians could not be allowed even to use a "name" which conveyed the idea of 
 independent powers. See Lareau. i. 110. 
 
 ^ " M6moire du Eoy 3, Mons. de Denonville, le 31 mai 1686." ' Collection de manuscrits relatifs d, la Nouvelle 
 France, Quebec,' i. 362, 363. M. de Laval wrote from Quebec in 1661 : " Nous ne souflfrons ici aucune secte 
 hSr^tique ; c'est ce que le Koi m' a accord^ pieusement sur la demande que je lui en ai faite avant de quitter la 
 France." ' Arch de la Propagande,' vol. " America," 3, " Informatio de Statu Ecclesise," 21 octobre, 1661, vol. 29. 
 
 * Abb6 Faillon, " Histoire de la Colonie Frangaise en Canada," i. 229, 269, 270, says that in founding New 
 France, Louis XIII and Cardinal Richelieu wisely concluded that it should be colonized only by Eoman Catholics. 
 At the same time the ruling spirits of New England were practically endeavouring to establish a state on the nar- 
 rowest Protestant principles. See infra, p. 10. 
 
 Sec. II, 1890. 2. 
 
10 JOHN GBOEGB BOUEINOT 
 
 and also a few Swedes and Dutch, in the middle settlements. The Puritans who wished 
 to found a theocracy and democracy in the new world predominated in the northern 
 colonies of New England. This class comprised some of the purest blood of the English 
 yeomanry and lesser gentry ; many of them were scholarly men educated in the great 
 universities, especially in the institution on the banks of the 0am, whose name and history 
 have been perpetuated in the prosperous city which has grown up around Harvard in 
 the vicinity of Boston. These Puritan communities showed no liberality in matters of 
 religion, and we who live in these times of wide tolerance of all religious opinions are too 
 apt to blame them for the persecution of those who presumed to differ from them, forget- 
 ting that a true conception of their ideas and motives shows us that they never professed 
 to establish a commonwealth on the basis of liberty of conscience. A higB. authority on 
 such subjects, writing from an accurate knowledge of the history of the origin and develop- 
 ment of New England, has said with truth, that " the aim of "Winthrop and his friends in 
 coming to Massachusetts was the construction of a theocratic state which should be to 
 Christians, under the New Testament dispensation, all that the theocracy of Moses and 
 Joshua and Samuel had been to the Jews in the Old Testament days." The state they 
 were to found " was to consist of a united body of believers ; citizenship itself was to be 
 co-extensive with church membership ; and in such a state there was, apparently, no 
 more room for heretics than there was in Rome or Madrid." ' But the Puritanism of New 
 England, with all its intolerance and coldness, '' meant truth and righteousness, obedience 
 and purity, reverence and intelligence everywhere — in the family and in the field, in the 
 shop and in the meeting-house, in the pulpit and on the bench." ^ Allied to these great 
 qualities, there was among the Puritans a spirit of self-reliance and a capacity for self- 
 government which enabled them to cope successfully with the difficulties of pioneer life, 
 and to lay the foundation of the great commonwealths of the American republic. 
 
 In decided contrast with the Puritans of Boston, Plymouth, and New Haven and 
 other towns of New England was the character of the population of the colony of Vir- 
 ginia, which had been the first permanently settled by British subjects in America. No 
 religious motives entered into the settlement of that fair country, but its people were 
 made up of men who ventured into the new world to improve their fortunes. Many of 
 them belonged to the English gentry who still clung to the English Church. The fer- 
 tile soil and genial climate of this colony invited agriculture on a large scale, and the 
 result was, in the course of time, the establishment of what was, in a measure, an aristo- 
 cratic class, famous for its hospitality, and exhibiting none of the asceticism and intole- 
 rance of the Puritan settlements who fought for wealth in maritime pursuits, or gathered 
 a meagre subsistence among the rocks of New England. But throughout the colonies 
 generally the tendency of things was unfavourable to the foundation of purely aristocratic 
 institutions. ^ The current of thought and action in Virginia and Massachusetts was 
 
 1 Fiske, " The Beginnings of New England," pp. 144-146. 
 
 ^ Address of Bishop Potter before the New England Society, December 23, 1878. 
 
 " " There was an aristocracy in Massachusetts in 1775 as well as in Virginia. In the latter colony the aristo- 
 cracy was the ruling class and upheld the cause of the colonists as against the Crown, while in the former the 
 aristocracy shared its political rights with the great mass of the people, and, when called upon to take one side or 
 the other, went to Nova Scotia."— Channing, " Town and County Government in the English Colonies of America," 
 ' Johns Hopkins University Studies,' Second Series, X. 
 
ON COMPAEATIVE POLITICS. 11 
 
 steadily iu the direction of the establishment of a democracy, and the history of the inde- 
 pendence of the old colonies shows that while " the shot that was heard round the world" 
 was fired by " the embattled farmers" of puritan Lexington, the most eloquent voice that 
 first hurled defiance at England was that of a son of Virginia in the Hall of Burgesses in 
 the old Capitol of "Williamsburg ; and the general and statesman whom the people will 
 ever hold in most grateful memory was also a native of the same noble commonwealth. 
 
 While the French king was ever interfering with the affairs of the colony, and sup- 
 pressing every liberal attempt to give the people a semblance of local government, the 
 thirteen colonies were left, for the most part, for many years perfectly free to pursue their 
 own internal development. The old charter of Massachusetts was eventually revoked, 
 and that colony became a partly royal government, resembling in essential respects the 
 government of the majority of the colonies. The foreign trade of the country was subject 
 to imperial regulations which fettered it in every possible .way, as it was the custom in 
 those days, with the view of making colonies as far as possible mere auxiliaries to European 
 wealth and commerce. But practically, the old colonies were long free to manage their 
 own affairs in their own way. In all of them, in the proprietary, as well as in the provin- 
 cial or royal governments,^ there existed representative organizations in which the people 
 were able to discuss their affairs, and legislate on all subjects which properly fell within 
 their jurisdiction. Some friction and difficulty arose at times from the interference of the 
 governors who were appointed by the Crown and presided over the provincial or royal 
 governments. ^ But when we survey the political situation throughout the colonies, we 
 are struck by the fact of the large measure of local self-government enjoyed by the people 
 generally, and the ability and capacity which they showed in the management of those 
 questions intimately connected with their internal development. Although the Crown 
 had the right of veto over all legislation, except in those colonies which were under pro- 
 prietary governments, it was a right which was rarely, if ever, exercised. In all of the 
 colonies there were legislative bodies, mostly of a bi-cameral character, and the holding 
 of public meetings was a right constantly exercised, especially in New England. All 
 the colonies were divided into local divisions known as counties, parishes and town- 
 ships, for the performance of certain judicial and municipal functions, but it was only in 
 
 ' The late Professor Johnston, in his article in the ' Encyclopaedia Britannica' on the " United States,'' has 
 correctly divided the colonial governments generally into charter, proprietary and royal (or provincial) govern- 
 ments. The charter governments originally were Massachusetts, Rhode Island and Connecticut, and were so 
 named on account of having received charters from the Crown giving the people the right to elect their own gov- 
 ernors and make their own laws. The Massachusetts charter was revoked in 1684 by a decision of the Crown 
 judges, and a partly royal government practically established in 1691. A number of colonies were at first under 
 great proprietors, who had a right, by their patents, to establish the government, but at the time of the revolution 
 Maryland, Delaware and Pennsylvania alone belonged to this class. Virginia, New Hampshire, New York, New 
 Jersey, North and South Carolina, and Georgia eventually became royal governments. In these colonies the 
 Crown appointed the governors, and had a right to veto the legislation of the assemblies. Nova Scotia and other 
 provinces of British North America belonged to this class. 
 
 ^ " The governors came over with high ideas of their own importance, and with not a little of the feudal spirit, 
 which regarded the possessors of power as the holders of so much persoral property that they might turn to their 
 own private uses ; while the assemblies were imbued with the spirit of the great idea that government is an agency 
 or trust which was to be exercised for the common good." — Frothingham, " Rise of the Republic of the United 
 States," p. 127. See also Moses, " Federal Government in Switzerland," pp. 10-12. See a speech of Sir James Craig, 
 while governor of Canada, in which the same arrogant spirit of early governors was plainly exhibited, infra, p. 17. 
 
12 JOHN GKOEGB BOUEINOT 
 
 New England we find the township and its primary assembly playing that important 
 part which it played in the history of the Teutonic and English people. There local self- 
 government obtained in a completeness which is without a parallel in the early history 
 of any dependency of the British Crown. 
 
 The common law oi England — one of the noblest heritages which England has given 
 to her children— was in general use throughout the old colonies so far as it could be 
 adapted to the new conditions and circumstances of the country. Eeal property was gen- 
 erally held in free and common socage, and only in the South was land entailed.^ Although 
 the effects of the feudalism that so long existed in England could be seen in many 
 of the laws, and especially in the conveyance of real estate, there was no elaborate system 
 of seigniorial tenure throughout the English colonies such as existed in I'rench Canada 
 down to very recent times. In Canada that system had been established at a very early 
 date by Eichelieu, with the twofold object of encouraging colonization and establishing 
 a noblesse which would form a bulwark, in the course of time, against the mass of the 
 people. The tenure was a modified copy of the old feudal system which had a deep foot- 
 hold in France, although, even there, those features which were calculated to strengthen 
 the power of the nobles, had long since been eliminated by the centralizing influence of 
 the king. As a system of colonization, the seigniorial tenure had its advantages, since 
 the seignior could only hold his estate on the condition of settling and cultivating certain 
 portions of it within a fixed period. As a system under which a noblesse could be estab- 
 lished — under which titles and dignities could grow up in the course of time — the 
 seigniorial tenure was necessarily a failure in the country, since the rude conditions that 
 surrounded settlement and necessarily brought the seigneur, or lord of the manor, and the 
 habitant, or cultivator of the soil, into close contact, were not calculated to develop distinc- 
 tions that grew up naturally under a very different state of society in Europe. In sections 
 of the old English colonies there had been efforts to reproduce institutions, aristocratic in 
 their tendencies. In the days when the Dutch owned the New Netherlands, vast estates 
 were partitioned out to certain patroons who held their property on quasi feudal condi- 
 tions, and might in essential respects be compared to the seigniors of French Canada.^ 
 
 ' Stor3' on the "Constitution of the United States," (Cooley's ed. of 1873) i., ss. 172, 173. In Virginia, hoth 
 primogeniture and entails existed. See " Local Institutions in Virginia," by C. Ingle, ' J. H. U. Studies,' iii. 142. 
 Land was held in the English speaking provinces in free and common socage, and in Lower Canada when the 
 grantee required it. See Const. Act of 1791. As to primogeniture in Canada, etc., m/m p. 29. 
 
 ' In the Dutch manors or colonies under the proprietorships of patroons, established in 1629 by the Dutch 
 West India Co., the colonists had no rights of self-government. These colonies were but " transcripts of the lord- 
 ships and seigneuries so common at that period, and which the French were establishing, contemporaneously, in 
 their possessions north of the New Netherlands, where most of the feudal appendages of high and low jurisdiction, 
 mutation fines, pre-emption rights, exclusive monopolies of mines, minerals, water-courses, hunting, fishing, 
 fowling and grinding, which we find enumerated in the charter to the patroons, form part of the civil law at the 
 present time." O'Callaghan, from whose history of the New Netherlands I have here quoted, p. 120, published his 
 work in 1846, or eight years before the abolition of the seigniorial tenure of Canada. " The manorial system estab- 
 lished by the Dutch in New Netherland was perpetuated under English forms after the territory was conquered by 
 the English and transformed into the colony of New York .... Under the English and Dutch manorial systems 
 thus established in Maryland and New Netherland the proprietors or • patroons ' were nothing more nor less than 
 feudal lords who were endowed with the right to exercise within their own domains all of the feudal incidents of 
 tenure and jurisdiction. Thus did the dying feudalism of the old world attempt to strike its roots into the free 
 soil of the new world as a permanent institution. The effort was of course shorHived. In spite of the oppressive 
 seigniorial rights granted to the lord, the fact remained that the manor was a self-governing community." — Hannis 
 Taylor, i. 34, 35. 
 
ON COMPAEATIVE POLITICS. 13 
 
 For Carolina the philosopher Locke devised a fundamental constitution which was 
 intended " to avoid erecting a numerous democracy." Provision was made for the creation 
 of a nobility, with large territorial estates, and the high sounding titles of landgraves and 
 ca9iques ; but like other paper constitutions, which have not naturally grown out of the 
 experience and necessities of a community, Locke's invention is now simply noteworthy 
 as an historical curiosity. In the proprietary colony of Maryland — a famous colony, 
 inasmuch as its Eoman Catholic proprietors showed a remarkable spirit of religious 
 tolerance and a comprehension of the true spirit of liberty in the colonization of the 
 country ^ — the Calverts also attempted to establish a landed aristocracy, and give to the 
 manorial lords rights of jurisdiction over their tenants drawn from the feudal experience 
 of the parent state. It is shown on good authority that there were even manorial courts 
 held occasionally on the manors of the colony, under the names of "Courts Baron" and 
 " Courts Leet " which were essentially relics of English institutions, which feudalism had 
 more or less influenced in the course of time. One of the features of the feudal system of 
 Europe was the right of the lords of the feud to exercise judicial powers in the case of 
 their tenants, and the seigniorial tenure of Canada reproduced this feature in a modified 
 <legree, although the power does not appear to have been ever exercised except in the 
 case of petty disputes {basse justice)!^ One fact will strike the student of the feudal system 
 of Canada when he compares it with the reproduction of English usages, such as the 
 courts leet in Maryland. The manors of that colony were in a measure, self-governing 
 communities, and there was a trial by jury in its courts. The popular court of the manor 
 was the court leet, or court of the people. It could enact by-laws regulating the inter- 
 course of residents with each other, and these regulations had all the force of a town 
 ordinance.^ So we see the spirit of English self-government asserting itself, even in those 
 
 ^ " While as yet there was no spot in Christendom where religious faith was free, and when even the Commons 
 of England had openly declared against toleration, he [Calvert] founded a community wherein no man was to be 
 molested for his faith. At a time when absolutism had struck down representative government in England, and 
 it was doubtful if a parliament of freemen would ever meet again, he founded a community in which no laws 
 were to be made without the consent of the freemen.'' " Maryland : The History of a Palatinate" ' American 
 Commonwealth Series', p. 45. See also an able paper by Bradley T. Johnson, " On the Foundation of Maryland 
 and the Origin of the Act concerning Religion of April 21, 1649," read before the Maryland Historical Society, 1883. 
 The exercise of the Eoman Catholic religion was also permitted in Penn's colony. It is a noteworthy fact that 
 when the Puritans in later times gained the ascendancy in Maryland, they refused to extend liberty of conscience 
 to " Popery, prelacy, or licentiousness of opinion," and made Roman Catholics pay double the tax levied on Pro- 
 testants. See ' Edinburgh Review,' April, 1890, article on " The Catholic Democracy in America." Since those 
 days of narrow sectarianism a great change has come over once puritan Massachusetts, and it is now the hot-bed 
 of all new fangled beliefs and ideas, religious, social and even literary. 
 
 ' Parkman, " The Old Regime in Canada," pp. 252, 269. The seigniorial court for the administration of middle 
 and low justice, according to Lareau, " Histoire du Droit Canadien," i. 1261, resembled the court baron of England 
 and Maryland, but it certainly lacked the essential feature of a jury. See following note. According to Mazeres, 
 " Papers on Quebec," p. 161, the seigniors never exercised high justice, although their patents gave most of them 
 the right in general terms. But even Lareau does not suggest that there was in French Canada any institution 
 resembling the courts leet of England ; these were essentially among the forms of local freedom which had long 
 since disappeared in old France. 
 
 ' The old institutions of England were transplanted to Maryland and acclimatized. Lord Baltimore (Cecilius 
 Calvert) modeled his colony after the palatinate of Durham, and the details of local administration were what they 
 had been at home. The ownership of the manorial estate carried with it the right to hold two courts in which 
 disputes could be decided and tenant titles established and recorded, and in which, also, residents on the estate 
 exercised a limited legislative power. The popular court of the manor was the court leet or the court of the people ; 
 
14 JOHN GBOEGE BOUEINOT 
 
 institutions which bore the impress of feudalism. In Canada it could not exist because 
 it had been crushed long since in France itself, under the influence of feudalism, when 
 the nobility were all powerful within their respective jurisdictions, and it was finally lost 
 under the centralizing, autocratic policy of the monarchy. In England the old institutions 
 ever forced themselves above all efforts to repress them by the introduction of innovations. 
 
 As long as the thirteen colonies continued possessions of England they were always 
 inclined to resent the least appearance of interference with what they considered to be their 
 well established rights of self-government, and when the parliament of England attempted 
 to impose internal taxes, on the assumption that it had the right to do so, as the supreme 
 legislature of the country, the colonists at once asserted the English principles that taxation 
 and representation must go together, and that the imposition of taxes without the consent 
 of the people to be taxed was unconstitutional. Such an assertion of independence would 
 have been impossible in a country like French Canada where representative institutions 
 never existed, and where the people were entirely ignorant of even the most elementary 
 principles of self-government. The consequence of the large measure of legislative 
 authority enjoyed by the old colonies was that they were able without difficulty to carry 
 on their affairs the moment they asserted their independence of England. The new con- 
 stitutions which were adopted were the old colonial constitutions in a more democratic 
 form, and, indeed, the charter colonies of Rhode Island and Connecticut did not find it 
 necessary to make any changes immediately, the former, in fact, not until 1842. In 
 Canada, on the contrary, with the removal of the French authorities there was practically 
 no local machinery which coiild enable the people to carry on their affairs, and the mili- 
 tary government which existed for three years from 1 759 to 1763 was an actual necessity, 
 apart altogether from military considerations. The ecclesiastical division of the parish 
 was the only division of which the people had any conception, and the militia captain 
 was the only functionary available for local purposes. ^ 
 
 So far, in this review, I have made only comparisons between the French and Eng- 
 lish systems as illustrated in the history of the French colony on the banks of the St. 
 Lawrence, and of the old English colonies who won their independence of the Crown 
 and entered on a career of prosperity and greatness, only equalled by the record of the 
 nation from which they have sprung. In the second paper of this series, it will be my 
 endeavour to make comparisons between the political institutions of Canada, as developed 
 under British dominion, and those of the American republic developed under purely 
 democratic conditions, though deriving their original strength from the experience of the 
 parent state. But, at present, I shall attempt to show you that from the time French 
 Canada became a portion of the British Empire, and was able to throw aside the political 
 
 the duties of a leet jury seem to have been those of both grand and petit juries. The court leet could enact by-laws 
 regulating the intercourse of residents with one another. It appears to have been a kind of popular police court 
 for a town or parish ; it was the common people sitting in judgment upon itself, and was a judicial survival of the 
 primitive tun-gemot or town meeting of the Saxon tithing. In the court baron of the freeholders, the freehold 
 tenants acted as both jury and judges, and a freeholder could be tried only before his peers.— See Johnson, " Old 
 Maryland Manors" in ' J. H. U. Studies,' vol. i. Also Howard, " Local Constitutional History of United States," 
 pp. 25-31. The patent establishing the Livingston manor in New York provided for a court leet and a court 
 baron. — Hannis Taylor, i. 34-35. 
 
 ' For a statement of the important functions performed by the militia captain, see Lareau, i. 263. Also Bou- 
 rinot, " Local Government in Canada," in 'J. H. U. Studies,' v. 192, 201. 
 
ON COMPAEATIVB POLITICS. 15 
 
 system under which it drew, at the best, only a sluggish existence for a century and a 
 half, the ideas of its best men enlarged, and the people were able to enjoy an amount of 
 political liberty which would have seemed a dream to the men who toiled courageously 
 to found a new S'rance in America, on conditions generally antagonistic to rapid settle- 
 ment and free development. At times in the history of Canada there has been a decided 
 antagonism between the French Canadian and the English Canadian peoples, but happily 
 it has always, sooner or later, given place to wiser counsels of compromise" and concilia- 
 tion, and the two races have been energetic and earnest co-workers in the development 
 of the noble heritage which they possess on the northern half of the continent. " The 
 history of Canada, as a French colony, which ended in 1*759, was a record of autocratic 
 government which gaA'e no opportunity to the expansion of Canadian intellect ; the his- 
 tory of the province as an English dependency has been the record of a people working 
 out their political destiny on the well understood principles of that wonderful system of 
 government which the experience of centuries teaches us is admirably calculated to deve- 
 lop individualism, and a spirit of self-assertion and self-reliance, and to enable a people 
 to solve successfully those great social and political problems on which rests the 
 happiness of mankind. 
 
 The history of the Dominion of Canada as a self-governing community commenced 
 really with the concession of representative and legislative institutions to the several 
 provinces which are now comprised within its limits. By 1792 there were provincial 
 governments established throughout British North America, including French Canada. 
 Nova Scotia, and Prince Edward Island were provincial or royal governments possessing 
 legislative and representative institutions, resembling in the main, the old institutions 
 of the thirteen colonies, then independent states. New Brunswick had been finally 
 separated from Nova Scotia in 1784, but a representative assembly did not meet until 
 1*786. These provinces at no time possessed constitutions under the authority of 
 parliament, but received their rights and privileges from the Crown in the shape of com- 
 missions and instructions to the several governors. In 1*791 the province of Upper Canada, 
 which had been founded by the United Empire Loyalists, was formally separated from the 
 province of Quebec by an Act of the imperial parliament,^ and the first legislature assembled 
 in the early autumn in the humble village of Newark, picturesquely situated on the banks 
 of the Niagara. The French province then received the name of Lower Canada, and 
 its first assembly met towards the close of the same year in the old stone building, known 
 as the Bishop's palace in the city of Quebec. At that time there was, throughout all 
 British North America, a small population which did not exceed two hundred and fifty 
 thousand souls, of whom the greater proportion lived on the banks of the St. Lawrence and 
 its tributary streams, and represented the language, institutions, and history of the French 
 regime. In the maritime provinces of Nova Scotia, New Brunswick and Prince Edward 
 Island, there was a small French Acadian population still living in favoured localities, a 
 remnant for the most part, of the unhappy people who had been expatriated from the 
 beautiful meadows of G-rand Pre, and the valley of the Annapolis. But the popula- 
 tion of this province was mostly made up of the settlers who came into the country after 
 the foundation of Halifax by Cornwallis in 1*749, and of a large number of loyal refugees, 
 
 ' Imp. Act, 31 Geo. III., c. 31. 
 
16 JOHN GBOEGB B0UEIN6T 
 
 chiefly from the old colonies of Massachusetts, New York and Virginia. New Brunswick 
 was settled originally by the same class of people. In the French province there was 
 also a small English population, consisting chiefly of ofiicials, commercial men, and of a 
 number of loyalists and others who settled in the Eastern Townships. The large propor- 
 tion of settlers in the new province of Upper Canada, which extended indefinitely, from 
 the river Ottawa as far as the head of Lake Superior, consisted also of men who had 
 left their homes in the old colonies for the sake of king and country. ^ Beyond that 
 country lay an immense region of wilderness which was the abode of the Indians and 
 the servants of fur traders only, and was to remain almost unknown until the provinces 
 of British North America joined in a confederation which now exercises a dominion 
 from ocean to ocean. 
 
 When we come to survey the past history of Canada we can see that there has been, 
 for a century at least, that continuity of development which has always been a character- 
 istic feature of the political development of England herself. The times which have 
 seemed darkest in the people's history have but preceded the dawn of a brighter epoch. 
 Politicians at home and abroad have attempted in vain to stop the current of political 
 progress. When France left her old colony to its destiny under the rule of England, its 
 people saw only the rude severance of the ties which bound them to the country of their 
 affection, and recognized in England only a land with which they and their ancestors 
 had been more or less in conflict in the course of centuries. But what seemed to them 
 the greatest possible misfortune that could befall a people was, in the end, a national 
 blessing in disguise. From decade to decade there has been an expansion of political 
 privileges and fresh guarantees for the security of their civil and religious institutions, 
 which have given strength and encouragement to the French Canadian and made him an 
 Englishman, from the point of view of constitutional development. .No parliament of 
 England in its contests with royal prerogative contended more energetically for the rights 
 of a people's house than did the assembly of French Canada from 1*792 to 1836. No doubt 
 their persistence in their claims to additional privileges would have induced the 
 British government, sooner or later, to bring about some change which would meet their 
 wishes, but so desirable a result was too long delayed, with the consequence, that some 
 indiscreet leaders of the popular movement precipitated a rebellion on the province, and 
 its fortunes seemed at the very lowest ebb. The Act of 1841 ^ which re-united the two 
 pronnces was, in a great measure, an acknowledgment, on the part of British statesmen 
 that a political error had been made in giving, half a century before, a distinct form of 
 government to French Canada, and consequently, special facilities for perpetuating its 
 language and institutions. But the spirit of self-reliance and the capacity for self- 
 government which had been developed by the concession of representative institutions 
 eventually placed the French Canadian in a position to control governments and 
 parties, and instead of his influence being diminished by the union of 1841, it was 
 actually increased, until at last his attitude of steady resistance to the onslaughts of 
 western politicians on his institutions, and to their efforts to change the equality of repre- 
 
 ^ See WiDSor, "Critical and Narrative History of America," (vols. vi. and viii.), in which appears a carefully 
 prepared history of the emigration and character of the loyaliats, very interesting to the people who now inhabit 
 the countries which that class did so much to develop. 
 
 ^ Imp. Act, 3 and 4 Vict., c. 35. 
 
ON COMPAEATIVE POLITICS. 17 
 
 sentation given the two provinces by the Act of 1840/ was among the causes that brought 
 about'the great political change in the situation of all the provinces of British North 
 America, which gave him a vantage ground he could never have hoped for a quarter of a 
 century before. The confederation of the provinces restored him to the position of which 
 the Act of 1840 in a measure deprived him, and enabled him to surround his special 
 institutions with additional guarantees of protection and security. 
 
 During the period of political evolution which went on from the establishment of 
 representative institutions down to the passage of confederation and the formation of a 
 Dominion covering half a continent, the political student will see how history must 
 repeat itself under analogous conditions of national and popular struggle. In all the pro- 
 vinces, according as the defects of the legislative system granted by England to her 
 colonies showed themselves in its operation, there was a persistent contest between 
 the popular assemblies and prerogative, as represented by the governors and upper 
 houses appointed by the same authority. Charles the First, with all his arrogance, never 
 treated his parliament with greater superciliousness than did Sir James Craig, when 
 governor-general, on more than one occasion when the assembly had crossed his wishes. 
 With the choleric impetuosity of a man more accustomed to the camp than to the council 
 he told the assembly of Lower Canada that they had " wasted in fruitless debates, excited 
 by private and personal animosity, or by frivolous contests upon trivial matters of form, 
 that time and those talents to which, within your walls, the public have an exclusive 
 
 title So much of intemperate heat has been exhibited in all your proceedings, and you 
 
 have shown such a prolonged and disrespectful attention to matters submitted to your 
 consideration, by the other branches of the legislature, that, whatever might be the for- 
 bearance and moderation exercised on their part, a general good understanding is scarcely 
 to be looked for without a new assembly." ^ Such language could not be used under the 
 present system since the governor-general only speaks on the advice of his official advisers, 
 but in the old times, in the absence of a ministry responsible to the assembly, a conflict 
 was always going on between that body and the representative of the Crown. But this 
 was not the only cause of irritation that led, at last, to demonstrations of popular disafiec- 
 tion. The assembly claimed full control over the taxes and revenues which belonged to 
 the people of the provinces, — an assertion of right fully justified by the experience of the 
 working of representative institutions in England. The presence of judges in the legis- 
 lature was a just cause for public discontent for years, and although these high function- 
 aries were at last removed from the assembly, they continued to sit in the upper house 
 until 1840. The constant interference of the imperial government in matters of purely 
 local concern led to many unfortunate misunderstandings, chiefly owing to the misrepre- 
 sentations of the ofiicial class, and the inability of some inexperienced governors to 
 understand the necessities of the provinces and sound principles of local self-government. 
 As in all similar conflicts between prerogative and people — as happened in England 
 during the seventeenth century — the people won at last ; and it is one of the most 
 memorable achievements of Lord Durham and of Lord Eussell that they were among the 
 first of English statesmen to appreciate the wants and necessities of the colonies and lay 
 down general principles which led to the complete recognition, eventually, of the system 
 
 ^ See Bourinot, " Manual of the Constitutional History of Canada," pp. 49, 52. 
 2 Christie, "History of Lower Canada," i. 282-286. 
 
 Sec. II, 1890. 3. 
 
18 JOHN GBOEGB BOUEINOT 
 
 of responsible government which Canada now possesses.^ As we look back for the one 
 hundred and thirty years that have passed since the concession of Canada to England we 
 can see that the political development of the provinces now constituting the Dominion is 
 owing to the passage of certain measures and the acknowledgment of certain principles 
 which stand out as so many political milestones in the path of national progress. Briefly 
 summed up, these measures and principles are as follows : — 
 
 The establishment, at an early period of Canadian history, of the principle of religious 
 toleration, which relieved Eoman Catholics of disabilities which long afterwards existed 
 in G-reat Britain. ^ 
 
 The establishment of trial by jury and the right of every subject to the protection of 
 the writ of habeas corpus. ' 
 
 The guarantees given to the French Canadians for the preservation of their civil law 
 and language. * 
 
 The adoption of one system of criminal law in French and in English Canada. ' 
 
 ^ See Lord Durham's " Report," p. 106. Eesponsible government was not established in a complete sense in 
 Canada until after the arrival of Lord Elgin in 1847. By 1848 it was in full operation in all the provinces of Brit- 
 ish North America, except Prince Edward Island, where it was only established in 1850-51. — Bourinot's "Manual," 
 pp. 36-40, 100. British Columbia did not receive it until after the union with Canada in 1871. — Ibid, 102. Sir Gavan 
 DuflFy in an article in the 'Contemporary Eeview,' May, 1890, shows how reluctant the imperial authorities were 
 for years to grant the concession, but he does not do sufficient justice to Lord John Russell, in this particular. 
 No doubt there was too much hesitancy on the part of English ministries to grant responsible government, but it 
 is partly explained by the fact that.'' at first ministers at home were apprehensive lest the application of the prin- 
 ciple to a dependency should lead to a virtual renunciation of control by the mother country.'' May, " Constitu- 
 tional History," II. 533. Lord Melbourne, as his recently published correspondence shows, was quite indifferent 
 to the matter, and it was left to Lord John Russell to carry out the policy laid down in the report, to which Lord 
 Durham's name is appended, but of which the actual author was the astute Charles Buller. See ' Edinburgh Re- 
 view,' April, 1890, " Lord Melbourne's Papers." It is an interesting fact, also to be placed to Lord Russell's credit, 
 that he was the premier of the ministry that appointed Lord Elgin, and gave a complete recognition of responsible 
 government in the provinces of British North America. It was a fortunate thing for Canada that an able and 
 sagacious governor like Lord Elgin was entrusted with the power to follow Earl Grey's wise dictum that '' it is 
 neither possible nor desirable to carry on the government of any of the British provinces in North America in 
 opposition to the opinion of the colonists." 
 
 ^ The Quebec Act of 1774 was the real charter of the religious liberty of the French Canadians ; to it all other 
 acts have been only the necessary and logical corollaries. See Bourinot's " Manual," pp. 12-16. 
 
 * The Canadian ordinance of 1785 (25 George III, chap. 2) regulating procedure in courts of justice, established 
 trial by jury in matters of commerce and of personal wrongs, and the English forms with respect to proof in certain 
 cases. — Lareau, i. 326. Of course trial by jury formed part of the criminal law after the cession, and the king 
 instructed General Murray to pass an ordinance to permit French as well as English to sit as jurymen. — lUd, 
 96-97. As to civil matters the Code of Procedure now fixes in what cases a trial by jury is allowable. — Ibid, 413, 
 et seq. The law of habeas corpus (31 Charles II, c. 2) necessarily made part of the English criminal law when 
 introduced into Canada, but the French Canadians were not content until they had a provincial law passed " pour 
 la sliret6 de la liberty du sujet dans la province de Qu6bec et pour empgcher les emprisonnements hors de cette 
 province." — (Ordinance of 20 April, 1784; 24 George III, c. 6). The Constitutional Act of 1791 continued this 
 ordinance in force. 
 
 * Previous to 1774 there was great uncertainty as to the laws that should prevail in Canada. The Quebec Act 
 established the civil law permanently. — Bourinot's " Manual," ii. 15. Attorney-General Thurlow ably and judi- 
 ciously argued that by a fair interpretation of the law of nations, and of those principles of justice that should 
 govern the relations of a conqueror with a conquered people, the French Canadians had a right to the continuance 
 of their old laws.— Christie, "History of Lower Canada," i. 46-61. 
 
 ^ Canada was subject to the criminal law of England since the king's proclamation of 1763, but it was perma- 
 nently established by the Quebec Act of 1774. The French Canadians always accepted its provisions as more 
 humane than their old criminal code. — Lareau, i. 301. 
 
ON COMPAEATIVB POLITICS. 19 
 
 The establishment of representative institutions in every province of Canada. 
 
 The independence of the judiciary and its complete isolation from political conflict. 
 
 Full provincial control over all local revenues and expenditures. ^ 
 
 The initiation of money grants in the people's house. ^ 
 
 The right of Canadian legislatures to manage their purely local affairs without any 
 interference on the part of English officials in the parent state. 
 
 The establishment of municipal institutions and the consequent increase of public 
 spirit in all the local divisions. ' 
 
 The abolition of the seigniorial tenure and the removal of feudal restrictions anta- 
 gonistic to the conditions of settlement in a new country. * 
 
 The adoption of the English principle of responsibility to the legislature, under 
 which a ministry can only retain office while they have the confidence of the people's 
 representatives. '^ 
 
 All these valuable privileges were not won in a day but were the results of the 
 struggles of the people of Canada up to the time of the establishment of the federal union 
 which united the provinces on the basis of a central government, having control of all 
 matters of general or national import, and of several provinces having Jurisdiction over 
 such matters of provincial and local concern as are necessary to their existence as dis- 
 tinct political entities within a federation. At the present time the Dominion of Canada 
 may be considered subject to the following authorities : — 
 
 The queen as the head of the executive authority. 
 
 The imperial parliament. 
 
 The judicial committee of the privy council as the court of last resource for the whole 
 empire. 
 
 The government of the Dominion, consisting of a governor-general, a privy council 
 and a parliament. 
 
 The governments of the provinces, consisting of a lieutenant-governor, an executive 
 council, and a legislature, generally of a bi-cameral character. 
 
 The courts of law, which can adjudicate on all questions depending on the construc- 
 tion of the written constitution. 
 
 The British North America Act of 1861, " or Constitution, under which Canada is 
 
 ' Bourinot's " Manual," pp. 45-46. The Union Act of 1840 was the great charter of colonial freedom under 
 which Canada gradually obtained complete control over its tariffs and revenues. The other provinces obtained 
 similar rights between 1840 and I860.— See Gray, " Confederation," chap. x. 
 
 ^ In the old legislatures of Canada, previous to 1840, all applications for pecuniary assistance were addressed 
 directly to the House of Assembly, and several governors, especially Lord Sydenham, have given their testimony to 
 the injurioiis effects of the system. The Union Act of 1840 placed the initiation of money votes in the governor, and 
 the British North America Act of 1867 continued the rule. — Bourinot, " Parliamentary Practice in Canada," p. 463. 
 
 ^ See Bourinot's " Local Governtnent in Canada," ' J. H. U. Studies,' vii. or ' Eoyal Society of Canada Trans- 
 actions,' vol. IV. The Canadian Act of 1845 is the basis of the municipal institutions of Canada. All the pro- 
 vinces have practically followed the system of the province of Ontario. 
 
 * In 1854. See Bourinot's " Manual," p. 43. ^ See mpra, p. 18, note 1. 
 
 « The British North America Act (Imp. Act, 30 and 31 Vict., c. 3, amended by 34 and 35 Vict, c. 28, and 38 
 and 39 Vict., c. 38), which received the assent of the queen on the 29th of March, 1867, and came into force by 
 royal proclamation on the first of July in the same year, gave a constitutional existence to the Dominion of Canada, 
 which at the time comprised only the four provinces of Quebec and Ontario — previously known as Upper and 
 Lower Canada — and of Nova Scotia and New Brunswick. In the course of the succeeding six years the provinces 
 of British Columbia (Can. Stat., 1873, p. 9) and Prince Edward Island (ibid, 1872, p. 84) were added to the union. 
 
20 JOHN GEOEGE BOUEINOT 
 
 now governed, is the emanation of the united wisdom of the Canadian statesmen who 
 met in Quebec in the autumn of 1864, but derives its sanction as a law from the consent 
 of the queen, lords and commons, — the supreme legislature of the empire. It defines the 
 respective authorities in the Dominion and in the provinces, distributes the various sub- 
 jects of legislation among those authorities, regulates the general administration of public 
 affairs, and establishes a financial basis for the provinces. In all essential features neces- 
 sary for the administration of public affairs the government of Canada is conducted on 
 the well understood principles of that remarkable system of charters, statutes, conven- 
 tions and usages, to which the general name of the British constitution is given. Excep- 
 tion has been taken by an eminent constitutional writer to the statement in the preamble 
 of the British North America Act that the provinces " have expressed thSir desire to be 
 united into one Dominion with a constitution similar in principle to that of the United 
 Kingdom." Professor Dicey states his opinion,^ in very emphatic terms, that the word 
 " states " should have been substituted for " kingdom," since it is " quite clear that the 
 constitution of the Dominion is modeled on that of the United States ; " but this distin- 
 guished and generally astute writer, has failed to appreciate, to its full extent, the character 
 of the government of the Dominion. It is true that the basis of the confederation neces- 
 sarily rests on principles akin to those of the great union, which is the most remarkable 
 illustration of the federal principle that the world has ever seen. We might even call upon 
 Mr. Dicey to study Mr. Bryce's able work on the American Commonwealth, in which he 
 will find more clearly shown, than has been heretofore done by any other writer, that the 
 government of the union and of the states themselves is based on the great principles 
 of the constitutional system and the common law of England, modified to suit the 
 changed conditions and circumstances of a democracy. ^ As a matter of fact, Canadians 
 have adhered closely to the great principles that give, at once, strength and elasticity to 
 the English constitution. The written constitutional law itself contains indubitable 
 evidence of the truth of the preamble to which exception has been taken. We see this 
 clearly in the nature of the executive authority, in the constitutions of the parliament 
 and legislative bodies, especially of the lower houses, and in the formation of the privy 
 council. Bnt in addition to the written fundamental law we have that great mass of 
 English conventions, understandings and precedents, which, although they may not be 
 pleaded in the courts, have, practically, as much force in Canada as the written or statu- 
 tory law. ' 
 
 Against the opinion of Mr. Dicey we may cite that of the most distinguished student 
 of constitutions from the historical point of view, to whom we owe the coining of 
 that phrase applied to the new science, so much studied in these days, known as Com- 
 parative Politics. Professor Freeman has very truly said, in a review of the constitution 
 of the Dominion, that " Canada, very far from purely English in blood or speech, is pre- 
 
 and a new province under the name of Manitoba {ibid, 33 Vict, c. 3) carved out of the vast North- West Territory, 
 which was formally transferred to the Dominion by an imperial order in council, after the purchase of the rights 
 of the Hudson's Bay Company, which had held trading privileges over that vast region by virtue of charters from 
 the Stuart kings. This vast region is now divided into five provisional districts for the purposes of government 
 known as Keewatin, Assiniboia, Alberta, Saskatchewan and Athabasca'. (Imp. Stat. 31 and 32 Vict., c. 105 ; ib. 34 
 and 35 Vict., c. 28 ; Imp. Orders in Council, 1870 and 1880 ; Bourinot's " Manual," pp. 58-60, 105). 
 
 ' " The Law of the Constitution " {3rd ed.), pp. 155, 156. 
 
 ' See second paper of this series. " See Bouriiiot, " Federal Government in Canada," pp. 33-35. 
 
ON COMPAEATIV^E POLITICS. 21 
 
 eminently English in the development of its political institutions." He recognizes the 
 fact '' that there is a distinct and visible element which is not English — an element vphich 
 is older than anything else in the land and which shows no sign of being likely to be 
 assimilated by anything English ; but with this marked exception, or something more 
 than an exception to the English character of Canada, the political constitution of Canada 
 is yet more English than that of the United States." ^ While there is a distinct element 
 in Canada which is not English, it is assuredly the influence and operation of English 
 institutions which have, in a large measure, made French Canada one of the most con- 
 tented communities in the world. The language and law and religion of Rome still 
 remain in all their old influence in the province, but it is, after all, the political constitu- 
 tion which derives its strength from English principles that has made this section of 
 Canada a free and self-governing community, and given full scope to its civil and local 
 rights. In its political development French Canada has been, and is, as essentially 
 English as the purely English sections of the Dominion. 
 
 "When we review the political and the judicial system of the Dominion we can see 
 that there are certain broad principles which, above all others, illustrate in their practical 
 operation the "pre-eminently English" character of our institutions, and which may be 
 briefly summarised as follows : — 
 
 The Supremacy of the Law. — The people of Canada are all equal in the eyes of the law, 
 and for every breach of that law the courts are open to the state as well as to 
 individuals. The old saying is eminently true of Canada — the law is no respecter of 
 persons, and the highest functionary as well as the humblest indiAadual equally enjoy 
 free speech and all the liberties of British subjects, but they must act strictly within the 
 law. The governor-general himself can freely exercise that discretionary power which he 
 possesses as the head of the executive, and is guided and limited by well understood rules 
 in the exercise of his political prerogatives. In the discharge of these discretionary and 
 political functions he is, generally speaking, free from the control of the courts. But, 
 exalted as is his position, if he should violate the law, even under the advice of a 
 
 'Professor Freeman's remarks on this point are so suggestive that I cite them herein full, especially since 
 they have not appeared in any edition of his well-knovpn works : — " It is not wonderful that the attention of political 
 students, both in Great Britain and in the United States, should be largely drawn to the third development of 
 English political life which lies between the two. For Canada, very far from purely English in blood or speech, is 
 pre-eminently English in the development of its political institutions. The phenomena of Canada at once supply 
 an answer to the cavils which one sometimes hears on both sides of the ocean against the truth of the still essen- 
 tiaUy English character of the independent colonies of England. These colonies, strictly English in their origin, 
 have annexed possessions of the united provinces of Sweden, of France, and of Spanish-speaking Mexico. Settlers 
 from various European nations have found a home among them ; there are districts in the United States where more 
 German is heard than English ; and the law declares the African enfianchised under President Lincoln's procla- 
 mation to be as good a citizen as the direct descendant of the first settler in Virginia or at Plymouth. In this last 
 ease indeed nature has proved herself too strong for law. The European settlers meanwhile, important as they 
 are, are gradually assimilated into the greater English mass. It is in several states found expedient for the law to 
 recognize here the language of German immigration, the language of the earlier French or Spanish settlers, as a 
 secondary legal tongue ; there are districts in which more German is heard than English ; but there is no state 
 which can be called primarily German, French or Spanish. The law of England is the groundwork of the law of 
 every state, save where the eternal law of Eome has been beforehand with it. So, we may say, it is in Canada 
 also ; only the French element in the Province of Quebec, no remnant, but a living and advancing thing, is quite 
 another matter from the French survival in Louisiana. In Canada there is a distinct and visible element which is 
 not English, an element which is older than anything English in the land, and which shows no sign of being 
 likely to be assimilated by anything English. But, with this marked exception, or something more than an 
 
22 JOHN GEOEGB BOUEINOT 
 
 minister, his conduct may be brought under the purview of the courts, as in the case of 
 the most ordinary individuals in the land.' The law is the governing principle of the 
 state. The writ of habeas corpus — a principle of common law, given additional force and 
 sanction by statute — has existed in Canada for a century and more, and any man who 
 thinks he has been arrested and confined without due authority of law has always his 
 remedy in this safeguard of individual freedom. Even in the case of persons who are 
 subject to extradition under British treaties with foreign powers applying to Canada a 
 person under arrest can avail himself of this writ and bring himself before the courts to 
 test the regularity of his arrest. There does not exist in Canada, not in French Canada 
 even, that system of administrative law {droit administratif) ^ which makes all officials of 
 the state, and in fact all persons who have business or connection with the administra- 
 tion, independent of the jurisdiction of the ordinary courts, and provides them with a 
 resort to special official tribunals not open to cases of dealings between private indivi- 
 duals. No doubt this exceptional system of law had its origin in the times when the 
 Crown in France and in other parts of Europe began to exercise arbitrary poWer and to 
 conduct all the afiairs of state ; and we can see in the claims of prerogative by the 
 Stuart kings the assertion of a principle which is decidedly antagonistic to the spirit of 
 individual liberty and to that supremacy of the law which has ever been a fundamental 
 doctrine of English government. 
 
 The Influence of the Common Law. — In the years that preceded the passage of the Quebec 
 Act in 1*114:, there was great dissatisfaction in French Canada owing to the uncertain 
 state of the laws. The French, or " new subjects," claimed with justice that they were 
 entitled to the laws to which they had been always accustomed, while the English, or 
 " old subjects," contended that the English law should prevail. It was decided, in con- 
 sonance with the spirit of justice and the principles of public law applicable to such cases,' 
 that the civil law of Canada, which was based on the coutume de Paris, should continue in 
 force in the French province while the criminal law of England was accepted from the 
 
 exception, to the English character of Canada, the political constitution of Canada is yet more English than that of 
 the United States ; indeed, both the federal constitution and the constitutions of the several states are as English 
 as they well could be under the circumstances, but the circumstances of Canada allowed a much closer following of 
 English models. And that, not because Canada is a dependency of Great Britain, liot because its constitution was 
 enacted by the parliament of Great Britain, but for a simpler reason, that Canada has not a president or a council, 
 but a queen for its head. And the fact that Canada has a queen for its head in no way hinders the practically 
 republican working of the Canadian system. Where there is any occasional hindrance of that working, it comes, 
 not from the fact of the royal head, but from the fact of the dependent relation. That relation involves occasional 
 reference to a power out of the country. But this has nothing to do with forms of government ; it would be equally 
 so if the constitution of the superior power were republican. Subject to this necessary condition of dependence, 
 Canada possesses in its fulness that characteristic feature — some think it that characteristic advantage — of con- 
 stitutional monarchy that the actual ruler can be got rid of at any moment or kept for any length of time. The 
 practice of the mother country could be transferred whole to the colony, because the colony remained part of the 
 dominions of the same sovereign as the mother country. The United States, by the necessity of their position, 
 were driven to the system of a chief magistrate chosen for a definite time, and who cannot be kept on beyond that 
 time without a formal act." This extract is from a review in the ' Manchester Guardian' (Jan. 2, 1890), of a work 
 by the author of this paper and of one by Professor Munro of Owens' College. 
 
 1 Hearn, " Government of England," p. 133 ; Dicey, p. 181, 
 
 '•' For an admirable exposition, in a brief compass, of this special class of law, peculiar to France and some other 
 continental nations, see Dicey's " Law of the Constitution," chap. xii. But while there is not in Canada such a 
 legal system, there is an Exchequer Court for the adjudication of claims against the Crown, but it practically 
 gives an additional guarantee to the rights of the private individual, in case of disputes with the government, and 
 affords no exclusive privileges to public officials. 
 
OlSr COMPAEATIVB POLITICS. 23 
 
 beginning and consequently prevailed throughout British North America. From that time 
 to this the civil law, modified in certain respects to suit a new state of things, has 
 remained the law of French Canada. Outside of the French province, however, that great 
 system of customs and judicial decisions, which received its legal sanction from imme- 
 morial usage and universal reception, and is generally known as the common law, has 
 always obtained in the English-speaking provinces. In Canada, as in the old colonies of 
 America, wherever there is an English community, it was brought with the people as 
 one of their most valuable inheritances, although at no time did they accept it in its 
 entirety, but only such parts as were adapted to the conditions of a new country. Modified 
 or enlarged from time to time by statutory law, relieved, as far as possible, from the im 
 I)ress of feudal times, it has always been the basis of the jurisprudence of English Canada, 
 and has made its influence felt even in the French province, since its great principles 
 of individual liberty and practical political sagacity are so closely interwoven with the 
 public life of the country. The civil law commends itself to us for its logical precision 
 and arrangement, but the great system of law from which it is derived is far from being 
 so well adapted to develop individuality of character or give so much scope for the play 
 of political forces. A high authority has said with much truth, that, on the whole, the 
 common law system of England " was the best foundation on which to erect an enduring 
 structure of civil liberty which the world has ever known." It is the peculiar excel- 
 lence of this law " that it recognizes the worth, and ought especially to protect the rights 
 and privileges of the individual man." Its maxims are " those of a sturdy and indepen- 
 dent race, accustomed, in an unusual degree, to freedom of thought and action, and to a 
 share in the administration of public affairs ; and arbitrary power and uncontrolled 
 authority were not recognized in its principles." ^ 
 
 The Independence of the Judges. — It is a fundamental principle of the Canadian system 
 of government, based as it is on that of England, that the judges should be, as far as pos- 
 sible, independent of the Crown, and of all political influence. The Canadian judges hold 
 their tenure " during good behaviour," the legal effect of which is, practically, " the crea- 
 tion of an estate for life in the office." ^ Under the terms of the British North America 
 Act the judges of all the courts of Canada, except the judges of probate in the small prov- 
 inces, are appointed by the governor-general acting under the advice of his council, and 
 are removable only on the address of the two houses — an exception being made in the 
 case of the county court judges, who can be removed for sufficient cause by the governor- 
 in-council. ^ The salaries of the judges, also, are not voted annually, as in the case of the 
 majority of public officials, but are paid under the authority of statutes. In the case of 
 the salaries of the supreme court judges of Canada — a body federal in its character — the 
 parliament of Canada exercises a control which is very wisely not entrusted to congress, 
 inasmuch as it is a provision of the United States constitution that the salaries of the 
 judges of the supreme and inferior courts shall not be diminished during their tenure of 
 office. In all essential respects, however, the parliament of Canada can regulate the judi- 
 cial powers of the supreme court, but in the case of the courts of the provinces they are 
 practically beyond federal jurisdiction, inasmuch as the administration of justice in the 
 
 ' Coole}', " Constitutional Limitations," p. 30. 
 
 ' Todd, " Parliamentary Government in England," II. 857- ^ Bourinot's " Manual," p. 172. 
 
24 JOHN GEORGE BOURIlsrOT 
 
 provinces, including the constitution and organization of the provincial courts, both of 
 civil and criminal jurisdiction, and including the procedure in civil matters in those 
 courts, forms a class of subjects placed by the fundamental law withiu the exclusive con- 
 trol of the provincial authorities. The courts of Canada possess powers which are not pos- 
 sessed by the courts of England. The parliament of England is a constituent and sove- 
 reign body, and its power to pass any act cannot be called into question or its wisdom or 
 policy doubted in any court of the realm. The judge cannot even speculate on the inten- 
 tion of the legislature or construe an act according to his notions of what ought to have 
 been enacted. ' " The power and jurisdiction of parliament," says Sir Edward Coke, "is 
 so transcendent and absolute, that it cannot be confined, either for persons or causes, within 
 any bounds." And again "it hath sovereign and uncontrolled authority in the making, 
 colifirming, enlarging, restraining, abrogating, repealing, reviving and expounding of 
 laws, concerning matters of all possible denominations, ecclesiastical or temporal, civil, 
 military, maritime, or criminal ; this being the place where that absolute despotic power, 
 which must in all governments reside somewhere, is entrusted by the constitution of the 
 kingdoms." ^ On the other hand the Canadian courts, like those of the United States, 
 where there are written constitutions, can exercise responsibilities which place them 
 above the legislature, since they may limit the legislative power by declaring to be null 
 and void any enactment which is not in accordance with the express or implied authority 
 of the constitutional or fundamental law which defines the jurisdiction of the respective 
 legislative bodies of the Dominion. In the generality of cases the courts of Canada only 
 exercise this judicial power in the natural process of law ; in other words, in cases the 
 decision of which depends on the interpretation to be put on the lauguage of the constitu- 
 tional law applicable to those cases. The scope of the constitutional authority of the 
 courts has been, however, enlarged by the power given from time to time to the supreme 
 court of Canada to state their opinion on a question involving nice and intricate points of 
 constitutional law ' and also by the passage of an act in 1890* by the Ontario legisla- 
 ture giving the highest courts of that province the right to decide on constitutional con- 
 troversies after due argument on behalf of the parties interested. When we come to con- 
 sider that, in addition to these responsibilities, the courts of Canada can exclusively try 
 cases of controverted elections — a power, previous to 1874, only exercised by the political 
 bodies of the Dominion, and not even now possessed by the courts of the United States — 
 it must be evident how great an influence the judiciary exercises in the practical working 
 of the Canadian system of government, and how necessary it is that it should be sur- 
 rounded by all the checks and guards that have been developed in the working of the 
 judicial system of England. Any federal system like that of Canada must, in a great 
 measure, gather its real strength from the decisions of the courts which are called upon, 
 
 1 Maxwell on Statutes, 6-7. 
 
 * Coke, 4 Inst. 36. "The solutions arrived at seem to show that where the language of the legislature is 
 plain and unambiguous, no considerations of convenience or public policy can influence the court to affix to it a 
 meaning different from its literal and ordinary sense. 'The acts are the law of the land, and' we [the judges] do 
 not sit as a court of appeal from parliament. We have no authority to act as regents over parliament or to refuse 
 to obey a statute because of its rigour.' Our judges always strive to keep within the spirit if not within the pre- 
 cise words and literal meaning of an act of parliament." Broom's " Philosophy of Law " (New York ed.) 19-20. 
 
 3 Bourinot, " Federal Government in Canada," ' J. H. U. Studies,' 66, 67. 
 
 * Ont. Stat. 53 Vict, c. 13. See also Ont. Rev. Stat., c. 44, sub. s. 2 of s. 52, & s. 55. 
 
ON COMPAEATIVE POLITICS, 25 
 
 from time to time, to adjudicate on the many questions that arise with respect to the 
 rights and powers of the several provinces which have entered into, what may be con- 
 sidered, a solemn treaty to which the imperial parliament, as the supreme legislative 
 authority of the empire, has given its authoritative legal sanction. Accordingly the 
 security of the federal union largely rests on the legal acumen and independence of the 
 courts. 
 
 The Controlling Power of the Commons^ Houses. — When the early constitutions of the 
 Canadian provinces were organized, it was expressly stated by the highest authorities 
 that the object was to assimilate them to the constitution of Great Britain as nearly as the 
 differences arising from the manners of the people and the circumstances of the country 
 would permit.^ Accordingly in the latter part of the eighteenth century we see in com- 
 plete operation a system of government constituted as follows : — 
 
 The Crown represented by a governor-general in Lower Canada, and lieutenant- 
 governors in the other provinces. 
 
 A legislative council nominated by the Crown. 
 
 An assembly elected by the people on a franchise, generally the old English forty 
 shillings freehold.^ 
 
 In Canada, as in Grreat Britain, the old battle for power was fought between the 
 representatives of the people and the body under the direct influence of the Crown, and 
 owing no direct -responsibility to the people. It was clearly the hope of the imperial 
 government to found in this country an aristocratic body, which, by the permanent 
 tenure of its members, and the nature of its 'constitution, would bear such analogies as 
 would be possible in a new country to the great House which is the true descendant of 
 the Witenagemot.' In the Canadian constitution of 1191 titles were to be connected with 
 seats in the legislative council, obviously with the view of establishing a body of hereditary 
 legislators, who would probably form a counterpoise to the necessarily democratic character 
 of the people's house. Such efforts to found purely aristocratic institutions were a failure 
 from the outset. The upper houses of the provinces have always contained a number of 
 distinguished men in every pursuit of life, but from the very nature of their constitution 
 they have been exceedingly weak as political bodies. Before the days of responsible 
 government they became associated in the public mind with the tyranny of executive 
 authority, and were regarded as antagonistic to every movement or measure connected 
 
 ^ Despatch of Lord Grenville to Lord Dorchester, 20th Oct., 1789 ; Christie ii. 16-26, app. See also speech of 
 Lieutenant-Governor Simcoe to Upper Canadian Legislature, 1792, Read's " Life and Times of General Simcoe," 
 pp. U9-152. 
 
 2 " In 1430, (8 Henry VI,) was passed a very remarkable measure — the first disfranchising measure on record — 
 by which the qualification of county electors was restricted to freeholders, and of them to such only ' as have free 
 land or tenement to the value of forty shillings by the year at least above all such charges.' . . . Allowing for the 
 change in the value of money, this was equivalent to a real property qualification of from thirty to forty pounds 
 annual value, and must have disfranchised not merely all landless freemen, but a very large number of the smaller 
 freeholders." Taswell-Langmead, " Constitutional History," 3rd ed., pp. 344-345. In Massachusetts and the old 
 English colonies a similar freehold test was long in vogue. 'American Cyclopuidia of Political Science,' Art. 
 " Sufirage," p. 824. Now in the United States universal sufirage generally prevails, and is even advancing in 
 ' Canada— Ontario and other provinces having already adopted it, while the dominion suffrage is on the very verge 
 of the same principle. 
 
 ' Freeman, " Growth of the English Constitution," p. 64. 
 
 Sec. II, 1890. 4. 
 
26 JOHN GBOEGE BOUEINOT 
 
 with popular liberty or in accordance with the people's will. There could be only one 
 result to a contest between the two bodies, the one representing the people and the other 
 the good favour of the Crown, or of the government of the day. The issue was inevitable 
 in this country as it had been in England, where, even in the case of a house associated 
 with the history of the country from the earliest times, and containing within its ranks 
 men of the highest capacity, and having all the privileges of a body of hereditary legisla- 
 tors, its powers steadily declined, according as that of the lower house increased. With 
 the introduction of the English system of parliamentary government in its entirety, the 
 influence of the upper houses waned and the people's assembly grew in strength and 
 vigor. Now, in the central, and in the provincial governments, all substantial power 
 rests in the Commons' house of the respective legislatures. It controls the public expendi- 
 tures, exercises a direct supervision over the administration of public affairs, and, through 
 a committee of its own, governs the country. 
 
 Tlie Principle of Ministerial Responsibility. — From the earliest times of English history, 
 even when the framework of English government was being roughly laid, there was 
 always around the king a body of official advisers whom he could consult at his pleasure, 
 and who, in the course of time, became responsible for his executive acts. It was not, 
 however, until after the great revolution, about two centuries ago, that the present prin- 
 ciple of parliamentary government, which requires a government to be of one political 
 party, and act in conformity with the views of the ma,jority in the Commons, was prac- 
 tically laid down. In Canada only within half a century has this English system of 
 cabinet government obtained full recognitfon ; and now throughout the British empire, 
 wherever there are self-governing countries, we find ministries having seats in the two 
 houses — principally in the Commons' house, where the legislature is of a bi-cameral 
 character — and only holding office as long as they retain the confidence of a majority of 
 the people's representatives. It is this system which gives its great strength to the lower 
 or. elective house and, in a measure, invests it with executive responsibilities since it 
 governs through its own members 
 
 The Permanent lenure of the Civil Service. — In every country where the people govern 
 through their representatives in parliament, and where political conflict is necessarily 
 carried to extremes in all important crises involving the fate of governments, it is abso- 
 lutely necessary that there should be in existence an efficient and permanent organization 
 to conduct the details of public administration, whatever may be the fluctuations of party 
 controversy. The evils of a system which requires the great majority of public servants 
 to retire with a change of party, can be seen throughout the political history of the United 
 States for many years past, until at length there is a growing consensus of public opinion, 
 outside of the mere party machine, that permanency should be the ruling principle hence- 
 forth. Canada has long been governed in accordance with the sound British principle 
 which places at the head of the government a permanent executive authority, in the person 
 of the sovereign, and at the basis of the political structure a great body of public officials 
 who hold their tenure, in administrative phrase, " at pleasure," but in practice during 
 " good behaviour." Ministers discuss and decide questions of policy, which they submit 
 for the approval of parliament, and it is for the permanent officers of each department' 
 to carry out, with fidelity and intelligence, the methods and rules of that policy as soon as 
 it is sanctioned by law. 
 
ON COMPAEATIVB POLITICS. 27 
 
 In addition to these leading principles of government, essentially English in origin 
 and development, there are also to be observed in the nature and operation of the Cana- 
 dian system of parliamentary government other matters which, though apparently of 
 minor importance, are nevertheless of much significance since they are intimately con- 
 nected with the efficient administration of public affairs, and illustrate the tendency to 
 follow the English model in all essential respects, with only such modifications and 
 changes as a difierent state of things requires. "We see this tendency in the various stat- 
 utes of the provinces which continue to follow the statutory law of England and in the 
 organization and procedure of the courts of law. "We recognize this tendency especially 
 in the close adherence in all the legislative bodies of Canada, principally in the Dominion 
 and the larger provinces, to follow the rules and usages of the imperial parliament. In 
 all these countries parliament is opened with much ceremony, and the speech is read by 
 the representative of the Crown, with all the formalities characteristic of "an opening" 
 in "Westminster palace. Indeed in the United States it was the custom of "Washington to 
 follow English constitutional usage and deliver, in person, his annual address to congress, 
 but since his time it is sent, at the beginning of each session, by the hands of a private 
 secretary. ^ The written constitution of Canada does not in express terms require the 
 governor-general, or the lieutenant-governors, to open the legislature with English cere- 
 mony, or indeed to deliver the speech in person ; but in accordance with the practice of 
 invariably following the parliamentary usages of England, as far as possible, these 
 functionaries always come down to open parliament with a speech, unless by illness or 
 other unavoidable cause they are obliged to appoint a deputy for the purpose, ^ just as 
 the English parliament has been frequently of late years opened by commission. The 
 speech is formally answered by an address, petitions are presented, bills are introduced 
 and passed through their various stages, committees of supply and ways and means occupy 
 a great portion of time, questions are asked of the government, debate is conducted, and 
 in short all the proceedings are carried on in accordance with the rules and usages which 
 are the result of the experience and wisdom and business capacity of the great prototype 
 of all the legislatures of the colonial empire. Indeed, a visitor to a Canadian legislature 
 will see, in full operation, the old forms and usages of the English House of Commons 
 which existed before the adoption of the closure and other rigid rules, rendered necessary 
 by obstruction, that discreditable feature of modern parliamentary warfare. Some of the 
 old constitutional usages of England have been considered so important that they have 
 been incorporated in the written constitutional law. It is now a part of that fundamental 
 
 ' " George Washington used to deliver his addresses orally like an English king and drove in a coach and six 
 to open congress with something of an English king's state. But Jefferson, when his time came in 1801, whether 
 from republican simplicity, as he said himself, or because he was a poor speaker, as his critics said, began the prac- 
 tice of sending communications in writing; this has been followed ever since." Bryce, i. 73. 
 
 ^ In the first session of the legislature of Canada in 1841, the governor-general did not come down on the 
 first day, but the house proceeded to elect a speaker without any instruction. The Union Act of 1840, like the 
 B. N. A. Act of 1867, was silent on this point ; but exception was taken to the course of the governor-general at the 
 time, and ever since British constitutional usage has been followed. The governors of Canada have invariably de- 
 livered the speech in person, though it is now usual for a deputy-governor (generally the chief justice) to attend on 
 the first day of a new parliament and give the necessary constitutional authority for the election of the speaker. 
 Here we have another proof that the preamble of the B. N. A. Act is not, as Mr. Picey calls it, " a piece of official 
 mendacity." 
 
28 JOHN GEOEGB BOUEINOT 
 
 law, the British North America Act, that parliament should meet once every twelve 
 months,* that the recommendation of the Crown should be given at the initiation of 
 every money vote,^ and that the Commons' houses alone should commence measures 
 involving public burdens.' The senate generally follows — and so do the upper houses 
 usually — as nearly as possible, the procedure of the lords, but the constitutional law only 
 gives it and the commons the powers, privileges and immunities of the English House of 
 Commons, as enjoyed at the time of the passing of any Canadian act defining such powers.* 
 Consequently the powers of expulsion, suspension and commitment exist in full 
 force in the parliament of Canada, and the same is true of the provincial legislatures so 
 far as they have invested themselves, by statute, with all the powers necessary to their 
 existence as a legislative body.° "When the business of the session is concluded the rep- 
 resentative of the sovereign comes in state to the senate chamber, and there delivers the 
 closing speech, in which the principal measures of the session are detailed with ofiicial 
 brevity, and, at the same time, gives the royal assent to the various bills. In giving this 
 assent, he does not use that official phrase which is a relic of the times when Norman 
 influence was dominant in the courts, in parliament, and in public administration. In the 
 English House of Lords the sovereign still declares. La Reyne Je veult, though in accordance 
 with the modern principle of ministerial responsibility which has brought into disuse the 
 prerogative of veto — a prerogative not used since the days of Queen Anne — it is no longer 
 necessary for her to resort to the official phrase La Reyne s'avisera.^ In the majority of 
 the provinces the English language alone is used in the proceedings of the legislatures, 
 but in the parliament of Canada, and necessarily in the legislature of Quebec, the assent 
 is given in the two languages, though not in the Norman French of the English parlia- 
 ment. When the list of bills has been read by the clerk of the Crown, the clerk of the 
 senate uses the formal phrase : — 
 
 " In her majesty's name his excellency the governor-general doth assent to these 
 bills." 
 
 " Au nom de sa majesty, son excellence le gouverneur-general sanctionne ces bills." 
 
 In the case of the supply bill, it is presented as in England, by the speaker of the 
 Commons with the usual formal speech, and the governor-general then assents through 
 the clerk of the senate in these official terms, which are an adaptation of the sovereign's 
 assent ' : — 
 
 " In her majesty's name, his excellency the governor-general thanks her loyal subjects, 
 accepts their benevolence, and assents to this bill." 
 
 " Au nom de sa majeste, son excellence le gouverneur-general remercie ses loyaux 
 sujets, accepte leur bienveillance, et sanctionne ce bill." 
 
 But while we have adopted to our decided advantage the important principles of the 
 parliamentary and legal systems of England, we have at the same time been able, in 
 
 ' B. N. A. Act, s. 20. '' Ibid. s. 54. ^ Ibid. s. 53. 
 
 * Imp. Act 38-39 Vict. c. 38, s. 1, whicli amends s. 18 of B. N. A. Act. See Bourinot's " Parliamentary Pro- 
 cedure," pp. 187, 458-461. 
 
 * Bourinot's " Parliamentary Procedure," pp. 205-209. 
 
 " This procedure is equivalent to the " reserve " of a Canadian bill for the royal assent. See Ibid, p. 567 etseq. 
 ' '' La reyne remercie ses bons sujets, accepte leur benevolence, et ainsi le veult,' 
 
ON COMPAEATIVB POLITICS. 29 
 
 view of a new and changed condition of things, free from the trammels of the tradi- 
 tions and usages of an old world, to rid ourselves of many customs and practices 
 which have not been suitable to the circumstances of Canada. Though primogeniture 
 forms a part of the common law of England, it has, like other relics of feudal times — 
 the seigniorial tenure of Lower Canada for instance — long since passed away from the 
 law of the English speaking provinces, while it had never a place in the civil law of 
 French Canada. ' 
 
 Slavery had only a nominal existence at any time in Canada, and the moment its 
 legality was brought before the judges, they declared in emphatic phrase that slavery is 
 antagonistic to that principle of British liberty which allows no man to have absolute 
 power over the life, liberty and future of another, whatever may be his colour.^ The regis- 
 tration of titles and the conveyance of real estate have been rendered of great simplicity 
 as compared with the old English system, with all its legal complications and expenses ; 
 and improvements are still being made in the same direction — especially in the new 
 
 ^ The preference of males to females was quite agreeable to the laws of saccesslon among the Jews, and also 
 among the Athenians, but was almost unknown to the law of Eome, and to the customs which the barbarians prac- 
 tised on their first establishment within the Roman empire. In the evolution of the feudal system, females were 
 excluded since they were incapable of bearing arms and performing military service, and it became necessary to 
 preserve the dignity of estates, to which titles appertained, and to make them impartible. See Stephen, " Com- 
 mentaries," i. 403 et seq. ; Maine, "Ancient Law," pp. 235, 236.. Primogeniture was not abolished in Upper Canada 
 until 1851, when Mr. Baldwin, then the leader of the second Baldwin-Lafontaine ministry, brought in and carried 
 a measure for that purpose. The plan of descent and inheritance introduced by this Act (14-15 Vict., c. 6) is based 
 on the civil law and bears a close analogy to the mode of succession to personal estate established under a statute 
 passed in the reign of Charles II, and known as the Statute of Distributions. See Dent's " Canada since the Union 
 of 1841," ii. 232. It is interesting to note here, as a curious point of history, that in the legislation of Pennsylvania 
 (in 1683) early provision was made for the descent and distribution of intestate estates by which they were to be 
 divided among all the children, the oldest son having a double share, as in the system in vogue among the Jews. 
 Story, " Commentaries" (Cooley's ed. of 1873). i. sec. 125. Stephen, "Commentaries," i. 404. 
 
 ^ Slavery undoubtedly existed in Canada and Louisiana during the French regime and for some years after 
 the cession to England, though owing to the climate and to the discouragement of the Canadian authorities and 
 the Church it never obtained any substantial foothold. On the 13th April, 1709, the intendant issued an ordinance 
 (Edits et Ordonnances, iii. 471) relating to the sale and purchase of negroes, and of savages called Panis. By the 
 articles of capitulation of Montreal (art. 47) the institution had full recognition. In 1784, according to the census, 
 there were 304 black slaves in Canada, but the historian Garneau concludes that there were none at the time of 
 the conquest, and that the number in question belonged to merchants who had dealings with the United States, 
 and especially with the South. See Garneau, " Hlstoire du Canada," ii. 92, 95, 167 ; iii. 90, and Lareau, i. 285, 369 ; ii. 
 24. Dunn in his " History of Indiana " (Am. Commonwealth Series, pp. 125, 126), shows that slavery existed in the 
 state when it formed a part of the government cf Canada, and also of the government of Louisiana. In 1792, it was 
 proposed to pass an Act in the legislature of Lower Canada abolishing slavery, but it did not become law. Garneau 
 expresses the opinion that the bill failed because it was felt unnecessary in view of the opposition to the institution 
 of slavery in the country ; iii. 90. Several English-Canadian historical writers speak of a decision of Chief Justice 
 Osgoode in 1803 as practically abolishing slavery (even Johnson's " First Things in Canada," and McCord's " Hand- 
 book of Canadian Dates " state the same thing as a fact), but as that functionary left the province of Lower Canada 
 in 1801 there is evidently an error in the statement. It is a fact, however, that in 1793, while this gentleman was 
 chief justice of Upper Canada, and at the same time speaker of the legislative council of the province, he delivered 
 a charge to the grand jury, at one of the sittings of his Court, the efifect of which was to induce the legislature to 
 pass an Act which, while acknowledging the existing rights of masters, provided for the future liberty of the 
 children of slaves and practically abolished slavery in the province of Upper Canada. See Eead, " Lives of the 
 Judges of Upper Canada," p- 23. Slavery terminated throughout all the British colonies by Act of the Imp. Parlia- 
 ment, Aug. 1, 1834. 
 
30 JOHN aEOEGB BOUEINOT 
 
 territories of Canada — by the adoption of what is known as the Torrens' system of Aus- 
 tralia. ^ 
 
 The municipal system of Canada, especially that of the premier province of Ontario, 
 has been for many years an example for imitation to the parent state, where the com- 
 plicated and cumbrous system of local administration which had gone on for centuries 
 has only quite recently been, as far as practicable, simplified to meet the modern condi- 
 tions of things. In Canada the present system has been the result of the political develop- 
 ment of the country. In the early days of the provinces there was no township system 
 of government as existed in New England, and indeed the spirit of the imperial govern- 
 ment, for some time after the war of independence, was antagonistic to the establish- 
 ment of such institutions as prevailed in the old colonies. The loyalists do not 
 appear to have made generally any energetic efibrt to reproduce in their entirety the 
 institutions of the country from which they had fled. Be this as it may, the imperial 
 authorities were not ready to establish the township system of Massachusetts when it 
 was more than once suggested to them in the course of time, ^ or even to adopt such 
 advice as was given them by Lieutenant-Governor Simcoe, who, when in charge of affairs 
 in Upper Canada, recommended the adoption of a modified system of local administration, 
 over which the government could always exercise an immediate control, and in which 
 the popular element was, practically, in leading strings. His plan was to give the prin- 
 cipal towns a corporation " which should consist of a mayor and six aldermen, justices of 
 the peace, ex-officio, and a competent number of common councillors to be originally 
 appointed by the Crown ; " the succession to vacant seats to be made "in such a manner 
 as to render the elections as little popular as possible ; " such corporations being intended 
 " to tend to the support of the aristocracy of the country." The Duke of Portland, as the 
 mouthpiece of the imperial government regarded the proposition " as very unfit to be 
 encouraged by the parent state in a dependent colony," inasmuch as it was " only through 
 the executive power vested in the person having the government of the province that the 
 sway of the country could be exercised." * But Englishmen, wherever they may happen 
 to be, are sure, sooner or later, to show the natural tendencies of their race, and make 
 efforts to manage their affairs in accordance with the old methods of the parent state. 
 The colonies of New England, consciously or unconsciously, reproduced the old sys- 
 tem of primary assemblies and of township government as it existed in early English 
 
 ' This simple system of land transfer owes its origin to Sir Eobert Torrens, who was formerly connected with 
 the department of customs in South Australia. Its chief benefit is the indefeasable nature of the title obtained, 
 together with the speed and certainty of transfer and the abrogation of the necessity of abstracts of title. It is 
 now in operation in Toronto and the county of York, in Manitoba, and in the North-West Territories. The 
 " Torrens' System," by H. C. Jones (Toronto, 1886), gives an interesting review of the first legislation in Canada 
 on this subject. See also an article in the ' Canadian Monthly ' (vol. ix, p. 322) by Mr. Holmstead, who says that 
 it occurred to Torrens that " as in the selling of a ship there was no such difliculty, hazard, or expense about 
 ascertaining the title of the owner, the same system which had proved to be effective for the transfer of ships 
 might be made equally so for the transfer of lands." This is the basis of a system which is working admirably in 
 Canada and Australasia. 
 
 '' See John George Bourinot's " Local Government in Canada," in ' Johns Hopkins University, Studies,' 
 V. 200-218. 
 
 * See an interesting article on this subject in the ' University Quarterly Review ' of Toronto, April, 1890, by 
 Thomas Hodgins, Q. C. 
 
ON COMPAEATIVE POLITICS. 31 
 
 times.* In Canada, on the other hand, it was not tintil after the establishment of legis- 
 lative bodies that a system of local administration was slowly developed, generally on the 
 lines of the county system of England, in which the courts of quarter sessions composed 
 of magistrates, with a chairman, exercised so important a jurisdiction. In all matters of 
 large importance, however, the legislatures were so many municipal bodies who voted 
 the money required for roads, bridges and other public works, and it was not until after 
 the concession of responsible government in 1841 that the foundation of the present 
 municipal system of Canada was laid. This system naturally developed with the pro- 
 gress of the country in wealth, population and enterprise. As we trace back its history 
 we see " how, in this particular, the aptitude of the English race for local government 
 enabled them to adopt more readily the methods of an efficient system of local adminis- 
 tration than was the case with French Canada, where the mass of people were without 
 traditions of local government or any practical experience of its advantages, and were, 
 besides, reluctant to adopt changes which would involve local taxation. Although all 
 the provinces now possess a machinery of local self-government, yet it is the province of 
 Ontario which occupies the vantage ground in this respect, just as her people in the 
 old days of Upper Canada always showed greater energy and enterprise than the other 
 provinces in all matters of local importance. 
 
 The student of comparative politics will find much to interest him in the names of 
 the various local divisions and of the machinery of local administration in the provinces 
 of Canada, since he will see in them many illustrations of the closeness with which 
 Englishmen everywhere cling, even under modern conditions, to the nomenclature and 
 usages which associate us with the primitive times of English government, and illustrate 
 the gradations in the political and civil growth of England. The most important unit of 
 local government in Ontario is the township ^, which carries us back to the early days 
 when our English forefathers lived in their village communities, of which the " tun 
 " or rough fence or hedge that surrounded them was a characteristic and essential 
 feature. The chief officer of the township is the reeve, who, as an " active " or " excellent " 
 member of his community, took part in early English times in the various moots or public 
 
 ' Dr. Mellen Chamberlain, in an interesting paper read in January, 1890, before the Massachusetts Historical 
 Society, takes exception to the conclusions of the Modern Historical School, that the Englishmen wlio founded 
 New England, brought the form of their local institutions with them. " So our English ancestors," he says, "did 
 not bring English towns with them, nor English churches, nor vestries, nor British institutions. But on occasion 
 they builded for themselves, as Englishmen always and everywhere had done, and still do, according to the exi- 
 gencies of their situation, and after the manner of their race." But when so astute a thinker says this much, he 
 admits practically that the local institutions of the colonies are the inevitable evolution of old English or Teutonic 
 principles. It was not necessary for the colonists to have exact plans of local government " cut and dried " in the 
 ships that brought them over; as soon as they chose their new homes, they naturally followed the instincts of the 
 English race, and reproduced those English institutions which were suitable to their condition. 
 
 ■' Mr. McBvoy in an interesting essay on " The Ontario Township " ' Toronto University Studies in Political 
 Science,' shows that the backbone of local government in Ontario to-day is the township council, and that the 
 town meeting was a feature of early local administration which exerted a potent influence on the great mass of the 
 rural population of the same province, though of course it had never assumed the importance of the town meeting 
 of New England. In its modified form, however, it shows that the old Teutonic instincts of an English people, 
 wherever settled, assert themselves sooner or later in some form. For an instructive account of the township 
 system see " The Germanic Origin of New England Towns," by Dr. H. B. Adams, and " Town and County Govern- 
 ment in the English Colonies of North America," ' J. H. U. Studies,' vols, i & ii. 
 
32 JOHN GEOEGE BOUEINOT 
 
 assemblies of the township, the hundred, and the shire.' The alderman of the city and 
 town councils is a link connecting us with the system of shire government in early English 
 times ; but if modern aldermen cannot claim in any sense to be the equals in rank of their 
 eminent prototypes, if they have lost their ancient nobility, still they ought not to have 
 necessarily lost that practical usefulness which was probably also a distinguishing feature 
 of the title in the days when it had much significance.^ In Ontario there still remains an 
 electoral division, known as riding which carries us back to the time when the Dane came 
 across the North seas and made his home in the ancient shire of York.^ But alongside of 
 this old English nomenclature, we see also in many names of Canadian local institutions 
 a heritage of the Norman conquest of England. The largest division for municipal as well 
 as legislative purposes, long ago became the county and not the shire — a* name replaced 
 by the Norman French term when the conquerors reorganized the local divisions for 
 purposes of government. * The representative body for the local administration of the 
 
 ' The principal officers of the tun-gemot (see supra, p. 4 note) were the gerefa or headman, the bydel or messenger, 
 and the tithingman. Skeat (Etymol. Diet.) and Kemble (Saxons, II. 154) derive " Reeve " from Anglo-Saxon rof , 
 active or excellent. Stubbs, " Select Charters," p. 9, concludes that the reeve was the lord's nominee, when the 
 township was the property of a lord, who is a noble follower, comes, gesith, thegn, of the king, with jurisdiction 
 over the men of the township. The reeve settled petty disputes, collected contributions to the national revenue, 
 and with his companions represented the township in the court of the hundred, and in the folkmoot or shiremoot. 
 " The use of the name for the presiding officer of the township council [of Upper Canada] is peculiar to Canada, so 
 far as I know," says Professor Ashley in his introduction to McEvoy's essay on " The Ontario township ", " and 
 was possibly the result of the revived interest in early English institutions that marked the period. It may be 
 noticed that Kemble's Saxons in England, with its chapter on the Gerefa, had appeared in the preceding year." 
 
 ^ The ealdorman represents the princeps of Tacitus and Hacbald, and the satrap of Bseda, but he was also the 
 dux or herotoga. Soon after the settlement of each tribe, whether the followers of Hengist or Cerdic, the invaders 
 of East Anglia or Deira, a monarchy was set up under the most powerful ealdorman. With the process of conquest 
 and the incorporation of the smaller states, their chiefs sank into the position of vice-kings, governing under the 
 original title of ealdorman theirfornier districts, which now became practically and perhaps in name also shires. 
 In historic times the ealdorman was appointed in the central Witenagemot. Howard, pp. 301, 302. The ealdor- 
 man was superseded by the earl before the conquest and ceased to sit in the shiremoot. Stubbs, " Constitutional 
 History," i. 160. The lord lieutenant of English counties really represents the old office. Hallam, " Constitutional 
 History," ii. 133. The modern name of alderman obviously originated in the municipal history of London. 
 Green, " Conquest of England," p. 442 refers to the first record, in the time of Aethelstan, of a guild of a hundred 
 burghers who organized themselves in groups of three, each with its headman, the whole body being united under 
 an ealdorman, with definite provisions for common meeting and common contributions, with a view to the enforce- 
 ment of a rough police and self-government. One of the Oxford writers of " Essays introductory to the study of 
 English Constitutional History " (London, 1887), says with truth : " The organization of the English guilds was 
 that of brethren electing aldermen, and from^the early identification of the guild with the town, comes the fact that 
 the alderman is now a municipal dignitary, not the chief of a trades-union. For such in fact was the original 
 meaning of the guild merchant. The alderman therefore is a representative of the guild ; the mayor, on the other 
 hand, is the representative of the cbmmuna of the place ; for the last and crowning privilege of a town constitution 
 was that its communa should be ' concessa,' i. e. not a mere private association, but a body made legally recogniz- 
 able, with the privilege of choosing a mayor as its formal head and representative." See article in the " Essays on 
 the Anglo-Norman and Angevin administrative systems." 
 
 ^ The first settlement of the Danes was in Deira, in the area occupied by the present Yorkshire. Green, 
 " Conquest of England," p. 110. The riding is an aggregation of hundreds below the shire. Stubbs, "Constitutional 
 History," pp. 100, 108. It is a changed form of thriding or triding, according to Skeat. Long Island, which was 
 called Yorkshire in 1664, on the promulgation of the code of the Duke of York, was divided into three ridings 
 or judicial districts, which were probably rudimentary counties, corresponding roughly to those of counties 
 subsequently organized. Howard, pp. 358-360. 
 
 ' The shire is historically a West Saxon institution. It is necessarily a district " shorn oflf " from some 
 neighbour district. Scholars are now agreed that the first English shires were merely the old tribal states. By 
 
ON" COMPAEATIVB POLITICS. 33 
 
 county is not the folk-moot but is called the council, from an adaptation of a Eoman name 
 by the French. The mayor of the council is also an inheritance of the blending of the 
 Latin and French tongues.^ The parish of Lower Canada is, in its origin, a purely eccle- 
 siastical division, established in the days of the French regime, though it may be pro- 
 claimed a division for municipal purposes by the executive authority. In New Bruns- 
 wick there is also a division known as a parish, which appears to have been established 
 in the early days of the province in imitation of the local institutions of Virginia.^ But 
 the name itself connects us with very remote times when the ecclesiastical system of Rome 
 established itself in ancient Britain and Graul.' The coroners — the " crowners " of Shake- 
 speare's grave-digger in Hamlet — is one of the many evidences that our legal system gives 
 us of the predominance of the Latin tongue in the English law.* Centuries have passed 
 since they could exercise important judicial functions in the place of the sheriffs in the local 
 courts. The sheriff — the shire-reeve, or the head man of the shire — was long ago 
 deprived of the large powers he enjoyed in the administration of local affairs. But it is 
 interesting to note how this title remains to illustrate the history of his English origin just 
 as the custodes placitorum coronas — the old Latin name of the coroners — takes us back 
 to times when the Norman ruled.' The humble peace officer of the village and 
 
 the tenth century they became political and territorial divisions of the United Kingdom. The principal officers 
 were the ealdorman, and the scirgerefa or sheriff, and the principal assembly was the scirgemot, or shiremoot, 
 which had judicial and even legislative functions. Green, " Conquest of England," pp. 223 ; Howard, pp. 301, 302. 
 One of the results of the conquest by the Normans was the application of the Norman term of counts to the shire, 
 for purposes of government. 
 
 ' " It is most remarkable that we have adopted the Spanish spelling Mayor which came in in Elizabeth's 
 time, spelt maior in Shakespeare. Richard III, iii., i., 17, (first folio). The word Mayor was first used temp. 
 Hen. Ill, Liber Albus, p. 13." Skeat, Etym. Diet. The Mayors of the Frankish palace were hereditary offices 
 held by the greatest of baronial families, and the famous Charles belonged to the Martels who filled the position for 
 several generations. This name, like that of alderman, has diminished very much in rank since those 
 early times. Under the Normans the town reeve, who collected the dues for the king from the guilds or body of 
 the citizens in the burghs, represented the Mayor. Gradually the name was given to the town bailiffs of London, 
 and then free election was granted to the citizens by charter (10 John). See Gneist, '' History of English Constitu- 
 ■ tion,"i. 151, 152. And supra, p. 32 note, where it is shown how the name grew up with local administration in 
 the towns. 
 
 2 Bourinot, " Local Government in Canada," ' J. H. U. Studies,' v. 222, 238. 
 
 ' "The stages by which the township passed into its modern form of parish, and by which almost every trace 
 of its civil life successively disappeared, are obscure and hard to follow, but the change began with the first entry 
 of the Christian priest into the township . . . . In its election of village officers, of churchwarden and way- 
 warden, as well as in its right of taxation within the township for the support of church and poor, we are enabled 
 to recognize in the parish vestry, with the priest at its head, the survival of the village-moot which had been the 
 nucleus of our early life." Green, " Conquest of England," pp. 14, 15 ; Stubbs, " Const. Hist.," i. 96, 104, 260. 
 
 * " In the time of Eichard I, (1194) the pleas of the Crown were taken from the sheriff (see infra, note 5) and 
 given to a new officer called ' coroner,' chosen in the county court by the suitors there assembled, and so a national 
 rather than a royal functionary. Gradually losing all his duties save that of inquest in cases of murder, the 
 coroner drifted into his present modest position." " The Anglo-Norman and Angevin Administrative System,'' 
 " Essays introductory to the Study of English Constitutional History " pp. 140, 149. 
 
 * The scirgerefa or shire-reeve performed in early English times judicial as well as financial duties. Gradually 
 he arose to be also a great executive officer, and absorbed the judicial authority of the ealdorman and bishop in 
 the shire-moot, which continued the judicial authority of the folcgemot, or original assembly of the people in the 
 shire. He had charge of the royal estates and of the folkland . He levied all fines to the king, seized the lands 
 and chattels of criminals, and collected taxes levied on the nation by the Witenagemot. In Norman times his 
 powers did not decrease, but were even greater in fiscal matters. He tried pleas of the Crown in the capacity of a 
 royal justice. He was also given the command of the armed men of the shire when the old office of ealdorman 
 
 Sec. II, 1890. 5. 
 
34 JOHN GEOEGE BOUEINOT 
 
 town is still called a constable, but he has fallen decidedly from that high estate of ancient 
 days when his name represented a dignity which the great nobles of France and of 
 England were proud to wear.^ 
 
 It would be doubtless interesting to the student of Comparative Politics were I able 
 to continue much further this review of the characteristic features of the government of 
 the countries which make up the Dominion ; but I think I have already proved suffi- 
 ciently the truth of the assertion I made at the commencement of this lecture, that no 
 country in the world affords more material for thought to the political student than 
 Canada, possessing as she does two distinct nationalities, descended from the two great 
 peoples who have been for centuries engaged in the work of civilization on principles 
 which show, in the one case, the impress of the Eoman, and in the other' the influence of 
 the Teuton. But beyond any antiquarian researches into the origin and evolution of 
 institutions, is the practical problem which offers itself for solution when we come to 
 consider the position of the French Canadian among the English communities of the 
 federal union. Should we endeavour to find an analogy between the position of the Norman 
 in England and that of the Frenchman in Canada, we cannot but see that the circum- 
 stances of the two peoples are very different. The Norman, in the course of time, was 
 assimilated by the sturdy English race, and the result of this assimilation was that 
 admirable combination which is now known as the English people. The Norman has 
 enriched the old English tongue with many new terms necessary to that wider sphere of 
 political action which was the sequence of the conquest, and has engrafted new institu- 
 tions on the original basis of the old English social and political system which he never 
 at any time destroyed, although he gave it a more effective organization and a wider 
 scope in the course of centuries. The Saxon and Norman, have become English in 
 language, thought and aspiration. In Canada, on the other hand, a century and a quarter 
 has passed since the French Canadian became a subject of the English sovereign, and has 
 had remarkable opportunities for developing his national instincts under the free institu- 
 tions of England, and we see no signs of a lessening of attachment to the civil law, to the 
 
 fell into disuse. It is an interesting study to follow the gradual decrease in the powers of the sheriff until, with the 
 creation of justices' courts, and the evolution of regular national courts, he became the mere executive oflBcer of 
 the law that he is now. The formal abrogation of the sheriff's military power did not take place till Queen Mary 
 appointed a lord-lieutenant for each English county in 1556. In 1871 the militia jurisdiction of the latter functionary 
 reverted to the Crown. See Green, " Conquest of England," p. 230; Gneist, " Constit. Hist.," ii. 26 ;Stubbs, " Const. 
 Hist.," i. 113, 187, 206, 272, 394; Howard, 302-318 ; "Essays introductory to study of English Constitutional 
 History," pp. 37-39, 139, etc. 
 
 ^ Two valuable papers on " Constables," showing great research, will be found in the first volume of ' J. H. U . 
 Studies,' by Dr. H. B. Adams. The term was introduced into England through the Norman-French Connetable, 
 in old French Conestable or Cunestable, which is derived from the low Latin Constabulus (comes stabuli or count 
 of the stables). It was an oflBce belonging to a nexus of court institutions like those of chamberlain, cup-bearer 
 and steward. The office of Lord High Constable (Constabularius totius Anglise) came into prominence as an 
 hereditary oflBce in the person of Miles of Gloucester, in the reign of Stephen (1135-1154). He was the representative 
 of the king in all matters appertaining to castles and armies. Constables, however, long existed in every town and 
 castle, in every earldom, and upon every great manorial estate, and the office diminished in dignity the nearer it 
 approached to the common people. Like other civil officers, the petty constable was the outgrowth of military 
 beginnings. The ancient tithingman who mustered his quota in times of war from the hundred or wapentake, or 
 the tithing, became the Norman parish constable, the keeper of the village peace, and of the town armour. The 
 petty constable, so-called to distinguish him from the high constable of the hundred, continued to be elected by his 
 tithing, vill, or parish down to recent times. He was the select-man of New England, practically. 
 
ON COMPAEATIVB POLITICS. SB 
 
 French language, or to the great ecclesiastical organization which has always wielded 
 such an enormous influence in Canada from the days of Laval. When the Norman 
 conquered England he found himself among a people with ancient institutions, eminently 
 favourable to freedom, and then commenced that process of assimilation to which I have 
 more than once referred. But no such opportunities for assimilation have ever been 
 possible in French Canada. There, from the outset, it was the policy of England, for various 
 reasons intelligible to the historical student, to surround the French Canadian with all the 
 guarantees that could be given for the preservation of his language and special institu- 
 tions. He has always had facilities given him — first by the Quebec Act, secondly by 
 the Constitutional Act of 1191, and eventually by the Federation of 1S61 — for the perpetua- 
 tion of his local autonomy, and the result has been necessarily to prevent anything like 
 such a blending of the two races as long ago took place in England. "What might have 
 been the result had England pursued a different policy towards this people in 1'774 and in 
 1*791 — the dates of the two great imperial statutes, practically shaping the destinies of 
 French Canada — it is idle now to speculate, and we can deal only with a condition of 
 things which seems, in many essential respects, of a permanent character. It is true 
 in the important centres of thought and industry the French Canadian is forced 
 to speak the English language, but it is only as a matter of business and convenience, 
 since, at home, he and his family cling to the tongue of their ancestors. In the 
 parliament of Canada the Frenchman, as a rule, speaks the language of the majority 
 — a task which he performs with ease and even elegance in many cases ; but in the 
 legislature of Quebec, where the English are in a small minority, it is the French 
 which has the supremacy. In the nature of things, judging from the signs of the 
 times, the language of the new provinces, eventually to be formed in the North- West 
 Territories, is likely to be exclusively English, and the French tongue and institutions 
 will probably be confined, for the most part, to the province which the French 
 Canadians have built up by their patience and endurance, and made essentially their 
 own, as far as national characteristics can make it such. But without indulging in 
 further speculation on the probability of the assimilation of the two nationalities of 
 Canada — an assimilation certainly desirable in the development of a nation, when it 
 is natural, although by no means a condition essential to national greatness — we can 
 see that, after all things are impartially considered, it is to the English principles of 
 local self-government that the French Canadian owes the privileges he has so long 
 enjoyed in absolute security, and it is to English institutions that his province must 
 continue to owe its prosperity and happiness as an integral part of the Dominion. The 
 French Canadian has worked in harmony with the English Canadian to build up a nation 
 on those principles of English constitutional government which, when applied in con- 
 nection with a federal system, seem admirably adapted to give strength and vitality to a 
 people. Under no other system of government would it be possible to harmonize the 
 antagonistic elements of race, religion and language which exist in Canada. Without 
 pressing further a conclusion which must be obvious to any one who looks at the history 
 of the political development of Canada under the benign supremacy of England, let me 
 quote, in closing, the suggestive words of an eminent constitutional writer in an 
 Australian colony, who has laid down a doctrine which commends itself to every student 
 of institutions as replete with practical wisdom and statesmanlike foresight, and which 
 
36 JOHN QEOEGB BOUEmOT 
 
 can be well applied to a country like our own, composed of a number of provinces having 
 diverse interests and nationalities to unify and harmonize. ""We have been given 
 English institutions," says Professor Hearn,i .i^^^ ^^le gift is worthless unless we care o 
 use it in the spirit in which it has been bestowed. English institutions must be Worked 
 by Englishmen in the English way. That way implies mutual respect, mutual forbearance, 
 a readiness to concede what is not material, tenacity in holding fast that which is good ; 
 in one word, an honest and loyal desire to promote the public benefit, and to set'ure to 
 every man his just lights, and neither less nor more than those rights. Such is the course 
 that our own fathers have pursued ; it is thus that England has grown to greatness ; such, 
 if we wish to obtain the like results, is the course that we too must follo-v^." 
 
 ' See his essay on " The Colonies and the Mother Country " at the end of the second edition of his work on 
 " The Government of England." 
 
CHAPTER 11. 
 
 CANADA AND THE UNITED STATES. 
 
 Though Canada contains only a small population and still occupies a relatively 
 unimportant position among the peoples of the world compared with the great republic on 
 her borders, yet there are many features of her political development which cannot fail to 
 be deeply interesting and instructive to the students of political science. Within a very 
 few years Canada has made remarkable strides in the path of national progress through 
 the influence of a political system eminently adapted to stimulate the best energies and 
 expand the thought and intellect of her people. Indeed the prominence Canada has 
 suddenly attained can be seen from the attention that is now being directed to her affairs 
 and her future destiny. It would seem, in fact, that her industrial prosperity and political 
 development have evoked so much interest in the minds of the politicians and journalists 
 of the United States that they are now considering whether a country, which has evidently 
 so noble a future before it, should not be gently cozened into giving up all her dreams of 
 ambition and be drawn, as soon as possible, into the seductive embrace of a nation, which, 
 with a curious oblivion of geography, has generally appeared to claim the exclusive right 
 to be called " American." ' 
 
 Having a contemporaneous history on this continent, lying contiguous to one another 
 from the Atlantic to the Pacific Ocean, the two countries naturally offer many points of 
 comparison worthy of the close contemplation of students and statesmen. Their political 
 systems especially afford many materials for reflection which, studied in a scientific and 
 impartial spirit, may be made profitable to them both. The Canadian Dominion and the 
 American Commonwealths trace most of the political institutions they possess to the great 
 English mother of all free governments, though in the course of many years diversities 
 have naturally grown up in the working out of those institutions, so that a mere ordinary 
 observer is apt to forget their true origin and nature. But whatever divergencies there 
 
 may be in the systems of the two countries, we can see after a little thought and study 
 
 . ___ — , « . 
 
 ^ The Dominion of Canada has an area of 3,470,257 square miles, in addition to which there is a water area of 
 lakes and rivers, calculated at 140,000 square miles. In other words, it comprises an area nearly equal to that of 
 Europe, and about one-sixteenth of the land surface of the globe. The area of the United States is given at 
 3,602,990, including Alaska. See "Pocket Atlas and Gazetteer of Canada," edited by J. M. Harper, of Quebec, and 
 Spoflford's "American Almanac." 
 
38 JOHN GBOEGE BOUBINOT 
 
 that they have arisen chiefly from the fact that Canada has remained a dependency of 
 G-reat Britain, and consequently followed closely the constitutional practices of the parent 
 state, while the United States, having long ago become a national sovereignty, has raised 
 on the foundations of a constitution, based itself on principles drawn largely from those 
 of the English constitution, a great structure which has, in the course of years, undergone 
 many modifications in the working out of the original plans, in order to adapt it to the 
 practical needs of the people and the modern conditions of a democratic government. 
 The architecture may now be considered of a politically composite order, in which we see 
 that, while the design of the original founders has l)een varied in many respects, yet, after 
 all, the very pillars that support the noble dome that crowns the edifice rise from ihe 
 foundations of that English common law, and of that parliamentary government which 
 have enabled England, as well as the United States to attain the foremost position 
 among the nations of the world.' 
 
 It has been the good fortune of Canada to develop slowly under the fostering care of 
 England, and to have been able to survey at a reasonable distance the details of the 
 political structure raised by her neighbours; and consequently when her statesmen 
 came, less than a quarter of a century ago, to enlarge the political sphere of the provinces 
 of British North America and to give greater expansion to the energies of the people in 
 the organization of a federal union, they were able to base it on those principles which 
 the experience of the mother country and of their great neighbours showed them was best 
 adapted to give strength and harmony to all the political parts, and enable them as a 
 whole to work out successfully their experiment of government on the northern half of 
 this continent. 
 
 The history of Canada is contemporaneous with that of the United States. James- 
 town was founded by adventurous Englishmen about the time when the intrepid 
 sailor of Brouage landed at the heights of Quebec. It was not until twelve years after 
 the foundation of Quebec by Ohamplain that the Pilgrim Fathers cast anchor in the waters 
 of the New England coast. From those times until these, Canada and the United States 
 have worked out their fortunes apart from each other. For a century and a half, under 
 the French regime, the colony on the banks of the St. Lawrence was a standing menace 
 to the English-speaking colonies nearest to the vast territory claimed by France in those 
 days. The records of many a village and town in New England tell the sad story ot 
 the massacre and pillage of the early settlers by reckless bands of Frenchmen and 
 
 ' " The constitution of the United States is a modified version of the British constitution ; but the British 
 constitution which served as its original was that which was in existence between 1760 and 1787. The modifica- 
 tions introduced were those, and those only, which were suggested by the new circumstances of the American 
 colonies, now become independent." Maine, " Constitution of the United States," p. 253 of " Popular Government." 
 " The American constitution is no exception to the rule that everything which has power to win the obedience and 
 respect of men must have its roots in the past, and that the more slowly every institution has grown, so much 
 the more enduring is it likely to prove. There is little in that constitution that is absolutely new. There is much 
 in it that is as old as Magna Charta. The men of the convention had the experience of the English constitution. 
 They preferred, so far as circumstances permitted, to walk in the old paths, to follow methods which experience 
 had tested. Accordingly they started from the system on which their own colonial governments, and afterwards 
 their state governments, had been conducted. This system bore a general resemblance to the British constitution ; 
 and in so far it may with truth be said that the British constitution became a model for the new national govern- 
 ment." Bryce, " The American Commonwealth," i. pp. 34-42. The causes of the radical differences in the two 
 constitutional systems are admirably set forth in this great work. 
 
ON COMPAEATIVB POLITICS. 39 
 
 Indians led by bold adventurers of the old regime. On the banks of many a river 
 and bay in Nova Scotia and New Brunswick — in those days named Acadie — can still be 
 seen the ruins of forts — Port Royal, now Annapolis, for instance — where the New 
 Englander and the Frenchman fought for the mastery on the Atlantic coast. Amid the 
 sheltering elms of the college grounds of Harvard College, above a doorway of G-ore Hall, 
 is fixed a small gilded cross which recalls the history of the formidable fortress of 
 Louisbourg, which first fell before the expedition led by an enterpiysing merchant of a 
 town in New England. Only a short while since the writer stood on the site of that once 
 famous bulwark of French ambition on this continent ; a few grassy mounds now cover 
 the old walls, long since levelled to the ground, and sheep pasture above the graves of 
 the Frenchmen and Englishmen who fell during the sieges which Louisbourg suiFered 
 before it finally passed into the possession of England. All the events of those times had 
 a powerful influence on the destinies of the people of the thirteen colonies. Whilst it is 
 true that the supremacy of France on the St. Lawrence and in the valleys of the Ohio and 
 the Mississippi gave a certain guarantee for the continuance of these colonies, as possessions 
 of England, yet at the same time it is clear that the very exertions which they were forced 
 to make to keep the invader from their homes and to drive France, if possible, from 
 America, were gradually teaching them lessons of resolution and self-reliance which bore 
 fruit in later times, when they asserted their independence. The success of the expedition 
 led by Pepperell against the powerful fortress of Louisbourg on the coast of Oape Breton 
 must naturally have given confidence to the people of New England in days when their 
 cause seemed to be at the lowest, and it was a question of contending against the power 
 of England herself. 
 
 That the conquest of Canada had a remarkable influence on the destiny of the old 
 colonies is now a generally admitted fact. The opinion, that was entertained on the 
 subject in England, after the fall of Quebec, can be easily understood from a perusal of the 
 discussion that took place, whether it was not actually for the true interest of England to 
 give up the great territory of Canada and retain the relatively insignificant island of 
 Gruadaloupe, since it was a question of keeping one or the other. There was no question 
 of the independence of the colonies at that juncture ; on the contrary the people had ener- 
 getically, as a rule, seconded the efibrts of the parent state for the supremacy on this con- 
 tinent ; but philosophical thinkers, as well as practical statesmen, had obviously a fore- 
 boding that there were signs in the temper of the people and in the condition generally 
 of affairs on the continent that threatened the integrity of the Empire in America. One, 
 William Burke, a kinsman of the famous Edmund Burke, appeared to have voiced these 
 opinions in a pamphlet in which he urged the retention of the small West Indian island 
 on the grounds that " if the people of our colonies find no check from Canada they will 
 
 extend themselves almost without bound into the inland parts By 
 
 eagerly grasping at extensive territory we may run the risk, and at no very distant period, 
 
 of losing what we now possess A neighbour that keeps us in some awe 
 
 is not always the worst of neighbours If we acquire all Canada we 
 
 shall soon find North America itself too powerful and too populous to be governed by us 
 at a distance." 
 
 It is a curious fact that Franklin, with all his political sagacity, combated such 
 arguments as I have just quoted by saying that he had not " the least conception " the 
 
40 JOHN GEOEGB BOUEINOT 
 
 growth of the colonies would ever render them dangerous. On the contrary, he was of 
 opinion that the " foundations of the future greatness and stability of the British Empire 
 lie in America." By keeping Canada, " all the country from the St. Lawrence to the 
 Mississippi will, in another century, be filled by British people." Britain herself would 
 "become vastly more populous by the immense increase to its commerce ; " the Atlantic 
 sea would be " covered with her trading ships, and her naval power, thence continually 
 increasing, would extend her influence round the whole globe and awe the world." 
 These words, which we must take as the sincere expression of the views of the most 
 astute American of those times, show us how blind some observers and thinkers can be 
 to the signs of the times around them, and how little they are able to gauge correctly the 
 effect of events and circumstances on the condition and destiny of a people. As we look 
 back to the history of the old colonies we can now see that events had been steadily 
 shaping themselves for the assertion of their independence, and that the temper of a people 
 brought up in the freedom of a new country and in the possession of self-govern- 
 ment, practically uncontrolled by the power or authority of the imperial state, was ready 
 to assert itself in a very decided way the moment it was considered their rights and 
 privileges were in jeopardy, and that the largely sentimental tie which bound the greater 
 portion of the people to the parent state would be found very frail when it came to the 
 vindication of what they believed to be their liberties as a free community, or to the 
 resenting of real or fancied wrongs. It was not Grreat Britain, but the thirteen colonies 
 themselves that were to attain the greatness of which Franklin saw a vision as he con- 
 templated the future of the continent of America. 
 
 Freed from the threatening presence of France on the St. Lawrence and Atlantic coast, 
 the old colonies continued to pursue their industries and gain strength for the great 
 struggle which soon arose between the king and his self-reliant subjects in America. For 
 years after the conquest Canada was but a poor community, almost nerveless and hopeless, 
 and the efforts of the American congress to obtain the aid and sympathy of the French 
 Canadians in the contest for independence proved entirely futile. The war, however, had 
 one remarkable influence on the destinies of Canada, for it brought into the country a 
 large body of people, known as United Empire Loyalists, who laid the foundations of the 
 English-speaking provinces of Ontario and New Brunswick, and settled considerable por- 
 tions of Nova Scotia. Like the New England settlement, this immigration of resolute 
 loyal Englishmen has had a decided influence on the industrial and political development 
 of all sections of the Dominion to this very day. This immigration was the commence- 
 ment of a new era in the political history of British America, and perhaps more than any 
 other incident in our annals has affected the social, religious and political welfare of the 
 whole community that now occupies Canada. Their descendants are now very numerous 
 in every section of the Dominion and occupy influential positions in every walk of life, 
 and it is to their presence and influence we may attribute, to no inconsiderable degree, 
 the political development of the country at large, as well as their loyal adherence to 
 England in good and in evil report, and resistance to all insidious appeals to join the for- 
 tunes of this country to those of the great republic on its borders. 
 
 ' See Morse's " Life of Franklin," 'American Statesmen Series,' pp. 76-82. Also Bancroft, " History of the 
 United States," ii. 525, 526. 
 
ON COMPAEATIVB POLITICS. 41 
 
 For half a century and more the history of the British American provinces has little 
 connection with that of the United States, except during the war of 1812-13, when Canada 
 naturally suffered as the battle-ground of an unhappy contest towhich both nations should 
 now look back with deep regret as unnecessary and unjustifiable from all points of view. 
 Canadians can, however, review the history of that contest with pride as a people, for 
 they performed their part in the struggle, though they were in no wise responsible for the 
 cause, with courage and fidelity to the parent state. The battle of Chateauguay attested 
 the heroism of the French Canadians, as Chrysler's Farm and many a battle-ground bore 
 witness to the endurance and patriotism of their English compatriots. Those were days 
 which we trust may never return ; the only contest now between the nations then 
 engaged in strife, should be a contest in the development of art and industry on this con- 
 tinent. 
 
 Up to 1867 both countries increased in wealth and population. Of course no compari- 
 sons need here be made between the two countries in these particulars. "With the adoption 
 of the constitution of ITST, which gave new vigour to the American confederation of states, 
 and enabled them to carry on their government with efiiciency, the United States steadily 
 increased in all the elements of greatness as a nation. A remarkable influx of people from 
 foreign countries poured in the course of years into the east and thence to the west. New 
 territories and states were formed on all the productive lands of the Union and filled up 
 the Pacific coast as far as the British possessions in British Columbia. A great internecine 
 conflict convulsed the republic for years, but the result was the strengthening of the 
 central authority and the death, to all intents and purposes, of the doctrine of state 
 sovereignty which, as taught for many years, drew all its dangerous inspiration from the 
 existence of slavery — an inheritance from England fraught in the end with misery and 
 ruin to the South. During those sad times Canada became, as might be expected from her 
 geographical position, the home of numerous southerners, and, on account of the sympathy 
 that naturally existed among many people for the South, much bitterness of feeling was 
 evoked throughout the North from the impression that the whole Canadian population 
 desired ardently the triumph of the secessionists and the splitting up of the Union into 
 fragments. If there was such a general feeling — and I think the Canadian people have 
 been much misrepresented in this particular ^ — then they must share the responsibility 
 with the English people, and even with Mr. Gladstone himself, who was not so warm an 
 admirer of the Union as he has since then declared himself. It must be understood that 
 if there was much sympathy with the South in that struggle, it arose, not from any 
 unkindly feeling towards the North, but rather from the conviction that the Union had 
 become too large and unwieldy for one government to manage on democratic principles, 
 and that there was greater security for Canada in two or more republics on the continent 
 than in the existence of a colossal state of insatiable ambition which might, sooner or 
 later, cast covetous eyes on the weaker country on its northern borders. At all events the 
 close of the war saw the relations between Canada and the United States not as favourable 
 as they ought to have been between peoples of such close neighbourhood and kindred 
 aspirations. The result was the repeal of the reciprocity treaty, or free trade in certain 
 natural products of the two countries, that lasted from 1854 to 1866, to the mutual 
 
 1 See speech of Sir E. Tache on this point, "Confederation Debates of 1865," p. 7. 
 
 Sec. II, 1890. 6. 
 
42 JOHN GEOEGB BOUEINOT 
 
 advantage of both ; an event largely brought about by the unfriendly disposition of 
 northern politicians, and from the belief, that no doubt existed in some quarters, that the 
 provinces, especially those by the sea, could be coerced into annexation by destroying a 
 trade which was becoming annually greater and on which they were learning to rely as 
 necessary to their prosperity. The other result was the succession of Fenian raids which 
 were easily repulsed by Canada, though she has never yet received that full indemnity 
 which her statesmen have always urged should have been considered in the settlement of 
 the Alabama and other questions which have been matters of arbitration between England 
 and the United States. 
 
 But these very events to which I have been referring— the war of secession, the repeal 
 of the reciprocity treaty and the Fenian raids— have had a decided influence on the con- 
 dition of Canada, and have given additional evidence how closely bound up each country 
 must always be in the fortunes of the other.' The British American provinces had before 
 186'7 attained a complete system of self-government, after years of persistent dispute with 
 the imperial authorities, and after an insurrection in the provinces of Upper and Lower 
 Canada, a rebellion brought about by indiscreet leaders of the popular party which had 
 been long fighting a battle against the stubborn opposition of executive authority and 
 of Crown-appointed officials to political progress and responsible government. But 
 previous to 18Q*1 the provinces were all isolated communities, no more capable than the 
 members of the old confederation of the States of uniting for purposes of commerce and 
 finance or other important national objects. The political difficulties between the French 
 and English sections were, no doubt, the prime moving cause that led to the Quebec con- 
 ference of 1864 that brought about the federal union of the British American colonies ; 
 but it is also quite certain that below the declared motives of the conference lay, deep in 
 the minds of Canadian statesmen, the conviction that the future integrity and security of 
 Canada as a separate and independent community on this continent depended on bringing 
 together all sections into a union which would give the central government control over 
 all matters of general national import and at the same time leave the provincial organi- 
 zations such powers as are necessary to carry on their administration of local affairs with 
 efficiency. For years such a union had been urged by the most thoughtful men of 
 British America, and its necessity was shown most forcibly as years passed when every 
 effort to have railway communications and intercolonial trade proved futile on account of 
 the impossibility of reconciling the diverse interests and rivalries of the provinces. 
 Commercial reasons had powerful influences on the consummation of the Canadian 
 federal union just as they had in bringing about "the more perfect union" of the 
 American states. It has been truly said, by a sound constitutional authority, that " the 
 consolidation of the industrial interests of the country has proved to be the strongest bond 
 of the federal state," ^ and the founders of the Canadian Confederation at once recognized 
 the necessity of bringing the provinces into commercial as well as political union at the 
 earliest possible moment. If there were any doubts before on the subject, the repeal of 
 the Eeciprocity treaty was a significant warning of what lay before the people of the 
 British American colonies if they continued isolated much longer from each other. The 
 
 ' Sir E. TachI, Sir John Macdonald, Mr. Brown and Mr. (now Sir Hector) Langevin, during tlie Confederation 
 debate of 1865, referred especially to the antagonistic policy of the United States, pp. 7, 32, 106, 365. 
 ^ Yop llolst, " Constitutional Law of the "United States " (Mason's translation), p. 136, 
 
ON COMPAEATIVE POLITICS. 43 
 
 necessity of being in a position to organize promptly and decisiyely measures of self- 
 defence was shown them by the Fenian raids. The threatened invasion of New Bruns- 
 wick in the spring of 1866 had, no doubt, considerable influence in reconciling the 
 people of that province to the scheme of the Quebec conference which they had hesitated 
 to accept for several months. So it happened that out of the very circumstances which 
 were apparently calculated to do so much injury to Canada her people learned lessons 
 of wisdom and self-reliance, and were stimulated perhaps more rapidly than otherwise 
 would have been the case to carry out their scheme of national development which had 
 its commencement in 1864, and which since 186'7, when it was legally inaugurated, has 
 achieved a success far beyond what even its sanguine promoters predicted twenty odd 
 years ago.^ 
 
 "Without dwelling on those phases of national development which have been the 
 results of the federal union, and which are interesting, since they find parallels in the 
 industrial history of the United States, I come now to refer to the leading features of the 
 political constitutions of the two countries. It is not necessary to make any comparisons 
 between the constitutional and political systems of Canada and the United States before 
 186Y, when the provinces were isolated communities, offering many points of com- 
 parison with the old confederated colonies previous to the adoption of the present 
 constitution of the republic. It is the union of 1861 that now makes such compari- 
 sons possible, for then was adopted a federal system^ resembling in certain important 
 features that of the United States, but at the same time continuing in the government of 
 the country all the essential features of the British constitution. The two systems of 
 government have each a central government and so many local organizations, known 
 respectively as states and provinces. This central government possesses, under the 
 constitution, control over all those objects of national import which are essential to the 
 security and integrity of a federal state. 
 
 A careful comparative review of the powers distributed between the central and 
 state or provincial governments shows us that in certain essential features there is 
 in the constitution of the dominion of Canada a more marked division of legislative 
 authority than in that of the United States. For convenience sake, I give a brief sum- 
 mary of the leading principles that govern the division of national powers in the two 
 countries. 
 
 In the United Si ates the powers which shall be exercised by authority of the central 
 government are expressly enumerated, or, in other words, conferred in terms upon con- 
 gress. ' Whatever is not granted to the federal government belongs to the states, or to 
 the people thereof ^ In order, however, to impose checks upon the large powers of the 
 states, thus left unenumerated and open to very wide construction, the constitution 
 expressly restrains them from the exercise of some of the most important powers of 
 sovereignty and subordinates others to the authority of congress. '^ But it does not by 
 any means follow that the constitution, in conferring a power on the central government, 
 expressly prohibits its use by the states. Thus congress has the power to pass a bankrupt 
 law. But if it does not exercise the power the states may do so. As soon as the federal 
 
 1 See Dilke, " Problems of Greater Britain," pp. 95-100. ' See supra, p. 19, note 6. 
 
 ' Cooley. " Principles of Constitutional Law," p. 54. ■* Ibid, p. 29. ^ i^id, p. 142. 
 
44 JOHN GBOEGB BOUEINOT 
 
 legislature passes such a law "the state laws will ipso facto become of no validity unless 
 the nature of the matter permits two different legislative wills to act upon it at the same 
 time." ^ The enumerated powers of the Washington government have been greatly enlarged 
 by judicial decisions which have recognized the necessity of " implied powers " m the 
 grant of powers expressly given by the constitution to the federal state. It is clearly 
 established that every power of a general character must include also all the powers 
 which are naturally implied in it and are required for the attainment of the end sought 
 byit.== 
 
 In Canada the powers of the general government, as enumerated in the law, are large, 
 and its jurisdiction extends over a territory almost equal in area to the whole of Europe. 
 An important distinction exists between the powers given to the central government of 
 Canada and those placed by the constitution of the United States under the jurisdiction 
 of the federal authority. The powers of the dominion government cover all those not 
 expressly given by the constitutional act to the provinces, the very reverse of the prin- 
 ciple at the basis of the United States instrument. In order also as far as possible to 
 prevent a conflict of powers it is expressly provided that exclusive legislative jurisdiction 
 is given to the dominion government over the classes of subjects enumerated in the section 
 defining its legislative authority.' Cases of concurrent jurisdiction are clearly stated, 
 and in such public works as railways the dominion parliament can legislate upon them 
 and declare them to be for the general advantage of Canada. The courts have also re(;og- 
 nized practically the possession of such " implied powers " as have enlarged substantially 
 the authority of the central government of the American republic ; that is to say, such 
 incidental and instrumental powers as are necessary and proper to carry into execution 
 the express powers of either the central or provincial governments. It has been authori- 
 tatively laid down that the central government of Canada, in the working out of a power 
 given it under the fundamental law, may trench upon powers granted to the provin- 
 ces ; upon property and civil rights for instance, which are among the most important 
 powers of those organizations. * 
 
 The following summary will show in what respects the central governments of the 
 Dominion and the United States possess similar or analogous powers : 
 
 The Dominion can " exclusively " legislate on the The United States shall have power, — 
 
 following classes of subjects : 
 
 The borrowing of money on the public credit; To lay and collect taxes, duties and imports, and 
 
 excises, to pay the debts and provide for the common 
 defence and general welfare of the United States ; 
 
 The regulation of trade and commerce; ^^ ^^^^^ ^^^^^ ^^ ^^^ ^^^^jt „f ^^e United 
 
 States ; 
 The raising of money by any mode or system of To regulate foreign and domestic commerce and 
 
 taxation; with the Indian tribes; 
 
 Bankruptcy and Insolvency ; To establish a uniform rule of naturalization, and 
 
 Naturalization and aliens ; uniform laws on the subject of bankruptcies ; 
 
 ^ Von Hoist, " Constitutional Law," pp. 56, 67. 
 
 ' Martin v. Hunter, Wheaton, i. 304 ; " Legal Tender Cases," Wallace, xii. 457, 539 ; Von Hoist, " Constitutional 
 Law," p. 54 ; Story (Cooley's 3rd edition), ss. 433-435. 
 
 ^ B. N. A. Act, 1867, sec. 91. 
 
 * See Bourinot, " Manual of the Constitutional History of Canada," pp. 90, 100, for summary of judicial deci- 
 sions on this interesting and important point. 
 
ON C0MPAEATI7E POLITICS. 48 
 
 Currency and coinage ; To coin money, regulate the value thereof and of 
 
 foreign coin, and fix the standards of weights and mea- 
 sures ; 
 
 To provide for the punishment of counlerfeiting 
 the securities and current coin of the United States ; 
 
 Postal service ; To establish post offices and post roads ; 
 
 Copyright and patents of invention and discoveries; To promote the progress of science and useful 
 
 arts, by securing for limited times to authors and in- 
 ventors the exclusive right to their respective writings 
 and discoveries ; 
 
 A federal supreme court and federal courts ; ' To constitute tribunals inferior to the supreme 
 
 court ; ' 
 
 Census and statistics ; To take a census or enumeration of the inhabitants 
 
 every ten years ; 
 
 To provide and maintain a navy ; 
 
 Militia, military and naval service and defence ; ' To make rules for the government and regulation 
 
 of the land and naval forces ; 
 
 To provide for organizing, arming and disciplining 
 the militia, the states having the appointment of offi- 
 cers and the authority of training the militia accordine 
 to the discipline prescribed by congress. 
 
 To call out the militia to execute the laws and 
 suppress insurrections ; 
 
 Weights and measures. To dispose and make all needful laws and regula- 
 
 The Territories of Canada • "°"' respecting the territory or other property belong- 
 
 ' ing to the United States. ' 
 
 The foregoing enuraeration is necessarily imperfect inasmuch as it is given simply 
 for purposes of comparison and contains only a part of the powers conferred on the 
 dominion government, which has jurisdiction also over the following subjects : 
 
 Sea-coast and inland fisheries ; banks and banking ; legal tender ; navigation and 
 shipping ; beacons, buoys and lighthouses ; criminal law ; marriage and divorce ; peni- 
 tentiaries ; ferries between provinces, or foreign or British countries. * 
 
 In the United States, on the other hand, it is laid down by competent authorities 
 that the jurisdiction with respect to the foregoing subjects rests as follows : 
 
 Each state controls the fisheries in the public waters in which they are situated.' 
 
 The states may charter banks of issue, but congress has also power to make treasury 
 notes a legal tender and establish national banks." 
 
 ' B. N. A. Act, 1867, s. 101. The constitution made the establishment of a Canadian supreme court 
 optional ; the constitution of the U. S. made the court imperative — a branch of government necessary to the exist- 
 ence of the union. 
 
 '' In the enumeration of the powers given to the national government of the United States, it will be seen that 
 while the dominion government has exclusive control over the militia, there is a reserved power in the states over 
 this force. It is a state force until actually called into the service of the union. The federal government, how- 
 ever, is supreme in all that pertains to war with only a subordinate authority in the states. Whenever the pre- 
 sident considers that an exigency has arisen to call out the force he is exclusive judge, under the authority of 
 congress, and his requisition upon the executive of the state or upon the militia officers must be observed. Cooley, 
 " Principles of Constitutional Law," pp. 88, 89. 
 
 ' U. S. Constitution, Art. i, ss. 2, 8; Art. iv, s. 3. As to the territories see Johnston, "The United States," pp. 
 81-86. * B. N. A. Act, 1867, s. 91. 
 
 * Cooley, "Principles of Constitutional Law," p. 189. 
 
 " "Legal Tender Cases," 12 Wallace, 457. See also Bouvier, ' Law Dictionary,' Art. "National Banks" ; and 
 the 'American Cyclopsedia of Political Science,' Art. "Banking; " and Story, (Cooley's 3rd. ed.), "Constitutional 
 
46 JOHN GEOEGE BOUEINOT 
 
 Marriage and divorce are subjects, whicli each state regulates according to its own 
 laws, in consequence of which questions are constantly arising out of differences in the 
 law where a marriage or a divorce takes place, and the law where the parties are after- 
 wards found domiciled. ' 
 
 The jurisdiction over the criminal law lies in the several states which have in most 
 cases a common law derived from England, and the enactments of their own legislatures. 
 In the case of all crimes and offences and suits, cognizable under the authority of the 
 United States, federal courts have jurisdiction. These courts find their power to punish 
 crimes in laws of congress passed in pursuance of the constitution. In civil cases as far 
 as practicable they administer for the most part the local law, and apply it^ as a state court 
 would apply it in a like controversy. The constitution itself provides legal safe-guards 
 and benefits which must be given a person accused of a crime in a state. ^ 
 
 The right of navigation in seas, lakes, and public rivers, and the right of fishing in 
 public waters belong to the states under the principle of eminent domain, but navigation, 
 as well as telegraphs, railways and shipping may be regulated under the general power 
 possessed by congress over the regulation of commerce when they are necessary vehicles 
 and means of intercourse between the United States and foreign nations, and between 
 different states. ^ 
 
 The ferries that are of a foreign or inter-state character fall within lhe foregoing 
 principle, — each state, however, regulating the highways and ferries within its own 
 exclusive limits at discretion. 
 
 The criminal law and the punishment against offences being under the jurisdiction 
 of the stat^, the establishment and maintenance of penitentiaries and jails rest obviously 
 with the same authority. 
 
 In Canada, the constitution gives the general parliament and the legislatures of 
 the provinces, respectively, full control over their own elections ; and in pursuance of this 
 authority acts have been passed by those bodies, establishing a uniform franchise for the 
 dominion and distinct systems for each province, and giving the Courts the exclusive 
 power of trying cases of controverted elections, and punishing bribery and corruption. * 
 Consequently the Dominion and Provinces have different laws on these subjects. 
 
 In the United States, each state regulates its own elections and franchise. The con- 
 stitution has no special provision for the establishment of a uniform franchise for elections 
 to congress, but simply provides that " the electors in each state shall have the qualifica- 
 tions requisite for electors of the most numerous branch of the state legislature," and that 
 
 Law," ss. 1257-1271, for a review of the interesting constitutional questions arising out of the establishment of 
 national banks, and of the issue of legal tender notes by the United States. Von Hoist says, (Constitutional History, 
 . p. 122) " whether (and, if so, how far) congress has the power of making the federal currency a legal tender is 
 a question which has formerly, and again quite recently engaged the attention of the people, the politicians, and 
 the courts. But, in spite of the repeated decisions of the supreme court sustaining it, this power is not considered 
 as definitely established, since public opinion looks upon their decisions and their motives, at least in part, as very 
 doubtful." 
 
 • Cooley, " Principles of Constitutional Law," pp. 180, 229. 
 
 ' Von Hoist, " Constitutional Law of the United States," pp. 154, 258 ; U. S. Constitution, Art. iii, ss. 2, 3 ; Arts, 
 v, vi, xiii ; Cooley, " Principles of Constitutional Law," pp. 131, 292-296. 
 » Cooley, "Constitutional Limitations," pp. 648, 729, 730. 
 
 * See Bourinot, " Parliamentary Procedure in Canada," chap, ii, ss. iii— x. 
 
ON COMPAEATIVE POLITICS. 47 
 
 " the right of citizens of the United States to vote shall not be denied or abridged by the 
 United States, or by any state, on account of race, colour, or previous condition of servitude." 
 Representatives to congress are elected in each state under its ovrn franchise subject to 
 this condition. Legislative elections in the states are determined by the body in which 
 the seat is contested. As respects congress, the constitution expressly provides that " each 
 house shall be the judge of the elections, returns and qualifications of its own members." 
 The courts cannot interfere with the conclusions of congress or of the state legislatures in 
 this respect. ^ 
 
 The foregoing paragraphs will show that the constitution of the United States does 
 not attempt, like the constitution of Canada, to make a distinct division or close enumera- 
 tion of the powers of the respective legislative authorities. But before dismissing this part 
 of the subject, I shall in a few paragraphs state the general scope of the legislative powers 
 entrusted to the provincial organizations. 
 
 The provinces have the exclusive right to make laws on the following classes of 
 subjects : 
 
 The amendment from time to time, notwithstanding anything in this act, of the con- 
 stitution of the province, except as regards the office of lieutenant-governor. 
 
 Direct taxation within the province in order to the raising of a revenue for provincial 
 purposes. 
 
 The borrowing of money on the sole credit of the province. 
 
 The establishment and tenure of provincial offices, and the appointment and payment 
 of provincial officers. 
 
 The management and sale of the public lands belonging to the province, and of the 
 timber and wood thereon. 
 
 The establishment, maintenance and management of public and reformatory prisons 
 in and for the province. 
 
 The establishment, maintenance and management of hospitals, asylums, charities and 
 eleemosynary institutions in and for the province, other than marine hospitals. 
 
 Municipal institutions in the province. 
 
 Shop, saloon, tavern and auctioneer and other licenses in order to the raising of a 
 revenue for provincial, local or municipal purposes. 
 
 Local works and undertakings other than such as are of the following classes : 
 
 (a). Lines of steam or other ships, railways, canals, telegraphs and other works and 
 undertakings connecting the province with any other or others of the provinces, or extend- 
 ing beyond the limits of the province ; 
 
 (b). Lines of steamships between the province and any British or foreign country ; 
 
 (c). Such works as, although wholly situale within the province, are before or after 
 their execution declared by the parliament of Canada to be for the general advantage of 
 Canada, or for the advantage of two or more of the provinces. 
 
 The incorporation of companies with provincial objects. 
 
 Solemnization of marriage in the province. 
 
 Property and civil rights in the province. 
 
 The administration of justice in the province, including the constitution, maintenance 
 
 1 U. S. Constitution, Art. i, ss. 2, 5 ; Art. xv ; ' Kev. Stat. U.S.' (1878), ch. 8 ; Cooley, " Principles of Constitu- 
 tional Law," p. 262. 
 
48 JOHN GEOEGB BOUEINOT 
 
 and organization of provincial courts, both of civil and criminal jurisdiction, and includ- 
 ing procedure in civil matters in those courts. 
 
 The imposition of punishment by fine, penalty or imprisonment for enforcing any 
 law of the province made in relation to any matter coming vpithin any of the classes of 
 subjects enumerated in this (92) section. 
 
 G-enerally all matters of a merely local or private nature in the province. 
 
 Then, in addition to the classes of subjects enumerated in the sections just cited, it 
 is provided that the legislatures of (he provinces may exclusively legislate on the subject 
 of education, subject only to the power of the dominion parliament to make remedial 
 laws in case ot the infringement of any legal rights enjoyed by any minority in any 
 province at the time of the union — a provision intended to protect the separate schools of 
 the Eoman Catholics and the Protestants in the provinces. The Dominion and the Pro- 
 vinces may also concurrently make laws in relation to immigration and agriculture, 
 provided that the act of the province is not repugnant to any act of the dominion 
 parliament. ^ 
 
 In the United States, on the other hand, as the constitution provides, whatever 
 powers are not conferred upon the general government, or are not withheld in express 
 terms from the states, belong to the several states or to the people thereof. ^ Each state 
 has full control over its own constitution, and may alter and amend it, provided that such 
 amendment is not repugnant to any provision of the constitution of the union and m 
 accordance with a republican form of government.^ The law-making p'.wer of the state 
 recognizes no restraints, and is bound by none except such as are imposed by the constitu- 
 tion or paramount law. ' G-enerally speaking, in the division of powers between the 
 central government and the states, " the larger portion, including nearly all that touched 
 the interests of the people in their ordinary business relations and in their family and 
 social life, were reserved to the states. All that related to the family and the domestic 
 relations, the administration and distribution of estates, the forms of contract and con- 
 veyance, the maintenance of peace and order in the states, the punishment of common 
 law offences, the making provision for education, for public highways, for the protection 
 of personal liberty and liberty of worship — all these powers were withheld from the 
 jurisdiction of the federal government and retained by the states." ° 
 
 Both the constitution of Canada and that of the United States can be amended in 
 accordance with certain forms required by law. But Canada, being still a mere depend- 
 ency, is not sovereign in the legal sense of the term, since it cannot declare war or make 
 treaties, those being powers reserved to the imperial power of England, from which it 
 derives its constitution, and which alone can change that fundamental law. The consti- 
 tution of the United States places many difficulties in the way of amending that instru- 
 ment, and in the states the people have to ratify any decision of the convention or legis- 
 lature that may frame amendments. " To-morrow the English parliament might change 
 
 1 B. N. A. Act, 1867, ss. 92, 93, 95. « u. g. Constitution, Art. x. 
 
 '' U. S. Constitution, Art. iv, s. 4. 
 
 'Dodge V. Woolsey, 18 Howard, 331; Gunn v. Barry, 15 Wallace, 610; Pacific Railroad Co. v. Maguire, 20 
 Wallace, 36. ^ Cooley, " Principles of Constitutional Law," p. 143. 
 
 * Amendments are made in the same manner as the original constitution, by convention and ratification ; or 
 by proposition of congress and ratification by three-fourlhs of the state legislatures. In tlie states the same is 
 
ON" COMPAEATIYB POLITICS. 49 
 
 or revoke the constitution of Canada just as in 1838 it repealed the statute giving a 
 legislative system to Quebec, then called Lower Canada, Such a thing would be legal, 
 although it is not probable or even possible. The English government never moved in 
 the matter of the present union until the several legislative bodies approached it 
 formally by address, and asked that it should be conceded ; and now, should any 
 change be necessary, it would be done only in the same formal manner, through the 
 action of the federal parliament in the first place. The people speak only through 
 their legislative bodies, and such a thing as a plebiscite or a popular convention on 
 any proposed amendment is unknown to the constitution of the Dominion, The 
 federation was brought about by the agency of legislatures which were elected without 
 any reference to this great constitutional change, and it was only in one province, New 
 Brunswick, that the question came directly before the people at the polls. Still, while 
 Canada is in this respect subject to the imperial government and cannot adopt any legis- 
 lation that is incompatible with imperial enactments or in antagonism to imperial obliga- 
 tions, yet it has sovereign powers within its own constitutional sphere. As in the case 
 of the constitution of the United States, conflicts of authority, despite the care taken to 
 prevent them in the British North America Act, are constantly arising in Canada between 
 the respective legislative jurisdictions, which have to be decided by the courts, and 
 already there are several volumes containing judicial decisions interpreting the law and 
 now practically become part of the constitutional system. There is one federal court, 
 resembling the supreme court of the United States, but there are no federal courts in the 
 provinces as in the states. The courts of the provinces decide on all constitutional cases 
 brought before them, and there is no limitation placed on their jurisdiction over such 
 matters. They do this in the ordinary process of law and not under any special power 
 given them by the constitution. The supreme court of Canada, however, was established 
 for the purpose of acting, as far as possible, as a court of appeal for all the provinces. It 
 is not, however, the ultimate court of appeal for the Dominion, since it is the continual 
 practice of the judicial committee of the privy council of England to entertain appeals 
 from the supreme court when an error of law has been made and substantial interests 
 are involved. Indeed the supreme court can be considered only a general court of 
 appeal for the Dominion itself in a limited sense, since there is in every province the 
 right of appeal from its appellate court to the privy council.^ But the general sense of 
 the people is tending more and more to make the supreme court, as far as practicable, the 
 ultimate court of appeal in all cases involving constitutional issues, since it is felt that 
 men versed in the constitutional law of Canada and of the United States, and acquainted 
 with the history and the methods of government as well as the political conditions of the 
 coiintry at large, are more likely to meet satisfactorily the difficulties of the cases as they 
 arise than the European judges who are trained to move in the narrow paths of ordinary 
 statutes. A remarkable assertion of the judicial independence of Canada can be seen in the 
 act passed by the parliament of the Dominion in 1888, which enacts that, " notwithstanding 
 
 true, except that the proposition is by the legislature or convention, and the ratification is by popular vote. There 
 is no point in the state constitutions in which amendment is forbidden and but one in the federal constitution : — 
 " No state, without its consent, shall be deprived of its equal suffrage in the senate-" ' American Cyclopaedia of 
 Political Science,' " United States," p. 1005. See U. S. constitution. Art. v. 
 
 ^ Cassells, " Practice of the Supreme Court of Canada," p. 4- The Exchequer Court of Canada is federal. 
 
 Sec. II, 1890. 7. 
 
so JOHN GBOEGB BOUEINOT 
 
 any royal prerogative," no appeal shall be brought in any criminal case from any judgment 
 or order of any court of Canada to any court of appeal or authority by which in the 
 United Kingdom appeals to Her Majesty in Council may be heard.^ 
 
 If we come now to compare the systems of government possessed by the two countries 
 we find that while both rest on the basis of the principles of the British constitution, yet 
 there are very remarkable difierences which have grown out of the diverse circumstances 
 under which Canada and the United States adopted their fundamental law.^ The United 
 States have now, as an executive, a president elected by the people in all the states for a 
 term of four years, on the nomination of a political convention, and removable from oifice 
 only by a successful impeachment in the senate according to the methods laid down by 
 the fundamental law. He has the right to appoint heads of certain departments to which, 
 collectively, the name of cabinet has been given in the course of time by popular usage 
 although the constitution does not provide for a cabinet in the English constitutional sense 
 of the word. Its position and responsibilities are not in any way equal to those of an 
 English ministry. Its members are not responsible to congress, although they can be 
 called upon to report to that body at any time, and be examined before its committees on 
 matters affecting their respective departments. In reality they are dependent only on the 
 executive who appoints and removes them, and responsible to him alone for the satis- 
 factory performance of their duties.' The power given to the president, generally called 
 the " veto," was borrowed from an old prerogative of the Crown, which has now fallen 
 into disuse, and the exercise of it in these times might create a revolution in England ; but 
 at the time of the formation of the constitution it was believed to be necessary as a check 
 
 ^ Dom. Stat., 51 Vict, c. 43. The report of the Canadian minister of justice on this act (which has been 
 allowed) contains a strong assertion of the rights of the Canadian parliament to pass any act affecting the royal 
 prerogative, since that body has, under the British North America Act, jurisdiction over the criminal law, the 
 constitution of a court of appeal for Canada, and the peace, order and good government of the Dominion. In 
 another case which came recently under the review of the imperial government— the Canadian Copyright Act of 
 1889— which conflicts with imperial legislation on the same subject — the Canadian government takes the ground 
 that the Canadian parliament can legislate on all matters over which it has legislative jurisdiction by sec. 91 of 
 the B. N. A. Act, even if in doing so it repeals an imperial statute applicable to the Dominion, passed previous to 
 1867, when the imperial parliament gave such large powers to Canada. This legislation is of course subject to the 
 general power of disallowance possessed by the Crown. See Can. Sess. P. for 1889 and 1890; " Criminal Law and 
 Copyright;" Bourinot's "Federal Government in Canada," p. 39 (note.) The decision of the imperial authorities 
 on this interesting question has not yet been made public in Canada. 
 
 ^ On this point see Bryce, i. 34-42. 
 
 ^ Maine " Popular Government," pp. 212, 213, in comparing the king with the president, shows what is now 
 generally admitted, that the framers of the American constitution had no knowledge of cabinet government in 
 the present sense. " It is tolerably clear .... they took the king of Great Britain, went through his powers, 
 and restrained them whenever they appeared to be excessive or unsuited to the circumstances of the United States. 
 It is remarkable that the figure they had before them was not a generalised English king nor an abstract consti- 
 tutional monarch ; it was no anticii)ation of Queen Victoria, but George III himself, whom they took for their 
 model .... Now the original of the president of the United States is manifestly a treaty-making king and a 
 king actively influencing the executive government. Mr. Bagehot insisted that the great neglected fact in the 
 English political system was the government of England by a committee of the legislature calling themselves the 
 cabinet. This is exactly the method of government to which George III refused to submit, and the framers of the 
 American constitution take (ieorge Ill's view of the kingly ofiice for granted. They give the whole executive 
 government to the president and they do do not permit his ministers to have seat or speech in either branch of the 
 legislature. They limit his power and theirs, not, however, by any contrivance known to modern English consti- 
 tutionalism, but by making the oflBce of president terminable at intervals of four years." See also Bryce i. 273. 
 
ON COMPAEATIVB POLITICS. Si 
 
 upon the power of congress, and was given to the president as one of the most useful 
 adjuncts of his large authority/ On the other hand the governor-general of Canada, 
 who is appointed to represent the queen, the head of the executive in the constitution, 
 does not exercise the veto, although he possesses the legal right to refuse his assent to any 
 bill. Here we have an illustration of the tenacity with which England and her colonies 
 keep to the old forms which have practically fallen into disuse in the practical operation of 
 their constitutional system. This is one of the results of parliamentary government which 
 makes the advisers of the queen or of the governor-general responsible for all legislation. 
 To call upon the governor-general to exercise the veto after a measure has passed both 
 houses would be practically a confession that his advisers did not possess the confidence 
 of the legislature ; it would bring into contempt that principle of ministerial responsibility 
 to parliament which is the very essence and life of parliamentary government.* It is a 
 curious thing, however, that some lieutenant-governors of the provinces, in all of which 
 parliamentary government exists in the full sense of the term, have more than once 
 exercised the veto in the case of clearly unconstitutional legislation, but this has been 
 done only in the smaller provinces, and it would be impossible to have it occur in 
 the larger arena of the Dominion or of the imperial State. One explanation of the 
 exercise of it in the small provinces is • that the lieutenant-governors are, in a 
 manner, officers of the dominion government, and may assume to exercise the veto in 
 cases where there is a clear infraction of the federal authority, but this is hardly a sufficient 
 reason in the face of the fact that the constitution plainly provides for reserving such 
 legislation for the consideration of the dominion government itself, which should alone 
 consider its effect and bearing, and disallow it, if necessary, under the fundamental law 
 giving them such a power .^ For, whilst there exists in the Grown of England a general 
 power of disallowing any acts passed by the parliament of the Dominion, the imperial 
 government has given to the governor-general-in-council the right to review all the acts 
 passed by the several provincial legislatures, and to disallow them for good and sufficient 
 reasons.* That is to say, the general government now occupies towards the provincial 
 legislatures the same relation which the imperial government formerly held towards the 
 provinces before they became parts of the federation. The exercise of this power has 
 given rise to some controversies between the Dominion and the Provinces on account of 
 the general government having considered it expedient in the public interests to disallow 
 acts which were believed to be within the constitutional jurisdiction of the legislatures 
 that passed them. The British North America Act does not limit the exercise of the power. 
 The dominion government may disallow, not only an act which is unconstitutional in 
 whole or in part, but also one that is quite within the competency of the legislature, but 
 is at the same time regarded as injurious on grounds of public policy. Consequently a 
 power, essentially sovereign in its nature, is to be used with great caution, since there is 
 a disposition in all the provinces to resent and oppose obstinately any interference with 
 what is believed to be a legal right under the constitution. The exercise of the veto may 
 have its uses in restraining hasty and unconstitutional legislation, or in cases involving 
 
 ' See Bryce, i. 71 et seq. Queen Anne's veto in 1707 of a Scotch militia bill was the last example in England of 
 the exercise of the power. The veto of the president is really an exercise oi legislative authority. 
 ^ See Bourittot, " Parliamentary Procedure in Canada," p. 581. 
 ' Ibid., pp. 580-582. < B. N. A. Act, 1867, ss. 56, 90. 
 
52 JOH]Sr GEOEGB BOUEINOT 
 
 the peace, integrity and security of the confederation, on which there is a consensus of 
 opinion to support the central government. The principle, however, appears now generally 
 laid down by the leading statesmen and lawyers of both political parties in Canada, 
 that the wisest policy is not to interfere with any legislation which is clearly within the 
 constitutional rights of the province and does not affect the harmony and vital interests 
 of the confederation as a whole. As a rule the safest practice is to leave the courts to act 
 as the arbiter, as far as practicable, in all cases of constitutional controversy. The exercise 
 of such power by a political body has obviously its dangers in a federation composed of 
 several provinces, jealous of their constitutional rights, anxious to preserve their local 
 autonomy, and looking with distrust on every attempt to interfere with their legislative 
 authority.^ 
 
 The experience of Canada since 1867 proves quite conclusively that there is in the 
 Dominion, as necessarily in all countries united by the federal principle, a tendency to 
 friction between the national and the provincial governments arising out of the distribution 
 of powers. The doctrine of state sovereignty is at times pressed to undue limits in Canada, 
 as was the case for the greater part of a century in the United States. Happily for the 
 Canadian federation there is no great social institution like slavery to complicate the 
 political situation and give a fictitious strength for a while to the advocates of state rights. 
 Still the presence of a large community speaking the French language and possessing 
 institutions differing in essential respects from those of the majority of the people of 
 Canada, is one of the strong reasons for the constant assertion of provincial rights, apart 
 altogether from the fact that such an assertion must always more or less exist in any 
 system of federal government. Mr. Dicey ^ has stated with much force that the sentiment 
 "which animates a federal state is the prevalence throughout the citizens of more or less 
 allied countries of two feelings which are to a certain extent inconsistent — the desire for 
 national unity and the determination to maintain the independence of each man's separate 
 estate." This is as true of Canada as it was of the United States before the war of rebel- 
 lion, the result of which in the republic has been to strengthen the central government 
 and to make the doctrine of state sovereignty practically a dead issue. Notwithstanding 
 the great care taken by the draftsmen of the Canadian constitution to draw the lines of 
 division rigidly between the respective authorities of the Dominion, cases of conflict are 
 inevitable. The danger in such a system lies in the indiscretions of politicians — in the 
 provinces especially — and the safety in the legal foundation of the constitution, and in 
 that respect for law which exists in communities governed by the principles of English 
 jurisprudence and working out their future on the basis of British government. The 
 perpetuation of the Canadian constitution and the harmony of the members of the con- 
 federation rest in a large measure on the judiciary of Canada just as the constitution of 
 the United States owes its strength to the legal acumen and sagacity of a great constitu- 
 tional lawyer like Chief Justice Marshall, and of the able men who have, as a rule, com- 
 posed the federal judiciary. The instinct of self-preservation and the necessity of national 
 union must, in critical times, prevail over purely sectional considerations even under a 
 federal system, as the experience of the United States has conclusively shown us ; but as 
 
 ^ See Bourinot's " Federal Government in Canada,'' pp. 58-62. 
 " "Law of the Constitution," 3ded., p. 133. 
 
ON COMPAEATIVB POLITICS. S3 
 
 a general principle the success of confederation must rest on the spirit of compromise and 
 in the readiness of the people to accept the decisions of the courts as final and conclusive 
 on every constitutional issue of importance. 
 
 In another brief summary I can, perhaps, best show the important distinctions 
 between the respective systems of government, of the two countries. The American 
 federal republic is governed by the following authorities : 
 
 A president elected by the people in the several states for four years ; irremovable 
 except for impeachment ; exercising, among the most important of his powers, the right to 
 refuse to approve of bills passed by the two houses, which can only over-ride his deci- 
 sion by a majority of two-thirds in each body ; having the power to remit fines, 
 reprieve and pardon for offences against the United States, except in cases of impeach- 
 ment ; having the right to make treaties and appoint public ofloLcials, subject to the ratifi- 
 cation and confirmation of the senate. ^ 
 
 A vice-president, elected also for four years, but performing no ofiicial duties 
 except as president of the senate where he only votes in case of an equal division ; acts as 
 head of the executive in case of the removal, death, resignation or disability of the 
 president. ^ 
 
 A cabinet, popularly so called, consisting, strictly speaking, of heads of eight execu- 
 tive departments, without seats in congress ; appointed by, and responsible to the presi- 
 dent, and without control over congressional legislation. ^ 
 
 A congress composed of two houses — a senate and a house of representatives — called 
 together at fixed dates under the constitution, but liable to be convened on extraordinary 
 occasions, by the president ; not to be dissolved by the executive. The senate is elected 
 for six years, not by the people directly, but by the legislatures of the states, which are 
 equally represented, one-third being removed or changed every two years ; having co- 
 ordinate powers of legislation with the house of representatives except as to the initiation 
 of revenue bills, which, however, they can amend ; having the right to ratify treaties pre- 
 sented by the president and to confirm nominations to office made by the executive. The 
 house of representatives * is composed of 332 members, (and of three delegates, who have 
 
 ' Constitution of the IT. S., Art. i, s. 7., Art ii. Tiie name of president was adopted from the title used in- 
 stead of governor in Delaware, New Hampshire, Pennsylvania and South Carolina. 
 
 ^ U. S. Const., Art. i, s. 3 ; Art ii., ss. 1, 4. By an Act of 1886 provision is made, failing both president and 
 vice-president, that the duties of the office of president shall devolve on the secretary of state, and after him, in 
 the order of their rank, on the other officers of the cabinet. See Fiske, " Civil Government," p. 229. 
 
 ^ The constitution does not provide for the appointment of heads of departments, though it gives the president 
 the power (Art. 2, s. 2,) " to require the opinion in writing of the principal officer in each of the executive depart- 
 ments upon any subject relating to the duties of their respective offices." Congress has since 1789 organised eight 
 departments, with following heads : secretary of state, secretary of the treasury, secretary of war, attorney-ger.e- 
 ral, secretary of the navy, postmaster-general, secretary of the interior, and secretary of agriculture. Art xi, 
 s. 6. prevents any of these ministers or any person " holding any office under the United States " from sitting in 
 either house during their continuance in office. " The constitution," says Van Hoist, p. 90, " knows nothing of a 
 'cabinet' Even if the word has become as thoroughly naturalized in the language of America as in European 
 states, it is nevertheless, from a constitutional standpoint, an abuse. The constitution speaks only of ' executive 
 departments.' It does not call the heads of them ' ministers.' It generally gives them no titles. By statute the 
 name ' secretary ' is given them. Collectively, the secretaries have no constitutional existence whatever.'' 
 
 * U. S. Const, Art. i ; Art ii., s. 2 ; Art v., etc. Professor Johnston, in the 'Princeton Review ' for September, 
 1887, has shown that at the time the convention framed the constitution of the national government '' the name 
 
54 JOHN GEOEGB BOUEINOT 
 
 no votes, from the territories)/ chosen every second year by the people of the several 
 states ; elected under the same franchises which elect members to the popular house of 
 the state legislatures. 
 
 A federal judiciary composed of a supreme court of nine members, of nine circuit 
 courts, of fifty-eight district judges and of a court of claims ; all appointed by the pre- 
 sident vrith the advice and consent of the senate ; removable only for cause assigned and 
 subject to impeachment. ^ 
 
 A civil service composed of officers of various grades appointed by the president, 
 whose nominations, in certain cases, require to be ratified by the senate, the tenure of 
 office being still uncertain in consequence of the political difficulties that stand in the 
 way of carrying out the Pendleton Act, which was the first practical move in the direc- 
 tion of a wise reform. ^ 
 
 In conformity with the provisions of the British North America Act and those un- 
 written conventions of the British constitution which have practically the force of law, 
 the legal and constitutional agencies of government in the Dominion may be defined as 
 follows : — 
 
 The queen, in whom is legally vested the executive authority, in whose name all 
 commissions to office run ; by whose authority parliament is called together and dissolved; 
 and in whose name bills are assented to or reserA'ed. She is represented, for all purposes 
 of government, by a governor-general, appointed by her majesty in council and holding 
 office during pleasure ; responsible to the imperial government as an imperial officer ; 
 
 ' senate ' was used for the upper house in Maryland, Massachusetts, New York, North Carolina, New Hampshire, 
 South Carolina, and Virginia ; and the name ' house of representatives,' for the lower liouse, was in use in Mass- 
 achusetts, New Hampshire, and South Carolina, as well as in Pennsylvania and Vermont." Much interesting in- 
 formation as to the modeling of the provisions of the national government upon the state constitutions will be 
 found in this thoughtful paper of a scholar, who died at an early age, before he had even reached the maturity of 
 -his powers. 
 
 ^ Canada gives complete representation to her Territories in both the senate and commons. 
 
 ^ U. S. Const. Art. i, s. 8 ; Art 3; Art. xi. The inferior courts to be provided for under the constitution, were 
 established by the judiciary Act of 1789." The supreme court of the United States," says Maine, "Popular Govt.," 
 p. 217, " is not only a most interesting but a virtually unique creation of the founders of the constitution." But 
 Bryce has clearly shown (Vol. i., chap. 23) that " when the constitution of the United States came into operation, 
 in 1789, and was declared to be paramount to all state constitutions and state statutes, no new principle was intro- 
 duced ; there was merely a new application, as between the nation and the states, of the old doctrine that a sub- 
 ordinate and limited legislature cannot pass beyond the limits fixed for it." The statutes of the old colonies could 
 be declared invalid by the queen's privy council, whenever they were in excess of the powers granted under the old 
 charters. The same thing happens as to Canada and other dependencies in these times. Mr. Bryce points out 
 that in 1786, in the case of Trevett v. Weeden, the supreme court of Rhode Island declared a statute of the state 
 legislature invalid on this ground. It was clear to the framers of the constitution that a federal court, to adjudicate 
 upon all conflicts of authority between the central and the state governments, was an absolute necessity. 
 
 Since the foregoing note was in print, 1 have read an able article in the Political Science Quarterly for June, by 
 Dr. Charles B. Elliott on the Legislatures and (Courts ; in which he gives much new information bearing on this 
 point. He shows that several writers, Cooley and Bryce among them, are in error in citing the case mentioned 
 above as the first in which the courts held an act of the legislature void on the ground of conflict with the funda- 
 mental law. As a matter of fact the " action was dismissed for want of jurisdiction, and the constitutional question 
 was not decided." The case of Holmes v. Walton, argued on constitutional grounds in the supreme court of New 
 Jersey, during November 1779, antedates all otheis, as it was decided in September, 1780. Chief Justice Brealey 
 of New Jersey was a member of the convention of 1787. 
 
 ' See Von Hoist, p. 208 and note, for the general features of the Pendleton bill. 
 
ON COMPAEATIVE POLITICS. 68 
 
 having the right to pardon for all offences, but exercising this and all executive powers 
 under the advice and consent of a responsible ministry.^ 
 
 A ministry composed of thirteen or more members of a privy council ; ^ having seats 
 in the two houses of parliament; holding office only whilst in a majority in the popular 
 branch ; acting as a council of advice to the governor-general ; responsible to parliament 
 for all legislation and administration. 
 
 A senate composed of seventy-eight members appointed by the Crown for life from 
 the provinces and territories, though removable by the house itself for bankruptcy or 
 crime ; having co-ordinate powers of legislation with the house of commons, except in the 
 case of money or tax bills, which it can neither initiate nor amend ; having no power to 
 try impeachments ; having the same privileges, immunities and powers as the English 
 house of commons, when defined by law.^ 
 
 A house of commons of two hundred and fifteen members, elected for five years 
 on a very liberal dominion franchise, in electoral districts fixed by law in each pro- 
 vince and in the territories ; * liable to be prorogued and dissolved at any time by the 
 governor-general, on the advice of his council ; having alone the right to initiate money 
 or tax bills ; having the same privileges, immunities and powers ap the English house 
 of commons.^ 
 
 A<<iominion judiciary, known as a supreme court, composed of a chief justice and 
 five puisne judges, acting as a court of appeal for all the provincial courts ; subject to 
 have its decisions reversed on appeal to the judicial committee of the queen's privy 
 council in England ; irremovable except for cause on the address of the two houses to the 
 governor-general. ^ 
 
 A civil service, appointed by the governor-general on the advice of his council, that 
 is practically of the government of the day ; irremovable except for cause ; governed by 
 statutes providing in specified cases for examinations and promotions ; certain important 
 positions being still political appointments, but not subject to removal in case of change 
 of parties.^ 
 
 Coming now to the state and provincial organizations, we find that in the several 
 States, generally speaking, the government is distributed as follows : — * 
 
 A governor elected directly by the people for a term of office, varying from four years 
 to one, and exercising in all the states, except four, a veto over the acts of the legislature, 
 
 1 B. N. A. Act, 1867, ss. 9, 10, 12, 13, 14, 15. ' lb., s. 11. 
 
 3 B. N. A. Act, 1867, ss. 21-36, 39. 
 
 * 'Rev. Stat, of Canada,' c. 50. The representatives fiom the North- West territories have the full privileges of 
 members of both houses. 
 
 ^ lb. ss. 37-39, 44-52. In the Quebec resolution of 1864 (No. 6), the lower house of the proposed federal parlia- 
 ment is called house of commons, but the upper house is styled legislative council. It was only when the B. N. A. 
 Act of 1867 came to be drafted in London that it was deemed expedient to copy the example of the United States 
 and adopt the more dignified title of ' senate.' It was necesary to make a distinction between the upper house of 
 the parliamant, and that of the provincial legislatures* 
 
 « B. NA. Act, fs. 98,101; Dom. Stat., 38 Vict., c. 11, 'Rev. Stat, of Canada,' c. 137. By Dom. Stat. 50-51 
 Vict, c 16, the exchequer court jurisdiction was taken from the supreme court and given to a distinct court, 
 composed of one judge. Appeals are allowed to the supreme court under certain limitations. 
 
 ' See Bourinot, " Federal Government in Canada," pp. 118-120 ; and ' Rev. Stat, of Canada,' c. 18. 
 
 " For details of the state governments, it is necessary to refer to ' American Cyclopsedia of Political Science,' 
 Art. " United States" Bryce, vol. ii, chapters 22, 40, 41, 42 ; and Woodiow Wilson, " The State," ss. 885-994. 
 
S6 JOHN GEOEGB BOURINOT 
 
 which, however, can over-ride his determination by a ma,jority varying in the different 
 states Four states place all legislative authority in the legislature alone. G-enerally in 
 the state, the governor has the pardoning power within certain limitations. 
 
 A lieutenant-governor iu nearly all the states, elected by the people of the state at 
 the same time as the governor ; exercising no special functions except what arise from his 
 position as a presiding officer of the senate; filling the place of the governor in case of 
 death or incapacity. 
 
 Executive councils in only three states,^ which practically represent an advisory 
 cabinet ; iu the others there are certain executive officials elected by the people for terms, 
 varying in the different states, having no seats in the legislature and not exercising any 
 control over its legislation. 
 
 A legislature composed of two houses iu every state of the union. First, a senate 
 chosen by popular vote, generally in districts larger than those of the house ; having a 
 term varying from four years in the majority of cases, in others from three to one, half 
 of the members in most cases going out on the completion of their two or four years' 
 term and a new half being chosen. In all the states except one, it is a tribunal of 
 impeachment for certain officials, including governors. Secondly, a house of represen- 
 tatives, or an assembly or house of delegates in a few states, chosen by popular vote 
 in the state, generally manhood suffrage, only limited by certain disqualifications of 
 crime or bribery, the number varying from 21 to 321.^ Both houses have equal rights of 
 legislation except that the house of representatives in certain states can alone originate 
 money bills. 
 
 A civil service, small in numbers and poorly paid, elected by the people generally, 
 holding their positions on the uncertain tenure of political success and popular caprice. 
 
 The several authorities of government in the Provinces may be briefly distributed as 
 follows : — 
 
 A lieutenant-governor, appointed by the governor-general in council, practically for 
 five years ; removable by the same authority for cause, exercising all the powers and 
 responsibilities of a head of the executive under the system of responsible or parliamentary 
 government ; having no right to reprieve or pardon criminals. ^ 
 
 An executive council in each province, composed of certain heads of departments ; and 
 varying from five to ten in number ; called to office by the lieutenant-governor ; having 
 seats in either branch of the legislature ; holding their positions as long as they retain the 
 confidence of the majority of the people's representatives, responsible for and directing 
 legislation ; conducting generally the administration of public affairs, in accordance with 
 the law and conventions of the constitution.* 
 
 A legislature composed of two houses, a legislative council and an assembly in four 
 provinces, and of only an assembly, or elected house in three provinces. The legislative 
 
 ' Massachusetts, Maine and North Carolina. 
 
 ^ New Hampshire, though one of the smallest states, has the largest number of representatives. Delaware 
 with 21, is fairly represented. 
 
 ' B. N. A. Act. 1867. ss. 58-62, 66, 67. By the Quebec resolutions of 1864 (No. 44) he was to have this power, 
 but it was not incorporated in the B. N. A. Act, after consultation with the imperial authorities. As previously 
 shown the central executive alone can exercise the prerogative of mercy. 
 
 * B. N. A. Act, 1867, ss, 63-66. 
 
ON COMPARATIVE POLITICS. S7 
 
 councillors are appointed for life by the lieutenant-goyernor in council, removable for same 
 reasons as senators, must have a property qualification, except in Prince Edward Island, 
 where the upper house is elective ; cannot initiate money or tax bills, but otherwise have 
 all powers of legislation ; cannot sit as courts of impeachment. The legislative assemblies 
 are elected for four years in all cases except in Quebec, where the term is iive ; liable to 
 be dissolved at any time by the lieutenant-governor, acting under the advice of his council ; 
 elected on a franchise, manhood suffrage in Ontario and Prince Edward Island, and of a 
 very liberal character in the other sections.' 
 
 A judiciary in each of the provinces, appointed by the governor-general in council ; 
 only removable on the address of the two houses of the dominion parliament.^ 
 
 A civil service, appointed by the lieutenant-governor in council ; nominees, in the 
 first instance of the political party in power, but once appointed, irremovable, except for 
 sufiicient reasons. 
 
 In the United States the executive exercises no direct control over the legislature 
 through a cabinet, and, if it were not for the veto, congress would be practically uncon- 
 trolled in its legislation. In Canada, on the other hand, the executive is practically the 
 cabinet or ministry, who direct and supervise all legislation as well as the administration 
 of public affairs. In the United States, when the constitution was formed, parliamentary 
 government, as it is now established in England and her self-governing dependencies, 
 was not understood in its complete significance ; and this is not strange when we consider 
 that in those days the king appeared all powerful — he did not merely reign but governed — 
 and his councillors were so many advisers, always ready to obey his wishes. Ministerial 
 responsibility to parliament was still, relatively speaking, an experiment in constitutional 
 government, its leading principles having been first outlined in the days of William the 
 Third. The framers of the American constitution saw only two prominent powers, the 
 king and the parliament, and their object was to impose a system of checks and balances 
 which would restrain the authority of each and prevent any one dominating in the nation. 
 It is true, in the course of time, this system has become in a measure ideal since congress 
 has practically established a supremacy, though the powerful influence exercised by the 
 president at times can be seen from the great number of vetoes successfully given by Mr. 
 Cleveland. In Canada responsible or parliamentary government dates back to less than 
 half a century ago, and was won only after years of contest with the parent state. Since 
 the British system has been introduced into the provinces of the Dominion there has been 
 practically no friction between the different branches of government, but the wheels of 
 the political machinery run with ease and safety. 
 
 The comparisons that have been drawn with such singular ability by Mr. Bagehot,^ 
 Professor "Woodrow "Wilson and Professor Bryce, between the systems of congressional 
 
 1 B. N. A. Act, 1867, ss. 69-90. ^ lb. ss. 96-100. 
 
 ' Bagehot, in " The English Constitution,'' was the first eminent writer to show the weaknesses of the United 
 States system compared with that of England, especially in his first chapter on the cabinet. Woodrow Wilson, in 
 his "Congressional Government," has, in a very practical, common sense way, followed in the same line of argu- 
 ment. Mr. Bryce, in "The American Commonwealth," also clearly sees the defects of the constitutional system 
 arising out of the absence of a cabinet responsible to congress. The latest noteworthy accession to the ranks of 
 these critics is Mr. Hannis Taylor, whose constitutional work has been quoted in these papers more than once, and 
 who, in a recent contribution to the ' Atlantic Monthly ' (June, 1890), has shown that every thoughtful writer must 
 come to the same conclusions that Bagehot worked out many years ago. See also Story's Com. sec. 869. 
 
 Sec. II, 1890. 8. 
 
§8 JOHN GBOEGB BOUEINOT 
 
 and parliamentary government, show clearly in favour of the English system, and it is not 
 necessary that I should do more than refer as briefly as possible to the subject. Under 
 the American system the executive and legislative authorities may be constantly at 
 variance, and there is little possibility, on all occasions, of that harmonious and united 
 action which is necessary to efiective government. The president may strongly recom- 
 mend certain changes in the tariff, or in other matters of wide public import, but unless 
 there is, in the houses, a decided majority of the same political opinions as his own, there 
 is little prospect of his recommendations being carried out. Indeed, if there is such a 
 majority, it is quite possible that his views are not in entire accord with all sections of 
 his party, and the leading men of that party in congress may be themselves looking to a 
 presidential succession, and may not be prepared to strengthen the positidn of the existing 
 incumbent of the executive chair. Individual members of the cabinet can and do give 
 information to congress and its committees on matters relating to their respective depart- 
 ments, but they are powerless to initiate or promote important legislation directly, and if 
 they succeed in having bills passed it is only through the agency of and after many inter- 
 views with the chairman of the committees having control of such matters. If congress 
 wishes for information from day to day on public matters, it can only obtain it by the 
 inconvenient method of communicating by messages with the departments.' No minister 
 is present to explain, in a minute or two, some interesting question on which the public 
 wishes to receive immediate information, or to state the views of the administration on 
 some matter of public policy. There is no leader present to whom the whole party looks 
 for guidance in the conduct of public affairs. The president, it is true, is elected by the 
 republican or democratic party, as the case may be, but the moment he becomes the execu- 
 tive he is practically powerless to promote effectively the views of the people who elected 
 him, through the instrumentality of ministers who speak his opinions authoritatively on 
 the floor of congress. His messages are generally so many words, forgotten too often as 
 soon as they have been read. His influence, constitutionally, is negative — ^the veto— not' 
 the all important one of initiating and directing legislation like a premier of Canada. The 
 committees of congress, which are the governing bodies, may stifle the most useful 
 legislation, while the house itself is able, through its too rigid rules, only to give a 
 modicum of time to the consideration of public measures, except they happen to be money 
 or revenue bills. The speaker himself is the leader of his party, so far as he has influence 
 over the composition of the committees, but he cannot directly initiate or control 
 legislation.^ Under all the circumstances, it is easy to understand that when the executive 
 
 ' So astute an observer of the working of political institutions as M. E. Boutmy, of the Ecole Libre des Sciences 
 Politiques of Paris, has well observed on this point : — " Le pr&ident et ses conseillers ne communiquent avec les 
 chambres que par des messages et des comptes rendus Merits. Le president, dit le texte (de la constitution) peut a- 
 dresser de temps en temps au congrSs des informations et appeler son attention sur les mesures n^cessaires ou 
 utiles. Mais ces propositions ou plut6t cea motions, ni le president, ni les ministres ne peuvent les suivre dans 
 I'enceinte des chambres, les convertir en bills formels, les soutenir avec I'autorit^ qui s'attache 4 la parole d'un 
 gouv'ernement responsable, dissiper les malentendus, ^carter les amendments qui vont centre le but de la loi, modifier 
 eux-mfimes le texte au cours du d^bat selon les" impressions qui se font jour dans 1' assemble. Toutes ces conditions 
 d'un travail l^gislatif mliri, judicieux, consequent, leur sont refus6es. lis ne peuvent se faire entendre qu' ft la 
 cantonade." " Etudes de Droit Constitutionnel," pp. 132, 133. 
 
 ? A system which practically brings even the speaker into the political arena as in congress, weakens his 
 authority and tends to make his decisions of relatively little weight. Mr. Speaker Eeed appears to have recently 
 proved the truth of this assertion. 
 
OE COMPAEATIVE POLITICS. S9 
 
 is not immediately responsible for legislation, and there is no section or committee of the 
 house bound to initiate and direct it, it must be too often ill-digested, defective in essen- 
 tial respects, and ill-adapted to the public necessities. On this point a judicious writer 
 says " this absence of responsibility as to public legislation, and the promotion of such 
 legislation exclusively by individual action, have created a degree of mischief quite 
 beyond computation." And again, "there is not a state in the union in which the com- 
 plaint is not well grounded, that the laws passed by the legislative bodies are slipshod 
 iu expression, are inharmonious in their nature, are not subjected to proper revision before 
 their passage, are hurriedly passed, and impose upon the governors of states a duty not 
 intended originally to be exercised by them, that of using the veto power in lieu of a 
 board of revision for the legislative body ; and so badly is the gubernatorial office organ- 
 ized for any such purpose, that the best intentioned governor is compelled to permit 
 annually a vast body of legislation to be put upon the statute book which is either 
 unnecessary, in conflict with laws not intended to be interfered with, or passed for some 
 sinister and personal ends." ' 
 
 Compare this state of things with the machinery of administration in the Dominion 
 and we must at once see that the results should be greatly to the advantage of Canada. 
 Long before parliament is called together by proclamation from the governor-general, there 
 are frequent cabinet meetings held for the purpose of considering the matters to be sub- 
 mitted to that body. Each minister, in due order, brings before his colleagues the 
 measures that he considers necessary for the efficient administration of his department. 
 Changes in the tariff are carefully discussed and all other matters of public policy that 
 require legislation in order to meet the public demands. Bills that are to be presented to 
 parliament are drafted by competent draughtsmen under the direction of the department 
 they affect, and having been confidentially printed are submitted to the whole cabinet where 
 they are revised, and fully discussed, in all cases involving large considerations of public 
 policy. The governor-general does not sit in executive session with his cabinet, but is 
 kept accurately informed by the premier of all matters which require his consent or 
 signature. When parliament meets he reads to-the two houses a speech, containing only 
 a few paragraphs, but still outlining with sufficient clearness, the principal measures that 
 the government intend to introduce in the course of the session. The minister in charge 
 of a particular measure presents it with such remarks as are intended to show its purport. 
 Then it is printed in the two languages, and when it comes up for a second reading, a 
 debate takes place on the principle, and the government are able to ascertain the views of 
 the house generally on the question. Sufficient time is generally given between important 
 stages of measures of large public import to ascertain the feeling of the country. In case 
 of measures affecting the tariff, insolvency, banking and the financial or commercial 
 interests of the Dominion, the bills are printed in large numbers so as to allow leading 
 men in the important centres to understand their details. In committee of the whole the 
 bill is discussed clause by clause, and days will frequently elapse before abill gets through 
 this crucial stage. Then after it is reported from committee, it will often be reprinted if 
 there are material amendments. When the house has the bill again before it, further 
 amendments may be made. Even on the third reading it may be fully debated and 
 
 ' ' American Cyclopoedia of Political Science,' under head of " Legislation," p. 754. 
 
60 JOHN GEOEGE BOUEINOT 
 
 referred back to committee of the whole for additional changes. At no stage of its progress 
 is there any limitation of debate in the Canadian house. At the various readings a man 
 may speak only once on the same question, but there is no limit to the length of his speech, 
 except what good taste and the patience of the house impose upon him. In committee 
 there is no limit to the number of speeches on any part of the bill, but as a matter of fact 
 the remarks are generally short and practical, unless there should be a bill under con- 
 sideration to which there is a violent party antagonism, and a disposition is shown to 
 speak against time and weary the government into making concessions or even with- 
 drawing the objectionable features of the measure. After the bill has passed the house 
 it has to undergo the ordeal of the senate and pass through similar stages, but this 
 is not, as a rule, a very difficult matter as the upper house is generally very reluctant 
 to make any modifications in government measures. If the bill is amended, the 
 amendments must be considered by the house, which may be an occasion for further 
 debate. Then having passed the two houses it receives the assent of the governor-general 
 and becomes law. Under modern constitutional usage he does not refuse his assent to a 
 measure which may immediately affect imperial interests and obligations, but simply 
 " reserves " it for the consideration of the imperial authorities, who must, within two years, 
 allow or disallow it, in conformity with statute. If the government should be unable to 
 pass a bill of their own, involving great questions of public policy, it would be their duty 
 to resign, and another ministry would be called upon to direct the administration of 
 public affairs, or they might ask for a dissolution, and an appeal to the people on the 
 question at issue. At any rate, the people make their influence felt all the while in the 
 progress of legislation. It is not as in congress where the debates are relatively 
 unimportant, and not fully reported in the public press, and bills find their fate in secret 
 committees. As the press of Canada is fully alive to the progress of every public measure, 
 and all important discussions find their way from one end of the country to the other, 
 every opportunity is given for a full expression of public opinion, by means of petitions, 
 public meetings and representations to the members of each constituency. The 
 government feel the full sense of their responsibility all the while, for on the popularity 
 of their measures depends their political existence. An unfavourable vote in the house 
 may at any moment send them back to the people.^ 
 
 In the case of other public measures, which are not initiated by themselves, the 
 government exercise a careful supervision, and no bill is allowed to become law unless 
 it meets with their approval. The same scrutiny is exercised over private or local legis- 
 
 ' " The distinguishing quality of parliamentary government is, that in each stage of a public transaction there 
 is a discussion ; that the public assist at this discussion ; that it can, through parliament, turn out an administra- 
 tion which is not doing as it likes, and can put in an administration which will do as it likes. But the characteristic 
 of a presidential government is, in a multitude of cases , that there is no such discussion ; that when there is a 
 discussion the fate of government does not turn upon it, and, therefore, the people do not attend to it; that upon 
 the whole the administration itself is pretty much doing as it likes, and neglecting as it likes, subject always to 
 the check that it must not too much offensi the mass of the nation. The nation commonly does not attend, but 
 if by gigantic blunders you make it attend, it will remember it and turn you out when its time comes ; it will 
 show you that your power is short, and so on the instant weaken that power; it will make your present life in 
 oflBce unbearable and uncomfortable by the hundred modes in which a free people can, without ceasing, act upon 
 the rulers which it elected yesterday, and will have to reject or re-elect to-morrow." Bagehot, pp. 55, 56. See 
 also the opinions of M. Boutmy to the same effect, pp. 154, 156. 
 
ON COMPAEATIVBiPOLITICS. 61 
 
 lation, that is, bills asking for the incorporation of banking, railway, insurance and other 
 companies, and for numerous objects affecting private and public interests in every com- 
 munity. This class of bills falls under the denomination of local or private as distin- 
 guished from those involving questions of general or public policy. In the United 
 States congress and state legislatures the absence of a methodical supervision by respon- 
 sible or official authorities has led to grave abuses in connection with such legislation. 
 The " lobby " ^ has been able to exercise its baneful influence in a way that would not 
 be possible in Canada, where, as in England, there is a responsible ministry in parliament 
 and there are rules governing the introduction and passage of such legislation, with the 
 view of protecting the public and at the same time giving full information to all interests 
 that may be affected, and enabling them to be represented before the legislative committees. 
 We are told on the same authority from which I have already quoted, that " the influence 
 of the lobby has proved so formidable an evil that many states of the union, have within 
 a decade, by acts of constitutional conventions or by regular amendments to their organic 
 law, prevented their legislative bodies from enacting special laws in a variety of cases." 
 " But " it is truthfully added, " the limitation of the power to enact private or special 
 legislation has created in its turn an evil far greater than that which it was intended to 
 stay." The result is that the whole body of general legislation " is thrown into the arena 
 of special interests, to be changed, modified, or destroyed as special interests may 
 dictate." ' 
 
 In Canada there are general laws respecting railways, banking and other general 
 interests, and companies seeking incorporation must conform, to them. The changing of 
 a general law to meet a special case is carefully avoided. As in the parent state there 
 are special rules methodizing private legislation, and bringing it under strict legislative 
 control. In the case of railway charters, common of late years, there are " model bills " 
 which every company must follow. If any persons wish to obtain a charter for a private 
 or local object, a railway, a bank, or a toll bridge or other matter involving local 
 interests and private gain, — they must first of all give due notice of their intention in 
 the official Gazette, and in the papers of the locality interested, two months before the 
 bill can be introduced. The time is limited when such matters can be brought up in 
 
 ' The permanent professional staff of lobbyists at Washington is of course recruited from time to time by per- 
 sons interested in some particular enterprise, who combine with one, two, or more professionals in trying to push 
 it through. Thus there are at Washington, says Mr. Spofford, "p-nsion lobbyists, tariff lobbyists, steamship 
 lobbyists, railway lobbyists, Indian ring lobbyists, river and harbour lobbyists, mining lobbyists, bank lobbyists, 
 mail contract lobbyists, war damage lobbyists, back pay and bounty lobbyists, Istiimus canal lobbyists, public 
 building lobbyists, state claims lobbyists, cotton tax lobbyists, and French spoliations lobbyists. Of the office-seeking 
 lobbyists at Washington it may be said that their name is legion. There are even artist lobbyists, bent upon wheed- 
 ling congress into buying bad paintings and worse sculptures ; and too frequently with success. At times in our 
 history there has been a British lobby, with the most genteel accompaniments, devoted to watching legislation 
 affecting the great importing and shipping interests. The phrase one often hears, 'there was a strong lobby' (i.e. 
 for or against such and such a bill) denotes that the interests and influences represented were numerous and 
 powerful." See Bryce, vol. i, appendix B. Of course in a country with parliamentary government like Canada, 
 ministers are exposed to strong influences at critical times, and weak men may yield under the pressure of their 
 supporters in the legislature, but they are ever exposed to the criticism of the houses, and obliged to defend them- 
 selves before the public. The ministry is responsible for all governmental action and all legislation, and the 
 " lobby " cannot corrupt a whole government. 
 
 ' See on this subject Bryce, vol. ii, chap. 45. 
 
62 JOHN GEOEGB BOUEINOT ' 
 
 the legislature. Petitions must be presented within a certain time, stating the nature of 
 the application to the legislative branches, and when they have been received they are 
 referred to a committee which investigates their contents and finds whether the rules 
 respecting notice have been complied with. If the committee report favourably, then a 
 bill, which must be first printed in the two languages, is introduced, and after its second 
 reading, when the principle may be discussed, if necessary — a formality however not 
 generally followed in the case of private bills — it is sent to a select committee having 
 jurisdiction over this class of measures. Before it can be considered in this committee 
 all fees must be paid to the accountant of the house. Then after due notice of a week 
 and more has been given of the consideration of the bill in committee, it^is taken up and 
 fully discussed. All parties interested may now appear by themselves or counsel, and 
 oppose or support the measure. Here the committee acts in a judicial capacity, and 
 hears testimony when necessary. Ministers of the Crown have seats on these private bill 
 committees, to watch over the public interests, for they never act as promoters of such 
 bills. If the bill passes successfully through this ordeal, it comes again before the house 
 for consideration in committee of the whole. At this stage and on the third reading 
 amendments may be proposed, after notice has been given of their nature. When it has 
 passed the house where it originated, it is subject again to a similar course of procedure 
 in the other branch, and hardly a session passes but a private bill, which has evoked 
 strong opposition, is thrown out at the last stages. From the initiation to the passage of 
 the bill, it is subject to the scrutiny of the legal ofiicers of the department, whose duty 
 it is, at the last, to revise and print it as it has passed. The lobby, as it is known in the 
 United States, is not heard of, though there may be, at critical times, much canvassing 
 among members by those interested in a particular measure. The committees are so 
 large — some of them two-thirds of the whole house ' — that a lobbyist finds it practically 
 useless to pursue his arts. Happily for the reputation of the country, the Canadian 
 legislative assemblies still stand much higher than some legislatures in the United States 
 and it will be an unfortunate day for Canada when men in parliament forget the high 
 responsibilities that devolve upon them. A representative of the people should always 
 regard his position as a trust to be kept and used for the sole use of the people. 
 
 But it is not merely to the machinery of administration and legislation that Cana- 
 dians direct the attention of their neighbours. The various statutes which regulate 
 the election of members also seem well calculated to subserve political morality. 
 In Canada what is generally known as the Australian system of voting has been 
 in force for many years and has worked to the advantage of the public interests. ^ 
 
 1 The committees of congress — 41 in the senate and 54 in the house — vary in number from 3 to 11 in the upper 
 house and from 3 to 16 in the lower house. In the dominion commons the committees entrusted with private bills 
 vary from 43 to 162 — that for railways being the largest and necessarily the most important in a country where 
 there has been for years great enterprise in railway construction. 
 
 '•' Canadians have a natural pride in acknowledging the great ability and practical sense exhibited by their 
 co-workers in government in the Australian dependencies. In a previous paper I have already shown that 
 Canada is indebted to South Australia for the admirable Torrens' system of land transfer which is working so sa- 
 tisfactorily wherever it has been introduced. It is to Victoria that the credit must be given for having first 
 introduced the ballot system in 1856, though Mr. Dutton, appears to have moved in the matter in South Austra- 
 lia as far back as 1851, and succeeded in passing a measure in the session of 1857-58. Since then the system has 
 been established in the Australian colonies generally, in England (1872), in the dominion of Canada (1874), and in 
 
ON COMPAEATIVE POLITICS. 63 
 
 Any number of candidates can be nominated on a day appointed by the govern- 
 ment, by a certain number of electors, and on the payment of a fee which will be 
 forfeited in case a candidate does not poll a specified vote on polling day. The returning 
 officer appoints his deputies in the various polling districts. The government prints and 
 controls the distribution of all ballot papers, which are prepared in the form required by 
 statute. "When a voter goes to deposit his vote, the officer in charge looks at the registra- 
 tion book to see if he is on the official list ; and that being so the officer initials the back 
 of the ballot paper and on the counterfoil of the same places a number corresponding 
 to that placed opposite the voter's name on the poll-book. The voter retires into a 
 compartment to which only one person at a time has access, and there places a cross op- 
 site the name of the person or persons for whom he wishes to vote ; he then folds up the 
 ballot paper, so as to conceal his vote, and when he hands it to the officer the latter notes 
 his initials placed on the back, to identify the paper, and detaches and destroys the 
 counterfoil, which prevents the vote of the elector being ever made public. The officer 
 immediately, and in the presence of the elector, places the ballot paper in a box 
 made under the orders of the government for such a purpose. These boxes are opened 
 and the votes duly counted as provided by law, and the ballot papers are returned, ex- 
 cept in case of a recount by the county judge, within a certain number of days, to the 
 clerk of the Crown in chancery. A similar procedure is pursued in the case of the pro- 
 vincial and municipal elections generally, throughout the domiuion. If an election has 
 been duly announced in the official gazette by the Crown officer, it is still open to the 
 defeated candidate or any other person to contest the election in the courts on the ground 
 of bribery or corruption. Since 18'73 the legislative bodies have divested themselves of 
 the privilege of trying controverted elections, and consequently subserved the cause of 
 justice and purity. The advantages of the whole system over the American practice are 
 so obvious that several states have already adopted the Australian law, and it is now 
 being earnestly urged in other sections of the union. ^ 
 
 When we come to sum up the results of the comparisons that I have been briefly 
 making between the political systems of the two countries, I think Canadians may 
 fairly claim that they possess institutions worthy the study and imitation of their neigh- 
 bours. We acknowledge that in the constitution of the upper houses, in the existence 
 of the political veto, in the financial dependence of the provinces to a large extent on 
 the dominion exchequer, there is room for doubt whether the constitution of Canada 
 does not exhibit elements of weakness. ^ The senate of the United States is a body of 
 
 many states of the American republic within a very recent period. With such eminent men at the head of affairs 
 in the past and present as Sir Henry Parkes, Mr. Wentworth, Mr. Boucaut, Mr. Gillies, Mr. Service, and many 
 others of no less note, Australia has been well able to keep up with the political progress of the day, and in certain 
 respects, be even in advance of other and much older communities. Canada, however, can point to her system of 
 federation as an example for the imitation of Australia. 
 
 ' The states wliich have adopted the system are, Massachusetts, Indiana, Minnesota, Missouri, Montana, 
 Rhode Island, Tennessee, and Wisconsin. An agitation, led by the best men, is now going on throughout the Union 
 for a general adoption of the system, and there is little doubt It will succeed ere many years pass away. The bal- 
 lot is now very generally applied in Canada to municipal elections. The system of Ontario is said to be less secret 
 than that of the dominion, or its own municipal regulations, as there are facilities for tracing false personation. 
 On the whole, however, the system works in all the provinces quite satisfactorily, and may be considered secret 
 to all intents and purposes. 
 
 ^ See Bourinot, " Federal Government in Canada,"ipp. 73-75, 160. 
 
64 JOHN GEOEGB BOUEINOT 
 
 great power and varied ability to which the people may refer with pride and gratulation. 
 The reference to tlie courts of all cases involving points of constitutional interpretation 
 has also worked to the advantage of the commonwealth. On the other hand, Canadians 
 call attention to the following features of their system as demanding the serious consi- 
 deration of their co-workers in the cause of good and efficient government. 
 
 An executive, working in unison with, and dependent on parliament, its mem- 
 bers being present in both branches, ready to inform the hoase and country on all 
 matters of administration, holding office by the will of the people's representatives, 
 initiating and controlling all measures of public policy, and directing generally private . 
 legislation. 
 
 An effective and methodical system, regulating and controlling all legislation of a 
 private or special nature, so as to protect vested rights and the public interests. 
 
 A judiciary not dependent on popular caprice, but holding office during good behav- 
 iour, and only removable by the joint action of the two houses and the executive of the 
 federal state. 
 
 A large and efficient body of public servants whose members hold office, not on an 
 uncertain political tenure, but as long as they are able to perform their duties satisfactorily, 
 and who have always before them the prospect of a competency for old age at the close 
 of a career of public usefulness. 
 
 A system of voting at elections which practically secures the secrecy and purity of 
 the ballot, effectually guards the voter " against ticket peddlers, electicn workers and 
 spies," and '' takes the monopoly of nomination out of the hands of the professional politi- 
 cians and removes the main pretext for assessments upon candidates which now prevent 
 honest, poor men from running for office." ^ 
 
 The jurisdiction possessed by the courts of trying all cases of bribery and corruption 
 at elections, and giving judgment on the facts before them, in this way relieving the 
 legislature of a duty which could not, as experience had shown, be satisfactorily per- 
 formed by a political body, influenced too often by impulses of party ambition. ^ 
 
 The placing by the constitution of the jurisdiction over divorce in the parliament of 
 the dominion and not in the legislatures of the provinces, the upper house being now, 
 by usage, the court for the trial of cases of this kind, except in the maritime provinces, 
 which had courts of this character previous to the federal union. The effect of the 
 careful regard entertained for the marriage tie may be estimated from the fact that 
 
 1 See remarks of ' New York World,' October 17th, 1889, on " Ballot Reform." 
 
 ^ The remarks attributed to Mr. Joseph Chamberlain with respect to the purity of elections in England may 
 be interesting to my readers. " In my opinion," he is reported to have said (see an interesting article in 'Lip- 
 pincott's Magazine' for September, 1889, on the "Australian Ballot System," p. 385) "there is at the present 
 moment exceedingly little electoral bribery and corruption in the United Kingdom. The elections are singularly 
 pure, and are daily, if it were possible, improving in that respect. Corruption, indeed, is almost an impossibility, 
 owing to the fact that the briber is absolutely dependent upon the bribe-taker's observance of the motto, ' honour 
 among thieves,' for the former has no means of ascertaining how the latter votes. This is due to the secrecy in 
 which ballots are cast ; so very different from here [the United States] where the voter practically casts his vote 
 in public." No system, we may be sure, has yet been devised even in Canada, capable of meeting successfully all 
 the corrupt acts of the unscrupulous politician, but much has been gained within a few years, and elections are 
 now in the majority of cases fairly pure and inexpensive. One muet not be always guided by the opinions of 
 party newspapers after an election : to charge corruption is often the easiest way of accounting for the result. The 
 law is good and works on the whole admirably. 
 
ON COMPAEATIVB POLITICS. 65 
 
 from ISGY to 1886 there were only 116 divorces granted in Canada against 328,613 in the 
 various states of the union. ' 
 
 The differences that I have shown to exist between the political systems of the two 
 countries are of so important a character as to exercise a very decided influence on the 
 political and social conditions of each. Allied to a great respect for law — which is also 
 a distinguishing feature of the American people, as of all communities of the Anglo- 
 Saxon race — they form the basis of the present happiness and prosperity of the people 
 of the Dominion and of their futare national greatness. It was to be expected that 
 two peoples lying alongside of each other since the commencement of their history, 
 and developing governmental institutions, drawn from the same tap-root of English law 
 and constitutional usage, should exhibit many points of similarity in their respective 
 systems and in their capacity for self-government. But it is noteworthy that their close 
 neighbourhood, their means of rapid communication with one another, the constant social 
 and commercial intercourse that has been going on for years, especially for the past fifty 
 years, have not made a deeper impress on the political institutions and manners of the 
 Canadian people, who being very much smaller in numbers, wealth and national impor- 
 tance, might be expected to gravitate in many respects towards a nation whose indus- 
 trial, social and political development is one of the marvels of the age. Canada, however, 
 has shown an independence of thought and action, in all matters affecting her public wel- 
 fare, which is certainly one of the best evidences of the political steadiness of her people. 
 At the same time she is always ready to copy, whenever necessary or practicable, such 
 institutions of her neighbours as commend themselves to the sound judgment of her 
 statesmen. Twenty-five years ago at Quebec they studied the features of the federal 
 system of the United States, and in the nature of things they must continue to refer to 
 the working of the constitution of that country for guidance and instruction. 
 
 The comparisons I have made between the two systems of government, if carefully 
 reviewed, ought, I submit, to show that Canada has been steadily fulfilling her destiny 
 on sound principles, and has in no wise shown an inclination to make the United States 
 her model of imitation in any vital particular. It is quite clear that Canadians who 
 have achieved a decided success so far, in working out their plan of federal union on well 
 defined lines of action — in consolidating the union of the old provinces, in founding new 
 provinces and opening up a vast territory to settlement — in covering every section of 
 their own domain with a net work of railways — in showing their ability to put down 
 dissension and rebellion in their midst — it is quite clear they are not ready in view of 
 such achievement to confess failure, an absence of a spirit of self-dependence, a want of 
 courage and national ambition, an incapacity for self-government, and to look forward to 
 annexation to the United States as their " manifest destiny." 
 
 But whatever may be the destiny of this youthful and energetic community, it is the 
 earnest wish of every Canadian that, while the political fortunes of Canada and the United 
 States may never be united, yet each will endeavour to maintain that free, friendly, social 
 and commercial intercourse which should naturally exist between peoples allied to each 
 other by ties of a common neighbourhood and a common interest, and that the only rivalry 
 
 1 See Gemmill on " Divorce in Canada," xxii. Also "Statistics of Marriage and Divorce," hy Rev. S. W. Dike, 
 ' Political Science Quarterly,' Dec, 1889. 
 
 Sec. 11, 1890. 9. 
 
66 JOHN GEOEGB BOUEINOT 
 
 between them will be that which should prevail among countries equally interested in 
 peopling this continent from north to south, from east to west, in extending the blessings 
 of free institutions and in securing respect for law, public morality, electoral purity, free 
 thought, the sanctity of the home, and intellectual culture. 
 
CHAPTER III. 
 
 CANADA AND SWITZERLAND. 
 
 It is quite possible that some of my readers may a little wonder why I should go 
 for historical or political parallels to a country so distant from our own as the federal 
 republic of Switzerland.' Many persons, doubtless, look upon that country as -rather a 
 delightful resort for summer tourists and mountain climbing, and forget that the Swiss 
 cantons have long been the home of freedom, and in the apt words of an English writer, 
 " a most instructive patent museum of politics." ^ Interesting experiments in political 
 government have for centuries been attempted in that country, and from its experience 
 not a few valuable lessons can be taught to the student of federal government. Its lofty 
 mountains and eternal glaciers, its sequestered valleys and picturesque hamlets, have but 
 an insigniiicant interest compared with the teachings which its history affords us of the 
 strength that small communities can present when united by the powerful ties of a com- 
 mon interest and a common danger, and animated by a fervent desire to preserve their 
 liberties in their ancient vigour. That old story of Tell which delighted us all in our 
 boyhood has long since disappeared into the realms of mythical tradition where so many 
 tales which evoked our youthful enthusiasm have been lost, and is now believed with 
 reason to be only a legend which originated in Scandinavia and was brought into the 
 Swiss country by one of the early migrations of the wandering tribes of that fruitful 
 land of fables. Be that as it may, Switzerland had ever among its people many bold men 
 ready to oppose the exactions of tyranny, and it is to their courage and love of freedom 
 as much as to the jealousies of surrounding peoples that this " land of the mountain and 
 the flood " owes its existence as a separate free nation among the great communities of 
 Europe. 
 
 In the beginning of one of those interesting lectures delivered some years ago by 
 
 ' The little canton of Schwyz — one of the three original members of the first alliance of ancient lands — 
 has had the honour of giving its name to the whole confederation, though,it was not accepted formally as a national 
 title until the present century. As the Engles or Angles — one of the three bands of invaders from North Germany 
 —have left the eternal impress of their name on the land they helped to win, so the little state of Schwyz — one of 
 the smallest cantons in area and population — has stamped itself for all time on the union of all the common- 
 wealths. 
 
 ^ Bryce, " American Commonwealth," ii. 4. 
 
68 JOHN GEOEGB BOUEINOT 
 
 Professor Freeman on the " Grrowth of the English Constitution," he pays an eloquent 
 tribute to the institutions of Switzerland which has been often quoted by writers referring 
 to the history and government of that country. It is a land, he truly says, " where the 
 oldest institutions of our race, institutions which may be traced up to the earliest times 
 of which history or legend gives us any glimmering, still live on in their primeval fresh- 
 ness." It is a land, " where an immemorial freedom, a freedom only less eternal than 
 the rocks that guard it, puts to shame the boasted antiquity of kingly dynasties, which, 
 by its side, seem but as innovations of yesterday." In the institutions of the Swiss 
 cantons, " which have never departed from the primeval model, we may see the institu- 
 tions of our forefathers, the institutions which were once common to the whole Teutonic 
 race, institutions whose outward form has necessarily passed away from greater states, 
 but which contain the germs out of which every free constitution in the world has 
 grown." ^ But in addition to these interesting and instructive features of the political 
 system of Switzerland, there are in the nature of the federal constitution of that country 
 and in the conditions under which it has been founded, and is now being worked out, 
 certain suggestive facts from which conclusions may be drawn of much value to all 
 thoughtful minds among the Canadian people who are endeavouring to establish a 
 permanent federation by harmonizing radical differences of race and creed on the sound 
 basis of compromise, conciliation and justice. 
 
 " The federal system which now unites the Swiss cantons has many features in common 
 with that of Canada, and especially with that of the United States, which has in fact been 
 closely studied by them and by ourselves. The federation of the United States had been 
 in operation for sixty years before Switzerland adopted a similar system after an experience 
 of a loose system of alliances for a long period of time. The conditions under which 
 the cantons combined for general and common purposes were favourable to such a union. 
 In Switzerland, as in Canada and the United States, there were various communities 
 possessing special interests, and having long established local institutions to which they 
 had naturally a strong attachment. The federal idea is eminently adapted to the circum- 
 stances of communities so situated. They desire to unite for certain national objects in 
 order to give guarantees of strength and security to the communities as a whole, and at the 
 same time wish to preserve as far as possible in their integrity all those local privileges 
 and rights, the continuance of which under their own immediate control is not incon- 
 sistent with the general interests of the confederation. The history of the Swiss com- 
 munities as cantons goes back to immemorial times, and their respective peoples have 
 always entertained for the divisions in which they live a feeling of affection, and even 
 veneration, which shows itself throughout the constitutional arrangements of the con- 
 federation. It has been precisely the same in the case of the United States and of the 
 Dominion. In the United States there have been always since the beginning of their 
 history distinct self-governing communities, called provinces or colonies under the 
 English regime, and subsequently, states, which agreed of their own free will to give up 
 certain rights to a common government that they might form a united and strong nation ; 
 but at the same time they preserved all those institutions and privileges which are 
 intimately connected with the every-day life, the property, the happiness and the security of 
 
 1 Freeman, " Growth of the English Constitution," (4th ed.), pp. 1, 2, 8. 
 
ON COMPAEATIVE POLITICS. "^ 69 
 
 mdividuals. The national gorernment which they established bears traces of the forms 
 of those institutions of the states with which the framers of the constitution were natur- 
 ally most familiar. In Canada we can see how history has repeated itself in this 
 particular. The provinces, long in the possession of an admirable system of local govern- 
 ment, naturally maintained all those features necessary to their local autonomy. The 
 province of Lower Canada, peopled by a French race, always adhering with tenacity to 
 the language of their fatherland, possessing institutions which they valued highly, would 
 have consented to no scheme that did not give every possible guarantee for the conserva- 
 tion of what they considered their most valuable heritage. A judicious English publicist 
 has said with much force that a federal state " is a political contrivance intended to 
 reconcile national unity and power with the maintenance of ' state rights.' " And again, 
 the sentiment " which creates a federal state is the prevalence throughout the citizens of 
 more or less allied countries of two feelings which are to a certain extent inconsistent — 
 the desire for national unity and the determination to maintain the independence of each 
 man's separate state.' " Before I close this paper I shall attempt to show that while these 
 two apparently inconsistent feelings must naturally exist in a federation, there are always 
 powerful reasons why the national sentiment will prevail iu the end in times of national 
 crises over purely sectional considerations. At present, however, we are only dealing 
 with the general principles which form the basis of a federation, and with the sentiment 
 or motive power which makes such a form of government possible and practicable. If 
 we study the constitutions of the United States, of Canada and of Switzerland, we see in 
 them all emphatically laid down the principles which actuated the people in giving their 
 consent to their respective confederations. 
 
 The articles of " confederation and perpetual union " that were passed by congress in 
 17Y8 asserted that the states " severally enter into a firm league of friendship with each 
 other, for their common defence, the security of their liberties, and their mutual and 
 general welfare, binding themselves to assist each other against all force offered to, or 
 attacks made upon them or any of them, on account of religion, sovereignty, trade, or any 
 other pretence whatever." The principle of state sovereignty is emphatically affirmed in 
 the second article — " each state retains its sovereignty, jurisdiction and right, which is 
 not by this confederation expressly delegated to the United States in congress assembled." 
 This confederation failed because it had inadequate national authority, and the 
 states were forced at last by instincts of national preservation to give greater strength 
 and power to the general government by the adoption of the constitution of ITS'?, which 
 declares in the preamble that the people of the United States " ordain " this instrument 
 in order " to form a more perfect union, establish justice, ensure domestic tranquillity, 
 provide for the common defence, promote the general welfare, and secure the blessings of 
 liberty." But, not satisfied with the terms of the original constitution as it passed the 
 convention of 118*J, the advocates of state rights subsequently passed an amendment 
 embodying a declaration of the confederation that " powers not delegated to the United 
 States, nor prohibited by it to the states, are reserved to the states respectively or to the 
 people." The amendments, of which this formed one, have been called the " American 
 Bill of Rights," on account of the fundamental idea from which they sprang — that as little 
 
 1 Dicey, " Law of the Constitution" (3rd ed.), p. 133. 
 
70 JOHN GBOEGE BOUEINOT 
 
 as possible should be left in the constitution to supposition or implication, but that erery 
 means should be taken to prevent controversy or doubt in the future/ 
 
 The British North America Act of 1861, which is the " fundamental law " of the 
 dominion of Canada, simply sets forth in the preamble that " the provinces of Canada, 
 Nova Scotia and New Brunswick have expressed their desire to be federally united," but in 
 the resolutions which were adopted at the Quebec conference of 1864, we find clearly 
 defined the principles on which the union is based. ^ The system of government best 
 adapted under existing circumstances to protect the diversified interests of the several 
 provinces and secure harmony and permanency in the working of the union is declared 
 to be " a general government charged with matters of common interest to the whole 
 country, and local governments for each of the Canadas, and for the provinces of Nova 
 Scotia, New Brunswick and Prince Edward Island [which was then expected to come in] 
 charged with the control of local matters in their respective sections." In the constitu- 
 tion itself the respective powers of the dominion and provincial governments are enumer- 
 ated with as much definiteness as was possible under the circumstances, but the powers 
 that are not within the defined jurisdiction of the provincial governments are reserved 
 in general terms to the central authority, the very reverse of the principle followed in the 
 United States constitution. "We shall see that in the endeavour to enumerate definitely 
 the separate powers of the central and local organizations the Swiss constitution resembles 
 the Canadian rather then the United States instrument, but with a jealous regard to state 
 rights the powers not expressly delegated to the general government rest in the cantons 
 and not in the central authority. 
 
 In the closing years of the thirteenth century, the historic lands of Schwyz, Uri, and 
 Unterwalden, near the lake of Lucerne, having broken loose from the trammels of the 
 feudal system, joined in a perpetual union, and adopted articles of confederation in which 
 lay the germs of the present federal republic' Since those years the three cantons have 
 increased to twenty-two, or, more strictly speaking, to twenty-five in number, by alliances, 
 conquest or annexation, but until 1848, they were bound together only by Ermere federal 
 league, except for a few years after the French revolution, when th^y were formed into 
 a Helvetic republic, imposed upon the cantons by French influence and antagonistic 
 to their spirit of local self-government, since it abolished the cantons to all intents and 
 purposes as governing divisions, and established prefectures or administrative districts in 
 conformity with the system prevalent in France.* The Emperor Napoleon in 1803 yielded 
 in a measure to the strong sentiment that prevailed in Switzerland against this inter- 
 ference with ancient and valued rights, and established a new constitution, called the 
 
 ' Von Hoist." Constitutional Law of the United States" (Mason's translation), pp. 29, 30. 
 
 '' Bourinot, " Federal Government in Canada," p. 32. 
 
 •'' Bluntschli "Gesohichte des Schweizerischen Bundesrechtes," i. 59, 60; ii. i. 
 
 '' The names of the original cantons and the years of alliance are as follows : Uri, Schwyz.Unterwalden, (1291)i 
 Luzern (1332), Zurich (1351), Glarus and Zug (1352), Bern (1353), Freiburg and Solothurn (1481), Basel and Schaff- 
 hausen (1501) ; Appenzell (1513) ; St, Gallen, Aargau, Graubiinden, Thurgau, Ticino, Vaud (1803) ; Valais, Geneva 
 Neufchatel (1814). Subsequently Unterwalden was divided into half-cantons, Obwalden and Nidwalden; Basel 
 into Baselstadt and Baselland ; Appenzell into Appenzell-Exterior and Appenzell-Interior. The allied cantons 
 had previous to 1848 a Diet, established by the thirteen original cantons enumerated as above ; not acting strictly 
 as a representative body, but rather as delegates under instructions from their districts, and having the functions 
 of ambassadors. See Moses, " Federal Government in Switzerland," chap. ii. 
 
ON COMPAEATIVE POLITICS. 71 
 
 Act of Mediation,— confessedly a wise act of statesmansMp— on- account of its being a 
 compromise between tbe centralizers and the federalists or the supporters of the old con- 
 dition of things. This constitution restored the local institutions of the cantons, and 
 formed a confederation with a diet or general representative assembly, but at the same 
 time it made the country practically a mere dependency of France, and " by thus out- 
 raging national dignity paved the way for the restoration by the allied Powers " of reac- 
 tionary and oligarchical governments. ^ After the fall of Napoleon there was practically 
 a return to the condition of things that existed previous to the French revolution, and 
 the cantons received back a large portion of their sovereignty while a loose federal pact 
 still bound them all together. In 1848, after years of agitation and a war of secession 
 known as the war of the Sonderbund^— a league of Eoman Catholic states which wished 
 to withdraw from the confederation — there was a revision of this federal pact, and a consti- 
 tution was formed with the object of meeting the aspirations of the advocates of a strong 
 central authority, and giving due heed to the strength of local autonomy in the country. 
 As must be always the case where there are conflicting elements at work, just as it hap- 
 pened at Quebec in 1864, and at Philadelphia in lYBT — this instrument showed throughout 
 a spirit of compromise. The cantons had to concede rights in order to give that strength and 
 efficiency to the national government which is absolutely necessary to the permanency and 
 stability of the whole confederation, but at the same time they retained under their imme- 
 diate control all indispensable powers of local self-government. Even this constitution 
 proved defective in many respects on account of the large measure of power still retained 
 in the cantons, and the numerous checks and guards imposed on the efficient operation of 
 the central authorities. The advocates of centralization pressed for another revision, 
 which was finally made in 18*74, and while this revised constitution relieves the federal 
 state of some difficulties which impeded its efficient working, yet it maintains to an 
 important degree the principle of local sovereignty — the main spring of the political 
 action of the cantons since the commencement of their history. 
 
 The peoples of the twenty-five cantons, which now form in their entirety the Swiss 
 confederation, have united " to maintain and promote the unity, strength and honour of 
 the Swiss nation." Its purpose is declared emphatically to be " to secure the indepen- 
 dence of the country against foreign nations, to maintain peace and order within, to pro- 
 tect the liberty and the rights of the confederates, and to foster their common welfare." 
 The cantons are " sovereign, so far as their sovereignty is not limited by the federal con- 
 stitution ; and as such they exercise all the rights which are not delegated to the federal 
 
 ' See an instructive article on "Democracy in Switzerland" in the ' Edinburgh Eeview ' for January, 1830. 
 
 ^ The Sonderbund was a religious war, which had its origin in the eflforts of the radical protestant party to 
 abolish the monasteries in the Eoman Catholic cantons, whose rights and privileges had been guaranteed in the 
 convention or pact of 1815, which settled the basis of union into which Geneva, Valais, Neufchdtel, and the terri- 
 tories previously held as dependencies, entered with all the privileges of confederate cantons. The diet in 1843, 
 as a sort of compromise, agreed to abolish half of the monasteries in the canton of Aargau, and the result was the 
 establishment of a league or Sonderbund of the Koman Catholic cantons, Sohwyz, Uri, Unterwalden (the three 
 original members of the first federal alliance in 1309) Imcerne, Freiburg, Valais and Zug. Four years later, a con- 
 flict of arms was precipitated, and, as in the American republic, the cause of union triumphed. The result of the 
 war was the written constitution of 1848, establishing a federal union. "The year 1848," says the writer in the 
 ' Edinburgh Review,' already cited, " which exiled Louis Philippe, and gave France a transitory republic, 
 founded in Switzerland, a national government, as stable as any in Europe ; the Swiss constitution is the one 
 fabric which does honour to the constitution-makers of the year of revolutions." 
 
72 JOHN GEOEGE BOUEINOT 
 
 government." Here we see reproduced essential features of the constitution of the United 
 States. 
 
 I have in the second paper of this series given a brief summary of the respective 
 powers of the governments of the United States and of Canada, and it will now be useful 
 . for the reader, as he proceeds, to refer back and make comparisons with the following 
 - short statement of the division of powers under the Swiss federal system. 
 
 Avthorities of the Swiss Confederation:^ — A federal council, or executive, known as 
 the Bundesrath or Oonseil Federal, with a president at its head known as B.undesprasident, 
 performing both administrative and judicial functions. 
 
 A federal assembly (Bundesversammlung or Assemblee F6derale), consisting of two 
 houses — a national council or popular assembly (Nationalrath or Oonseil National) and a 
 council of states or senate (Standerath or Oonseil des Etats), having large legislative 
 powers, but subject to the referendum or popular acceptance or rejection of legislative acts. 
 
 A federal or supreme court, (Bundesgericht or Tribunal Federal), with a president or 
 chief justice, and a vice-president to take his place when necessary, having jurisdiction 
 in civil and criminal cases, and in cases of public law. 
 
 Cantonal governments, varied in their character, but having generally an executive 
 or administrative council, and a legislative body subject to the popular acceptance or 
 rejection of its legislative acts. 
 
 Cantonal courts, organized as each canton prescribes, and only subject to the federal 
 supreme court in cases provided by law. 
 
 From the foregoing summary it will be seen that the government of the Swiss federal 
 republic is divided into executive, legislative, and judicial authorities, although there is 
 by no means that clear separation between them that exists in the United States. 
 
 The supreme authority virtually rests in the federal assembly . 
 
 The national council and the council of states sit apart from each other except for the 
 election of the federal council, and other electoral and judicial purposes defined by the 
 constitution, when they constitute one assembly in the constitutional sense. 
 
 The national council consists of 145 representatives chosen by ballot in forty-nine 
 electoral districts in the proportion of one representative for every 20,000 persons, by all 
 citizens who have completed 20 years of age and have a right to vote w^ithin their res- 
 pective cantons at elections or in the case of the referendum or popular vote, to which I 
 shall refer later on. Every layman who has a right to vote can be a member. The council 
 elects at each session a president and vice-president, who cannot be re-elected in the same 
 capacity at the ensuing session. Members receive out of the federal chest a regular 
 indemnity at the rate of about four dollars a day, when present, as well as a travelling 
 allowance of about five cents a mile, and are elected for three years. 
 
 The council of states, like the United States senate, represents the states or cantons, 
 each of which has two members, making 44 members in all — each half canton having one 
 member. The election and voting are entirely in the control of the cantons. In some 
 cantons the members are, like senators, elected by the representative bodies ; in others, 
 where the referendum exists, they are elected by popular vote. Members are paid by 
 
 1 I have used whenever necessary the excellent translation of the Swiss constitution by Professor James of the 
 University of Pennsylvania. 
 
ON COMPAEATIVE POLITICS. 73 
 
 the cantons themselves, and their term of service varies from one year to three years. The 
 council chooses, from its own body, for each session, a president, and vice-president, who 
 cannot be taken from the deputies of the same canton that furnished the same officers of , 
 the preceding ordinary session, «— -^ 
 
 The federal council is composed of seven members chosen every three years by the 
 assembly iu.joint session from among all Swiss citizens eligible to the national council, 
 with the limitation that no more than one member of the federal council shall be chosen 
 from the same canton. This council holds office only during the existence of the federal 
 assembly, and during that time it cannot be dissolved by any adverse vote of the federal 
 assembly. The president and vice-president are named for one year by the federal assem- 
 bly from among the members of the council, and all these officials receive an annual 
 salary from the federal chest— the president's being $2, TOO, and that of the other members 
 of the council, |2,400 a year. 
 
 The federal council is divided into the following departments of administration : 
 
 1. Foreign affairs, 5. Finance and customs, 
 
 2. Interior, 6. Agriculture and industry, 
 
 3. Justice and police, Y. Posts and railways, 
 
 4. Military, 
 
 which in many ways recall the division of authority in the government of Canada, — 
 foreign affairs of course excepted. ' 
 
 The federal court is composed of nine judges, and as many substitutes, elected for six 
 years by the federal assembly out of persons eligible for the national council, and care is 
 taken that the three nationalities are represented in the tribunal. The assembly also 
 appoints a president or chief justice from among the members of the court for two years. 
 The judges are eligible to be re-elected on the expiration of their term of service. They 
 may give their judgments in German, French or Italian, according to their respective 
 nationalities, just as the French and English judges of the supreme court of Canada may 
 render their decisions in their own languages. The president receives $2,200, the other 
 judges $2000 a year. 
 
 Before I go on to refer to the various powers and duties entrusted to the federal 
 authorities, thus briefly enumerated, I may first appropriately mention a few features of the 
 
 Cantonal Governments. — Each canton is a state within itself and has complete and 
 plenary jurisdiction over all matters not expressly or impliedly ceded to the federal 
 authorities. The constitutions of the cantons vary in character. In some of the smaller 
 cantons there still exist in their ancient forms those free popular assemblies, known as 
 Landsgemeinden, where the local authorities are chosen, local questions taken up and 
 disposed of, and laws and constitutions submitted to the people's voice, in a manner I 
 shall describe later. In the majority of cantons, there are legislative, executive and judi- 
 
 ^ The departments of the Canadian government comprise, justice, militia, public worKs, railways and canals, 
 finance, customs, interior, agriculture, marine and fisheries. There is also the department of Secretary of State, 
 who has charge of public piinling and other public functions. The president of the council has no departmental 
 duties in the ordinary sense. Unlike the Swiss council, the Canadian council is not limited to numbers, but may 
 be increased or diminished at the pleasure of the Crown, on the advice of the ministry of the day. See Bourinot, 
 " Manual of Constitutional History of Canada," pp. 70-74. 
 
 Sec. II, 1890. 10. 
 
74 JOHN GEOEGB BOUKINOT 
 
 cial authorities as in the federal state. In the majority there are grand councils or repre- 
 sentative bodies of short duration and subject to the popular veto. The executive power 
 is exercised by bodies known in some states as the " Landamman and Council," in others 
 as the " Estates Commission " or " Standeskommission," or the " Smaller Council," but in 
 the majority of cases as the " Administrative Council " or " Regierungsrath." Their term 
 of office varies from one to six years in the several cantons, and the members are elected 
 directly by the people or by the legislative bodies. The legislature of the cantons consists 
 of one house, called the G-reater Council or G-rosser Eath in the majority of the cantons, 
 in others the Cantonal Council or Kantonsrath, or the Landrath. The representatives are 
 elected by popular vote for terms varying from one to six years. The codes of law vary 
 according to nationality. The French cantons, like the province of Quebec, follow the 
 French civil law, based on the Code Napoleon. The courts are generally composed of 
 judges elected by the people or the popular councils for a term of years, not exceeding 
 four. The most interesting feature of the cantonal system of local government is the 
 existence of local divisions in certain cantons known as communes, or gemeinde, which 
 were known even in feudal times, and are associated with the dearest rights and privileges 
 of the people. The commune has been well stated to be the school in which the Swiss 
 learned lessons of local freedom — the home of the liberties which they have cherished for 
 centuries. Its history goes back to the old times of our Teutonic and English ancestors, 
 who brought their local institutions from northern G-ermany. It is practically the local 
 division of early English times, known as the township, which was gradually merged in 
 the familiar modern parish, in which the vestry has so long played an important part. 
 It regulates all its own concerns by municipal councils elected in accordance with long 
 established usage, and is in fact the canton in a diminutive form. In addition to these 
 self-governing local divisions there are areas established for purposes of state administra- 
 tion known as districts, over which presides an officer known as Bezirksammann or 
 Eegierungs-Statthalter, elected by the people or by the legislative and administrative 
 councils. 
 
 I come now to enumerate the powers and duties of the respective authorities of the 
 confederation so far as is necessary to give the reader a general idea of the nature of its 
 constitution, and enable him to make comparisons with our own federal system. Like 
 the British North America Act, the Swiss constitution attempts to enumerate as far as 
 practicable the attributions and jurisdictions of the respective authorities, and conse- 
 quently is in this respect a more elaborate instrument than the United States constitution. 
 
 "While the latter with all its amendments made since 118*1 contains only 42 sections, 
 divided into 15 articles, the Swiss instrument comprises some 126 articles or sections, 
 strictly speaking, in which the chief object is obviously to guard the sovereign powers of 
 the cantons, and prevent a conflict as far as possible with the general or central 
 authorities. 
 
 In its many details, and in its declaration of fundamental rights and principles, it 
 resembles in not a few respects the constitutions of the American States, which make 
 assertions of the rights and immunities of the individual citizen generally unnecessary 
 under the existing condition of things, and deal with a variety of topics which can be well 
 left to the ordinary action of the legislature or of the administrative authorities, and 
 pursues those topics into a minute detail hardly to be looked for in a constitutional law. 
 
ON COMPAEATIYB POLITICS. 75 
 
 Some of the principles enunciated — those that prohibit the establishment of gaming 
 houses for instance — have no connection with constitutional law. 
 
 In the Swiss constitution, however, we can see that its framers found it necessary to 
 guard against the conflicting interests of different national and religious elements. 
 
 Referring now to the general provisions of the constitution we find that 
 
 The Powers of the Confederation — may be enumerated as follows : — 
 
 The sole right of declaring war, making peace, and concluding treaties with foreign 
 powers, especially with respect to commerce and customs. 
 
 Military legislation, arming of troops, and military instruction, control over the army 
 and material of war provided by law, and over all military resources of the cantons in 
 case of danger. 
 
 The construction of public works at its own expense or by subsidies. 
 
 The general supervision of water and forest police, and the regulation of the right of 
 fishing and hunting, especially for the preservation of game and useful birds. 
 
 Legislation for the construction and operation of railroads. 
 
 The establishment, besides the existing polytechnic school at Zurich, of a federal 
 university and other institutions of higher instruction, or the subsidizing of such 
 institutions. 
 
 The customs, and the levying of export and import duties — taxes on exports, 
 necessaries, and raw materials being made as low as possible, those on luxuries as high as 
 may be found necessary, and the products of Swiss industry taxed at a lower rate than 
 those of foreign origin. 
 
 The regulation of the manufacture and sale of alcohol.^ 
 
 Uniform legislation with respect to the employment of children in factories, and the 
 protection of workmen generally. 
 
 The control of the post and telegraphs, the revenue of which goes into the treasury. 
 
 General supervision over certain important roads and bridges in whose maintenance 
 the union has an interest. 
 
 The regulation of weights and measures. 
 
 The manufacture and sale of gunpowder. 
 
 The protection of the rights of marriage. 
 
 The right to coin money, to issue bank notes, and to determine the monetary system. 
 
 The power to make laws respecting civil capacity, commercial obligations, literary 
 and artistic copyright, the collection of debts, and bankruptcy — the administration of the 
 laws remaining in the control of the cantons, except when specially assigned to the 
 federal supreme court. 
 
 ^ The public revenue of the confederation is derived chiefly from customs. A considerable income is also 
 derived from the postal system, and from the telegraph establishment conducted by the federal government on the 
 principle of uniformity rates. The sums raised under these heads are not left entirely for government expenditure, 
 but a great part of the postal revenue, as well as a portion of the customs dues, have to be paid over to the cantonal 
 administrations, in compensation for the loss of such sources of former income. In extraordinary cases, the 
 federal government is empowered to levy a rate upon the various cantons after a scale settled for twenty years. 
 A branch of revenue proportionately important is derived from the profits of the various federal manufactories, 
 and from the military school and laboratory at Thun, near Bern. The total revenue is about f 1 .',000,000, which 
 generally covers the expenditure, and, the public debt amounts to over $5,000,000, against which there is the 
 " federal fortune " or states property, valued at nearly $12,000,000. See " Statesman's Year Book " for 1890, p. 984. 
 
76 JOHN GEORGE BOURINOT 
 
 The right to establish the limits within which a citizen may be deprived of his poli- 
 tical rights. 
 
 Extradition. 
 
 Measures of sanitary police against dangerous epidemic and veterinary diseases. 
 
 The power to expel foreigners who endanger the internal or external safety of the 
 federation. 
 
 Powers of the Cantons. — The foregoing is a general statement of the principal powers 
 of the general government. But there are limitations expressly placed by the constitution 
 on the powers of the confederation in the interest of the cantons. "While, as previously 
 stated, the cantons exercise all the rights not expressly given to the federal government, 
 the constitution " guarantees to the cantons their territory, their sovereignty, their consti- 
 tutions, the liberty and rights of the people, the constitutional rights of citizens, and the 
 rights and privileges which the people may have conferred on those in authority." The 
 cantons have the right to make agreements or conventions between themselves upon legis- 
 lative, administrative or judicial subjects, and to impose certain import duties, but their 
 execution is prevented should they contain anything contrary to the rights of the confe- 
 deration or of other cantons. Subject to similar limitations they may also deal directly 
 and conclude treaties with the subordinate authorities of foreign powers with respect to 
 matters affecting the administration of public property, and border or police intercourse. 
 Such provisions are quite intelligible when we reflect that Switzerland is a country sur- 
 rounded by other states, and having a number of relations of neighbourhood, which do 
 not touch general interests, and in such cases agreements can be concluded between can- 
 tons and frontier states, the confederation only reserving the right of supervision. ' Even 
 in the case of public defence, and the maintenance of the militia, the cantons have rights 
 which control more or less the powers of the confederation. The federal government has 
 no power to keep up a standing army, nor can any canton or half canton, without the 
 permission of the former maintain a permanent force of more than 300 men, excluding 
 the mounted police or gens d'armes necessary for police purposes. The cantons have au- 
 thority over the military forces of their territory, so far as this right is not limited by the 
 federal constitution or laws. The enforcement of military law in the cantons is entrusted 
 to the cantonal officials, within limits fixed by federal legislation, and under federal 
 supervision. In case of internal disputes, the cantons are not allowed to enforce their 
 own rights, but must refer the difficulty to the federal authorities. In case of danger 
 from foreign aggression the threatened canton may call upon other cantons for aid, and 
 notify the federal government at the same time, in order that it may take such measures 
 as are necessary ; and all expenses thus incurred may be borne by the federal treasury. 
 
 The cantons proAade for primary compulsory instruction, which must be free and 
 sufficient, and placed exclusively under the direction of the secular authority. The 
 public schools, which are among the best in the world, are frequented by the adherents of 
 all religious sects, without any offence to their freedom of conscience or belief. In some 
 cantons no religious instruction is given ; in others an hour is devoted to elementary reli- 
 gious teaching, but no one is obliged to attend. Mixed schools exist in some cantons 
 
 1 Adams' " Swiss Confederation," p. 30. 
 
ON COMPAEATIVB POLITICS. 77 
 
 and are worked on purely non-sectarian principles. In case the cantons do not fulfil 
 their duties in these particulars, the federal government has a right to provide remedial 
 legislation. Eeligion is a matter within the jurisdiction of the cantons, and a state church 
 may be established and supported, but freedom of conscience cannot be interfered with.' 
 
 The various cantons have their own local administrations and budgets of revenue and 
 expenditure. Most of them have also their public debts, which are not of large amount 
 and are well secured. ^ 
 
 Having cited the general powers of the federal and cantonal authorities, I may now 
 enumerate briefly the 
 
 Powers of the Federal Assembly. — The national council and the council of states exercise 
 co-ordinate powers on all subjects placed within the federal jurisdiction by the funda- 
 mental law and not assigned to other authorities, especially on the following subjects : — 
 
 Laws relating to the organization and election of the federal authorities. 
 
 Compensation of members of 'the federal government and other bodies ; the creation 
 and salaries of permanent federal officers. 
 
 Election of the federal council, of the federal court, of the chancellor or secretary of 
 the national council, and of the commander-in-chief of the federal army. 
 
 Such other powers of election or of confirmation as may be legally authorized by the 
 confederation. 
 
 Alliances and treaties with foreign powers ; also the approval under certain circum- 
 stances of treaties made by cantons with other cantons and with foreign countries. 
 
 Measures necessary for the external safety and the maintenance of the independence 
 and neutrality of Switzerland ; the declaration of war, and the conclusion of peace. 
 
 The guarantee of the constitutions and of the territory of the cantons, intervention 
 in consequence of such guarantee ; measures for the internal security of Switzerland ; for the 
 maintenance of peace and order, amnesty and pardon. 
 
 Measures for the preservation of the federal constitution, for carrying out the guar- 
 antee of the cantonal constitutions, and for the fulfilment of federal obligations. 
 
 The control of the federal army. 
 
 The annual budget, audit of public accounts, and loans. 
 
 Supervision of federal administration, and federal courts. 
 
 Appeals in case of administrative conflicts. 
 
 Conflicts of authority between federal authorities. 
 
 Amendment of the federal constitution. 
 
 Continuing this enumeration of the powers of the federal authorities, we come now to 
 
 ^ See Adams,, p. 183 et seq. 
 
 ^ The income of the cantonal administrations is derived partly from direct taxes on income and property (on 
 varying scales, and often with progressive rates for the different classes) and partly from indirect duties, as excise, 
 stamps, etc. Several cantons have only indirect taxation, and over the whole about 58 per cent, of the revenue is 
 raised in this form. In most of the towns and parishes heavy municipal debts exist. See "Statesman's Year-Book" 
 for 1890, pp. 984-986. By art. 31 of the federal constitution, the freedom of trade and industry throughout the con- 
 federation is guaranteed, and by other articles the cantons are allowed to collect import duties on wine and other 
 spirituous liquors under certain conditions, among which is that in the collection of duties the free transit of goods 
 shall not be interfered with. The same article also provides that the federal government must approve of the laws 
 and ordinances of the cantons. 
 
78 JOHN GBOEGE BOUEINOT 
 
 The Federal Covncil — which exercises the following powers and duties within the 
 limits of the constitution : — 
 
 The conduct of federal affairs, according to the laws and resolutions of the con- 
 federation. 
 
 The due observance and execution of the federal constitution, laws and other instru- 
 ments of the union, of the guarantees of the cantonal constitutions, and of the judgments 
 of the federal court. 
 
 The proposal of bills or ordinances to the federal assembly, and reports on proposi- 
 tions submitted to it by the federal councils, or by the cantons. 
 
 Appointments not assigned to the federal assembly, federal court, or other duly 
 authorized body. 
 
 Examination of treaties made by cantons. 
 
 The protection of the internal and external safety of the confederation and the main- 
 tenance of independence, neutrality, peace and order. 
 
 The power to raise and employ troops in cases of urgency, and whenever the federal 
 assembly is not in session, but the councils must be immediately summoned, and the 
 number of troops so summoned shall not exceed two thousand men nor remain in arms 
 more than three weeks. 
 
 The supervision of the military establishment and other branches of the adminis- 
 tration of the union. 
 
 The examination of all laws and ordinances of the cantons that should be submitted 
 for their approval. 
 
 The management of the finances of the confederation. 
 
 The supervision of the business of all federal officials. Eeports upon the conduct of 
 business at each session of the federal assembly and upon the internal condition and 
 foreign relations of the union. 
 
 Tlie Federal Court — has jurisdiction in the following cases : — 
 
 In civil suits between the confederation and the cantons ; between the confederation 
 and corporations or private persons when the amount involved is of sufficient import- 
 ance ; between cantons ; between cantons and corporations or individuals within certain 
 limitations fixed by federal authority ; between communes of different cantons ; and also 
 in cases where both parties to the suit agree to the reference, and the litigation exceeds a 
 certain value fixed by the federal assembly. 
 
 In criminal cases, when the court is assisted by a jury, viz. : High treason, rebellion 
 or violence against the federal authorities ; crimes and misdemeanors against the law of 
 nations ; political crimes and misdemeanors which are the cause or the result of disturb- 
 ances that demand armed federal intervention. Cases against officials appointed by a 
 federal authority. 
 
 In cases of conflict of authority between the federal and cantonal authorities ; disputes 
 between cantons on questions of public law ; complaints of the violation of the constitu- 
 tional rights of citizens ; and complaints of individuals for the violation of concordats 
 between cantons or of international treaties. 
 
 And in all the cases just mentioned, the federal court shall apply the laws and 
 
ON COMPAEATIVB POLITICS. 79 
 
 general decrees of the federal assembly, and shall in like manner observe all treaties which 
 shall have been ratified by the same body. 
 
 The general reader may find these details a little wearisome, but the political student 
 will at once see they are necessary to give a fairly correct idea of the important features 
 of a federal system which bears a resemblance to that of Canada. In comparison with 
 our federal system, however, the central authority of Switzerland, is weak in some 
 respects, and more power is left in the cantonal, or, as we would call them, the pro- 
 vincial organizations. The president of the federal council has none of the powers 
 of the president of the United States, or of the premiers of Canada or England. ^ He is 
 only chairman of the council, elected for one year, and not eligible for re-election for the 
 following year ; but the same principle of disability does not apply to the other members 
 of the executive, who hold their ofiices for three years and may then be re-elected by the 
 federal assembly. It is interesting to note that the re-election of competent men who 
 have gained valuable experience in their respective departments, and have proved their 
 usefulness, is the rule and not the exception in this country of purely democratic institu- 
 tions. When they have once proved their ability in the work of administration the 
 people are only too anxious to retain their services. The cabinet is not a political body 
 in a party sense, but may contain men of different opinions ; they are not members of the 
 federal assembly, and, once elected by that body, do not depend on the support of the 
 majority in the national council or popular house. They cannot vote, but they sit when- 
 ever necessary in either chamber, propose and draft legislation, explain acts of adminis- 
 tration, take part in the debates, make motions on matters under consideration, and 
 practically perform many of the important duties that a cabinet minister performs in the 
 English or Canadian Commons. In this respect the Swiss council is able to exercise 
 greater influence than the so-called cabinet at Washington, whose members cannot sit 
 in either house of congress, and have no immediate legislative responsibilities; and it 
 has been mooted of late whether it would not be wise to make a change in this direc- 
 tion, and introduce the Swiss practice into the senate and house of representatives. ^ 
 
 '■ " In the hands, however, of a man of great ability the position assumes far more importance than would appear 
 likely from an analysis of the functions which the constitution calls upon him to perform ; for it must be borne in 
 mind that not only is he entrusted with a certain control over the various departments of the executive, and not 
 only does he represent Switzerland in the eyes of foreign nations, and has frequently in that capacity to take the 
 initiative in matters of general policy, but his personal influence is felt within the federal assembly itself." ' West- 
 minster Beview,' Feb., 1888, p. 208. 
 
 ' Mr. Hannis Taylor in the ' .Atlantic Monthly,' June, 1890, would confer upon the cabinet of the United States 
 the right to a place and voice in each branch of congress and to initiate legislation. He sees, however, that their 
 influence would be very small unless they could be clothed with all the aiithority of official representatives of the 
 party, of which the president is head. He suggests that each of the great parties, by a resolution of its national 
 convention, should vest in its presidential candidate and his cabinet, in the event of success, the official leadership 
 according, to English practice. He is vague, but I judge that he means that the president should, when elected, 
 choose his cabinet as far as possible from men in congress, since he dwells on the necessity for a selection " of 
 real party leaders as cabinet ministers." The essence of the success of the system, as it exists in England and in 
 Canada, and even in Switzerlai;d, lies in the fact that the cabinet is a committee of the parliament. Would congress 
 then accept a cabinet that would be simply of the president's selection, to sit, debate and perform the functions of 
 leaders ? The experience of the countries ju^t named show conclusively that congress must have the choice. At 
 all events, the presence of ministers to assist legislation and explain matters of administrative action would be an 
 improvement on the existing condition of things. The discussion that has now commenced on the question will 
 p robably help to bring about a solution of a diiHcult problem. 
 
80 JOHN GEOEGE BOTJEINOT 
 
 Such a change would not be so radical as the adoption of the English or Canadian 
 system of parliamentary government, and would certainly give greater efficiency and 
 unity to legislation in congress. 
 
 Although the cabinet of Switzerland is not appointed from and dependent on a par- 
 ticular party, it exercises large responsibilities, and is the executive authority through 
 which the federal assembly acts, and the guardian of the interests of the whole confedera- 
 tion. Like our own ministry or government it has the right to examine the cantonal 
 laws and declare them unconstitutional or in conflict with the federal laws, although, 
 strange to say, it does not appear to have any legal methods of enforcing its conclusions 
 in such matters. The practice is to send a federal agent or commissioner to the canton 
 to arrange the difficulty, if possible, on amicable terms, but should he not succeed 
 in doing so then the federal government has no legal resource left it but generally takes 
 the very summary step of quartering troops from another canton in the recalcitrant 
 division, and making it bear all the expenses until the trouble is arranged — as a rule a 
 successful measure since the cantons have very economic tendencies. Or sometimes the 
 government will refuse to pay subsidies until the objecting canton has come to its senses. ' 
 As a fact, however, the executive has rarely a difficulty in executing its constitutional 
 functions or in carrying out the decisions of the federal tribunal through the cantonal 
 authorities through whom it can alone act. Of course, it is not necessary to say here that 
 the Canadian constitution provides that no provincial statute can become law until it is 
 formally passed upon by the governor-general in council. The absence of a similar pro- 
 vision in the Swiss constitution is another instance of the influence of the cantons in the 
 framing of the constitution, and of their unwillingness to entrust too strong a power to 
 the central government. The federal assembly, however, has the right to pass measures 
 for securing the observance of the constitution, and can no doubt clothe the council with 
 all necessary authority at critical times, and also prevent the cantons exercising unc(Jnsti- 
 tutional powers. In another respect the constitution is weaker than our own, since it 
 limits the jurisdiction of the federal court in certain essential respects. The summary I 
 have already given of its powers show that it has certainly an important jurisdiction 
 within a wide range ; it can decide on suits of law or conflicts of authority between 
 the confederation and the cantons, or between the cantons themselves. A somewhat 
 similar provision is made in our supreme court act for matters of controversy between 
 the Dominion and the provinces, and between the provinces themselves. The Canadian 
 court, however, has no such jurisdiction as the Swiss tribunal over criminal matters 
 of a political nature. The supreme court of Canada and of the United States can, 
 however, in the course of cases coming before them in due process of law, declare any 
 statute whatever of the provinces or of the Dominion itself uUra vires, and the moment it 
 so declares that statute is a dead letter, unless indeed, as may happen in Canada, the 
 judgment is reversed on appeal to the judicial committee of the privy council in England. 
 In Switzerland the federal court must enforce every law passed by the federal legislature, 
 even if it is a violation of the constitution. In some cases recourse must be had not to 
 the federal tribunal, but to the federal council. In other words the Swiss constitution 
 " has reserved some points of cantonal law for an authority not judicial but political, 
 
 ^ Adams, pp. 61, 62, 
 
ON COMPAEATIYE POLITICS. 81 
 
 and 'has made tlie federal legislature the sole judge of its own powers, the authorized 
 interpreter of the constitution, and an interpreter not likely to proceed on purely legal 
 grounds."^ The fourth sub-section of the 113th article of the Swiss constitution expressly 
 provides that conflicts of administrative jurisdiction are reserved and are to be settled 
 in a manner provided by federal legislation. The laws of the confederation give the 
 jurisdiction to the political authorities over disputes respecting primary schools, liberty 
 of commerce and trade, freedom of belief and worship, and the interdiction upon Swiss 
 soil of the Jesuits and other societies affiliated with their order. The ablest Swiss 
 publicists are not favourable to this division of authority, but express the opinion that it 
 would have been far better " to have given the federal judiciary cognizance of all reli- 
 gious disputes, whether in the domain of public or private law, than (as sometimes hap- 
 pens) that the federal assembly, which is a legislative body, should be transformed for 
 the time into a sort of a religious tribunal where such matters are apt to arouse political 
 passions and to be decided by a majority upon party lines rather than upon legal prin- 
 ciples." ^ Of course we see at once that here a comparison can be made between the 
 the Swiss and Canadian constitutions. The political executive of the Dominion is given 
 a veto over the acts of the provincial organizations, and can exercise it either on purely 
 legal grounds or for reasons of public policy. Oases are constantly arising in our history 
 to show the danger inherent in the exercise of this political power. When the govern- 
 ment has given a decision on a question the dispute can be transferred to the floor of 
 parliament, and all the bitterness inevitable in cases of religious or political controversy 
 may be evoked. ' Though the principle has at length been generally laid down by the 
 two great parties of the Dominion that the veto should not be exercised in the case of 
 acts clearly and unequivocally within the legal and constitutional powers of a province, 
 yet it is obvious, as I have shown in a previous paper, * that there is a latent peril in 
 the existence of a power which may be rashly used in times of violent excitement, and 
 the conclusion is unavoidable that the safe and harmonious operation of any federal sys- 
 tem lies in making the courts the guardian of the constitution in all matters involving 
 legal and constitutional issues. 
 
 Mr. Dicey, commenting on those features of the Swiss constitution which make the 
 federal assembly the final arbiter on all questions as to the respective jurisdictions of the 
 executive and the federal court, goes on to give a correct explanation of the reasons why 
 all acts of the federal parliament are treated as constitutional by the federal tribunal : — 
 " The constitution itself almost precludes the possibility of encroachment upon its articles 
 by the federal legislative body. No legal revision can take place without the assent both 
 of a majority of the cantons, and an ordinary law duly passed by the federal assembly may 
 be legally annulled by a popular veto. The authority of the Swiss assembly nominally 
 exceeds the authority of congress (and obviously of the Canadian parliament) because 
 in reality the Swiss legislative body is weaker than congress (or parliament.) For in 
 each case there lies in the background a legislative sovereign capable of controlling the 
 action of the ordinary legislature, and the sovereign power is far more easily brought into 
 
 ' Bryce, " American Commonwealth," i. 347. 
 
 2 Adams, " Swiss Constitution," p. 74, where Dr Dubs, an eminent Swiss authority, is quoted. 
 
 ' See Bourinot, " Federal Government in Canada,'' pp. 58-62. * See supra, pp. 50-52. 
 
 Sec. II, 1890. 11. 
 
82 JOHN GEOEGB BOUEINOT 
 
 play in Switzerland than in America. When the sovereign power can easily enforce its 
 will, it may trust to its own action for maintaining its rights ; when, as in America, the 
 same power acts but rarely and with difficulty, the courts naturally become the guardians 
 of the sovereign's will expressed in the articles of the constitution." ^ 
 
 This citation naturally brings me to consider the most interesting and notable 
 feature of the political system not only of the federal state, but of the cantons themselves ; 
 and that is the direct control exercised by the citizens of the confederation over the acts 
 of the different authorities to whom they have entrusted legislative and executive powers. 
 The principle of the referendum, or reference of legislative acts to the popular vote, is in 
 thorough harmony with the principle of popular control that has for centuries been 
 exhibited in the Landsgemeinden, or democratic assemblies, which have long been a 
 striking characteristic of local self-government in Switzerland. ^ The methods in which 
 the people assert their rights as free citizens of a pure democracy are the same that they 
 have been from times immemorial, and have originated from the customs of the Teutonic 
 tribes, as described in the "Grermania" of Tacitus. As I have already observed, we can 
 see a close analogy between the Teutonic and Swiss assemblies and the town meetings of 
 New England, in which selectmen were elected and other public business transacted by 
 all the citizens of the district. We can see the same forms continued in the mir or village 
 community of Eussia. These democratic assemblies are, in fact, a heritage of all those 
 peoples who owe their origin to the Aryan family. I shall not attempt myself to des- 
 cribe the proceedings of these meetings, but shall refer you to a graphic description, 
 which is given by Professor Freeman in the work from which I quoted in the 
 commencement of this paper. Having briefly referred to the assembling of the men 
 of Uri, and to their observance of their religious duties, he proceeds to show how 
 they perform the functions which have devolved upon them from the most distant 
 times as citizens of the commonwealth. " From the market place of Altdorf, the little 
 capital of the canton," continues the learned historian, "the procession makes its way 
 to the place of meeting at Bozlingen. First marches the little army of the canton, an 
 army whose weapons can never be used save to drive back an invader from their 
 land. Over their heads floats the banner, the bull's head of Uri, the ensign which 
 led men to victory on the fields of Sempach and Morgarten. And before them all, on 
 
 1 Dicey, " Law of the Constitution " (3rd ed.), pp. 159, 160. 
 
 ^ Though the principle of the referendum can be seen in the action of the Landsgemeinden, the origin of the 
 term appears to go as far back as the sixteenth century. Professor Woodrow Wilson (in " The State," sec. 522, 
 p. 312), has good authority for saying that the term contains a reminiscence of the strictly ffederal beginnings of 
 government in two of the present cantons of the confederation, Graubiinden, namely, and Valais. " These 
 cantons," continues this clear writer, " were not at that time members of the confederation, but merely districts 
 allied with it (Zugewandte Orte). Within themselves they constituted very loose confederacies of communes (in 
 Graubiinden three, in Valais twelve). The delegates whom the communes sent to the federal assembly of the 
 district had to report every question of importance to their constituents and crave instruction as to how they should 
 vote upon it. This was the original referendum. It had a partial counterpart in the constitution of the con- 
 federation down to the formation of the present form of government in 1848. Before that date the members of the 
 central council of the confederation acted always under instructions from their respective cantons, and upon ques- 
 tions not covered by their instructions it was their duty to seek special direction from their home governments. 
 The referendum, as now adopted by almost all the cantons, bears the radically changed character of legislation by 
 the people ; only its name now gives testimony to its origin." See Orelli, " Das Staatsrecht der schweizerischen 
 Eidgenossenschaft." Also Freeman in the ' Universal Review,' July 1890. 
 
ON COMPAEATIVB POLITICS. 83 
 
 the shoulders of men clad in a garb of ages past, are borne the famous horns, the spoils 
 of the wild bull of ancient days, the very horns whose blast struck such dread into the 
 fearless heart of Charles of Burgundy. Then, with their lictors before them, come the 
 magistrates of the commonwealth on horseback, the chief magistrate, the landammann, 
 with his sword by his side. The people follow the chiefs whom they have chosen to the 
 place of meeting, a circle in a green meadow, with a pine forest rising above their heads 
 and a mighty spur of the mountain range facing them on the other side of the valley. 
 The multitude of freemen take their seats around the chief ruler of the commonwealth, 
 whose term of office comes that day to an end. The assembly opens; a short space is 
 first given to prayer — silent prayer offered up by each man in the temple of Grod's own 
 rearing. Then comes the business of the day. If changes in the law are demanded they 
 are then laid before the vote of the assembly, in which each citizen of full age has an 
 equal vote and an equal right of speech. The yearly magistrates have now discharged 
 all their duties ; their term of office is at an end ; the trust which has been placed in their 
 hands falls back into the hands of those by whom it was given, into the hands of the 
 sovereign people. The chief of the commonwealth, now such no longer, leaves his seat 
 of office and takes his place as a simple citizen in the ranks of his fellows. It rests with 
 the free-will of the assembly to call him back to his place, or set another there in his 
 stead." And Professor Freeman then refers to another feature which shows that the 
 people of Switzerland respect ability and fidelity in their public men, and that ingrati- 
 tude, which is often said to be a defect of democracy, cannot at least be charged on them. 
 "Alike," he says, "in- the whole confederation and in the single canton re-election is the 
 rule ; the rejection of the out-going magistrate is the rare exception. The landammann 
 of Uri, whom his countrymen have raised to the seat of honour, and who has done nothing 
 to lose their confidence, need not fear that, when he has gone to the place of meeting in 
 the pomp of office, his place in the march homeward will be transferred to another 
 against his will." ^ 
 
 The Landsgemeinden are now only to be found in the cantons with a small popula- 
 tion, where it is still practicable to hold such assemblies of the people at large, but iii all 
 of them, except of course where those assemblies exist, the referendum in one of its two 
 forms, compulsory or optional, has been engrafted on the local constitutions.^ In addition 
 to this reference to the popular vote, there is in some states a procedure known as the 
 
 ^ " Growth of the English Constitution," pp. 2-7. Since the above was in print, an article has appeared in the 
 "Atlantic Monthly,'' for October, 1890, giving an interesting account of the Landsgemeinde of Uri in 1888, and 
 showing that its accessories are somewhat simplified since the time. Dr. Freeman visited the canton, and studied 
 this notable feature of purely democratic government. 
 
 ' " Swiss law, like that of all other states possessing popular governments, gives to the people a certain right of 
 initiative, in the right of petition — which is generally coupled with a duty on the part of the body petitioned to 
 give to the prayers of all petitioners full and careful consideration. But it also goes much further. In many of 
 the cantons an additional, an imperatiw initiation by petition is given to the people. Any petition which is sup- 
 ported by a certain number of signatures (the number is usually from five to six thousand) and which demands 
 action upon any matter must be heeded by the council, a vote must be taken upon it by the council, and then it 
 must be submitted to the popular vote, even if the action of the council upon it has been unfavourable. Of course 
 certain formalities are required for the starting of these, so to say, authoritative petitions, or a certain backing by a 
 portion of the members of the council. The constitution of Uri, for instance, now provides that petitions propos- 
 ing changes in the constitution must bear at least fifty signatures ; and that every voter may propose acts for the 
 Landsgemeinde." Woodrow Wilson, " The State," sec. 519, p. 310. 
 
84 JOHN GKOEGB BOUEINOT 
 
 "Initiatiye" whicli gives tlie right to the electors to move the representative councils to 
 take up and consider any special subject of public interest. This is, however, still an 
 experiment which has not yet taken a firm hold of the public mind. On the other hand, 
 the referendum is now an essential feature not only of the federal constitution, but of 
 the cantonal political systems. All revisions of the constitution to which the two bran- 
 ches of the federal assembly agree must be submitted to the referendum. When one of 
 these councils agrees to such revision, but the other disagrees, or when fifty thousand 
 voters demand amendment, the question of the proposed change must be submitted to a 
 vote of the Swiss people. If a majority of the Swiss voters, in such case, vote in favour 
 of making the amendment, then there must be a new election of both councils for the 
 purpose of preparing the necessary change. The measure is then prepared by the federal 
 council and submitted for the consideration of the two houses of the federal assembly. 
 But the amendment, when passed by the assembly, does not go into force until it has been 
 approved by a majority of the Swiss people, who A^ote on the question, and by a majority 
 of the cantons of the confederation. All federal laws are also submitted to the vote of the 
 people if thirty thousand voters or eight cantons demand such a reference. The same 
 proceeding is necessary in the case oi a federal resolution which has a general effect and is 
 not of an urgent nature — the nature of urgency not being, however, a matter clearly suscep- 
 tible of definition. In the case of a constitutional amendment, the referendum is " obliga- 
 tory," but when it is only employed on the demand of the electors, it is " facultative " or 
 " optional." In the cantons many important matters are submitted in the same way to the 
 popular vote. On the whole, authorities declare that the system is popular and that it has 
 the practical effect of making the people generally take a greater interest in public affairs. 
 Some may think it must diminish the importance of the representative bodies, since their 
 decisions on any question are liable to be reversed ; but it also certainly tends to bring the 
 members more in touch with public opinion, and force them to exercise greater discretion 
 in legislation than if this popular vote were not hanging over them. This yery democratic 
 feature of the Swiss political system may be compared with the practice that exists in 
 Canada of referring certain by-laws of municipal bodies, for the construction of public 
 works, contracting loans, and giving subsidies to railways, to the vote of the ratepayers 
 of the municipality, and to the opportunity given to the people in a district to accept or 
 reject a local option law, like the Canada Temperance Act, at the polls on going through 
 the forms required by the statute. There is also in Ontario, as in England, a statute 
 which enables a municipality to establish a free library at the public expense, provided 
 there is a majority of the ratepayers in favour of such an institution.' High authorities 
 
 ' The first example of a local option law in Canada was the Canada Temperance Act of 1864 (Can. Stat. 27-28 
 Vict., c. 18). In this case the municipal council submitted a by-law, prohibiting the sale of liquor within their 
 jurisdiction, to a vote of the people ; and if a majority of all the votes polled were for the by-law, it was legally 
 adopted. By the Canada Temperance Act of 1878, (Dom. Stat, 41 Vict, c. 10), it is provided that when a petition 
 has been received by the dominion secretary of state from one-fourth or more of all the electors of a county or 
 city, in favour of prohibitine; the sale of liquor under the act, the governor-in-council will issue a proclamation 
 providing for a vote on the petition. The vote is taken by ballot, and with all the formalities observed at legisla- 
 tive and municipal elections. A majority of all the votes in favour of the petition brings the law into operation. 
 Similar measures are taken when it is wished to repeal the law after it has been in force for three years. See also 
 Ont. Stat., 1890, c. 56, sec. 18. In the case of free libraries, the by-law of the council must be adopted by a majority 
 of the qi^Iifled ratepayers of the municipality. For the procedure in Ontario in the case of municipal by-laws 
 for the construction of water works, &c-, see Eev. Stat. c. 184, ss. 293 et seq., and 340 et stq. ; c. 192, ss. 48, 49. 
 
ON COMPAEATIVB POLITICS. 85 
 
 do not consider such references to the popular vote at all inconsistent with sound 
 principle. It is not always essential " that a legislative act should be a competent 
 statute which must in any event take effect as law at the time it leaves the hand of the 
 legislative department. A statute may be conditional, and its taking effect may be made 
 to depend upon some subsequent event." In many cases " the legislative act is regarded 
 as complete when it has passed through the constitutional formalities necessary to perfect 
 legislation, notwithstanding its actually going into operation as law may depend upon 
 its subsequent acceptance." ^ No doubt the principle of the temperance and library acts 
 could well be applied to other subjects not of a complicated nature — like bankruptcy and 
 insolvency for instance — but involving broad and easily intelligible questions of public 
 policy on which there is a decided division of opinion, which can be best resolved by a 
 popular vote. The same principle of limiting the power of the representative assemblies 
 of England and her dependencies has been compared with the practice of dissolving the 
 parliament on the defeat of the government and obtaining an expression of opinion at 
 the polls on the question at issue. Lest it be thought that this is a far-fetched idea, the 
 reader is referred to the comments of Professor Bryce on the subject. " It is now begin- 
 ning to be maintained as a constitutional doctrine," says this sagacious critic of institu- 
 tions, ^ " that whenever any large measure of change is carried through the house of 
 commons, the house of lords has a right to reject it for the purpose of compelling a 
 dissolution of parliament, that is, an appeal to the voters. And there are some signs 
 that the view is making way, that even putting the house of lords out of sight, the 
 house of commons is not morally, though of course it is legally, entitled to pass a bill 
 seriously changing the constitution, which was not submitted to the electors at the 
 preceding general election. A general election, although in form a choice of particular 
 persons as members, has now practically become an expression of popular opinion on the 
 two or three leading measures then propounded and discussed by the party leaders, as 
 well as a vote of confidence or no confidence in the ministry of the day. It is in sub- 
 stance a vote on those measures ; although, of course, a vote only on their general 
 principles, and not, like the Swiss referendum, upon the statute which the legislature 
 has passed. Even, therefore in a country which clings to and founds itself upon the 
 absolute supremacy of its representative chamber, the notion of a direct appeal to the 
 people has made progress." 
 
 But while there are undoubtedly strong grounds for the comparisons made by Mr. 
 Bryce, a dissolution in the English or Canadian sense can never elicit that unequivocal, 
 free expression of public opinion on a question of importance, which the referendum 
 must, in the nature of things, give whenever a popular vote is taken solely and exclus- 
 ively on a measure. When parliament is dissolved, and a ministry goes to the people, it 
 is not possible under a system of party government to prevent the real question at issue 
 — say, for argument's sake it is Home Eule in Ireland, or the National Policy in Canada 
 — being complicated by the introduction of issues entirely antagonistic to a definite ver- 
 dict on it alone. The success of the party to which men belong will as a rule — we may 
 say, almost invariably — outweigh all considerations that should, and would in the ordinary 
 
 ^ See Cooley, " Constitutional Limitations," pp. 139-148. 
 ' " The American Commonwealth," ii, 71, 72. 
 
86 JOHN GEOEGB BOUEINOT 
 
 nature of things, influence them to support a great vital measure of public policy to 
 which their leaders are opposed. We have examples in the history of Canada and of 
 England too, of constituencies forgetting all considerations of truth, justice and morality, 
 and simply looking to the success of a particular candidate because he is a supporter of 
 the government or of the opposition of the day. The popularity of a great leader, and the 
 natural desire on the part of his friends and followers to see him again victorious over 
 his opponents, will lead men in times of violent party conflict to overlook reasons which, 
 in all probability at moments of calmness, apart from the excitement of the strife, would 
 influence them — and I am speaking of honest-minded men and not of political machines 
 — to look to the measure and not to the leader. The abuses of party gpvernment are 
 obvious to every thoughtful man, but still experience seems to show that it is impossible 
 to carry on a government, under a system which gives all power to a majority in an 
 elected or representative body, except under conditions which array two hostile camps 
 on the floor of parliament and in the country. A conservative majority will have a con- 
 servative ministry, and the same with the liberals. In the United States, party govern- 
 ment is under the control of political rings, the caucus, conventions, and machine politics, 
 which have sadly weakened public morality in the course of time. There, too, repub- 
 licans and democrats are arrayed against each other on the floor of congress where the 
 political situation is complicated by the fact that there is no ministry to guide and direct 
 legislation and assume all the responsibilities of power. Party government, when prac- 
 tised with all that sense of political obligation that attaches to a set of sworn ministers, 
 sitting in parliament, exposed to the closest criticism, fully alive to the current of public 
 opinion, is very different from party government, when worked by a president and 
 cabinet, not immediately answerable to the legislature or to the people, and by a congress 
 practically governed by committees, not responsible to the authority that appointed 
 them ; that is, the Speaker whose duty, as a leader of his party, ceased with their nomina- 
 tion. In Switzerland, on the other hand, the cabinet being virtually a mere administra- 
 tive body, — its members being chosen for their ability to perform certain public duties, — 
 does not depend on party in the English or Canadian sense, although of course the assem- 
 bly that elects it is influenced by the knowledge that its members represent certain 
 opinions and principles which commend themselves to the majority of the houses. "When 
 a question comes before the people under the referendum, there are no considerations of 
 party to influence the decisions of the people ; men are not swayed by a desire to keep 
 a particular set of men in office. The nature of the measure submitted to them is well 
 known to them ; it has been thoroughly discussed in the councils of the nation, and 
 throughout the country, and men are well able to give their vote on its merits. A vote 
 under the Swiss referendum, and an appeal to the people under the English system are 
 therefore subject to conditions, which in the one case generally give an impartial expres- 
 sion of opinion on a question, and in the other case may practically bury a great measure 
 of public policy under the weight of entirely subordinate and irrelevant issues. 
 
 Sir Henry Maine, like some other writers, has confounded the referendum with a 
 plebiscite, ' but Mr. Dicey, in an admirable article in an English review, ^ shows that no 
 two institutions can be marked by more essential differences. " The pUbiscite," he says, 
 
 ^ " Popular Government," pp. 40, 41. ' " Contemporary Review," April, 1890. 
 
ON COMPAEATIVE POLITICS. 87 
 
 " is a revolutionary, or at best abnormal proceeding. It is not preceded by debate. The 
 form and nature of the question to be submitted to the nation is chosen and settled by 
 the men in power. Karely indeed, when a plebiscite has been taken, has the voting itself 
 
 been either fair or free The essential characteristics, the lack of which deprives a 
 
 FreiiGh. plebiscite of all moral significance, are the undoubted properties of the Swiss refer- 
 endum. "When a law revising the constitution is placed before the people of Switzer- 
 land, every citizen throughout the land has enjoyed the opportunity of learning the 
 merits and demerits of the proposed alteration. The subject has been ' threshed out,' as 
 the expression goes, in parliament ; the scheme, whatever its worth, has received the 
 deliberately given approval of the elected legislature ; it comes before the people with as 
 much authority in its favour as a bill which in England, has passed through both houses. 
 The referendum, in short, is a regular, normal, peaceful proceeding, as unconnected with 
 revolutionary violence or despotic coercion and as easily carried out as the sending up 
 of a bill from the house of commons to the house of lords. The law to be accepted or 
 rejected, is laid before the citizens of Switzerland in its precise terms ; they are concerned 
 solely with its merits or demerits ; their thoughts are not distracted by the necessity for 
 considering any other topic." 
 
 In the political systems of the confederations of Canada and Switzerland there are 
 many points of comparison, as it must be quite obvious to the reader of this paper. The 
 governing bodies of the two countries are respectively the federal assembly and the 
 house of commons, both of which have control over all the general and national matters 
 of the federal state. Though dissolution, as I have just shown, is a very inferior weapon 
 compared with the referendum to obtain a clear expression of public opinion on a question 
 of public policy, yet like that great instrument of democratic sovereignty, it can and does 
 practically act as a means of popular restraint upon the acts of the house of commons of the 
 Dominion and of the legislative bodies of the Provinces. A greater degree of authority, 
 however, is given to the Canadian executive by the fact that it has always within its 
 control the dissolution of the body to which it owes its existence. The distribution of 
 powers between the federal and the cantonal authorities resembles in essential parlicu- 
 lars the division between the Dominion and the provinces. The fact that the residuum 
 of the power rests in the federal government of Canada, gives it necessarily greater 
 authority than the Swiss federal state can exercise in critical times. In the very impor- 
 tant matter of militia and defence the Swiss constitution is l^ss effective than the Cana- 
 dian constitution, which centres in the general government all authority instead of 
 dividing it with the provinces, as is practically the case in the Swiss confederation — 
 a defect which is attracting the attention of Swiss statesmen. But despite the divided 
 authority in this particular, the system of organization for defence is remarkably effi- 
 cient — infinitely more so than that of Canada, and has deservedly won the encomiums of 
 the best military authorities throughout the world. ^ Indeed in other cases there is a 
 
 ' At the present time Switzerland with a population only a million in excess of the province of Ontario, main- 
 tains a remarkably effective force of 200,000 men, composed of (1) Tlie Elite, or all men able to bear arms from the 
 age of 20 to 32 ; (2) The Landwehr, or all men from the 33rd to the completed 44th year. In addition to this prac- 
 tically regular force, there is the Landsturm which can only be called out in time of war, and consists of all citizens 
 not otherwise serving, between the ages of 17 and 50 or (in the case of ex-officers) 5.5. The Elite is mostly made up 
 of infantry, viz, 95,748 ; and the same is true of the Landwehr, viz, 65,326. Cavalry is necessarily of little use in a 
 country like Switzerland. See " Statesman's Year-Book " for 1890, pp. 986-8. 
 
88 JOHN GEOEGB BOUEINOT 
 
 distribution of powers between the central and cantonal authorities which renders the 
 working of the federal organization unsatisfactory. But these are defects which are pecu- 
 liar to a federal system, and our own federation has its weaknesses in this respect, as the 
 numerous cases of conflict of jurisdiction that have come before the courts from time to 
 time for settlement clearly prove. Inconveniences have arisen, for instance, in our case 
 from the fact that the constitution does not clearly define the power which should deal 
 with questions relating to factory labour, although the weight of authority now appears 
 to give the jurisdiction to the provinces. The Swiss constitution in this particular is an 
 improvement on ours, since it gives the central government jurisdiction over such mat- 
 ters and enables it to pass uniform laws for the whole confederation. Indeed, if we review 
 closely the two federal systems, we see that in some cases our constitution is vague where 
 that of the Swiss is clear, and vice versa. Each system has been adapted to the necessities 
 and conditions of the country. The Swiss are quite content with their own constitution, 
 which is not a mere imitation of that of the United States, but one sagaciously adjusted 
 to the political circumstances of a country where democracy is the form of government, 
 and the cantons have long been the home of the liberties of the people. Both systems ot 
 government rest on the basis of the popular suffrage — the Swiss system of referendum 
 giving necessarily greater power to the democratic element of the constitution. But the 
 result is practically the same in Canada — it is the people that rule. 
 
 The most interesting reflections must naturally come to the mind of the statesman or 
 publicist when he contrasts the effects of a federal system on the political and social con- 
 ditions of two countries like Canada and Switzerland, which have many points of 
 resemblance. It is true the population of Canada is already much larger than that of 
 Switzerland, while the territorial greatness of the one prevents any comparison with the 
 limited area of the other, and Canada has possibilities before her which the European 
 federation can never attain. ^ But Switzerland has been the home of free institutions for 
 ages, and has worked oat the federal principle under difficulties which are worthy of the 
 serious consideration of our statesmen and thinkers who are endeavoring to solve many 
 political problems under circumstances of trial and embarrassment. Among the moun- 
 tains of High Gi-ermany, exactly seven centuries ago, three little states first made alliances 
 to preserve the freedom which they inherited from their Teutonic forefathers, and as the 
 years passed by other small communities were brought into the confederation, until now 
 they form practically twenty-five free cantons or states, with a population composed of 
 several nationalities, speaking principally. G-erman, French and Italian,^ and professing 
 different religions. The Protestants and the Eoman Catholics are numerically nearly in 
 
 ^ "Vet this countrj', with a population of only 3,000,000 altogether, or 2,000,000 less than that of Canada, and with 
 an area of only 15,892 English square miles — about the same as that of Vancouver Island, and 6,000 square miles 
 less than Nova Scotia — has a total aggregate trade of imports and exports valued at 1290,000,000 a year, or about 
 $90,000,000 in excess of that of the Dominion. 
 
 ^ " At present German is spoken in fourteen cantons and parts of others ; French wholly in three cantons 
 while Italian is confined to the canton of Ticino and a part of Graubianden. To state the relations between these 
 groups in another way — there are 1,352 German communes, 945 French and 291 Italian. Besides these there are 
 118 communes in Graubiinden, where the Eomansch language is used. Only German, French and Italian, how- 
 ever, are regarded as official languages, and in these three all the federal laws are published ; and they may be all 
 used in the transaction of federal business, whether in the assemblies, in the conncil or in the courts. Moreover 
 all must be represented in the federal council. The Eomansch language, on the other hand, is not an official 
 language, and is seldom employed in the affairs of the federal government." Moses, pp. 7, 8. 
 
ON COMPAEATIVE POLITICS. 89 
 
 the same proportion as they are in Canada. ^ Ticino, Valais, Luzem and Freiburg are 
 almost all Eoman Catholic, just as Vaud, NeuchMel, Sbaffhausen, Bern and Zurich are 
 almost all Protestant. In other cantons the people are fairly divided between the two 
 denominations. In the federal assembly the French, G-erman and Italian languages are 
 freely used in the debates and proceedings. Switzerland in the course of her eventful 
 history, has had to pass the ordeal of many feuds and trials, from which Canada has been 
 happily spared since the trouble of 183*7-38. The geographical situation of Switzerland, 
 in the midst of different races and religions, has made her necessarily an arena of conflict 
 in times of religious strife and controversy in Europe. This strife has raged on her own 
 soil with great intensity. The history of the Eeformation is associated with the history of 
 Switzerland, and the names of Knox and Calvin must always cling to the old town of 
 Geneva. We see the result of the religious dissensions that have excited the cantons like 
 other parts of Europe for centuries in the fact that the constitution expressly interdicts the 
 Jesuits from coming into the country. The same prohibition is extended to other religious 
 bodies whose action may be considered dangerous to the state or liable to disturb the peace 
 between sects. No bishopric can be created upon Swiss territory without the consent of 
 the confederation, and the foundation of new convents and orders is forbidden. The 
 constitution at the same time declares in general terms that freedom of conscience and 
 belief is inviolable ; that the exercise of civil or political rights cannot be abridged by 
 any provisions or conditions whatever of an ecclesiastical or religious kind. The cantons 
 and the confederation may take suitable measures for the preservation of public order 
 between the members of different religious bodies and also against any encroachments of 
 ecclesiastical authorities upon the rights of citizens or those of the states. Switzerland, 
 indeed, despite the broad enunciation of religious freedom laid down in her constitution, 
 shows no such liberal spirit as Canada in all matters of religion. The latter permits all 
 religious sects to pursue the even tenor of their way, and can interfere in no respect with 
 their recognized rights and privileges as long as its members keep within the limits of 
 their authorized jurisdiction and do not infringe the laws of the Dominion. The Salva- 
 tionist has been as free as the Roman Catholic to pursue the peculiar methods of his 
 curious religious system. This principle has been practically the governing principle 
 in Canada since it came under British dominion. Religious freedom has always kept 
 pace with the extension of political rights ever since 1'7'74. The Quebec act, we know, 
 was a recognition of the rights of Roman Catholics in Canada long before the same body 
 was relieved from old disabilities in Great Britain. ^ It is only on this basis of com- 
 plete religious freedom and equality that Canada could have been so long happily 
 governed, and the moment we depart from its principle the happiness and peace we have 
 so long enjoyed must be seriously disturbed. 
 
 No country in the world has had greater difficulties to surmount than this confedera- 
 tion of cantons that have been struggling for centuries among the mountains to preserve 
 their local institutions and to maintain their independence in the face of the aggressive 
 powers which hem them in on every side. Their history from its beginning is a record 
 
 ' The census of 1888 showed that there were in Switzerland 1,724,257 Protestants and 1,190,003 Koman 
 Catholics. In Canada the census of 1881 showed the Protestants to number 2,439,188 and the Eoman Catholics 
 1,791,892. The new census shortly to be taken is not likely to alter this proportion. 
 
 ^ supra, p. 18. 
 
 Sec. II, 1890. 12. 
 
90 JOHN GEOEGB BOUEINOT 
 
 of feuds between town and country, of the struggle of a democracy against aristocratic 
 pretensions, of tyranny exercised over subject and dependent lands, of social and political 
 wrongs and inequalities, of race animosity, of religious strife, of cantonal arrogance, 
 even threatening national existence ; and ever and anon there have been times when it 
 seemed as if they would be absorbed by other nations, as between 1793 and 1813, when 
 France was dominant in the cantons, or as if they would fall to pieces through such 
 divisions as ended in the war of the Sonderbund. Now, happily for the peace and security 
 of the confederation, Switzerland has at last surmounted successfully the numerous and 
 serious difficulties arising out of her peculiar position, and has grown in strength and 
 power under the influence of the federal system of government, which above all other 
 political systems, as her own history has proved, is best calculated to bring different 
 nationalities and denominations into a strong union based on principles of self-interest 
 and common safety. It has been sometimes urged that the federal system is weak because 
 it means a division of powers between the central and the provincial or state authorities. 
 In no other way would a union in certain cases be possible. Separate communities having 
 diverse interests, may be brought together for a common purpose and show all the strength 
 of a unified or centralized nation, provided you allow them to preserve intact all those 
 strictly local powers and institutions necessary to local autonomy and individual 
 independence, and not antagonistic to the vital interests and security of the whole 
 confederation. The Eoman empire was a remarkable example of centralization in its most 
 ambitious form, but it fell to pieces because the spirit of local freedom was crushed in the 
 outlying provinces, and there was no system of representation to bring the members into 
 unison with the head of the body politic. The monarchy of Louis XIV was an autocratic, 
 centralized government, which gave the provinces of France hardly a semblance of local 
 government, and gradually exhausted the very life-blood of the nation. The British 
 empire has extended over the habitable globe until even the Eoman empire sinks into 
 insignificance compared with its enormous wealth and true greatness, but it has so far 
 kept together and maintained its power, because England has given free local government 
 to every community that is competent to exercise it, and has only retained in her hands 
 that imperial control which is necessary to the defence and security of her imperial 
 interests and the fulfilment of her imperial obligations. Local government rests at the 
 very basis of every system of federation — indeed of any state that is truly strong — and 
 enables the central power to act effectually in the general interests of the whole federation. 
 The Dutch communities at the mouth of the Rhine fought for freedom on the same basis 
 of a federal union against all the power of the great empire of Spain. Switzerland has 
 been able in the same way to maintain her liberty inviolate in the face of European nations. 
 No doubt the jealousies of surrounding countries have had their influence on the destiny 
 of this free community, but even the guarantees given by the great powers of Europe for 
 her security would have been useless had not the Italians, the French, and the Germans 
 of the cantons always felt that their true interests lay in a common union between each 
 other. The principles of free government have been always maintained in Switzerland 
 when they had been lost in other countries of the Aryan family. No system of complete 
 centralization could have given that cohesion of interests which has been possible under 
 a system which has left untouched the local freedom of the cantons, and at the same time 
 given them representation in the federal government. At the present time, we are told by 
 
ON GOMPAEATIVE POLITICS. 91 
 
 the best authorities on the condition of the country, that never was the spirit of patriotism 
 stronger than it is now. An attack by whatever neighbour would assuredly cause the 
 cantons to lay aside all local jealousies and rivalries and combine for the common security. 
 While there is " a sturdy sentiment of cantonal rights, engendered especially by a long 
 period of self-government, there is also, whenever occasion requires, as manifested in 
 patriotic gatherings, and in a firm attitude towards the outer world, that aggregate senti- 
 ment of nationality without which the confederation would separate into its several parts 
 and cease to exist as a whole." ^ The Italians or the G-ermans or the French of the 
 different cantons have had no aspirations whatever towards political connection with the 
 great nations speaking the same languages. Switzerland is now the land around which 
 all their hopes, affections and ambitions centre. The force of a national sentiment, and the 
 ability of a federal state to fight for union, were shown in the ever memorable civil war 
 in the American republic. Slavery became a subsidiary question as the struggle pro- 
 ceeded, and the preservation of the union was essentially the great motive power that 
 gave strength to the north and west. Even in our own history we have seen the celerity 
 with which a federal government can grapple with a nascent rebellion, and assert the 
 authority of the federal state. "While every section or state of a federation must have 
 such attributes of power as are necessary to purely local self-government, there must 
 always be placed in the central authority full control over the peace, order, and security 
 of the people as a whole. This power is as necessary to a federal nation like the United 
 States as it is to a strongly unified state like England. An acute thinker has on this 
 point stated the respective powers and responsibilities of a federal state very clearly. 
 " Stated broadly, so as to acquire somewhat the force of a universal proposition," says 
 
 ' See Adams, "Swiss Confederation," p. 27. " Under very peculiar circumstances," says the well informed and 
 able writer in the ' Edinburgh Eeview,' before referred to, " Swiss stafesmanshiphas solved problems which perplex 
 most European states. In Switzerland national defence is secured (as far as any small state can secure it) by the 
 maintenance of a large, a cheap, and an effective force , which displays much of the discipline, and brings on the 
 country none of the evils of a standing army ; every citizen is a soldier, and every soldier is a citizen. National 
 finances are prosperous and the country is not overburdened by a national debt; education has permeated every 
 class, and Ziirich has achieved results which may excite the envy of Birmingham or of Boston (and let me add of 
 Toronto, where the art and technical schools are still inferior). Among a people traditionally disposed to lawlessness 
 complete liberty has been made compatible with order, and theological animosities, which for centuries have been 
 the special bane of the confederacy, have been assuaged or removed by the healing influence of religious freedom 
 
 and equality — Small and often hostile states have been fused into a nation Swiss democracy has, then, met 
 
 and triumphed over all the obstacles to national unity arising from differences of race, from religious discord, from 
 historical animosities, and from the difficulty inherent in federalism of reconciling national authority with state 
 rights. . . . Her present peace and unity are due, as far as national prosperity is ever in reality caused by forms of 
 government, to the Swiss constitution, which has achieved all that the best framed of polities can achieve — namely, 
 the giving free scope to the energy and ability of the nation." And Freeman asserts that " the Swiss people, 
 Teutonic and Eomance, Catholic and Protestant, undoubtedly forms a nation, although artificially put together out 
 of fragments of three elder nations." See p. 388 of his essay on " Practical Bearings of European History." And 
 I may add the testimony of another thoughtful student of Swiss institutions, that of Professor Moses : "They (the 
 cantons) are representatives of a large class of political organizations which became conspicuous in the later 
 centuries of the middle ages. The fact that has given themt special significance is their union and the develop- 
 ment among them of social and political ties, which have established the essential conditions of national life and 
 growth. This revolution, effected by the peaceful processes of constitutional amendment and legislation, has placed 
 the events of Swiss history during the last fifty years in line with the movements towards unit)' which have been 
 carried on in Italy and Germany, and by binding the several cantons so firmly under a central power as to remove 
 the liability of disintegration, has justified the emphasis here given to the establishment of federal institutions as 
 the most important achievement in the political history of Switzerland." 
 
92 JOHN GEOEGE BOUEOOT ON COMPAEATIVB POLITICS. 
 
 Mr. Fiske,^ " the principle of federalism is just this : that the people of a state shall have 
 full and entire control of their own domestic affairs, which directly concern them only, 
 and which they will naturally manage with more intelligence and with more zeal than 
 any distant governing body could possibly exercise ; but that, as regards matters of 
 common concern between a group of states, a decision shall in every case be reached not 
 by brutal warfare or by weary diplomacy, but by the systematic legislation of a central 
 government which represents both states and people, and whose decisions can always be 
 enforced, if necessary, by the combined physical power of all the states." In fact, a 
 central power must always be able to exercise its authority in great national crises with 
 courage and determination. Local independence and national strength, must exist in a 
 federation, but any unwarrantable assertions of sectional claims that may threaten the 
 integrity of the federal state must be always promptly repressed. 
 
 I believe that the great governing principle of the world in the future is federation, 
 by which all communities, whether of the same or different nationalities, can successfully 
 unite on the basis of great common interests. The force of the idea has been acknow- 
 ledged in modern history by G-ermany and Austria-Hungary, and has received its most 
 powerful advocacy among the mountains of Switzerland. On the same principle the 
 United States of America have built up one of the strongest and certainly the most 
 prosperous nations in the world, and Canada has been able to unite diverse interests and 
 nationalities so far with encouraging results. The colonies of Australia are awakening 
 from the indifference and the jealousies which have heretofore prevented them from 
 forming that complete union so necessary to the development of their common interests, 
 and to the security of their island continent, and are at last moving to follow the example 
 of their co-workers in America in the cause of civilization and good government.^ No 
 one can confidently assert, that, with the experience of the history of Europe and America 
 before us, this powerful principle combining national strength and local independence 
 may not be possible of expansion throughout the British empire, and that the beginning 
 of a new century may not see all its component, and self-governing parts brought together 
 into a union which shall satisfy the aspirations of every free community, give them an 
 actual voice in imperial councils, and at the same time afford guarantees of the security 
 and integrity of the whole, which do not seem possible under a system which is building 
 up in every part of the world distinct and separate nationalities, ever increasing in 
 population and vigour, and animated more and more by those national aspirations which 
 are natural to every free people. 
 
 1 " Americaa Political Ideas," p. 133. 
 
 '' Since the above was written, the several legislatures of Australia are moviug practically in the matter, and 
 will probably appoint delegates without delay to a national Australian convention to frame a federal constitution 
 for the Australasian colonies. " These colonies," said the eminent premier of New South Wales, Sir Henry Parkes, 
 in proposing a resolution to that effect, " in point of numbers, and advancement, are ripe for union, and the time 
 is come when it can be successfully carried out, and these young communities may spring, as it were, into their 
 full manhood. This country, so wondrously fair in its productive powers, so wonderfully rich in the variety of its 
 natural resources, so blessed in climate, so blessed by the race who have taken possession of it, has since been 
 waiting for the divine touch to call it into national life." ' Sydney Herald,' May 8, 1890. 
 
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