be, since the British North America Act specifically mentions, as included within the legislative power of the Dominion Parliament, the subjects of banking, interest, bills of exchange, promissory notes, trade and commerce, and the entire field of the criminal law.

A comparison of the American Constitution and of the British North America Act, as they have been interpreted by the courts, would seem to produce the impression that:

The American Constitution attempted to give to the central government only those powers which experience was believed to have shown must be given to that government in order to permit the efficient management of what at the time were considered to be interests common to all the states; but that:

The British North America Act intended to confer all powers of government on the Dominion government which did not have reference to:

First-matter of purely local administration, such as provincial taxes, provincial debts, provincial charities, provincial works; and,

Second-the peculiar provincial laws and customs with regard to such matters as the solemnization of marriage and property and civil rights, which found their origin in provincial history and traditions. The Roman Catholic religion and the French race and law, which are such important characteristics of Canadian life, as we have seen, would seem to have made necessary this concession to local feeling.

The attempts made both in the United States Constitution and the British North America Act to determine the position of the two governments, established by the process of enumerating the powers which one or

the other of the governments was to exercise, has had the same result in both countries. It is a result which would seem to be inevitable.

This method of enumeration has made it necessary to grant to some judicial tribunal the power to determine whether an act of either the central or the state legislatures is in accordance with the constitution, whenever it is alleged in an action arising in the courts that a legislative act which it is attempted to apply, has been passed in excess of the powers of the legislative authority passing it. In the United States, as has already been said, this tribunal is the Supreme Court, which itself was established by the Constitution. In the case of Canada the British North America Act makes no provision for such a tribunal, but an act of the Dominion Parliament, as interpreted by the courts, provides that the judgments of the Dominion Supreme Court established by it shall be appealable to the Judicial Committee of the British Privy Council, if permitted by that body. In the United States the final authority for constitutional interpretation is thus an authority of the central government, one of the governments established by the Constitution. In the case of the Dominion of Canada that authority is an outside authority. The British North America Act provides also that the Governor-General may disallow the acts of the provincial parliaments. This power is frequently used in the case of legislation, which is regarded as illegal, or as not in harmony with the legislation of the Dominion Parliament, where there is concurrent power, or as affecting unfavorably the interests of the Dominion.

Both in the United States and in Canada, in the latter country notwithstanding the power of the Governor

General to disallow provincial acts, this method of enumeration has seemed to necessitate the grant to a judicial authority, the power to interpret the fundamental constitutional act, and has led to an enormous amount of litigation and to the continual raising of extremely perplexing questions. It is a matter of great difficulty for any one who is not technically qualified, and who has not made an exhaustive examination of the decisions of the courts, to say whether either the central government or the local government may constitutionally exercise specific powers of government.

In the United States the difficulties which have arisen have been perhaps greater than those which have presented themselves in Canada. This is probably due to the facts that the line of decisions is longer there than in Canada, and that greater changes in economic and social conditions have taken place in the United States than in Canada since the adoption of the constitution. The Canadian constitution is, partly, at any rate, because it was adopted only fifty years ago, more closely in accord with existing conditions than the Constitution of the United States, as it was originally interpreted, may be said to be. The changes in conditions in the United States have been so great that the American Supreme Court has been obliged on several occasions to reverse or refuse to follow decisions which it once made, and which when made were in all probability suited to existing conditions. Although such action may have been, and probably was, necessary, it was nevertheless unfortunate. For it is difficult for the ordinary man in the street to understand how the same words meant one thing before 1860 and mean another thing now.

Many of the questions which under the method of

enumerated powers combined with judicial interpretation must be settled by the courts are, further, really more political than legal in character. In so far as this is the case their decision by a body which is primarily a court is unfortunate, since it gives a political complexion to a body which is and should be primarily judicial in character.

Canada has been saved much embarrassment in this respect, since the grant of the power of the final determination of these questions to a body like the Judicial Committee of the British Privy Council, which is in no way connected with either of the governments concerned, prevents decisions with regard to constitutional questions from becoming questions of practical partisan politics as has sometimes happened in the United States. It is hardly the case, however, that a thoroughly independent and sovereign country will be so situated that it will be either able or willing to refer its constitutional questions to an authority which is not a part of its own governmental system. If it adopts the American principle of the constitutional enumeration of governmental powers and their interpretation by the courts, it will be obliged in the nature of things to vest in some national domestic court the power to determine in specific cases whether the action of the different legislative bodies provided by the constitution is in accord with the provisions of that instrument. The exercise of such a power subjects the courts which have it to the strongest sort of political influences. Serious consideration will have to be given to the question whether the courts will be able to stand up against such a strain.

VI

FEDERAL GOVERNMENT IN AUSTRALIA

BOUT a quarter of a century after the British colo

ABOUT

nies in North America adopted the federal form of government, a movement for a similar form of union reached its culmination in the British colonies at the other end of the world, far south of the equator. The year 1900 is marked by the passage of the Commonwealth of Australia Act, which formed a federal union of all the Australasian colonies except New Zealand.

At about the same time that the Americans were struggling to obtain the adoption of the Constitution of the United States the first Australasian colony was founded. In the year 1788 Captain Phillip took formal possession of Sydney Cove. This settlement of Australia may be said to have been one of the incidental results of the American Revolution. Prior to the independence of the American colonies the British government had adopted the practice of transporting to the American colonies many of those who had been convicted of crime. This method of disposing of criminals was satisfactory both to the colonies and to the mother country. On the one hand, it aided the colonies in solving the labor problem which was, as is usually the case in new countries, a difficult one. On the other hand, it permitted the mother country to dispose, often at a profit, of those who by reason of misfortune or evil