Notes for a Comparative Study of the Origins of Federalism in the United States and [Article]

Item Type Article; text

Authors Wroth, L. Kinvin

Citation 15 Ariz. J. Int'l & Comp. L. 93 (1998)

Publisher The University of Arizona James E. Rogers College of Law (Tucson, AZ)

Journal Arizona Journal of International and Comparative Law

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Link to Item http://hdl.handle.net/10150/659304 NOTES FOR A COMPARATIVE STUDY OF THE ORIGINS OF FEDERALISM IN THE UNITED STATES AND CANADA

L. Kinvin Wroth*

I. INTRODUCTION

In October 1995, Canada stepped back once again from the brink of a political precipice on which it had stood periodically for at least fifteen years. The people of in a referendum vote narrowly rejected a proposition that would have led to the withdrawal of that province from the , of which it has been a member since 1867. Quebec's separatists assert that they will bring this question forward again by the year 2000. If there is a vote for separation, two questions will arise: (1) By what, if any, legal means will the separation occur? (2) What form will the relationship between Quebec and the rest of Canada, including its Aboriginal peoples,' take? The answer to the first question requires an analysis alternatively of the intricate constitutional2 history of Canada and of the complex law and politics of the present situation. The possible answers to the second question range along a continuum from

* Dean and Professor of Law, Vermont Law School. This paper is a compilation of informal introductory notes prepared for the historical background portion of the author's course in the Canadian Legal System. The paper is thus very general. It is also a synthesis of a variety of standard historical sources and, thus, its annotation is sparing. The author wishes to express his thanks to Andrea Rau, Vermont Law School, Class of 1999, for her assistance with the annotation. 1. This term is used in this paper as defined in 1 REPORT OF THE ROYAL COMMISSION ON ABORIGINAL PEOPLES xiv (1996) [hereinafter REPORT OF THE ROYAL COMMISSION] to refer generically to all indigenous inhabitants of Canada, including people (formerly "Indians"), Inuit people (formerly 'Eskimos"), and M6tis people (those of mixed First Nation-or Inuit-and European ancestry). 2. Some of these issues may be resolved soon. In September 1996, the federal government referred to the Supreme Court of Canada the questions whether the Constitution of Canada or international law gives Quebec the right to effect a Quebec secession unilaterally and, if there is a conflict between domestic and international law on this point, which would take precedence in Canada. See In the Matter of Section 53 of the Supreme Court Act, R.S.C. ch. S-26 (1985) (Can.); and In the Matter of a Reference by the Governor in Council Concerning Certain Questions Relating to the Secession of Quebec from Canada, as Set Out in Order in Council P.C. 1997-1497, dated the 30th day of September 1996, S.C.C. 25506. See also Canadian Minister of Justice and Attorney General Allan Rock, Statement to the Supreme Court of Canada Concerning a Reference to the Supreme Court of Canada, Ottawa (Sept. 26, 1996). The matter was heard during the week of February 16, 1998. See NEW YORKTIMES, Feb. 17, 1998. As to the reference jurisdiction, see infra note 128. Recent political developments are noted, infra note 133. 94 Arizona Journalof Internationaland ComparativeLaw VoL 15,No. 1 1998

separate and independent national status for Quebec to a super-province role within the present confederation. Arising simultaneously and intertwined with these questions are difficult issues concerning the sovereignty of Canada's Aboriginal peoples in Quebec and elsewhere. From one perspective, Quebec's drive for separation is just another example of a pervasive late twentieth century problem. The end of the Cold War means that existing political entities can no longer count on the common fear of external threats to contain the internal strivings for autonomy of artificially combined ethnic, religious, or geographical elements. But Canada is unique-so far-among nations experiencing these pressures. Canada has existed for more than 130 years under an elaborate constitution that has drawn in part on the experience of the United States and is set in the context of several centuries of the British constitutional tradition. Canada, then, may be a test case for the capacity of established constitutions and a developed system of constitutional law to adapt to and accommodate these centrifugal political forces. This test of Canada's constitution poses these, among other, questions: (1) To what extent has Canada's present constitution been framed to accommodate the French society and culture of Quebec? (2) How effectively and fairly has the constitution dealt with the needs of Quebec and of the Aboriginal peoples? , (3) Can the constitution be adapted or refrained to accommodate those needs? (4) Are problems of this nature resolvable in constitutional terms? This paper seeks to establish the historical foundations for a comparative law analysis of these questions. The paper seeks these historical and comparative roots in two areas critical to the analysis: (1) The locus of sovereignty (including the separation of powers); and (2) the structure of federalism. At the same time, the paper will take an historical look at issues pertaining to Quebec and the Aboriginal peoples as they have been shaped by, and as they may ultimately shape, those key elements of the Canadian constitution.

II. COMMON ORIGINS AND DIVERGENT PATHS-1500-1791

Americans are accustomed to the view that our Constitution and laws are directly descended from British sources that in large measure were adapted and modified to govern the new country after the American Revolution. If we are to understand Canada today, we must grasp the common origins-and the divergent paths-of the American and Canadian institutional descent from Britain. We must also look at a very different historical phenomenon-the early and profound impact of French institutions and culture on Canadian history. Notes for a Comparative Study of the Originsof Federalism

A. Great Britain: The Imperial Constitution

On July 3, 1776, the thirteen American colonies and the eastern portions of what is now Canada were part of a single British colonial empire governed under the so-called Imperial Constitution and a complex administrative system grounded in that Constitution. The Canadian Constitution evolved after 1776 as part of the continuing evolution of Great Britain's Imperial Constitution and the administrative system that implemented it. By contrast, the American Declaration of Independence of 1776 and the United States Constitution and Bill of Rights as drafted and adopted between 1787 and 1791 were a revolutionary reaction to the failures of the Imperial Constitution and Britain's administrative system. The eighteenth century Imperial Constitution was a creature of English law that still carried strong indicia of its roots in the feudal property law of the . The Imperial Constitution combined three basic elements of the domestic English Constitution in a mix that differed significantly from the domestic model. The basis of English authority in the colonies was the , the independent legal and political power of the King that, within the realm, had been significantly limited by Parliament in the settlement that resulted from its various bloody and bloodless confrontations with the Stuart kings during the seventeenth century. Though the colonies were in form administered by the King under the prerogative, Parliament, through both its legislative supremacy and its political control of the King's ministers, had a significant role in colonial governance. Whether and to what extent the common law applied in the colonies was a subject of continuing debate, but the English common-law courts played a constitutional role in defining the scope of the prerogative when that issue arose in litigation within the realm.

1. The Prerogative

The royal Vrerogative was originally synonymous with the feudal powers of the King. After 1066, the Norman conquerors of England under William I and his successors established the centralized fiscal, administrative,

3. See generally J.H. Goebel, The Matrix of Empire, in J.H. SMITH, APPEALS TO THE PRIVY COUNCIL xiii-lxi (1950). For an accessible summary of the English feudal system, see J. H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 255-79 (3d ed. 1990). The generic term for the British in modem parlance is "Monarch." The term "Crown" refers to the entire , including the Monarch, the cabinet and other ministers, the bureaucracy, and the armed forces. See D.C.M. YARDLEY, INTRODUCTION TO BRITISH CONSTITUTIONAL LAW 37-38 (4th ed. 1974). In this paper, "Crown" is used in a more general, historical sense to refer to the King or Queen acting with the ministry in an executive role under the prerogative. 96 Arizona Journalof Internationaland ComparativeLaw Vol. 15, No. 1 1998

legal, and social structure that became English feudalism. 4 In this system, the King was the ultimate feudal lord under whom all tenure was held. The King as feudal lord made major grants to his tenants in chief, the barons of the realm, as well as many minor grants to others. He also held some lands as feudal lord directly for his personal benefit. As an incident of feudal lordship, the King was the source of the administration of government and justice for his tenants in chief and, through them, for all subjects.5 The concept and scope of the prerogative in the domestic English Constitution evolved from the feudal model as a body of common-law doctrine that at first defined, and then limited, the powers of the King. There were three stages in this evolution. (1) In the medieval period, the prerogative still resembled the feudal powers of a human king, as courts and commentators sought to extend its concepts to encompass developing ideas of the legal and political scope of the kingship. (2) By the sixteenth century, a more sophisticated theory of the prerogative explicitly recognized a distinction between the personal and public roles of the monarch and viewed the prerogative as a legal and political instrument wielded by the King in the governance of the state. The seventeenth century Stuart kings, James I and Charles I, carried this concept to the extreme with the assertion of a supreme power analogous to divine authority. (3) In the eighteenth century, the political triumph of Parliamentary power over the extreme prerogative claims of the Stuarts and the immensely detailed definition of prerogative power that had evolved at common law over several centuries combined to impose severe limits on the prerogative. It now consisted of certain formal, if still potent, governmental powers largely wielded in accordance with the will of the Parliamentary majority and a series of personal privileges-all thoroughly circumscribed by common law and statute.6 The King formally exercised the prerogative with the advice of the Privy Council, an appointed body consisting of cabinet members (the King's ministers), other leaders, bureaucrats, and judges. As a practical matter, the cabinet exercised the 7 executive power of the prerogative. The elements of this domestic model were differently configured in the Imperial Constitution under which the colonies were governed. In the sixteenth and seventeenth centuries, bureaucrats and judges adapted feudal theory to the

4. See BAKER, supra note 3, at 256-57. 5. See id. at 255-57, 266-70. As to the King's personal holdings, see generally ROBERT S'. HOYT, THE ROYAL DEMESNE IN ENGLISH CONSTITUTIONAL HISTORY 1066-1272 230-35 (1968). 6. For the three-stage development of the prerogative, see 3 W. HoLDSWORTH, HISTORY OF ENGLISH LAW 458-69 (5th ed. 1942); 4 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 190-217 (3d ed. 1945); 6 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 19- 29, 20343 (2d ed. 1937); 10 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 339-425 (1938). See also infra text accompanying note 43. 7. See 10 HOLDSWORTH, supra note 6, at 457-458; YARDLEY, supra note 3, at 28-31, 37-50. Notes for a ComparativeStudy of the Origins of Federalism

new conditions of the overseas empire. The colonies were viewed as personal holdings of the King and were thus ruled by the King directly through the prerogative as though he were their medieval feudal lord. This royal power was exercised formally through the Privy Council and practically through the cabinet. Therefore, the colonies were not subject to the body of common law and statute that had developed to define and limit the prerogative xithin the context of the complex feudal relationships that existed within the realm.8 In the eighteenth century, as the political and common-law containment of the prerogative became clearly recognized and firmly established, the question whether those domestic limitations applied to prerogative rule of the colonies became9 a subject of continuing debate between the colonists and the mother country.

2. Parliament

Parliament in its earliest form was simply an assemblage of leaders from throughout the realm through whom the King, exercising his broad prerogative, conducted certain types of business requiring local participation. Only after the Tudor monarchs in the sixteenth century began to use Parliament in a more instrumental political role did it begin to act as a representative assembly and assume the independent stature that it claimed at the end of that century.'" The result of Parliament's seventeenth century victory over the Stuarts, solidified in the "Glorious Revolution" of 1688, was the emergence of the doctrine that Parliament was both sovereign and supreme. This doctrine became the dominant theory by the end of the eighteenth century and is the underlying premise of British and Canadian constitutionalism today." The theory had very practical implications for the governance of the colonial empire. In form, the King was still a constituent element of Parliament, and so Acts of Parliament were simply another means by which the King could exercise the prerogative. Thus, the prerogative became the basis for Parliamentary legislation affecting the colonies. Moreover, since in the eighteenth century, the King came to appoint his cabinet from the leadership of the majority party in Parliament, that majority, in effect, also controlled12 the executive use of the prerogative in the government of the colonies.

8. See generally Goebel, supra note 3, at xv-xxiv. For a detailed and thoughtful treatment of this subject, see Barbara A. Black, The Constitution of Empire, 124 U. PA. L. REv. 1157 (1976). See also infra text accompanying notes 44-46. 9. See infra text accompanying notes 41-51, 59. 10. See G.O. SAYLES, THE KING'S PARLIAMENT OF ENGLAND 92-93, 133-36 (1974). 11. See 10 HOLDSWORTH, supra note 6, at 527-31; PETER W. HoGG, CONSTrrUTIONAL LAW OF CANADA §§ 12.1, 12.2 (4th ed. 1997). See also infra text accompanying note 42. 12. See 10 HOLDSWORTH, supra note 6, at 457-58, 629-44; 11 W. HOLDSWORTH, 98 Arizona Journalof Internationaland ComparativeLaw Vol 15,No. 1 1998

3. The Common Law

Throughout these epic struggles between the legislative and executive powers, the courts and the common law played a subsidiary, but critical, role. The judiciary was a creation of the prerogative and, thus, did not have the status of an independent branch of government charged with maintaining a balance between the executive and legislative branches. However, the day-to-day business of the realm depended on the adjudication of numberless claims between subjects and between the King and his subjects. In these adjudications, the courts established limits on both prerogative and Parliamentary power through the development of common-law doctrine and the interpretation of statutes. These limits were ordinarily accepted by King and Parliament as a matter of pragmatic political necessity. Thus, though the central English courts of common law and chancery had little direct involvement in legal matters that arose in the colonies, domestic decisions of those courts gave3 broad definition to the two principal components of the Imperial Constitution.1

B. France: L'Etat c'est moi

The assertion, "I am the State," attributed to Louis XIV, the late seventeenth century ruler of France, 14 symbolizes the critical institutional differences between the English and French constitutional regimes. From their common origin in medieval feudal theory, the two systems diverged significantly with the growing importance and ultimate domination of Parliament in England. France remained an absolute monarchy in which the King governed by edict and ordinance with the advice of a council of prominent noblemen and leaders of the dominant Roman Catholic church.' 5 In English terms, it was government solely by prerbgative. There was no effective national legislative body, but rather a system of regional "parlements" in which local judicial and legislative business was done. In this context, there was no contest over the authority to administer France's growing colonial empire in the seventeenth century. It was simply a matter of the King's choice of the most expedient and profitable methods of

HISTORY OF ENGLISH LAW 68-80 (1938); Black, supra note 8, at 1180-91, 1203-07. 13. See Goebel, supra note 3, at xxi-xxxviii; 10 HOLDSWORTH, supra note 6, at 357-368, 644-50. 14. See Louis XIV AND THE CRAFT OF KINGSHIP 233 (J.C. Rule ed., 1969). 15. See J.C. Rule, Louis XIV-Roi Bureaucrate, in Louis XIV AND THE CRAFT OF KINGSHIP 3-101 (J.C. Rule ed., 1969); H. Rowen, Louis XIV and Absolutism, in Louis XIV AND THE CRAFT OF KINGSHIP 302-16 (J.C. Rule ed., 1969). See generally A. LOSSKY, Louis X1 V AND THE FRENCH MONARCHY (1994). Notes for a ComparativeStudy of the Originsof Federalism

1 6 allocating and governing his possessions. The French private law was customary and varied from region to region. Among these regional bodies of customary law, the "Custom of Paris" in the seventeenth century had assumed a position as the preeminent statement of the French civil law, which it enjoyed until adoption of the Code Napoleon in 1804.17 The dominance of the Custom of Paris was due to the importance of the jurisdiction of the Parlement of Paris and the fact of publication of a codified version in 1580. The Custom of Paris was primarily a compilation of principles relating to property rights and the role of property in the family structure. Issues of commercial and public law were governed by various royal edicts and ordinances. The law, private and public, was administered in a complex system of local feudal, royal, and specialized courts, with appeal to the regional parlements and ultimately to the King in Council.'8

C. The Clash of Empires

As Great Britain and France contended in Europe and North America for territorial and military supremacy in the seventeenth and eighteenth centuries, their very different legal cultures followed their explorers, colonists, and armies. Both powers confronted in different ways the native peoples whom they found in occupation of the land and possession of the resources that they had come to exploit.

1. The British Empire

Colonization of Britain's North American empire began with the settlement of Jamestown in Virginia in 1607. In Calvin's Case,19 a decision virtually contemporaneous with that settlement, Lord Coke drew from ancient feudal precedents the basic prerogative framework within which the first century of colonization was to take place: If the King conquers a Christian kingdom, the laws of that kingdom remain in effect until the King changes them, except that English subjects there have their rights as Englishmen; but if an infidel kingdom is conquered, its laws are abrogated and the King and his judges govern by

16. See J. DICKINSON, LAW IN 1-2 (1992); F.X. GARNEAU, 1 HISTORY OF CANADA FROM THE TIME OF ITS DISCOVERY TILL THE UNION YEAR 1840-41 188-91 (A. Bell trans., 1862). 17. See M. PLANIOL, 1 TREATISE ON THE CIVIL LAW 23-40 (12th ed. 1939). 18. See QUEBEC CIvIL LAW 7 (J. Brierley & R. MacDonald eds., 1993); DICKINSON, supra note 16, at 4-5, 14-22; GARNEAU, supra note 16, at 193-96. 19. See 77 Eng. Rep. 377 (K.B. 1608). 100 Arizona Journalof Internationaland Comparative Law Vol. 15, No. 1 1998

natural equity until "certain laws are established" among the inhabitants. 20 In either case, if the King gives the inhabitants21 the laws of England, the laws may thereafter be changed only by Parliament. The Jamestown and subsequent seventeenth century colonial ventures were carried out by groups of investors or individuals operating under one of two types of charters from , which claimed all of the North American continent by virtue of fifteenth and sixteenth century voyages of discovery conducted by John Cabot and others. 22 The earliest seventeenth century colonial enterprises were joint-stock trading companies chartered by the Crown in a form that had evolved from municipal charters and corporate charters granted to promoters of domestic industry or overseas trade. Later seventeenth century colonies were governed under proprietary charters-direct feudal grants to individual proprietors. Both types of charters reflect the creative adaptation of mechanisms designed for more mundane commercial or property purposes to serve de facto as constitutions of civil government under the general rubric of Calvin's Case.23 That case and the charters offered little or no guidance for the legal relations of the colonists and the native peoples. Tribes that had not been conquered militarily were recognized as quasi-sovereigns whose grants were deemed essential to the establishment of individual land titles. As a practical matter, however, by force of civilization or force of arms, 2natives4 who remained in proximity to the colonists were subjected to English law. In the charters, the King delegated to the companies and proprietors the prerogative of appointing governors and establishing and judiciaries. These institutions were directed to govern in a manner not contrary or repugnant to the laws of England. By the middle of the eighteenth century, the Crown had revoked the majority of the colonial charters. Most of the colonies that had lost their charters, and most colonies or provinces established after 1700, were ruled by governors appointed directly by the King. These royal governors exercised the prerogative directly on behalf of the Crown in accordance with their commissions and formal instructions. These documents contained many provisions

20. See Calvin's Case, 77 Eng. Rep. at 398. 21. See id. As to Calvin's Case generally, see Goebel, supra note 3, at lx-lxi; SMITH, supra note 3, at 465-69. 22. As to the English discoverers, see S.E. MORISON, THE EUROPEAN DISCOVERY OFAMERICA: THE NORTHERN VOYAGES, A.D. 400 TO 1600 112-251, 464-684 (1971). 23. See 77 Eng. Rep. 377 (K.B. 1608). As to the charters generally, see L. Kinvin Wroth, Documents of the Colonial Conflict, 69 L. LIBR. J. 277, 280-81 (1976). On the charter and settlement of each of the American colonies, see C. M. ANDREWS, THE COLONIAL PERIOD OF AMERICAN HISTORY (1964). 24. See F. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 50-58 (R. Strickland et al. eds., 1982); W. E. WASHBURN, RED MAN'S LAND/WHITE MAN'S LAW: THE PAST AND PRESENT STATUS OF THE AMERICAN INDIAN 25-47 (2d ed. 1995); F. P. PRUCHA, AMERICAN INDIAN POLICY IN THE FORMATIVE YEARS 5-25 (1961); SMITH, supra note 3, at 417, 422-4.2. Notesfor a Comparative Study of the Originsof Federalism

comparable to those of the charters and came to have similar constitutional force. Thus, the power to establish legislatures and courts that could not take action contrary or repugnant to English law was contained in the commissions and instructions. From London, a bureaucracy, headed by a cabinet member and consisting of a number of specialized boards and law officers, supervised the routine work of the governors. Beginning in2 5 1660, Parliament exercised jurisdiction over the external trade of the colonies. The legislative and judicial acts of both the chartered and unchartered colonies were ordinarily reviewable not by the English courts of common law and chancery, but by the Privy Council. Through its power of review and disallowance of colonial legislation, the Privy Council maintained a fairly systematic oversight of the work of the colonial assemblies, curtailing both legal and political excess on the part of those bodies. Privy Council judicial review was far less successful in providing for systematic application of the common law of England in colonial courts, because the appellate jurisdiction was limited to personal actions involving more than three hundred pounds sterling. Whether a particular issue was reviewed would thus26 depend on both the initiative and the resources of individual private litigants. Britain's colonial possessions in eastern Canada were never granted charters. From the beginning they were administered directly by governors appointed under the prerogative, acting in accordance with their commissions and instructions. After a brief period of British sovereignty from 1654 to 1670 in Acadia (the present provinces of Nova Scotia and New Brunswick), the territory reverted to France, which had originally settled it in 1605. The British eventually acquired permanent possession of Acadia under the Treaty of Utrecht in 1713 and renamed the territory "Nova Scotia."2 7 In what was essentially a caretaker government, British governors at Annapolis Royal conducted the administrative and judicial business of the colony through an appointed council of British military personnel, civilian officials, and merchants under the general instruction that the laws applied must not be repugnant to the laws of England. The council, to which nonvoting deputies representing the French population of the former Acadia were summoned, exercised no legislative function. In its adjudicative role, the council applied a rough and ready version of French law, except in cases involving British subjects or grants made under English law.28 The native

25. See L. KINvIN WROTH, PROVINCE IN REBELLION: AN INTERPRETIVE ESSAY 4- 5, nn. 7-10 (1975), and sources there cited; Wroth, supra note 23, at 280-82. As to Parliament, see infra text accompanying notes 53-54. 26. See generally SMITH, supra note 3. 27. See KENNETH MCNAUGHT, THE PENGUIN HISTORY OF CANADA 23, 36-37 (rev. ed. 1988) (1969). 28. See T. Barnes, The Dayly Cry for Justice, in 3 ESSAYS IN THE HISTORY OF CANADIAN LAw 10-41 (J. Phillips et al. eds., 1990); T. Barnes, "Twelve Apostles" or a Dozen Traitors? Acadian Collaborators during King George's War, in 1 CANADIAN STATE TRIALS 98-113 (F.M. Greenwood & B. Wright eds., 1996). 102 Arizona Journalof Internationaland Comparative Law Vol 15, No. 1 1998

population remained primarily allied with the French in the continuing colonial warfare of the mid-eighteenth century.29 A more settled and orderly regime began in 1749 when Halifax was founded and Edward Cornwallis was appointed governor of Nova Scotia with full authority to institute civil government. At first, Cornwallis and his successors governed through a council, which -legislated for the colony through proclamations, established lower courts, and acted as the court of general jurisdiction for more serious civil and criminal matters. 30 After expulsion of the Acadians by the British in 1755, a steady influx of settlers from New England led to increasing pressure for the establishment of a popularly elected assembly, which finally occurred in 1758. The Cornwallis commission of 1749 and related instructions and proclamations remain the constitution of the province of 3 1 Nova Scotia today.

2. New France

The motivations behind the French colonization of North America were intensely commercial and significantly dominated by the continuing needs of metropolitan France. The royal grants to the fur-trading companies that held the Canadian territory of New France from 1602 until 1663 made little or no provision for governance and law. The most elaborate and enduring of these grants, which established the Company of New France in 1627, provided for a governor nominated by the Company and appointed by .the King. The commissions of the successive governors of the Company gave them broad administrative and judicial powers, which they exercised summarily and through ad hoc and informal means. After 1647, these powers were exercised more formally, though no less broadly, through a council with some elected representation created by royal decree. A combination of commercial reverses for the Company and the fresh energies and vision of Louis XIV, who attained his majority in 1661, led to the surrender by the Company of its grant and the end of this system in 1663. A royal Edict of that year established the form of

29. See J. Dickinson, Native Sovereignty and French Justice in Early Canada, in 5 ESSAYS IN THE HISTORY OF CANADIAN LAW 17-40 (J. Phillips et al. eds., 1994); JOHN BARTLETT BREBNER, NEW ENGLAND'S OUTPOST: ACADIA BEFORE THE CONQUEST OF CANADA (1927). 30. See T. Barnes, "As Near as May be Agreeable to the Laws of this Kingdom ", in LAW IN A COLONIAL SOCIETY: THE NOVA SCOTIA EXPERIENCE 1-23 (P. Waite et al. eds., 1984); B. Cahill, The "Hoffman Rebellion" (1753) and Hoffman's Trial (1754): Constructive High Treason and Seditious Conspiracy in Nova Scotia under tile Statocracy, in I CANADIAN STATE TRIALS, supra note 28, at 72-97. 31. See DOCUMENTS ILLUSTRATIVE OF THE CANADIAN CONSTITUTION 9-21 (William Houston ed., 1970) (1891) [hereinafter Houston]; HUGO, supra note 11, § 2.2 (c) at n. 19. As to the Acadians, see MCNAUGHT, supra note 27, at 38-39. Notes for a Comparative Study of the Originsof Federalism

government that was to endure in New France until 1760.32 While various royal edicts and ordinances covering such matters as civil procedure, commercial law, and maritime law applied in New France, the basic private law was the Custom of Paris, incorporated by the Edict of 1663. A substantial portion of the Custom of Paris dealt with the seigneurial system of property-holding, the French version of the feudal system.33 Although in metropolitan France, as in England, the system had fallen into decay and had become a set of cumbersome formalities surrounding landholding, in New France it was established in full vigor as the primary instrument of settlement and development. The seigneurs were direct grantees from the King, to whom they owed continuing fealty and homage, as well as certain fiscal obligations. They were also required to make subgrants to tenants (censitaires),to whom they owed certain duties of support and protection. The tenants, in turn, were required to make yearly payments (cens et rentes) and provide other payments and services to their seigneurs. By 1760, there were more than two hundred seigneuries ranging in size from a few to hundreds of square miles and lying primarily along the St. Lawrence River from west of Montreal eastward to and beyond, and extending southward along both sides of Lake Champlain. The policing of this system occupied a significant amount of the time of the administrative and judicial authorities of New France. 34 The principal interaction of the settlers of New France with the native peoples was twofold: (1) The natives were essential partners in the fur trade in the western reaches of the territory. (2) At the same time, they presented fertile ground for the missionary activities of the ecclesiastical establishment that governed the colony. As a result of both connections, the natives became an important ally of the French in the series of military conflicts with the English3 settlements to the south that marked the first half of the eighteenth century. Prior to its cession to the British in 1713, Acadia was the poor stepchild of New France. The seigneurial system that applied in New France also governed Acadian land titles. A royal governor or his deputy presided at Port Royal, but the operation of formal administrative and judicial institutions was

32. EDITS, ORDONNANCES ROYAUX, DECLARATIONS .. . CONCERNANT LE CANADA 37-39 (1854); As to New France generally, see MCNAUGHT, supra note 27, at 20-35; W.P.M. KENNEDY, THE CONSTITUTION OF CANADA 1534-1937: AN INTRODUCTION TO ITS DEVELOPMENT, LAW AND CUSTOM 7-18 (2d ed. 1938); P. Moogk, The Crime of L_ se- Majestg in New France: Defence of the Secular and Religious Order, in 1 CANADIAN STATE TRIALS, supra note 28, at 55-71. 33. See QUEBEC CIVIL LAw, supra note 18, at 7-14; DICKINSON, supra note 16, at 4-5, 14-22. 34. See QUEBEC CIVIL LAW, supra note 18, at 11-13; KENNEDY, supra note 32, at 19-24. See generally RICHARD COLEBROOK HARRIS, THE SEIGNEURIAL SYSTEM IN EARLY CANADA (1966) 35. See generally REPORT OF THE ROYAL COMMISSION, supra note 1, at 108-13; MCNAuGHT, supra note 27, at 19, 22-23, 25-26, 32-35; Dickinson, supra note 29. 104 Arizona Journalof Internationaland ComparativeLaw Vol 15, No. 1 1998

spasmodic during a period of continued skirmishing with English forces based in Massachusetts.36 As noted above, after the British acquired Acadia, French institutions continued to survive under a British military government until the removal of the Acadian population in 1755. 37

3. Britain Triumphant

The regime of New France endured until the fall of Quebec in 1759 and the French military surrender to the victorious British forces under Lord Jeffrey Amherst at Montreal in 1760. Provisions of the Articles of Capitulation, such as those concerning maintenance of the Catholic faith and hierarchy, confirmation of property rights of both the French and native populations, and continued applicability of the Custom of Paris, demonstrate that Britain's problems38 with the cultural and legal assimilation of Canada date from that moment. Under the Treaty of Paris in February 1763, Great Britain acquired not only the French possessions in Canada, but other significant portions of the French North American empire. The British Royal Proclamation of 176339 was the first effort to establish an imperial "charter" for these new-won possessions. It provided that all of the territories, including the newly established "Government of Quebec," were to be ruled by royal governors and councils who were to suimmon General Assemblies as soon as conditions permitted. Once an assembly was in place, these governments were to make necessary laws conformable to the law of England as in other colonies. In the meantime, the Crown guaranteed to the inhabitants the protection of English law through courts to be established for that purpose. The Royal Proclamation also recognized the status of "Nations or Tribes of Indians," provided protection for their property rights, and restricted and regulated economic activity with them.4

36. See H. D. PARATTE, ACADIANS 29-36, 42-54 (1991); BREBNER, supra note 29, at 115-16. 37. See notes 27-31, supra, and accompanying text. 38. For the Articles of Capitulation, see Houston, supra note 31, at 32-57. See also QUEBEC CIVIL LAW, supra note 18, at 14-19; H. NEATBY, QUEBEC IN THE REVOLUTIONARY AGE 1760-1791 6-10 (1966); KENNEDY, supra note 32, at 25-31. 39. See Royal Proclamation of October 7, 1763, R. S. C., App. II, No. 1 (1985) (Can.). 40. See id. See generally MCNAUGHT, supra note 27, at 43-47; H. NEATBY, supra note 38, at 15-16, 46-48, 252-53. As to the native peoples, see B. Ryder, The Demise and Rise of the ClassicalParadigm in Canadian Federalism: Promoting Autonomy for the Provinces and FirstNations, 36 McGILLL. J. 308, 314-15 (1991). Notesfor a Comparative Study of the Originsof Federalism

D. The Imperial Constitution on the Eve of the American Revolution

By the 1760s, the foundations of the modem British constitutional system of limited monarchy and parliamentary government had been laid. Sir William Blackstone's Commentaries, the first volume of which was published in 1765, were the "restatement" of the eighteenth century common law-public and private-widely circulated and used by lawyers and others on both sides of the Atlantic.41 Blackstone declared the sovereignty and supremacy of Parliament in forceful terms, stating that under the British Constitution Parliament's power knew no bounds and that "if the parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it."'42 The royal prerogative, by contrast, was strictly limited by the common law to "bounds... certain and notorious. '43 As for the American colonies, Blackstone deemed them as having been obtained "either by right of conquest and driving out the natives (with what natural justice I shall not at present enquire) or by treaties." 44 As a result, pursuant to Calvin's Case45 as refined by a few later decisions, the colonies were governed by the Crown as "distinct (though dependent) dominions" in which the common law did not apply, but acts of Parliament that expressly named them did control.4 6 A decade later, Lord Mansfield decided Campbell v. Hall,47 a case arising in Grenada, acquired by Britain from from the French under the Treaty of Paris in 1763. In a decision that remains a leading case on the scope of the prerogative in colonial government, Mansfield held that the King, as conqueror, could, consistent with Calvin's Case,4 8 change the laws of Grenada by proclamation, subject only to the power of Parliament and principles of

41. See generally WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (repr. 1979) (1765-1769). As to the influence of the Commentaries generally, see DAVID LOCKERMILLER, Sm WILLIAM BLACKSTONE 156-90 (1938). 42. See BLACKSTONE, supra note 41, at 91, 160-62. 43. See id. at 230-34. 44. See id. at 105. 45. See 77 Eng. Rep. 377 (K.B. 1608). 46. See BLACKSTONE, supra note 41, at 104-05 (citing Calvin's Case, supra note 19). The other decisions cited by Blackstone were Anon., 2 Peere Williams 75, 24 Eng. Rep. 646 (P.C. 1722); Smith v. Brown and Cooper, 2 Salk. 666, 91 Eng. Rep. 567 (K.B. 1702); Blankard v. Galdy, 2 Salk. 411, 91 Eng. Rep. 356 (K.B. 1693); and Dutton v. Howell, Show 24, 1 Eng. Rep. 17 (H.L. 1693). These cases added to the principles of Calvin's Case the proposition that English settlers of uninhabited territory brought with them English law. In later editions, Blackstone elaborated on these points, making clear that the colonists brought only so much English law as was applicable to their situations and that the colonies were in all matters subject to the King and Parliament. See, e.g., BLACKSTONE, supra note 41, at 108-10. 47. See 98 Eng. Rep. 1045 (K.B. 1774). 48. See 77 Eng. Rep. 377 (K.B. 1608). 106 Arizona Journalof Internationaland ComparativeLaw VoL 15, No. 1 1998

fundamental fairness derived therefrom.4 9 In this case, however, "through the inattention of the king's servants," the proclamation in question had been issued after the Royal Proclamation of 1763, and a commission appointing a royal governor for the island had promised the establishment of a representative assembly. By virtue of those instruments, the King had surrendered the prerogative of legislation, which could thereafter be exercised only "by the assembly of the island, or by an act of the parliament of Great Britain."50 The Commentaries and Campbell v. Hall together set forth the constitutional theory with which Britain approached the American Revolution and the subsequent 5 development of its overseas empire. '

E. The Road Not Taken: The American Revolution and the United States Constitution

The American Revolution can be analyzed on political, social, economic, and ideological levels. It must also be understood as a constitutional revolution in which the institutions of prerogative and Parliamentary power that thereafter continued to govern Canada and the rest of Britain's colonial empire were found wanting and rejected. By 1791, there had emerged in the United States a model of government incorporating a new concept of sovereignty and a strict plan of separation of powers in which the common-law process of the judicial branch provided the essential balance. For those who remained subjects of the Crown in Canada, whether loyal Britons, recalcitrant French, or Aboriginal peoples, this was the road not taken. The system of imperial administration previously described was in effect a working partnership between Parliament and the Crown. Parliament, of which the King was a component, relied on the prerogative power over the colonies to enact legislation regulating colonial affairs. The King, acting through ministers who were also leaders of Parliament, appointed governors and other officers who administered and implemented that legislation. 2 British regulation of colonial trade through these means became a critical issue. Beginning in 1660, Parliament enacted a series of so-called "Acts of Trade" designed to give preference to English manufacturers and English-built vessels in trade with the colonies. 53 The Acts, which included minimal customs duties designed to fund

49. See Campbell, 98 Eng. Rep. at 1047-48. 50. See id. at 1050. 51. For an analysis of these arguments, see Black, supra note 8. As to the continuing authority of Campbell v. Hall, see HOGG, supra note 11, § 2.3. 52. See supra text accompanying notes 7-12, 25-26. 53. The first such enactment was 12 Car. 2, ch. 18 (1660) (Eng.). For a summary of the legislation, see 2 LEGAL PAPERS OF JOHN ADAMS 98-99 (L.K. Wroth & H. Zobel, eds., 1965), and sources cited therein. Notesfor a Comparative Study of the Originsof Federalism

the system, were enforced by royally appointed customs officers, who could proceed against violators in vice admiralty courts established by the Crown within each colony. These courts, held by royally appointed judges, sat without juries and followed civil law procedurei 4 Despite some colonial objections to this system, there was little opposition to it during the first half of the eighteenth century, thanks to a combination of lax enforcement and increasing colonial trade. o The situation changed abruptly during the Seven Years War (1754- 1761), when Britain substantially increased its enforcement efforts in order to combat New England's extensive trade with the enemy. Britain's military triumph confirmed by the Treaty of Paris in 1763, and its consequent need to pay the costs of the war, led, in the American Act of 1764, 55 to the first taxation of colonial imports to raise a general revenue. Enforcement provisions and admiralty jurisdiction were also strengthened to check the continuing success of colonial smugglers. The Stamp Act of 1765, which levied a tax on legal and other documents, was repealed in 1766 after a wave of protests that reflected growing colonial -unity.56 Upon repeal, Parliament was content with a statutory declaration of its power to legislate for the colonies. In 1767, however, new duties were added and enforcement was further strengthened by the creation of a Boston-based American Board of Customs Commissioners and a new system of vice admiralty courts.57 Public furor over the activities of the Board provoked the British to send troops to Boston. Their presence led in 1770 to the episode known as "the Boston Massacre," a symbolic event which for many colonists 5 8 made revolution inevitable. In arguments made in a series of hotly contested customs enforcement actions and in pamphlets, newspaper columns, and political protests, the American colonists began to raise the constitutional issues that ultimately led to revolution: (1) Parliament, in which the colonists were not represented, could not

54. See CARL UBBELOHDE, THE VICE ADMIRALTY COURTS AND THE AMERICAN REVOLUTION (1960); L.Kinvin Wroth, The Massachusetts Vice Admiralty Court, in LAW AND AUTHORrrY IN COLONIAL AMERICA 32-73 (G. Billias ed., 1965); DAVID R. OWEN & MICHAEL C. TOLLEY, COURTS OF ADMIRALTY IN COLONIAL AMERICA: THE MARYLAND EXPERIENCE 1634-1776 (1995). 55. See American Act of 1764,4 Geo. 3, ch. 15 (1764) (Eng.). 56. The Stamp Act, 5 Geo. 3, ch. 12 (1765) (Eng.), was repealed by 6 Geo. 3, ch. 11 (1766). See BERNHARD KNOLLENBERG, ORIGIN OF THE AMERICAN REVOLUTION 1759- 1766 221-37 (1960). See generally E. & H. MORGAN, THE STAMP ACT CRISIS: PROLOGUE TO REVOLUTION (1953). 57. See The Townshend Acts, 7 Geo. 3, ch. 41, 46 (1767) (Eng.); 8 Geo. 3, ch. 22 (1767) (Eng.). See also UBBELOHDE, supra note 54, at 130-33; THOMAS C. BARROW, TRADE AND EMPIRE 213-26 (1967). 58. See 2 LEGAL PAPERS OF JOHN ADAMS, supra note 53, at 100-03; 3 LEGAL PAPERS OF JOHN ADAMS 1-34 (L.K. Wroth & H. Zobel, eds., 1965); HILLER ZOBEL, THE BOSTON MASSACRE (1970). 108 Arizona Journalof Internationaland ComparativeLaw Vol 15, No. 1 1998

legislate for them. (2) Their loyalties ran only to the King, who had acted in his personal capacity under the prerogative in granting charters or issuing commissions that conveyed the right to their own representative assemblies. (3) But the prerogative was limited by the common law, which bound the King to observe the terms of those instruments and which prohibited actions, whether legislative or executive, that infringed on the fundamental rights of individuals. Needless to say, these arguments, which were directly contrary to the conventional constitutional views expressed by Blackstone, received short shrift in courts dominated by royal appointees and little better reception from the established political leadership of Britain or the colonies. 59 The Boston Massacre brought a dose of reality to the developing conflict. The British troops were recalled, customs enforcement was cut back, colonial boycotts of imported goods were ended, and Parliament repealed all of the 1767 duties except a tax on tea. 60 In 1773, however, the law of unintended consequences came into play. A Parliamentary rescue operation allowed the financially struggling East India Company to increase substantially its colonial tea imports at a price competitive with smuggled tea.61 Aside from the threat to local enterprise, more legal tea meant more duties, which under the 1767 Act were to be used to fund the salaries of Crown officials in the colonies. The first tea cargos to reach Boston late in 1773 were, thus, the centerpiece at Boston's 6 2 famous Tea Party. British reaction to the Tea Party was swift and forceful. The Boston Port Act, first of a group of acts of Parliament known as the "Coercive," or "Intolerable" Acts, closed the Port of Boston effective June 1, 1774, until the Town agreed to pay for the tea.63 The Massachusetts Government Act, which altered the form of government established under the provincial charter, was the most directly threatening of the Coercive Acts.64 Another measure, the Quebec Act, was perceived by the colonists as a threat to their religious freedom, as well as to their economic and political security. 65 In response to the acts, popular

59. For examples of the enforcement actions, see 2 LEGAL PAPERS OF JOHN ADAMS, supra note 53, at 106-242. For examples of the pamphlet literature, see James Otis, The Rights of the British Colonies Asserted and Proved (1764), in, PAMPHLETS OF THE AMERICAN REVOLUTION 408-482 (Bernard Bailyn ed., 1965); DANIEL LEONARD [attributed author], MASSACHUSETTENSIS (1775); John Adams, Novanglus (1775), in 4 WORKS OF JOHN ADAMS 121-77 (Charles Francis Adams ed., 1969). For an analysis of the arguments, see GORDON S. WOOD, CREATION OF THE AMERICAN REPUBLIC 257-389 (1969); Black, supra note 8. See also 11 HOLDSWORTH, supra note 12, at 116-24. 60. See 10 Geo. 3, ch. 17 (1770) (Eng.). 61. See 13 Geo. 3, ch. 44 (1773) (Eng.). 62. See BENJAMIN WOODS LABAREE, THE BOSTON TEA PARTY (1964). 63. See 14 Geo. 3, ch. 19 (1774) (Eng.). 64. See 14 Geo. 3, ch. 45 (1774) (Eng.). 65. See The Quebec Act, 14 Geo. 3, ch. 83 (1774) (Eng.), discussed, infra, in text accompanying notes 79-81. The other Coercive Acts were the Administration of Justice Notesfor a Comparative Study of the Originsof Federalism

conventions in every Massachusetts county inspired immediate mob action. The mobs forced the courts to close, and civil authority was divided between the royal governor, barricaded in Boston with a Council appointed under the terms of the Government Act, and a Provincial Congress-an extralegal assembly elected by the towns. The fate of Massachusetts galvanized the the rest of the thirteen colonies, all of which sent delegates to the Continental Congress, sitting in Philadelphia. The Continental Congress, through the rest of 1774 and 1775, expressed an increasingly strident and unified colonial viewpoint, asserting in against more developed and elaborate66 form the arguments previously made prerogative and Parliament. After the battles of Lexington and Concord and Bunker Hill in the spring of 1775, events moved rapidly. The Continental Congress assumed leadership of the now largely united thirteen colonies and on July 4, 1776, unilaterally severed the colonies' political ties with Great Britain. The Declaration of Independence, with all its patriotic fervor and rhetoric, must also be viewed as the last legal word in the long-running constitutional debate between the thirteen colonies and Great Britain. It essentially charged the King with unilateral breach of the feudal contract, both by his own abuses of power and his participation through Parliament67 in the enactment of the Intolerable Acts and subsequent repressive legislation. Even before the signing of the Declaration of Independence, there was substantial interest and activity in constitution-making throughout the newly independent states. Central to the legitimacy of these efforts were basic structural questions: Where did sovereignty, the ultimate authority in the state, lie? If the people had wrested it from its home in the British Parliament, upon what agency did they bestow it when constituting governments for their new states? And how was the sovereign, whoever or whatever it might be, to be restrained from the abuses of power that had sparked the Revolution? These questions were resolved in a variety of ways in the individual constitutions adopted by the states.68 Meanwhile, the states prosecuted the war against Britain through the Continental Congress, the powers of which were defined in the Articles of

Act, 12 Geo. 3, ch. 39 (1774) (Eng.) (providing for trial in England of British civil officers accused of murder in Massachusetts), and the Quartering Act, 14 Geo. 3, ch. 54 (1774) (Eng.) (expanding the power of British military commanders to quarter troops in civilian dwellings). See generally WROTH, supra note 25, at 17-20, 39-41; DAVID AMMERMAN, IN THE COMMON CAUSE: AMERICAN RESPONSE TO THE COERCIVE ACTS OF 1774 1-17 (1974). 66. See WROTH, supra note 25; WOOD, supra note 59, at 130-33; EDWARD S. MORGAN, THE BIRTH OFTHE REPUBLIC 1763-1789 58-64 (2d ed. 1956). 67. See THE DECLARATION OF INDEPENDENCE (U.S. 1776). See generally EDWARD DUMBAULD, THE DECLARATION OF INDEPENDENCE (1950); JAY FLIEGELMAN, DECLARING INDEPENDENCE: JEFFERSON, NATURAL LANGUAGE AND THE CULTURE OF PERFORMANCE (1993). 68. See WOOD, supra note 59, at 127-255. 110 Arizona Journalof Internationaland ComparativeLaw Vol. 15, No. 1 1998

Confederation, drafted in 1778 and finally ratified by all thirteen states in 1781. With the successful conclusion of the military phase of the Revolution in 1783, economic hardship and continuing social unrest created difficult conditions in many states and demonstrated the weakness and inefficiency of the Confederation. Shays' Rebellion, during which mobs again closed the Massachusetts courts and ultimately took arms against the Commonwealth, was a wake-up call for all the states and was a major catalyst for the convening of the Constitutional Convention at Philadelphia in the summer of 1787.69 In the Convention's debates, and in the extensive public debate of 1787 and 1788 that preceded ratification of the Constitution by the states, the question of the locus of sovereignty became intertwined with other critical questions that the experience of self-government had brought to the surface since 1776. The issues were joined between the Federalists, who supported the Constitution as drafted, and the Anti-federalists, who feared the impact of a strong central government and sought to preserve the hard-won autonomy of the states. Principal questions included whether sovereignty could be shared between the federal and state governments and how the powers of a sovereign federal government were to be limited. In this debate, the ultimately successful Federalists evolved and pressed home a distinctively American theory of sovereignty: Sovereignty was in the people and remained there. The executive and legislative branches of the state and federal governments could exercise only those enumerated aspects of sovereign power expressly delegated to each of them by the people. From this proposition stemmed the clear necessity of an independent judiciary as a third branch of government that would police the actions of the other branches and declare void those that exceeded the powers granted or any limits placed upon them.70 Critical for the future of American federalism was the grant to Congress of the power to regulate interstate and foreign commerce. That grant also included "Commerce . . . with the Indian Tribes," a provision that is both a grant of federal power and a recognition of tribal sovereignty. 7' The first federal Indian Trade and Intercourse Act, enacted

69. See M. JENSEN, THE ARTICLES OF CONFEDERATION (1966); S. Patterson, The FederalistReaction to Shays's Rebellion, in IN DEBT TO SHAYS, 65 COL. SOC. MASS., PUB Nos. 101-18 (R.A. Gross ed. 1993); W. Pencak, "The Fine Theoretic Government of Massachusetts Is Prostrated to the Earth": The Response to Shays' Rebellion Reconsidered, in IN DEBT TO SHAYS, 65 COL. SOC. MASS., PUB. Nos. 121-43 (R.A. Gross ed. 1993). 70. See WOOD, supra note 59, at 150-61, 469-564; see generally J.T. MAIN, THE ANTIFEDERALISTS: CRITICS OF THE CONSTITUTION 1781-1788 (196 1). 71. U.S. CONST. art. I, § 8. As to the Indian Commerce Clause and other Constitutional provisions applied by the courts in implicit recognition of tribal sovereignty, see COHEN, supra note 24, at 207-20. The separate status of the native peoples was also reflected in Article I, § 2, which provided for apportionment of representatives and direct taxes by a formula that expressly excluded "Indians not taxed," language retained in the revision of this provision in section 2 of the Fourteenth Notes for a Comparative Study of the Originsof Federalism

in 1790,72 contained many provisions similar to those of the Royal Proclamation 7 of 1763. ' The 1790 Act is the foundation of the extensive body of substantive federal Indian law that exists today. Both in the Constitutional Convention and in the ratification debates, there was much discussion of the need for a Bill of Rights in the new Constitution. While all efforts to include a Bill of Rights in the original text or to make such an addition a formal condition on ratification failed, James Madison and other Federalists promised during the ratification campaign to consider amendments to deal with the issue in the First Congress. 74 Spurred by these promises, by the application of New York and Virginia for a second convention, and by the continuing failure of North Carolina and Rhode Island to ratify the Constitution, Madison in June 1789 proposed amendments in the House of Representatives. After extensive debate, twelve amendments were transmitted to the states for ratification in October 1789. Two of the proposed amendments, covering the apportionment of the House and limiting the power of Congress to increase its own salaries (ultimately ratified as the 27th Amendment in 1992), were rejected. The remaining ten were ratified effective in December 1791 and now constitute the Bill of Rights of the United States Constitution.75 The issues raised in the Constitutional debates have not gone away. In various guises they defined the politics that culminated in the Civil War in 1861 and that has informed much of the subsequent course of American history. Indeed, current expressions of fear and distrust of government contain echoes of the rhetoric heard in the free-ranging national symposium on constitution-making that ran from 1776 until 1791. Nevertheless, the basic concepts of popular and dual sovereignty developed and advanced by the Federalists continue to serve as a working view of the Constitution. This result is in large measure due to the work of the United States Supreme Court from 1801 to 1835 under the leadership of John Marshall, who had been a strong Federalist during the ratification debates76 and in the first decade of the new republic. For example, Marbury v. Madison established the fundamental, and essential, principle of judicial review of the constitutionality of federal legislation. In McCullough v. Maryland,77 the Court gave broad scope to federal legislative power and limited state power to interfere with federal authority. Barron v. Baltimore7 8 made clear that, before the adoption of the 14th Amendment, the proscriptions of the Bill of Rights did not apply to the states.

Amendment, ratified in 1868. See id. at 388-89. 72. See Act of July 22, 1790, ch. 33, 1 Stat. 137; COHEN, supra note 24, at 109- 11. 73. See Royal Proclamation of October 7, 1763, supra note 39. 74. See R. RUTLAND, THE BIRTH OF THE BILL OF RIGHTS 106-89 (1983). 75. See, RUTLAND, supra note 74, at 173-74, 180-81, 190-218. 76. See 5 U.S. (1 Cranch) 137 (1803). 77. See 17 U.S. (4 Wheat.) 316 (1819). 78. See 32 U.S. (7 Pet.) 243 (1833). 112 Arizona Journalof Internationaland ComparativeLaw Vol. 15, No. 1 1998

F. Canadian Evolution: First Steps

As the American Revolution loomed on the horizon, a beleaguered British ministry sought to maintain its imperial position in Canada despite the simultaneous pressures of Anglo-French cultural conflict in Quebec and Anglo- American military conflict to the south. The Quebec Act of 177479 reinstated French law, affirmed the continuity of the Roman Catholic church, and provided for government by an appointed governor and council. The Act was a new effort to address the social and legal issues left unresolved, if not exacerbated, by the Royal Proclamation of 1763 and the efforts of Governors Murray and Carleton to implement their commissions and instructions under it. (Murray's Council had enacted an ordinance purporting to adopt the English common law; neither governor had summoned a representative assembly.) 80 At the same time, as noted above, the revolutionary American colonists included the Quebec Act with other offensive legislation as an instance of both Parliamentary8 usurpation and Parliament's desire to suppress colonial values and enterprise. 1 In the aftermath of the American Revolution, the flight of large numbers of American Loyalists to Nova Scotia resulted in the carving out of the new province of New Brunswick from Nova Scotia in 1784. Pressures from other Loyalists emigrating to the western portions of Quebec, together with fears of French domination fueled by Britain's horrified reaction to the excesses of the (1789-1793), led to passage of the Constitutional Act of 1791.82 This measure divided Quebec into the separate provinces of Lower and Upper Canada, corresponding roughly to present-day Quebec and Ontario respectively. The new of Upper Canada quickly acted to restore a regime of English law and institutions in that province.

79. See 14 Geo. 3, ch. 83, supra note 65. 80. See Houston, supra note 31, at 90-111; F.M. GREENWOOD, LEGACIES OF FEAR 8-35 (1993); QUEBEC CIVIL LAW, supra note 18, at 16-17; H. NEATBY, THE ADMINISTRATION OF JUSTICE UNDER THE QUEBEC ACT 3-19 (1937); KENNEDY, supra note 32, at 32-49; D. Hay, Civilians Tried in Military Courts, 1759-64, in 1 CANADIAN STATE TRIALS 114-28 (.M. Greenwood & B. Wright eds., 1996). 81. See supra text accompanying notes 63-66. 82. See 31 Geo. 3, ch. 31 (1791) (Eng.). As to the Loyalist emigrations, see LOYALIST COMMUNITIES INNORTH AMERICA 161-212 (R. Calhoun et al. eds., 1994). 83. See generally MCNAUGHT, supra note 27, at 54-68. Notes for a ComparativeStudy of the Origins of Federalism

M. CANADIAN EVOLUTION CONTINUES, 1791-1982

A. Lord Durham's Report: Union and

The development of constitutional doctrine for Canada after 1791 reflects the slow evolution in Great Britain of principles governing both the internal relations of King (or Queen ) and Parliament and the imperial relations of mother country and colonies. Beginning in 1838, the British Whig government that had engineered Great Britain's Parliamentary Reform Act of 183284 led the first major efforts to bring about change in Canada. The Reform Act, by eliminating malapportioned constituencies and otherwise regularizing the electoral process, had also brought about the acceptance of "responsible government" as a convention of the British Constitution. Under this convention, the King is bound to act only in accordance with the "advice" of ministers who have the confidence of a majority of the House of Commons. A ministry that loses that confidence is bound to resign or advise dissolution of the House and the calling of new elections.85 The convention of responsible government insures that a constitution, monarchical in form, is in fact that of a representative democracy. Substantial unrest and turmoil in the provinces of Upper and Lower Canada led in 1837 to unsuccessful, but politically significant, armed uprisings in both provinces. 86 The Queen appointed John Lambton, first Earl of Durham, as Governor General of all the North American provinces in 1838, charging him with studying and making recommendations for reform of colonial government. Lord Durham had chaired the Parliamentary committee that developed the 1832 Reform Act. Durham's Report, completed in 1839, was a thorough analysis of the current political, economic, and social conditions of the North American provinces. It recommended the adoption of responsible government for those provinces, as well as the union of Upper and Lower Canada.8 7 In the Union Act of 1840,88 Parliament implemented Durham's recommendations concerning the colonial union by uniting Upper and Lower Canada in a single province called the Province of Canada. By 1851, the British colonial administration had instructed not only the governor of the newly established Province of Canada, but the governors of the still separate Maritime provinces (Nova Scotia, New Brunswick, and Prince Edward Island), to adopt the convention of responsible

84. See 2 Will. 4, ch. 45 (1832) (Eng.). As to its provisions and the process leading to its passage, see 13 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 247-59 (A.Goodhart & H. Hansbury eds., 1952). 85. See 14 W. HOLDSWORTH, HISTORY OF ENGLISH LAW 171-78, 278-79 (A. Goodhart & H. Hanbury eds., 1964); HOGG, supra note 11, §§ 9.1, 9.2, 9.5. 86. See McNAUGHT, supra note 27, at 76, 83-89. 87. LORD DURHAM'S REPORT (Craig ed., 1963) (Can.). 88. See 3 & 4 Vict., ch. 35 (1840) (Eng.). 114 Arizona Journalof Internationaland ComparativeLaw Vol. 15, No. 1 1998

8 9 government.

B. The Imperial Constitution Rolls On: The Privy Council and Parliament

The British Privy Council, which continued to have final appellate jurisdiction over appeals from Britain's remaining North American colonies, underwent significant changes in its judicial role after 1776. 90 Imperial expansion brought a substantial increase in colonial appeals. A concomitant increase in legal complexity and a growing unwillingness of the judicial members of the Privy Council to hear appeals led to significant deterioration in both the quality and timeliness of its decisions. Accordingly, as part of the major legislative and judicial reforms of 1832-1833, Parliament created the Judicial Committee of the Privy Council, a body consisting of all judicial members of the Council, to which the King was required to refer all appeals.91 The Committee issued decisions in the form of judicial opinions that were treated as final. These decisions were first systematically reported in 1829 and soon came to be recognized as a substantial and coherent body of controlling precedent for all legal issues arising in the colonies. 92 Decisions of the Privy Council affecting British North America ranged from interpretations of fundamental constitutional instruments, such as the Royal Proclamation of 1763 and the commissions and instructions of royal governors, to resolution of difficult questions 9of3 the meaning of the Custom of Paris and its interplay with provincial legislation. Questions regarding the effect of English law in the colonies continued to be troublesome in the nineteenth century as Acts of Parliament grew more complex and colonial legislatures became more sophisticated and assertive. The Colonial Laws Validity Act of 1865, 94 applicable to all British colonies, was a generic solution to this problem. The Act recognized the continuing power of Parliament in its Imperial role to enact legislation affecting or binding a colony as long as the legislation applied to that colony in express terms or by necessary implication. Colonial laws were void for repugnancy to English law only if they were repugnant to acts of Parliament that expressly or implicitly applied to the

89. See MCNAUGHT, supra note 27, at 90-91, 100-01; Letter from Earl Grey to Lieut. Governor Sir John Harvey (Nov. 3, 1846), in BASIC DOCUMENTS IN CANADIAN HISTORY 77-80 (J.Talman ed., 1959); 14 W. HOLDSWORTH, supra note 85, at 283-86; HOGG, supra note II, § 9.1. 90. As to the Privy Council and its judicial function, see supra text accompanying notes 7 and 26. 91. See The Judicial Committee Act, 3 & 4 Will. 4, ch. 41 (1833) (Eng.). 92. See generally P.A. HOWELL, THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL 1833-1876 (1979). 93. See On Petition from the Island of Cape Breton, 5 Moore P.C. 259 (P.C. 1846); Meiklejohn v. Attorney General, 2 Knapp 328 (P.C. 1834). 94. See 28 & 29 Vict., ch. 63 (1865) (Eng.). Notes for a ComparativeStudy of the Originsof Federalism

colony whose law was challenged.

C. Adoption of the Ouebec Civil Code. 1866

Contemporaneously with the political moves toward Confederation described below, a movement for codification of the old French law of Quebec began and was carried through to a successful conclusion between 1857 and 1866. In the Quebec Act of 1774, Parliament had confirmed the French civil law-primarily the Custom of Paris-as the law of Quebec. 95 The civil law remained in effect in the former French territory by virtue of the enactments of 1791 and 1840 that reconstituted Quebec first as Lower Canada 96 and then as the part of the province of Canada that came to be called "Canada East."97 During the first half of the nineteenth century, however, a number of problems arose in the application of this body of French law: (1) The Custom of Paris was not available in an English text. (2) The Custom of Paris was increasingly obsolete and cut off from modern French legal developments. (3) It was increasingly necessary to integrate the 9Custom8 of Paris with applicable English and provincial statutes and common law. Meanwhile, the idea of codification-the expression of all legal principles in a single, systematic legislative form-had been the subject of widespread discussion and innovative experiment in England, on the European continent, and in the United States. 99 Of special importance to the nineteenth century codification movement in the United States were the writings of the English legal philosopher Jeremy Bentham (1748-1832) and the Code Napol6on, adopted by France in 1804, which epitomizes the civil law tradition of the Continent. Bentham, who is best known as the father of Utilitarianism, studied under Blackstone at Oxford but devoted a considerable part of his prolific writings to a continuing attack on the common law and all its works. He proposed systematic codification as a cure for what he characterized as the uncertain and discretionary nature of the common law. 1' ° Bentham was excited by and supportive of the French Revolution and the tortuous process of creating a new civil order to replace the dethroned monarchy. His General View of a

95. See supra text accompanying notes 17, 18, 33, 34, 79. 96. See 31 Geo. 3, ch. 31, § 33 (1791) (Eng.), discussed supra in text accompanying note 82. 97. See 3 & 4 Vict., ch. 35, § 46 (1840) (Eng.), discussed supra in text accompanying note 88. 98. See B. YOUNG, THE POLrrIcs OF CODIFICATION: THE LOWER CANADIAN CIVIL CODE OF 1866 3-65 (1994); QUEBEC CIViLLAW, supra note 18, at 17-24. 99. See generally C. COOK, THE AMERICAN CODIFICATION MOVEMENT: A STUDY REFORM (1981). OF ANTE-BELLUM LEGAL 100. See G. STEITRAGER, BENTHAM 20-40 (1977); G. L. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 147-336 (1986); COOK, supra note 99, at 74-78. 116 Arizona Journalof Internationaland Comparative Law Vol. 15, No. 1 1998

Complete Code of Laws,10 1 published in French in 1802, was intended for the drafters of the Code Napol6on. Through his letters "to the Citizens of the Several American States"'1 2 (1817), he sought to sell his services as codifier to jurisdictions that he naively viewed as not only ripe for codification but open to his persuasion. Though neither France nor the American states adopted his ideas in detail, his influence is apparent. Edward Livingston, a leader of Louisiana's successful codification effort, openly acknowledged his debt to Bentham. Other American codifiers were more circumspect in light of Bentham's reputation as radical and theoretical thinker, but his ideas appear clearly in their rhetoric and proposals. 103 The French Code Napoldon, viewed by many (including Bentham) as the tyrant's only worthy achievement, was in fact the product of a lengthy drafting process rendered uncertain, if not downright dangerous, by the volatile political changes that took place in revolutionary France from 1792 until the ascendancy of Napoleon as First Consul in 1799. Napoldon's support and ultimate restructuring of the legislative process finally brought about adoption of the Civil Code in 1804.104 Despite political questions about its origins, the Code Napoldon was a major source of inspiration to American codifiers. It was the immediate model for the Louisiana codification efforts, which, under Livingston's leadership, in 1825 brought together the05 state's French and Spanish civil law heritage in a Civil Code still in force today.1 In the United States, codification fared less well outside Louisiana. The growing complexity of American case law and the rapid increase in state legislation in the first half of the nineteenth century led many to consider the potential benefits of codification. The result was legislative reform and partial codification in many states. The principal proponent of full codification on the model of France or Louisiana was David Dudley Field (1781-1867); a New York lawyer. 1°6 In New York and many other states, Field succeeded in obtaining the enactment of a simplified code of civil procedure that was the forerunner of most

101. J. Bentham, A General View of a Complete Code of Laws (1802), in 3 THE WORKS OFJEREMY BENTHAM (Bowring ed., 1962) (1838). 102. J. Bentham, Letters "to the Citizens of the Several American States" (1817), in 4 THE WORKS OF JEREMY BENTHAM (Bowring ed., 1962) (1838). 103. See COOK, supra note 99, at 97-104; Groner, Louisiana Law: Its Development in the First Quarter-Centuryof American Rule, 8 LA. L. REV. 350 (1948). 104. See PLANIOL & RIPERT, 1 A GENERAL SURVEY OF EVENTS, SOURCES, PERSONS. AND MOVEMENTS IN CONTINENTAL LEGAL HISTORY §§ 34-42 (1912); C. J. Friedrich, The Ideological and Philosophical Background, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 1-18 (B. Schwartz ed., 1956). 105. See COOK, supra note 99, at 71-74; J. H. Tucker, Jr., The Code and the Common Law in Louisiana, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 346-75 (13. Schwartz ed., 1956). 106. See generally D. VAN EE, DAVID DUDLEY FIELD AND THE RECONSTRUCTION OF THE LAW (1986). Notes for a ComparativeStudy of the Originsof Federalism

modern procedural systems. Though he failed to persuade New York to enact his far more ambitious codification of the substantive law, Field's ideas found a much more positive response in the new states of the American west, where rapid population growth and development created the need for ready-made legal systems.107 Today, the codes of California and a number of other states operate in the larger context of a substantial body of case1 0law8 and extensive legislation similar to that of other "pure" common-law states. Despite these developments to the south, in Quebec there was little discussion of major reform until 1857, when the Canadian Parliament enacted enabling legislation that established a commission to develop a Civil Code for Lower Canada as part of a general program of legal reform.'09 George-Etienne Cartier, Attorney General for Canada East, who was to play a critical role in bringing about Confederation in 1867, initiated the legislation. Cartier's motivations seem to have been primarily to address the practical difficulties with the civil law noted above. The reports of the three-member draftihg commission show the drafters' debt to the experience of France and Louisiana; at the same time, the reports illustrate the painstaking care with which the drafters analyzed and carried forward principles drawn from the complex web of existing Quebec law.'1 The Civil Code as adopted in 1866 was bilingual and consisted of 2,615 articles divided into four books covering persons, property, modes of acquiring property, and commercial affairs."' While adoption of the Code was a movement parallel to that for Confederation, rather than a condition upon Confederation, the movement toward Confederation provided increased motivation for codification. With Quebec's voice in national legislative deliberations soon to be reduced, it must have seemed imperative to some1 2 to assure adoption of the Code under the jurisdiction of the province of Canada.'

D. Confederation Within the Empire. 1867

By 1861, continued pressures for westward expansion, governmental gridlock in the unified province of Canada between the French of Canada East and the English of Canada West, and perceived threats from a United States

107. See COOK, supra note 99, at 185-200. 108. See R. Pound, Codification of American Law, in THE CODE NAPOLEON AND THE COMMON LAW WORLD 269-71 (B. Schwartz ed., 1956). 109. See 20 Vict., ch. 43 (1857) (Can.). 110. See Reports of the Commissioners for the Codification of the Laws of Lower Canada Relating to Civil Matters (1865). 111. See Civil Code of Lower Canada, adopted pursuant to 29 Vict., ch. 41 (1866) (Can.), and Proclamation of May 26, 1866. 112. See generally YOUNG, supra note 98, at 66-120; QUEBEC CIVIL LAW, supra, note 18, at 24-32; F. M. GREENWOOD, FROM HIGHER MORALITY TO AUTONOMOUS WILL: THE TRANSFORMATION OF QUEBEC'S Crvn. LAW 1774-1866 54-58, 64-72 (1992). 118 Arizona Journalof Internationaland ComparativeLaw Vol 15, No. 1 1998

disrupted by Civil War were moving many to consider more drastic forms of governmental union. A path-breaking conference among reform-minded Canadian leaders and representatives of the Maritime provinces, who became known as "the fathers of Confederation," was held at Charlottetown, Prince Edward Island, in 1864.113 Thereafter, the reform effort became serious. A further conference at Quebec in the fall of that year produced a series of seventy- two resolves that formed the framework of a plan, accepted by the provinces of Canada, Nova14 Scotia, and New Brunswick, to unite them under a single federal government. The February 1865 debates over the Quebec resolves in the legislature of the province of Canada show the care with which the drafters sought to accommodate the differing cultural and economic interests of the several provinces of British North America in a delicately balanced federal union. Indeed, the model of the United States Constitution was rejected because it was perceived as giving excessive power to the states by confining the federal government to expressly delegated powers and leaving residual powers to the states. The proposed Canadian model would avoid that perceived weakness by an express delegation of powers to the provinces, with a residual power in the federal government." 5 After the Canadian parliament voted to support the proposal, various forms of overt and covert pressure brought Nova Scotia and New Brunswick into line. Delegates from the three provinces, meeting in London. drafted a bill based on the Quebec resolves, and the British Imperial Parliament enacted the bill as the British North America (BNA) Act in March 1867.116 The BNA Act created the Dominion of Canada as a single federal entity under a governor general appointed by the Queen, with an appointed Senate, and an elected House of Commons. The former province of Canada was divided into the provinces of Ontario and Quebec. These provinces, as well as Nova Scotia and New Brunswick, each had a provincial legislature, with certain specific provisions for Quebec. The Act carried forward the principles of responsible government. It also recognized a principle of parliamentary sovereignty that was necessarily divided between the federal and provincial governments.

113. See MCNAUOHT, supra note 27, at 112-125; WADE, I THE , 1760-1967 308-19 (1968). 114. See McNAUGHT, supra note 27, at 125-26. Prince Edward Island and Newfoundland, which had attended the Charlottetown and Quebec conferences, did not accept the Quebec resolves because they created such a strong federal government. Prince Edward Island was persuaded to join the Confederation in 1873, but Newfoundland held out until 1949. See id.; HOGG, supra note 11, § 2.5(d), (e). 115. See McNAUGHT, supra note 27, at 127-28; THE CONFEDERATION DEBATES IN THE PROVINCE OF CANADA 39-52 (P. Waite ed., 1963) for the remarks of Hon. John Alexander Macdonald and Hon. George Etienne Cartier. 116. See 30 & 31 Vict., ch. 3 (1867) (Eng.); MCNAUGHT, supra note 27, at 128-31. 117. See 30 & 31 Vict., ch. 3, Preamble, §§ 1-90 (1867) (Eng.). As to responsible Notesfor a Comparative Study of the Originsof Federalism

Key provisions of the Act allocated all legislative power between the federal and provincial governments in general terms and on specific matters. Pursuant to the intentions expressed in the Canadian debates, the federal legislative power, adapting language going back to at least the Royal Proclamation of 1763, extended to making "Laws for the Peace, Order, and good " for all matters not exclusively assigned to the legislative power of the provinces. Expressed "for greater Certainty, but not so as to restrict the Generality of the foregoing" were federal poivers over a variety of subjects, including: trade and commerce; Indians and reserved Indian lands; bills of exchange and8 promissory notes; marriage and divorce; and criminal law and procedure. 1 Principal powers allocated to each province included those over the solemnization of marriage in the province, property and civil rights in the province, the administration of justice in the province, and matters of "a merely local or private Nature in the province."'1 9 The judges of the provincial courts were to be appointed by the governor general, and the federal parliament was given the power to establish a general court of appeals for Canada and other courts necessary for the administration of federal law. 120 Existing laws remained in effect, subject to change by the appropriate legislature.12' Renamed the "Constitution Act, 1867" in 1982, the BNA Act remains the basic constitutional framework of Canadian federalism.

E. Epilogue

Under the BNA Act of 1867, as subsequently amended to include additional provinces, Canada remained a part of the British empire, subject to the legislative authority of the British Imperial Parliament, the executive authority of the royally appointed governor general, and the authority of the Privy Council to government and parliamentary sovereignty, see HOG, supra note 11, §§ 9.1, 9.2, 12.1, 12.2(a). Ryder, supra note 40, at 314-20, argues that the sovereignty of the First Nations should be recognized as a third component in the division of sovereignty. See also REPORT OF THE ROYAL COMMISSION, supra note 1, at 675-97. 118. See 30 & 31 Vict., ch. 3, § 91 (1867) (Eng.). Having not participated in the deliberations leading to the BNA Act, Aboriginal peoples have viewed it only as an assumption by the federal government of Britain's treaty obligations to the First Nations. Nevertheless, § 91(24), covering Indians and Indian lands, has been treated as a source of plenary federal authority over these subjects. See Ryder, supra note 40, at 314-26, 362- 80. 119. See 30 & 31 Vict., ch. 3, § 92(1867) (Eng.). 120. See id. §§ 96-101. 121. See id. § 129. 122. See Constitution Act, 1982, enacted as Schedule B of the Canada Act, 1982, ch. 11 (U.K.). 120 Arizona Journalof Internationaland Comparative Law Vol 15, No. 1 1998

review and disallow statutes and to review decisions of Canadian courts. Most of these limitations were not used to Canada's significant detriment. Nevertheless, the legislative and executive provisions remained effective until 1930, and the Privy Council retained its appellate jurisdiction over Canada's courts until 1949. Canada attained virtual legislative and executive autonomy as a result of the Imperial Conference of the prime ministers of the United Kingdom and of all the dominions in 1930 and the resulting Statute of Westminster. 123 The Imperial Conference adopted conventions providing that acts of the Imperial Parliament would extend to a dominion only at the request and with the consent of the dominion, that the seldom-used powers of reservation of assent to dominion legislation by the governor general and disallowance by the Privy Council would not be exercised, and that the appointment of the Governor General of Canada would always be made with the advice of the Canadian government. The Statute of Westminster provided that no act of Parliament would apply to a dominion without an express declaration in the act that the dominion had requested and consented to the act. The Statute also repealed the Colonial Laws Validity Act of 186512 for the dominions and provided that each dominion could amend or repeal imperial statutes that were part of its law, with the exception of the BNA Act and its amendments. In contrast to these legislative and executive limitations, Privy Council review of Canadian judicial decisions played a major role in the development of Canadian law until the abolition of appeals to the Privy Council by a Canadian statute enacted in 1949. The BNA Act made no express provision for a Canadian Supreme Court. Pursuant to section 101 of the Act, the Canadian Parliament established the Supreme Court of Canada in 1875. Under section 129 of the BNA Act, however, appeals continued to lie from both the Supreme Court and lower Canadian courts to the Privy Council in England. Beginning in 1880, Privy Council decisions in Canadian appeals challenging the validity of provincial and federal legislation showed a strong bias in favor of the provinces. Provincial powers, such as that over "property and civil rights in the province" in section 92(13) of the Act were interpreted broadly. Conversely, federal legislation based on such provisions as the "peace, order, and good government power" of section 91, or the trade and commerce power in section 91(2), was frequently struck down as ultra vires.125 In the absence of an express bill of rights in the BNA Act, civil liberties issues arose only when governmental action invading individual rights was challenged26 as beyond the scope of the provincial or federal powers conferred by that Act. 1

123. See 22 Geo. 5, ch. 4 (1931) (Eng.). On the Imperial Conference and the Statute of Westminster generally, see HoGG, supra note 11, § 3.3. 124. See supra note 94. 125. See, e.g., Citizens Insurance Co. of Canada v. Parsons, 7 App. Cas. 96 (P.C. 1881); In re the Board of Commerce Act, 1 App. Cas. 191 (P.C. 1922). 126. See, e.g., Switzman v. Ebling and A. G. Quebec, [1957] S.C.R. 285. The Notesfor a Comparative Study of the Originsof Federalism

Characterized as "the wicked stepfathers of confederation,"12 7 the Judicial Committee of the Privy Council did much to establish a regime in Canada that gave provincial legislation coordinate status with that of the federal government and led to a significantly less centralized federalism than was intended by the drafters of the BNA Act. While the Supreme Court of Canada since 1949 has been less restrictive of federal power, the interpretive approach of the Privy Council decisions continues to inform decisions about the distribution 128 of powers. The last vestiges of imperial control of Canada were abolished when the Imperial Parliament in 1982 enacted the Canada Act at the request of the federal government but over the strong objections of Quebec. The Canada Act repealed those portions of the Statute of Westminster preserving the authority of Parliament over Canada and expressly terminated that authority. It also enacted the Constitution Act of 1982, giving the BNA Act and other constitutional

legislation status as the "Constitution" and supreme law of Canada and providing129 that laws inconsistent with this new Constitution were of no force and effect. Part V of the Constitution Act provided a domestic procedure for legislative amendment of the Constitution. A principal component of the Constitution Act was Part I, containing a Charter of Rights that for the first time gave constitutional status to a series of fundamental rights similar to those of the Bill of Rights in the United States Constitution. The Charter also provided for judicial review of claims raising violations of guaranteed rights. A critical difference with the United States Constitution remains, however. The or a provincial legislature may override most Charter protections by including an express declaration of override in an enactment. 130 This provision and the legislative amendment procedures mean that parliamentary sovereignty and supremacy survive as the governing principles of the Canadian Constitution. The Charter of Rights also gives recognition to aboriginal rights on the basis in

Canadian Bill of Rights, Stat. Canada 1960, c. 44, Rev. Stat. Canada 1985, App. III, was of limited effect because it applied only to federal laws and was subject to legislative change. It remains in force but is of uncertain significance in light of the 1982 adoption of the Charter of Rights, infra note 130. See HOGG, supra note 11, §§ 32.1-32.6. 127. E.A. Forsey, quoted in HOGG, supra note 11, § 5.3(c) at note 63. 128. See HOGG, supra note 11, § 5.3(c). Note that, in a hold-over from the prerogative nature of the Privy Council's appellate jurisdiction, the Supreme Court of Canada will render advisory opinions on questions referred to it by the federal government through the Governor in Council. See id. § 8.6. 129. Constitution Act, 1982, supra note 122. As to incorporation of prior imperial legislation as the Constitution and supreme law of Canada, see id. §§ 52-53. For the history of the enactment, see HOGG, supra note 11, §§ 3.4, 4.1, 33.1. 130. For the amendment procedure, see Constitution Act, 1982, supra note 122, Part V, §§ 38-43. For the Canadian Charter of Rights and Freedoms, see Constitution Act, 1982, supra note 122, Part I, §§ 1-34. For judicial review, see id. § 24. For the override provision, see id. § 33. 122 Arizona Journalof Internationaland ComparativeLaw Vol 15, No. 1 1998

part of the Royal Proclamation of 1763, which remains part of the fundamental law of Canada. 131 These provisions are not subject to legislative override. Judicial interpretation of the BNA Act has assured the provinces a strong role in a federal government that seems very decentralized in contrast to the government of the United States. The survival of Parliamentary sovereignty in the context of the principle of responsible government means that at both the provincial and federal levels, the executive, as leader of the majority party, plays a dominant role in the political process. As a consequence, much public policy is the result of intergovernmental cooperation among the and the several provincial premiers. Decisions in federal-provincial1 32 first ministers conferences can determine the future course of the nation. The combined effect of provincial power in the Canadian federal system and the dynamics of responsible government in the context of the principle of parliamentary sovereignty is manifest in the political dialogue with which Canada has sought to address the constitutional future of Quebec and Canada's Aboriginal peoples. The federal prime minister and the provincial premiers have broad power to use both their executive and legislative roles to rearrange the institutional fabric of Canada in ways that respond to the economic and social33 needs of various regional and cultural entities within the Confederation., Whether that power will be used shrewdly and wisely to avert, or to manage, the

131. See Constitution Act, 1982, supra note 122, Part I. § 25; Constitution Act, 1982, supra note 122, Part II, § 35. As to § 35, see Ryder, supra note 40, at 316-18. 132. See HOGG, supra note 11, § 5.8. First ministers conferences are expressly provided for under the Constitution Act, 1982. See Constitution Act, 1982, supra note 122, §§ 37, 37.1, 49. Federal-provincial cooperation, with some constitutional limits, may also occur through "inter-delegation of legislative and administrative powers between the two levels of government. See HOGG, supra note 11, at §§ 14.3-14.6. 133. Such efforts are ongoing. On September 14, 1997, the nine federalist provincial premiers and two territorial leaders issued the "Calgary Declaration," setting forth a "Framework for Discussion on Canadian Unity" consisting of seven principles descriptive of Canada that will be the focus of public consultations to be held in each province before the end of 1997. The principles are (1)the equality of all Canadians; (2) the equality of all provinces; (3) recognition of Canada's unique "diversity, tolerance, compassion and ... equality of opportunity;" (4) recognition of Canada's multiculturalism, including "Aboriginal peoples and cultures;" (5) recognition of the importance to Canada of "the unique character of Quebec society, including its French speaking majority, its culture and its tradition of civil law;" (6) the need for equal treatment of all provinces in any future constitutional rearrangement of the distribution of powers; and (7) a renewed commitment of the provinces and territories to work in partnership with the federal government, particularly on social programs. The premiers and the prime minister of Canada also agreed to hold a first ministers conference later in the fall on social issues, especially health care and youth unemployment, and the premiers and territorial leaders agreed to meet with leaders of the Aboriginal peoples in November 1997. See Press Release, Premier's Office, Government of New Brunswick (Sept. 14, 1997). Quebec did not participate in the session. See N. Y. TMMES, Sept. 16, 1997. Notesfor a ComparativeStudy of the Originsof Federalism

dismemberment of Canada is a question to which history does not supply the answer.