all public servants, not commanded to be otherwise chosen and appointed. The judiciary of this federal government is of the highest importance, and is, in fact, the key-stone of the arch. The federal judiciary is to be composed of a supreme court,* and such inferior courts as the united legislature shall appoint. The judges to be appointed by the governor-general, to hold their office during good behaviour, and removable on the joint address of the two legislative bodies. The powers confided to the supreme court would require a most careful enumeration. The words of the American constitution would not suffice, as they are certainly too wide, and might possibly in some instances be found too narrow. All cases of law or equity arising under the constitution itself must come under its cognizance, as for example, disputes arising between individuals or provinces, as to whether the powers of the act of parliament which created the constitution have been transgressed. Questions of litigation arising between two provinces, and also between inhabitants of one province and another provincial government, ought also to be submitted to this federal judiciary. But although there may be a reason for submitting to it a question or dispute arising between a province and an * There is often much in a name. Men's affections are not seldom under the dominion of names; perhaps, then, this court might well be designated, the Court of Queen's Bench, for the United Provinces of British North America, or Australasia, or South Africa, respectively. inhabitant of another province, I do not see why, because persons being inhabitants of two provinces happen to have a dispute, their litigation should be submitted to the federal court. If A., living in Sydney, have a claim on B., who lives in Van Diemen's Land, let A. sue B. in the court of Van Diemen's Land; there is no necessity for a federal judge or court to try this question. If a Frenchman claim a debt from an Englishman, he comes and sues the Englishman in an English court. In the same way, and à fortiori, the inhabitant of one province ought to sue the inhabitant of another province in the ordinary court of the defendant's place of abode. The federal court offers an admirable appellate jurisdiction, from the several province courts, and from the ordinary bankrupt courts. Although an English-born subject possesses all the rights of an Englishman, no matter in what of her Majesty's dominions he happens to be, yet in new colonies the laws respecting naturalization ought to be, and indeed are, very different from what they are in England. This law of naturalization requires to be general, as it affects the whole union, and questions arising upon it, therefore, are properly subject to the cognizance of the federal courts. Alterations of the fundamental law ought by the act of parliament to be provided for. Conventions by the provinces themselves would be operose, and opposed to our habits. Parliament might safely allow such changes to be made at the discretion of the united legislature, requiring only certain formalities and a certain majority; for example, the formality of the Queen's assent beforehand, as in the case of a bill to tax the people, which assent might be formally communicated by a secretary of state; and also two-thirds of both houses might be required to sanction the proposed change. 186 CHAPTER V. BRITISH NORTH AMERICA CIRCUMSTANCES PECULIAR THERETO--PROVINCES EXISTING DANGER OF SEPARA- AVING thus stated those reasons and arrangements which pertain to the general question of union into federate systems-I proceed now to detail some more specific considerations, which belong separately to the systems I have mentioned and begin with that of British North America. The provinces which already exist in our North American territories must each be considered separate communities and we must suppose them to have been each and all of them prepared, as I have already described in the preceding pages with respect to SETTLEMENTS and to PROVINCES.-I assume that their boundaries have all been determined;—and that those of the Canadas have not only been determined, but greatly narrowed. In all of them the population transcends 10,000-and a representative government exists in all. But there is already a very large population scattered over the wild lands that lie in the basins of the rivers flowing north ward, and falling into Hudson's Bay. The climate in this interior we have every reason to believe is not so rigorous as that of Quebec-and the land is described of the highest fertility. Of late, discoveries have been made of great mineral wealth on the shores of Lake Superior, and a large and growing population is there requiring the restraints of law; but unfortunately no provision exists-no thought is given to these peoplethey lie out of the usual routine of the Colonial Office— and everything connected with them is left to chance and to force. The strong hand rules-and every possible atrocity is being enacted, where nominally the dominion of England extends-and where her law is said to be paramount. When all that I assume to have been, has actually been accomplished, I propose to unite into one federate system the following separate colonies: Population. 1. Nova Scotia and Cape Breton 199,906 (1837) Jura. p.78 And now the reasons may be stated which justify this specific proposal. * I have placed a quære here, because, though to me it appears evident that Newfoundland by interest is linked with the continent adjoining—yet such may not appear to be the case to the people of Newfoundland themselves: I would therefore give them the option of joining the union if they desired. |