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at a first view of this act as though the rights of the minority in regard to denominational schools were well safeguarded by it, and their right to maintain separate schools was in fact acquiesced in till the year 1890, when the Province passed the Public Schools Act of that year, which established national unsectarian schools and refused state aid or exemption from taxation for their support even to the supporters of a system of denominational schools previously existing. The Act was held ultra vires by the Supreme Court, as being an interference with the rights of the minority conferred by the above Act, but the Privy Council reversed their decision, City of Winnipeg v. Barrett (92 A.C. 445; 5 C. 32), holding that the establishment of a system of national schools was no interference with the right of any denomination to support its own schools, and did not "prejudicially affect any right or privilege” of any such minority. The subsequent grant of a right of appeal to the Governor-General in Council under subsection 2 of the same section of the Act, recognized in Brophy v. Attorney-General of Manitoba  (A.C. 202; 5 C. 156), was not calculated to prove, and has in the event not proved, of any practical advantage to the minority.
The case of the Fisheries offers but a single decision, Attorney-General of Canada v. Attorney-General of Ontario, Quebec, etc.  (A.C. 700). It was there held that notwithstanding the wide grant of legislative jurisdiction to Parliament over “sea coast and inland fisheries,” the proprietary rights to the beds of lakes, rivers, and other waters within the limits of any province remained vested in the Province after confederation, and that the grant of legislative jurisdiction over them to Parliament could not be presumed to be a grant of any proprietary interest in such waters, or their beds, or the fish found therein. The right of Parliament to grant the exclusive right to fish in any such waters was therefore denied, and such power was handed over to the Provinces after over thirty years of unquestioned exercise by the
Dominion. The gift to Parliament of the exclusive right to provide close seasons and other such-like "regulations” of fisheries is of trivial importance compared to the great proprietary question. Lord Herschell, in delivering the judgment of the committee, said, " It must be borne in mind that there is a broad distinction between proprietary rights and legislative jurisdiction. The fact that such jurisdiction in respect of a particular subject-matter is conferred on the Dominion Legislature, for example, affords no evidence that any proprietary rights with respect to it were transferred to the Dominion. There is no presumption that because legislative jurisdiction was vested in the Dominion Parliament proprietary rights were transferred to it.”
We will now turn and briefly sketch the changes of opinion which have taken place in the United States upon the interpretation of its constitution so far as the distribution of legislative power is concerned. A graphic view of the American constitution as intended by its framers, and as understood and approved of by the generation which first acted under it, is to be found in Mr. Woodrow Wilson's work on Congressional Government, which quotes from a letter of John Adams, written in 1814 to his friend John Taylor. “Is there,” says Mr. Adams, "a constitution upon record more complicated with balances than ours? In the first place, eighteen states and some territories are balanced against the National Government. . . . In the second place, the House of Representatives is balanced against the Senate, the Senate against the House. In the third place, the executive authority is in some degree balanced against the legislative. In the fourth place, the judicial power is balanced against the House, the Senate, the executive power, and the State Governments. In the fifth place, the Senate is balanced against the Presiden in all appointments to office, etc. . . . In the sixth place, the people hold in their hands the balance against their own representatives by biennial elections. In the seventh place,
the legislatures of the several States are balanced against the Senate by sextennial elections. In the eighth place, the electors are balanced against the people in the choice of a President. All of these balances are reckoned essential in the theory of the Constitution ; but none is so quintessential as that between the National and State Governments; it is the pivotal quality of the system, indicating its principle, which is its federal characteristic."
The relatively strong position occupied by the State Legislatures in comparison with the National Government in the minds of the great men of 1787 is well illustrated by a quotation in Mr. Wilson's work from a speech of Hamilton's, in which he said, “It will always be far more easy for the State Governments to encroach upon the national authorities than for the National Government to encroach upon the State authorities,' and he seemed to furnish abundant support for the opinion when he added that the proof of this proposition turns upon the greater degree of influence which the State Governments, if they administer their affairs uprightly and prudently, will generally possess over the people."
"Read in the light of the present day, such views constitute the most striking of all commentaries upon our constitutional history. Manifestly, the powers reserved to the States were expected to serve as a very real and potent check upon the Federal Government; and yet we can see plainly enough now that this balance of State against national authorities has proved, of all constitutional checks, the least effectual. The proof of the pudding is the eating thereof, and we can nowadays detect in it none of that strong flavour of State sovereignty which its cooks thought they were giving it. It smacks rather of federal omnipotence, which they thought to mix in only in very small and judicious quantities.” The first step in the expansion of the national power was not long in coming, but came in an unexpected way. “Hamilton,
as Secretary of the Treasury (1789), had taken care at the very beginning to set the national policy in ways which would unavoidably lead to an almost indefinite expansion of federal influence. . . . In his famous Report on Manufactures were laid the foundations of that system of protective duties which was destined to hang all the industries of the country upon the skirts of the federal power, and to make every trade and craft in the land sensitive to every wind of party that might blow at Washington; and in his equally celebrated Report in favour of the establishment of a National Bank, there was called into requisition for the first time that puissant doctrine of the 'implied powers' of the Constitution which has ever since been the chief dynamic principle in our constitutional history. *This great doctrine, embodying the principle of liberal construction, was,' in the language of Mr. Lodge, “the most formidable weapon in the armoury of the Constitution ; and when Hamilton grasped it he knew, and his opponents felt, that here was something capable of conferring on the Federal Government powers of almost any extent.' . . . Given out at length with the sanction of the federal Supreme Court, and containing as it did in its manifest character as a doctrine of legislative prerogative a very vigorous principle of constitutional growth, it quickly constituted Congress the dominant, nay, the irresistible, power of the federal system, relegating some of the chief balances of the Constitution to an insignificant rôle in the literary 'theory of our institutions.”
The clause under whose protecting care the implied powers of Congress have assumed such an overwhelming force is the last clause of sec. 8, Art. I.: “The Congress shall have power.
.. to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof." The last and most masterly exposition of this doctrine will be found in the judgment of Chief Justice
Marshall, in the case of McCulloch v. Maryland, 4 Wheat. 207. A few sentences quoted from page 272 will serve to show the view taken by the Court: “We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” The practical point decided in this case was that Congress has power to incorporate a bank, and that the States have no power by taxation or otherwise to retard, impede, burden, or in any way control the operation of a constitutional law enacted by Congress to carry into effect a power vested in it. It was attempted, as we shall see, in Bank of Toronto v. Lambe, to subordinate our Provincial Legislatures to the National Government by a similar restriction, but the Privy Council interposed for their protection.
The practical result of this doctrine (quoting again from Wilson) “illustrates still more forcibly the altered and declining status of the States in the constitutional system. One very practical issue has been to bring the power of federal government home to every man's door as, no less than his own State Government, his immediate overlord. Of course every new province into which Congress has been allured by the principle of implied powers has required for its administration a greater or less enlargement of the national civil service, which now through its hundred thousand officers carries into every community of the land