UC-NRLF
SB
CANADIAN
CONSTITUTIONAL
STUDIES
CANADIAN
CONSTITUTIONAL STUDIES
CANADIAN """'*'*'"'
CONSTITUTIONAL STUDIES
The Marfleet Lectures
University of Toronto
October, 1921
By the
Right Hon. Sir ROBERT LAIRD BORDEN
G.C.M.G., D.C.L., LL.D."
REVISED EDITION
HUMPHREY MILFORD
OXFORD UNIVERSITY PRESS
LONDON
B-7
UNIVERSITY OF TORONTO PRESS
1922
THE MARFLEET LECTURESHIP
In November, 1910, Mrs. Lydia A. Marfleet of
Prophetstown, Illinois, gave the sum of $5,000 to
found a lectureship in the University of Toronto to
be called in memory of her late husband the Pearson
Kirkman Marfleet Lectureship.
As the late Pearson Kirkman Marfleet, an American
citizen, devoted constant thought to the public welfare
of his own country, and also watched the growth of
the Dominion of Canada with profound interest, the
Governors of the University have undertaken that
such person or persons as may from time to time be
appointed shall, as far as possible, be chosen with
regard to their special ability to set forth some phase
of the national movements of each or both countries.
The first course of lectures under this foundation
was delivered in February, 1915, by the Honourable
William Howard Taft, Ex-President of the United
States. The second course was delivered in October
1921 by the Right Honourable Sir Robert L. Borden,
G.C.M.G., formerly Premier of the Dominion of
Canada.
49608
PREFACE
The following lectures were delivered in the
University of Toronto, in October, 1921, under the
Marfleet Foundation. They were designed as an\
introduction to the study of the constitutional)
development of Canada from 1760 to the present
time ; and they include a short sketch of the system
of government which prevailed during the French
regime from 1608 to 1760, as well as a glance at
problems confronting democracy in the immediate
future. The incidents of constitutional growth
that I have endeavoured to describe are of absorb-
ing interest and immense importance. They cover
a period of nearly two centuries, and the attempt
to compress them within these narrow limits
necessitated many omissions. I am fully conscious
that other imperfections, such as lack of pro-
portion, will doubtless be observed in the result of
my labours. It is hoped that the lectures, however
imperfect, may prove of some assistance to those
who desire to make themselves acquainted, in a
general way, with the beginnings and gradual de-
velopment of our present system of government.
To many friends I am indebted for assistance
in the preparation of the lectures: to the Hon.
N. W. Rowell, K.C., who read the manuscript of
the first two lectures and made useful suggestions;
to Dr. Adam Shortt, Professor George M. Wrong,
and Dr. A. G. Doughty, C.M.G., of the Board
of Historical Publications, and Major Gustave
Lanctot, of the Canadian Archives, for valuable
memoranda and suggestions; to Mr. E. L. New-
combe, K.C., C.M.G., Deputy Minister of Justice,
and Mr. W. S. Edwards, K.C., Assistant Deputy
Minister of Justice, for important notes on the
legal questions discussed; and to Mr. L. C. Christie,
Legal Adviser of the Department of External
Affairs, and Mr. C. H. A. Armstrong, of the
Prime Minister's Office, for valuable notes and
memoranda. Mr. Armstrong throughout the pre-
paration of the lectures has rendered very impor-
tant assistance, and he has also read the proofs.
R. L. B.
OTTAWA,
October 14, 1921.
CONTENTS
Constitutional Development from the Cession to
Confederation - 11
Constitutional Development from Confederation
to the World War 55
Constitutional Development during the World
War and Afterwards - 96
Notes - 143
FIRST LECTURE
CONSTITUTIONAL DEVELOPMENT FROM
THE CESSION TO CONFEDERATION
EXPERIMENTATION in the task of govern-
ing organized communities has proceeded for
many centuries of recorded history. Any
attempt to trace its development in theory or in
practice would be far beyond the limits of these
lectures. It would be idle to claim for any experi-
ment complete or final success. Especially is this
true with regard to the relations between the
organized communities designated as states or
nations. In many instances authority sufficient to
maintain peace and order between individual
citizens of such a community was established even
in the earliest periods. That disputes between
states are still determined in the last analysis by
the brutal and terrible arbitrament of war is a sad
and humiliating confession of mankind's incapacity
for self-government in its highest sense. There is,
perhaps, the dawn of hope that at last we may
stand at the hallowed threshold of a truer and
nobler era.
The British Commonwealth embraces five self-
governing nations, each of which possesses a
political and social organization commonly de-
scribed by the much-abused term "democracy."
12 ' CONSTITUTIONAL DEVELOPMENT
This term has a relative meaning according to the
time, the people, and the conditions to which it is
applied. The view-point of the observer is also to
be taken into account; he may regard one or an-
other of these five democracies as being in a con-
dition of progress, stagnation, or reaction, according
to his ideals.
The communities embraced within the Britannic
system extend over one-quarter of the world's land
surface and include more than one-quarter of its
population. They illustrate practically every stage
of social, economic, and political development.
The governance of this vast system involves almost
every method of administration known to history. 1
At once solemn and inspiring is the responsibility
imposed by an inheritance so majestic, a task so
compelling, a trusteeship so sacred.
The reasonable essentials of government in a
modern democracy may be regarded as embracing
order, security, equality before the law, oppor-
tunity, and liberty. The King's (that is the
People's) peace must be kept. The right to labour
and to enjoy the fruits of labour in the form of
property must be assured. All men must be equal
before the law. Opportunity for the many must
be established by the denial of special privilege to
the few. Conscience must be respected; and
finally there must be such individual liberty as is
consistent with the maintenance of these principles.
This definition gives merely a rough outline, but
FROM THE CESSION TO CONFEDERATION 13
under its various heads may fairly be grouped the
chief ideals of those who believe, as I do, that
democracy with all its imperfections (and they are
many) gives to the great masses of the people
higher hope, fuller liberty, and more abundant
opportunity than any system hitherto devised by
the wit of mankind.
We may reasonably claim that in this Dominion
these essentials have been as fully realized as in any
nation. I do not suggest that existing conditions
cannot be improved. The permanence of injustice
and inequality is no more possible than it is de-
sirable. If the present civilization is to endure
there must be definite and steady progress to a
still higher conception and realization of the com-
mon welfare. Those who succeed us may look back
with pity and sorrow upon the disparities, de-
formities, inequities, and waste of the existing
social order, which their clearer perception, higher
capacity, and truer ideals shall have long since
redressed.
Tracing in rough outline the development of
Canada from the status of a Crown Colony to that
of a self-governing nation, I shall confine myself
in this lecture to the events that fill the pages of
our history from the cession of Canada to Con-
federation.
The French population which passed under
British rule in 1760 comprised about 70,000 souls.
14 CONSTITUTIONAL DEVELOPMENT
The Colony had behind it a history of a century
and a half, having been founded in 1608. It had
been governed by an autocratic King through his
ministers, and the policy which controlled its
affairs was directed from Versailles. Canada was
regarded as a French province beyond the seas,
and it was governed as such. There are indications
that the conditions of the Colony rendered some-
what difficult, at times, the exercise of the King's
power, which was absolute in theory but not always
fully effective in practice. At the head of the
Colony stood a Governor, to whom, as personal
representative of the King, were entrusted the
general policy of the country, the direction of its
military affairs, and its relations with the Indian
tribes. The Bishop, as head of the Church, was
supreme in all matters affecting religion. Acting
under the authority of the King, not of the Gov-
ernor, the Intendant was responsible for the ad-
ministration of justice, for finance, for the direction
of local policy, and generally for local administra-
tion. There was a Superior Council with certain
administrative powers which were more formal
than real. No representative body possessing any
actual or even formal authority was in existence.
Public meetings could not be lawfully held without
the permission of the Governor; occasionally they
were held without such authority. The French
feudal system of land tenure prevailed, although
the seigniors were invested with certain responsi-
FROM THE CESSION TO CONFEDERATION 15
bilities and duties in advancing the settlement of
the land. French civil and criminal laws were in
force, and the administration of justice was fairly
just and efficient. The main constituents of the
population were the seignior, the priest, the habi-
tant, and the voyageur or merchant. 2 Murray
described the peasantry as a strong healthy race,
plain in their dress, virtuous in their morals, tem-
perate in their living, very ignorant, and ex-
tremely tenacious of their religion. 3
From the capitulation until the Treaty of
Paris in 1763, the Colony was governed by British
military commanders, who exercised complete au-
thority. Justice was administered in courts which
they instituted, and which necessarily continued
to apply French law. 4
By the terms of the capitulation of Quebec
(September 18, 1759), the free exercise of the
Roman Catholic religion was granted, and in the
capitulation of Montreal (September 8, 1760) it
was stipulated that its free exercise should subsist
entire (subsistera en son entier).
The Treaty of Paris (February 10, 1763) con-
tained but one stipulation relating to the Cana-
dians: "His Britannic Majesty, on his side, agrees
to grant the liberty of the Catholic religion to the
inhabitants of Canada; he will, in consequence,
give the most precise and most effectual orders,
that his new Roman Catholic subjects may profess
the worship of their religion according to the rites
16 CONSTITUTIONAL DEVELOPMENT
of the Romish church, as far as the laws of Great
Britain permit." 5 The Treaty was followed by a
Royal Proclamation on October 7, 1763, which
established the limits of the new Province of
Quebec. 6 The Proclamation provided that, as
soon as circumstances should admit, General Assem-
blies should be summoned, with power to enact
laws for the public welfare and good govern-
ment of the Colony, and that in the meantime,
until such Assemblies were called, the people were
to enjoy "the Benefit of the Laws of our Realm of
England." 7 For this purpose the Governor with
the advice of the Council was authorized to erect
and constitute Courts of Judicature for hearing
and determining civil and criminal cases "according
to Law and Equity, and as near as may be agreeable
to the Laws of England," with an appeal to the
Privy Council. 8 A few weeks later, on November
28, 1763, Murray was appointed Governor of the
country. He was directed to appoint a Council as
his Instructions should prescribe, and to summon
a General Assembly of the freeholders of the
province. It was an important item of his Com-
mission that members of the Council and of the
Assembly were to take the oath provided by
statute (25 Car. II, cap. 2) against "Popish
Recusants," In his Instructions, which were not
issued until December, proposals for the govern-
ment of the Colony were more fully disclosed. He
was instructed to "nominate and establish a
FROM THE CESSION TO CONFEDERATION 17
Council" composed of the Lieutenant-Governors
of Montreal and Three Rivers, the Chief Justice
and the Solicitor General, with eight other persons
to be appointed by him. 9 With the advice of the
Council the Governor was to make necessary rules
and regulations "for the Peace, Order and good
Government" of the province, but so as not to
affect life or liberty or to impose duties or taxes. 10
Clause 28 set forth "Our Will and Pleasure that
you do in all things regarding the said Inhabitants,
conform with great Exactness to the Stipulations
of the said Treaty" 11 in respect of the exercise of
the Roman Catholic religion; but Clause 29 pro-
vided that the inhabitants should subscribe the
declaration accepting the Protestant succession
to the Crown, under pain of exclusion from
the country. 12 By Clause 32 Murray was forbidden
to "admit of any Ecclesiastical Jurisdiction of the
See of Rome." 13
With these documents before him Murray pub-
lished the Ordinance of September, 1764, establish-
ing Law Courts. A Superior Court was created for
the trial of criminal and civil cases "agreeable to
the Laws of England and to the Ordinances of this
Province;" 14 and for the benefit of the new sub-
jects he established a Court of Common Pleas,
where cases were to be decided according to equity,
but with due regard for the laws of England. In
this Court French laws and customs were to be
admitted in cases which originated before October,
2
18 CONSTITUTIONAL DEVELOPMENT
1764, and French lawyers were allowed to practise.
In all trials French and British subjects were
eligible as jurors. Appeals could be taken to the
Privy Council. 15 The Ordinance created great con-
fusion at first, as the French subjects were un-
familiar with English laws, and the few English
lawyers in the country could not speak French.
"Canadian lawyers utterly ignorant of the English
law pleaded in French before English Judges, who
knew nothing of the French law." 16
Meantime the difficulties of the situation had
been increased by the advent of a small minority
of British origin who believed themselves entitled
to control the administration of public affairs in
the Colony. The Grand Jury at Quebec affirmed
its right to be consulted as a representative body
in the making of laws and the expenditure of
public funds. 17 Murray's description of the British
minority is far from flattering and may have been
exaggerated by his warmth of temper. 18
It seems clear that the British Government
desired to be fair, and, according to the standards
of the age, even generous in its treatment of the
French population. The task, however, required
fuller knowledge and profounder insight than were
available. Both Murray and Carleton (who suc-
ceeded him) understood the conditions and the
needs more thoroughly than the authorities under
whose direction they acted. The French habitants
were wholly unacquainted with, and utterly un-
FROM THE CESSION TO CONFEDERATION 19
trained in, any system of representative institutions
or self-government; they had been governed under
a despotic system, attended with a trade monopoly
for certain privileged persons, and an administra-
tion not wholly free from corruption.
In April, 1766, Murray was recalled, although
he was not formally superseded until the autumn
of 1768. He had been especially considerate in his
treatment of the French-Canadian population, and
he had strongly impressed them with a sense of his
justice and fairness. He was succeeded by Sir
Guy Carleton (afterwards Lord Dorchester) who,
on his arrival in 1766, was confronted by the same
difficulties that his predecessor had encountered.
The system under which the Colony was governed
had produced extreme discontent among both the
French population and the British minority. In
the French population this discontent was more
manifest among the seigniors and the priesthood
than among the habitants. Slow progress was
made in applying desirable remedies, and finally,
in 1770, Carleton crossed the ocean to present the
case in person to the British Government. As a
result the Act of Parliament of 1774, known as the
Quebec Act, was passed. It extended the bound- J
aries of Quebec so as to include the territory later
known as Upper and Lower Canada; provision was
made for the "free exercise of the religion of the
Church of Rome" with authority for the clergy to
20 CONSTITUTIONAL DEVELOPMENT
collect their tithes; 19 Roman Catholics were not
obliged to take the oath of abjuration, but a modi-
fied oath of allegiance. Thus all positions were
open to them, 20 and the Roman Catholics in
Canada enjoyed privileges not then open to people
professing the same faith in England.
After the American Revolution the influx of
the United Empire Loyalists added not only a new
element but increased difficulties to a situation
already sufficiently complicated and critical. They
had made enormous sacrifices in abandoning their
homes and to a great extent their fortunes for
loyalty to the Empire. In their political ideas
they were probably more advanced than the people
of Great Britain, and it was natural that they
should chafe under the system of government
established by the Quebec Act. On the other
hand, the representative institutions that the
loyalists valued had little meaning to the French-
Canadians, who regarded them rather as oppressive
innovations devised for the purpose of taxation.
Carleton was sufficiently occupied with military
affairs during the American Revolution. After the
conclusion of peace he visited England for two
years, and having been raised to the peerage as
Baron Dorchester he was appointed Governor
General in 1786. He applied himself to the situa-
tion with ability and energy. In the end, the Con-
stitutional Act (Canada Act) of 1791 was passed,
and took effect in December of that year. Its chief
FROM THE CESSION TO CONFEDERATION 21
points were the division of the territory into two
provinces, the establishment in each province of a
nominated Legislative Council and an elected
House of Assembly with power to make laws.
There was an ill-considered and fruitless provision
designed to introduce the hereditary principle and
to constitute the Legislative Council in whole or
in part of hereditary legislators; a small property
qualification was established for the electorate;
freedom for the Roman Catholic religion was
granted, and a portion of Crown lands was set
aside for the support of a Protestant clergy .
the practical operation of the Act, the Governor
really controlled the machinery of government;
there were Crown revenues, and military grants
from the Home Government, which made him
virtually independent of the Assembly. On the
one hand, the Governor carried on the administra-
tion through officers who were not responsible to
the Assembly; on the other hand, no laws could be
made without the Assembly's consent.
"The Executive was financially and, worse still, constitutionally
independent, and the House of Assembly, in seeking vaguely to
cu)re a disease which it had not in reality diagnosed, frequently
overstepped its sphere, with the result that it was dissolved time
after time." 21
It may be that British statesmen learned the
wrong lesson from the American Revolution. They
attempted a control over the two Canadas stricter
than was previously known, and created a govern-
ment of cliques under the direction of the Governor.
22 CONSTITUTIONAL DEVELOPMENT
In no inconsiderable measure the administration
was carried on under the immediate direction of
the Colonial Office. A bureaucracy not familiar at
first hand with conditions in the Colony and often
unsympathetic with the aspirations of its inhabi-
tants could hardly avoid narrow views and mis-
chievous policies. The permanent official
directs from a distance requires rare qualities of\
sympathy, vision, and imagination. Naturally in
Lower Canada the difficulties created by differences |
in temperament and training of the two races were
very great. Although, at first, few of the French-
Canadians either comprehended or appreciated the
gift of representative institutions, they soon learned
to utilize them to good purpose in what they con-
ceived to be their interests. Conflict was inevitable
between the representative Assembly and the irre-
sponsible Executive. Bitter passion was aroused
and fierce controversy raged in both provinces.
There was complete deadlock from time to time.
These disastrous conditions led to the outbreaks
of 1837. The constitution of Lower Canada was
suspended, and Lord Durham's mission began.
Before proceeding to examine the results of that
memorable mission, it is desirable to consider the
development of democratic institutions in Great
Britain from 1760 to 1837.
It seems clear that the representative method
of government is not wholly or, indeed, primarily
FROM THE CESSION TO CONFEDERATION 23
of British origin. 22 The responsibility of the King
(that is the Executive) to the people, the derivation
of his authority from the people, and the principle
of constitutional limitations upon his authority
were acknowledged at least six hundred years ago.
In the first of his two lectures on the "History of
Freedom," which are a mere fragment of the
greater work that probably he alone could have
accomplished, Lord Acton quotes three notable
declarations of constitutional right. The first is a
resolution of the Scottish Parliament, early in the
fourteenth century, repudiating the Pope's advocacy
of the claim of the English King against the House
of Bruce. Speaking of Robert Bruce, they said:
"Divine Providence, the laws and customs of the country,
which we will defend till death, and the choice of the people, have
made him our king. If he should ever betray his principles and
consent that we should be subjects of the English king, then we
shall treat him as an enemy, as the subverter of our rights and his
own, and shall elect another in his place. We care not for glory or
for wealth, but for that liberty which no true man will give up but
with his life." M
The second is from the works of St. Thomas
Aquinas, written about the time that Simon de
Montfort summoned the Commons (A.D. 1264) :
"A king who is unfaithful to his duty forfeits his claim to
obedience. It is not rebellion to depose him, for he is himself a
rebel whom the nation has a right to put down. But it is better to
abridge his power, that he may be unable to abuse it. For this
purpose, the whole nation ought to have a share in governing itself;
the Constitution ought to combine a limited and elective monarchy
with an aristocracy of merit and such an admixture of democracy as
shall admit all classes to office by popular election. No government
24 CONSTITUTIONAL DEVELOPMENT
has a right to levy taxes beyond the limit determined by the people.
All political authority is derived from popular suffrage, and all laws
must be made by the people or their representatives. There is no
security for us as long as we depend on the will of another man." 24
The third is an utterance of Marsilius of Padua
(circa A.D. 1234), whom Lord Acton describes as
the ablest writer of the Ghibelline party:
"Laws derive their authority from the nation, and are
invalid without its assent. As the whole is greater than any
part, it is wrong that any part should legislate for the whole;
and as men are equal, it is wrong that one should be bound
by laws made by another. But in obeying laws to which all
men have agreed, all men in reality govern themselves. The
monarch, who is instituted by the legislature to execute its will,
ought to be armed with a force sufficient to coerce individuals, but
not sufficient to control the majority of the people. He is responsible
to the nation, and subject to the law; and the nation that appoints
him, and assigns him his duties, has to see that he obeys the Con-
stitution, and has to dismiss him if he breaks it. The rights of
citizens are independent of the faith they profess; and no man may
be punished for his religion." 25
Lord Acton truly declares that in regard to the
sovereignty of the nation, representative govern-
ment, the superiority of the legislature over the
executive, and liberty of conscience, this writer
had a remarkably firm grasp of the principles that
were to sway the modern world.
In the reign of George III, England had enjoyed
representative institutions for more than five cen-
turies, but democratic government, as we now
understand it, had not come into being. The
representation was that of an oligarchy, not of the
people at large. To the House of Commons elected
by this oligarchy, ministers were in some sense
FROM THE CESSION TO CONFEDERATION 25
responsible. In Canada there was representation
of a wide electorate, but the administration was
not directly responsible to, or controlled by, the
people's representatives. Thus, in the first half of
the nineteenth century, Canada was working to-
wards a form of government which was not attained
in Great Britain until after 1832. For the Canadian,
responsibility of the executive to the legislature
was the goal; for the Briton, real representation of
the people. In the British political and social order
during the reigns of the Georges, the spirit and in-
fluence of feudalism persisted in no small measure,
although its form had almost wholly passed away.
The essentials of democratic government were not
realized, and the country was in fact governed by
the King, the nobles, and the great landowners.
Rotten boroughs were controlled by great families
at whose dictation designated members were re-
turned to Parliament. "The whole political power
of England was virtually concentrated in 1831 in
the hands of two or three hundred individuals, who
returned a majority of the House of Commons and
sat in large numbers in the House of Lords." 26
The King, directly, and with little attempt at
secrecy, intrigued among the Lords to defeat
measures introduced by his ministers. He com-
peted with Peers for control of the Commons, upon
whom the influence of bribery and court intrigue
was freely used ; ministers were regarded as servants
of the King rather than of the people; in many
26 CONSTITUTIONAL DEVELOPMENT
instances they so regarded themselves. Open as-
sumption of arbitrary power by odious and violent
measures had cost one Stuart his head, and another
his crown. Its virtual assumption by George III
cost him little, but the nation much. In the Com-
mons there was no real conception of parliamentary
government as we now understand it. That the
continued existence of an administration depended
upon the support of a majority of the representa-
tive chamber was not fully accepted or generally
realized; ministers were the King's servants. The
nineteenth century was well advanced before the
House of Commons effectively and successfully
asserted its control of government. 27 William IV,
in 1834, was supposed to have dismissed the Whig
ministry. He called Sir Robert Peel to office; but
the constitution had reached a new stage of de-
velopment. The majority of the House was
against the King's choice, and the King found that
he was obliged to retire from the business of
governing. 28
Disraeli, in his earlier political writings (1833-
1841), laid down in emphatic terms the view that
the House of Commons was not, and was not in-
tended to be, representative of the people; he de-
clared that it represented a privileged or favoured
section or order of the people, wh> like the Peers of
England, enjoyed "for the advantage of the nation
in general certain powers of a very eminent and
exalted character." * 9
FROM THE CESSION TO CONFEDERATION 27
It should be remembered that the birth-pangs
of democratic government were hardly less severe
in Great Britain than in Canada. Following the
rejection of the Reform Bill in 1831 there were
disturbances which verged on civil war; the mon-
archy was threatened; riots broke out in different
parts of the country, and authority, both civil and
military, seemed paralysed. 30 We may also fairly
conclude that, during the first half of the nine-
teenth century, constitutional development in the
Mother Country was hardly less notable and im-
portant than in the Colony. In Great Britain the
King, in Canada the Governor, practically ceased
to govern. Executive control passed to the people's
representatives. In Great Britain as in Canada
there were, however, successive stages of progress
toward the system which how prevails in both
countries. By a series of enactments in each
country the franchise has been so extended that
the electorate includes practically the entire adult
population. But the Georgian tradition of the
Crown's control over public affairs had its influence
in Great Britain for many years. In 1839 the
Sovereign asserted her right to refuse the advice
of an incoming Prime Minister as to the official
organization of the Royal household. Two years
later public opinion compelled a withdrawal from
that position. The influence of the Crown, especi-
ally in foreign affairs, was manifest in Great
Britain throughout the reign of Queen Victoria,
28 CONSTITUTIONAL DEVELOPMENT
especially in 1851, when Lord Palmerston was
forced to retire from the Foreign Office, and in 1877,
when there were strained relations with Russia. 31
I return to Lord Durham's mission. Fortun-
ately for the future of the Empire, he was well in
touch with advanced political thought of the day.
His wide vision, his political training and experi-
ence, and his immense capacity to grasp and realize
unfamiliar conditions enabled him to render a
memorable service to the Empire. That he made
serious mistakes both in practice and in theory
cannot be denied ; but he truly laid the foundations
of a reasonable and practical colonial policy. An
exhaustive analysis of his report is unnecessary for
my purpose. It contains passages which are not
wholly consistent with one another, and which have
been inconsistently interpreted; but it may justly
be regarded as the charter of constitutional govern-
ment in our country. I should place beside it, and
rank with it, the four notable letters of Joseph
Howe to Lord John Russell (1839), which are un-
surpassed in cogency and eloquence of expression,
in thorough grasp of the problems involved, and in
clear comprehension of the remedies required for
their solution. They constitute enduring evidence
of his statesmanship, vision, and patriotism. 32
After pointing out that representative institu-
tions had been established in the North American
FROM THE CESSION TO CONFEDERATION 29
Colonies, Lord Durham set forth his most impor-
tant conclusion in these words:
"The Crown must . . . submit to the necessary consequences
of representative institutions; and if it has to carry on the govern-
ment in unison with a representative body, it must consent to
carry it on by means of those in whom that representative body
has confidence." 33
Having said so much, he proceeded to qualify it by
proposing to except from the control of the Pro-
vincial Legislature certain matters which in his
judgment affected the relations of the Colonies
with the Mother Country:
"The matters, which so concern us, are very few. The con-
stitution of the form of government, the regulation of foreign
relations, and of trade with the mother country, the other British
Colonies, and foreign nations, and the disposal of the public lands,
are the only points on which the Mother Country requires a con-
trol." M
The important limitations as to trade and public
lands were swept away within a few years after
the report was made. That a man of Lord Dur-
ham's vision could not foresee the lamentable con-
sequences of such limitations is remarkable. The
regulation of trade and the control of public lands
were obviously matters of domestic concern. If
such functions of government were exercised by
permanent officials at the Colonial Office, the out-
cry against unwisdom of policy or inefficiency of
administration, directed as it would be against the
Home Government, would have weakened and
might eventually have destroyed the ties which
united Canada to the Mother Country. On the
30 CONSTITUTIONAL DEVELOPMENT
other hand, if those functions were exercised,
however unwisely, by the people of the Colonies
through their own representatives, the responsi-
bility and remedy for unwise policy or inefficient
or corrupt administration would rest with the
people themselves. Other important recommenda-
tions contained in the report were as follows: the
two provinces should be reunited as one province
under one Legislature; the necessary Bill for that
purpose should provide for voluntary admission of
other North American provinces; the principle of
representation by population should be followed;
the judges were to be placed in the same position
with respect to tenure of office and salary as in
England ; and no money votes were to be proposed
except with the consent of the Crown, that is to
say, by responsible ministers.
Lord Durham's expectation that the French
would be absorbed by the English element proved
to be an idle dream; this he might have learned
from the lessons of history. Nine centuries have
not been sufficient to amalgamate into one type
the races that successive currents of immigration
and conquest brought together in the British
Islands. Differences of religious belief and of
language increased the improbability of achieving
in Canada what Lord Durham anticipated. In
the national life of the Mother Country we may
discern the Saxon's steadfast spirit and love of
liberty, his patience, his courage, and his deter-
FROM THE CESSION TO CONFEDERATION 31
mination; the Celt's imagination and eloquence;
the Norman's adventurous, ambitious spirit, his
instinct for leadership and his genius for adminis-
tration. So, in Canada, the French race, main-
taining its distinctive qualities, has brought to the
service of our country much that is valuable. In
some measure the qualities of each race may serve
to aid the possible deficiencies of the other. More-
over there is a distinct and not remote kinship; in
each race there is the strain of the Celt, while the
Saxon and Scandinavian elements of the British
correspond very closely with the Frankish and
Norman elements of the French race. In the
development of constitutional government in
Canada, Canadians of French descent have taken
their full part; their comprehension and practical
realization of the principles upon which the govern-
ment of a modern democracy is based have not
been surpassed by Canadians of British origin.
Indeed, it is a curious fact, and worthy to be
noted, that the practical operation of democratic
government has been comprehended and realized
more fully and thoroughly by the French of
Canada than by the people of their ancestral
country. In political theory the French are
thoroughly logical (much more so than the British) ;
but in the application of the theory they lack the
practical instinct which is distinctive of British
constitutional development. This is by no means
the only test by which one can measure the standard
32 CONSTITUTIONAL DEVELOPMENT
of their civilization; perhaps on the whole, the
civilization of France is more highly developed
than any other. As Lord Acton has said, "the two
kinds of civilization, social and political, are wholly
unconnected with each other. Either may subsist
in high perfection alone." 35
Between 1839 and 1854, five Governors General
exercised authority in Canada: Charles Poulett
Thomson (later Lord Sydenham), Sir Charles
Bagot, Sir Charles (afterwards Lord) Metcalfe, Lord
Cathcart and the Earl of Elgin. During this period
the principles of Lord Durham were being gradu-
ally put into practice and extended. The pro-
gramme outlined by Lord John Russell as Colonial
Secretary, in his instructions to Sydenham, in-
volved the legislative union of the two Provinces
with just regard to the claims of each in arranging
the terms of union; the maintenance of the three
estates of the provincial legislature; the indepen-
dence of the Judges through the establishment of
a permanent civil list; sjuch freedom of action to
the Executive Government as would be found
necessary for the public good; and the establish-
ment of a system of local government by repre-
sentative bodies in the cities and rural districts. 36
This programme did not adopt the principle that
the Executive should be responsible to the repre-
sentatives of the people in the legislature. In his
despatch of October 14, 1839, 37 the Colonial Secre-
tary expressly declared that it should not be
FROM THE CESSION TO CONFEDERATION 33
adopted. In some of the reasons he assigned for
this position it is not difficult to find an unanswer-
able argument against the views he propounded.
On April 14, 1837, Lord John Russell, speaking
as Secretary of State for the Colonies in the House
of Commons, had said:
"The case, as it is brought before the House, is this. The
House of Assembly of Lower Canada have asked for an elective
Legislative Council, and for an Executive Council which shall be
responsible to them, and not to the Government or Crown of Great
Britain. We consider that these demands are inconsistent with
the relations between a Colony and the Mother Country, and that
it would be better to say, at once, 'let the two countries separate'
than for us to pretend to govern the Colony afterwards." M
The resolution which he was supporting contained
the following paragraph:
"Resolved, That, while it is expedient to improve the com-
position of the Executive Council in Lower Canada, it is unadvisable
to subject it to the responsibility demanded by the House of As-
sembly of that province."
I contrast with this the words of Sir Henry Camp-
bell Bannerman, spoken seventy years afterwards
on May 10, 1907 : 89
"Let us see what is that most significant event of the past
year which has rung through the world and astounded the world.
It is the establishment of complete self-government in the Transvaal,
and the constitution of a freely elected Government, at the head
of which is a man who perhaps was the ablest and most successful
soldier of those who led the Boer people in the determined war
against us a year or two ago. I believe in my soul and conscience
that in the whole history of our country there has never been a
finer example of true British policy or a grander achievement." 40
Lord Stanley, who succeeded Lord John Russell
at the Colonial Office in 1841, was a man of brilliant
3
34 CONSTITUTIONAL DEVELOPMENT
ability, of exceedingly firm opinions, and of re-
actionary tendencies so far as the governance of
the Colonies was concerned. His temperament,
training, and traditions made him incapable of
comprehending that centralization would destroy,
while autonomy would establish, a real unity of
the Empire. To limit as far as possible the reforms
advocated by Durham was his natural inclination.
Speaking later (May 30, 1844) in the House of
Commons, he set forth with some elaboration the
prevailing theory of British statesmen respecting
responsible government as applied to Canada.
The affairs of the Colony were to be carried on with
the advice of ministers responsible to the Assembly;
but in the last analysis the ministers were to be
controlled, and their views might properly be over-
ruled, by a Governor exercising wide political
powers and responsible to the Colonial Office.
Control of patronage by ministers in Great Britain
was an admirable system; but in Canada it was ah
abuse and must lead to disastrous results. There-
fore, the Governor was at liberty to make appoint-
ments without consulting his ministers and without
their knowledge or consent, if he conceived that
course to be in the public interest. Canada was
unfortunate in possessing no House of Lords and
no great landed aristocracy, upon whom, as Lord
Stanley conceived, the good government and wel-
fare of the United Kingdom largely depended. He
confidently affirmed that without such influences
FROM THE CESSION TO CONFEDERATION 35
the enjoyment by Canada of actual responsible
government would convert that Colony into a
virtual republic. Moreover, the principle of re-
sponsible government, as understood by the Cana-
dian ministers who had tendered their resignations,
was quite inconsistent with Lord Stanley's theory
of Colonial dependence. In short, the Colonial
Office in any case of real difficulty could govern
Canada more wisely and effectively than could any
Canadian ministry. Lord Stanley was unfamiliar
with the actual conditions of the country and of
its population; he did not realize the danger of
continued refusal to accept the principle in ques-
tion; and he regarded the Colonial Office as the
controlling authority in the administration of the
Colony's affairs. The speech, though insular in Its
spirit, was nevertheless plausible in its argument
and eloquent in its expression; no debating point
was missed. That it made an irresistible appeal to
an audience of imperfect comprehension and limited
vision was evidenced by the sustained applause
which greeted the brilliant orator at its conclusion.
Both in 1837 and in 1844 the views expressed
by Lord John Russell and by Lord Stanley did not
pass unchallenged in the British Parliament. On
the other hand, it must not be imagined that these
views were confined to that side of the Atlantic.
Similar opinions were expressed with vigour, and
even vehemence, by a group in Canada, some of
whom, under successive Governors, had enjoyed not
36 CONSTITUTIONAL DEVELOPMENT
only political dominance but long continued tenure
of the chief administrative offices. In the report
of a committee of the Legislative Council of Upper
Canada, which was unanimously adopted by that
body, Lord Durham's report had been criticized
with marked ability : responsibility of the Executive
to the representatives of the people was entirely
inappropriate and inapplicable to colonial condi-
tions; it would put an end to colonial dependence
and virtually make the Colony a sovereign power;
the Colony ought not to be subjected to the dis-
sensions of party but should be governed by the
Imperial Cabinet through persons of ability and
prominence selected by the Governor and acting
under his direction without responsibility to the
Legislature. 41 To the same effect was a protest
from Nova Scotia. Thus the voices of reaction in
Great Britain and of officialdom in Canada united
in harmonious chorus. It is impossible to doubt
the perfect sincerity of the Russell-Stanley school
and of some of their Canadian supporters; but the
views of prominent placemen in Canada and Nova
Scotia were probably influenced (perhaps uncon-
sciously) by considerations of self-interest.
The Union came into force in February, 1841,
elections were held in March, and the Legislature
met in June. No less than six political groups were
represented in the Assembly; but three of them
included more than three-quarters of its member-
ship. 42 The new Assembly was strongly determined
FROM THE CESSION TO CONFEDERATION 37
to assert the principle of responsible government.
There was but an imperfect and even vague con-
ception of the full meaning which we now attach
to that expression, and of the conditions necessary
for the successful application of the principle in
the practical administration of public affairs. But
one essential was fully understood and was urged
with vehement insistence: that the Governor in
administering the affairs of the Colony should be
guided only by the advice of ministers who pos-
sessed the confidence of the elected branch of the
Legislature. Sydenham declined to accept this
principle in the first instance. Indeed, his instruc-
tions forbade it; Lord John Russell had reminded
him of the "decisively pronounced judgment" of
both Houses of Parliament on April 28, and May 9,
1837. The new Governor had a most difficult part,
and he played it with conspicuous tact and discre-
tion. He reached the conclusion, evidently after
the most careful consideration, that he must under-
take the double r61e of Governor and Prime
Minister. Apparently, in his capacity as Governor
he was to be responsible to the Crown, through the
Colonial Office, in upholding all Imperial interests;
in his capacity as Prime Minister he was to be
responsible to the Legislature in respect of provin-
cial administration. 43 The success which he gained
was due to his wide experience, his remarkable
ability, and his extraordinary capacity for political
management. In the hands of a less capable man
38 CONSTITUTIONAL DEVELOPMENT
the attempt would have encountered immediate
disaster. He died at the close of the first session
and before failure had attended his efforts. Prob-
ably he realized that his system was but a tem-
porary phase, and if he had lived he would perhaps
have carried out what Lord Elgin afterwards con-
summated. That his service to Canada was not-
able cannot be questioned. In the face of numerous
difficulties he brought the Union Act into effective
operation; he initiated a general municipal system
in Lower Canada; he placed the banking system
upon a sounder basis; and he successfully reorgan-
ized the executive departments. Under his guidance
the leading statesmen of the Colony acquired a
useful knowledge of the practical meaning of re-
sponsible government. Finally he accepted the
principle of executive responsibility in the amend-
ment moved by Mr. Harrison at his instance in the
session of 1841. "
Sir Charles Bagot, who succeeded Lord Syden-
ham, seems to have been controlled at first by
instructions from Lord Stanley, who was seriously
impressed with the inability of the colonists to
govern themselves in accordance with their own
interests, which he was disposed to measure by the
standards of the Colonial Office. Bagot's regime
lasted only one year. He appreciated the difficul-
ties and dangers of the situation much more fully
than Stanley, but his suggestions as to compromise
were met by Stanley's rejoinder that it might be
FROM THE CESSION TO CONFEDERATION 39
better to let the Colonies go altogether. 45 Eventu-
ally, from the very force of circumstances, and
through a comprehension that could come only to
one closely in touch with actual conditions, Bagot
practically disregarded Stanley's instructions and
formed a government which commanded a majority
in the Assembly. 46 Finally on October 28, 1842,
he told the Colonial Secretary quite frankly that
whether responsible government was openly
acknowledged t>r only tacitly acquiesced in, it
virtually existed. 47
His successor, Sir Charles (afterwards Lord)
Metcalfe, was a distinguished civil servant who
enjoyed a high reputation from his administration
in India, where he had spent thirty-seven years.
He came to Canada from Jamaica, where he had
achieved considerable success in administering the
affairs of that Colony. According to one of his
biographers, he was an advanced Liberal, or even
Radical, in the politics of the United Kingdom. 48
But his training and experience were of a character
that quite unfitted him for the task with which he
was confronted in Canada. With the theory or
practice of colonial government he was entirely
unfamiliar, and his instincts led him to accept
literally, and without much regard for conditions
surrounding him, the narrow views which then
afflicted British statesmen. He was obsessed with
their idea that effective responsibility of the
Executive to the people's representatives meant
40 CONSTITUTIONAL DEVELOPMENT
early separation. Ministers were free to offer their
advice, but he was equally free to reject it; other-
wise, as he conceived, he would surrender the pre-
rogative of the Crown, and be merely a tool in the
hands of a Council. 49 As compared with Sydenham
and Bagot, he was distinctly reactionary in Canada,
whatever he may have been in England. His
ministers having resigned on his refusal to be bound
by their advice respecting appointments to office,
he summoned new advisers, and upon dissolution
of the Legislature threw his whole strength and
influence into the electoral contest. Decrying
party government as unsuited to colonial condi-
tions, he was forced to take refuge in party support.
He had the satisfaction of securing a narrow
majority; but the disorders which his policy
aroused were of the most serious character. 50
Metcalfe retired at the end of 1845, and Earl
Cathcart held office during the short interval that
intervened between Metcalfe's departure and the
arrival of Lord Elgin at the beginning of 1847. To
Lord Elgin is due the establishment of constitutional
and democratic government in Canada on founda-
tions that have proved enduring. He was the
son-in-law of Lord Durham, whose ideals he carried
out, and, indeed, extended beyond their scope, as
Lord Durham understood it. The years between
Durham's departure and Elgin's arrival had pro-
duced no final results, and Elgin had to assume and
carry out the task of executing Durham's report.
FROM THE CESSION TO CONFEDERATION 41
He was endowed with sufficient vision and common
sense to realize that if the colonists had but a
limited capacity for self-government, the Colonial
Office had a still more limited capacity for govern-
ing them.
Before proceeding to Canada Lord Elgin had
been made aware of a despatch from the Colonial
Secretary (Earl Grey) to Sir John Harvey, Lieu-
tenant Governor of Nova Scotia, which contained
the following passage:
"It cannot be too distinctly acknowledged that it is neither
possible nor desirable to carry on the government of any of the
British provinces in North America in opposition to the opinion of
the inhabitants." 81
Speaking (as Lord Howick) in the House of Com-
mons on March 8, 1837, Earl Grey had said:
" I, for one, am not prepared to say, that any mode of carrying
on the government on sound principles under a popular constitution
can be devised, under which a permanent resistance to the popular
branch of the legislature can be maintained. I believe that the
very notion of this is an absurdity in itself." B
Throughout his administration Lord Elgin received
from Earl Grey wise and sympathetic support in
the policy carried out in Canada.
When Lord Elgin arrived in January 1847, he
found a Government which possessed a very narrow
majority in the Assembly. Among the ministers
there were several men of marked ability, but the
Government as a whole was not distinguished by
resource or resolution. Lord Elgin's first attempt,
made with the consent of his ministers, was to
42 CONSTITUTIONAL DEVELOPMENT
bring into the Government a more adequate
representation of the French population. His
negotiations for this purpose were conducted with
great skill and discretion and, although unsuccess-
ful at the moment, they produced an excellent effect.
He gradually won the confidence of all parties in
his justice and impartiality, and in his sincere in-
tention to administer the Government through
advisers possessing the confidence of the people's
representatives. 53 In the autumn of 1847 his
ministers proposed dissolution, which took place at
the end of that year. The prospect of carrying on
the government by means of another administration
was not unwelcome. "My ministers have always
been struggling for existence. Catching at straws
living from hand to mouth. Anything like a
large or generous policy has been altogether out of
their reach. I know not what the future may
bring forth; but I confess that I regard with hope
rather than apprehension the prospect of coming
in contact with a more powerful party, and with
men of more decided views." 54 The ministry
sustained a decisive defeat at the elections which
took place early in 1848. Lord Elgin gave them
the option of meeting Parliament without delay or
of resigning at once. 55 They accepted the former
alternative and were beaten in the election of the
Speaker and in the division on the Address. Their
resignation was tendered and accepted on Satur-
day, March 4, and on the following Tuesday the
FROM THE CESSION TO CONFEDERATION 43
Governor sent for Messrs. Baldwin and Lafontaine,
the leaders of the Opposition in the Assembly, and
entrusted to them the task of forming an adminis-
tration, which they accepted. For the first time
the principle of executive responsibility to the
Assembly was fully recognized, and the first stage
of democratic self-government as we now under-
stand it had been reached. Lord Grey expressed
his complete approval of the Governor General's
course. Slowly, and sometimes with difficulty, the
lesson had been learned by other British statesmen.
Russell, then Prime Minister, had abandoned his
theories of 1837.
Lord Elgin's wisdom and foresight are frequently
illustrated in his correspondence with the Colonial
Secretary. On January 22, 1848, he wrote: "The
less you meddle in Canadian appointments, even
by the issue of Royal warrants, the better. You
cannot effectually control them. By seeming to
endeavour to do so you rouse that jealousy of
Imperial interference which has heretofore pro-
duced such mischievous effects in Canada. I
would allow the responsibility of appointing to
office to rest upon the Provincial Ministry and to
weigh upon them as heavily as possible. An
intelligent Governor and a watchful opposition will
generally succeed in preventing abuses from grow-
ing too rank." Although sometimes impatient at
the inconsistent and unreasonable attitude of
French political leaders, he always advocated a
44 CONSTITUTIONAL DEVELOPMENT
just and even generous policy with regard to the
legitimate aspirations of the French population.
In his estimate of the future relations between the
two races in Canada he displayed a wider vision
and a truer foresight than Lord Durham. 56
Events in the other British possessions followed
practically the same course. In Nova Scotia repre-
sentative institutions were established in 1757, after
correspondence between Governor Lawrence and
the Lords of Trade. 57 The first Assembly met on
October 2, 1758. Cape Breton was added to Nova
Scotia in 1763. It had previously been adminis-
tered by a Governor and Council, and had had no
representative Assembly. In 1765 it was erected
into a distinct county, with the right to return two
county members to the Assembly. In 1784 the
Province of Nova Scotia was divided, and New
Brunswick was established as a separate Province
with representative institutions. In both Provinces
the Executive Council who acted as advisers of the
Governor in the administration of public affairs
also exercised functions as a Legislative Council or
Provincial Upper Chamber. Responsibility of the
Executive to the Assembly was not admitted.
Continual disputes between the Assembly and the
Council were the inevitable result, and the elective
chamber maintained its position with no little
firmness and persistence. The struggle for re-
sponsible government was waged actively and
aggressively in all the Maritime Provinces, but
FROM THE CESSION TO CONFEDERATION 45
there was little sympathy with the disorder and
rebellion that broke out in the upper Provinces.
A distinct Legislative Council was established in
Nova Scotia in 1838. In that province there were
reactionary Governors after Lord Durham's report,
and they had to bear the full brunt of Howe's bold
and unceasing attacks. Two of them he virtually
drove from the Province; and in 1848, upon the
succession of Sir John Harvey to Lord Falkland,
the principle of executive responsibility to the
Assembly was finally recognized. In New Bruns-
wick the Executive and Legislative Councils had
been separated in 1832, and responsible govern-
ment came into effect in 1848. Prince Edward
Island, established as a separate Province in 1769,
received representative institutions in 1773, and
responsible government in 1851.
It will be noted that this great constitutional
change in the various Provinces was not based
upon any statutory provision, but was consum-
mated by the adoption of a recognized convention.
The formal constitutional enactments remained
unchanged, but upon them was imposed a new
controlling principle.
"The State that Englishmen knew was a singularly unicellular
State, and at a critical time they were not too well equipped with
tried and traditional thoughts which would meet the case of Ireland
or some communities, commonwealths, corporations in America
which seemed to have wills and hardly fictitious wills of their
own, and which became States and United States. . . . The modern
and multicellular British State often and perhaps harmlessly
46 CONSTITUTIONAL DEVELOPMENT
called an Empire may prosper without a theory, but does not
suggest and, were we serious in our talk of sovereignty, would
hardly tolerate, a theory that is simple enough and insular enough
and yet withal imperially Roman enough, to deny an essentially
state-like character to those 'self-governing colonies,' communities,
commonwealths, which are knit and welded into a large sovereign
whole." M
So wrote F. W. Maitland more than twenty
years ago. In its main aspects the theory of
the most powerful intellects among British states-
men three-quarters of a century ago was unmis-
takeably "unicellular." The irresistible trend
of events swept aside this theory before it had
wrought irreparable mischief ; and later generations
have realized that the strength of our wider British
Commonwealth rests upon that free development
of self-governing nations which Russell, Stanley,
and other eminent statesmen regarded as fatal to
the unity and integrity of the Empire.
Between the retirement of Lord Elgin and the
establishment of Confederation, one outstanding
incident emphasized the increasing fullness of
Canadian autonomy. On August 13, 1859, the
Duke of Newcastle, Secretary of State for the
Colonies, transmitted to the Governor General for
the consideration of the Canadian Ministry a
memorial of the Chamber of Commerce of Sheffield
protesting against protective duties imposed by a
Canadian statute of that year. The Secretary of
State, while declaring that he would advise Her
Majesty to assent to the measure (which had been
FROM THE CESSION TO CONFEDERATION 47
reserved for assent by the Governor General, Sir
Edmund Head) , undertook to lecture the Canadian
Government, and incidentally the Canadian Legis-
lature, upon the unwisdom of its fiscal policy. The
reply to this despatch enclosed a report of the
Minister of Finance, Sir A. T. Gait, concurred in
by the Cabinet; it has been quoted many times,
but it cannot be omitted from any survey of con-
stitutional landmarks. The important passages
are as follows:
"From expressions used by His Grace in reference to the sanction
of the Provincial Customs Act, it would appear that he had even
entertained the suggestion of its disallowance; and though happily
Her Majesty has not been so advised, yet the question having been
thus raised, and the consequences of such a step, if ever adopted,
being of the most serious character, it becomes the duty of the
Provincial Government distinctly to state what they consider to
be the position and rights of the Canadian Legislature.
"Respect to the Imperial Government must always dictate
the desire to satisfy them that the policy of this country is neither
hastily nor unwisely formed; and that due regard is had to the
interests of the Mother Country as well as of the province. But
the Government of Canada acting for its Legislature and people
cannot, through those feelings of deference which they owe to the
Imperial authorities, in any way waive or diminish" the right of the
people of Canada to decide for themselves both as to the mode and
extent to which taxation shall be imposed. The Provincial Ministry
are at all times ready to afford explanations in regard to the acts
of the Legislature to which they are party; but subject to their duty
and allegiance to Her Majesty, their responsibility in all general
questions of policy must be to the Provincial Parliament, by whose
confidence they administer the affairs of the country; and in the
imposition of taxation, it is so plainly necessary that the adminis-
tration and the people should be in accord, that the former cannot
admit responsibility or require approval beyond that of the local
48 CONSTITUTIONAL DEVELOPMENT
Legislature. Self-government would be utterly annihilated if the
views of the Imperial Government were to be preferred to those of
the people of Canada. It is therefore the duty of the present
Government distinctly to affirm the right of the Canadian Legisla-
ture to adjust the taxation of the people in the way they deem best,
even if it should unfortunately happen to meet the disapproval of
the Imperial Ministry. Her Majesty cannot be advised to disallow
such acts, unless her advisers are prepared to assume the adminis-
tration of the affairs of the Colony irrespective of the views of its
inhabitants." 69
There was some further discussion, but Gait's
constitutional position remained unchallenged. His
reply ranks among our great state papers, and it
set at rest forever any doubt as to Canada's control
of her fiscal system.
The union of the four original Provinces which
came into effect on July 1, 1867, was an event of
momentous consequence to the British Empire,
and not without its significance to the world, in
which that Empire plays so great a part. 60 It
paved the way to a truer conception of the condi-
tions and relations upon which the permanence of
the Empire might be securely founded ; it eventually
led British statesmen to the wider outlook already
attained beyond the seas; it was an essential step
to secure for the Dominions their present voice and
influence in the Empire's affairs; and it crowned
the endeavour of a century during which the
initiative in constitutional development had been
taken by colonial statesmen.
Mr. Goldwin Smith has declared that the real
parent of Confederation was deadlock. 61 He al-
FROM THE CESSION TO CONFEDERATION 49
ludes, of course, to the almost unsurmountable
difficulties which prevented any reasonable stability
of government in the old Province of Canada for
many years immediately before 1867. In the four
years from 1854 to 1858, there were no less than six
different administrations. 62 Between 1841 and
1867, eighteen different ministries were formed. 63
During that period no government held office for
more than three years and nine months. But the
view advanced by Goldwin Smith has not equal
force so far as Nova Scotia and New Brunswick
were concerned. In 1864, Sir Charles Tupper,
then Premier of Nova Scotia, had carried in the
Legislature of that Province a resolution favouring
a legislative union of the Maritime Provinces. He
explained, in speaking to the resolution, that he
regarded his proposal as a step towards a wider
union.
Such union had been the dream of Canadian
statesmen for many years. Sir George Cartier,
George Brown, John Sand field Macdonald, D'Arcy
McGee, John Ross, and Sir John Macdonald him-
self had been its earnest advocates; but, perhaps
more than any other, Sir A. T. Gait had led the
way with practical suggestions. In July, 1858, he
moved a resolution in the Legislature of Canada,
affirming the desirability of a federal union of
Nova Scotia, New Brunswick, Newfoundland, and
Prince Edward Island with Canada and the Western
territories. When the Cartier- Macdonald adminis-
50 CONSTITUTIONAL DEVELOPMENT
tration was formed in 1858, Gait became Inspector
General upon condition that the Government would
accept his confederation policy. A committee of
the Executive Council (Cartier, Ross, and Gait) was
appointed to confer with the British Government
on this and other questions. Their official com-
munication to Sir Edward Bulwer-Lytton was
accompanied by a confidential letter prepared by
Gait and signed by the members of the committee.
It is remarkable, as his biographer has pointed out,
that the scheme of union as proposed by him, and
especially the division of powers between the
Dominion and Provincial authorities, was in nearly
every important respect followed in the Quebec
resolutions and in the British North America Act. 64
Political animosity and party strife were intense
and bitter in Upper and Lower Canada as well as
in Nova Scotia and New Brunswick. Let us re-
member with pride and gratitude that on this and
other notable occasions patriotism and duty raised
the hearts of men above party and above self.
Especially is a tribute of honour and respect due
to the memory of John A. Macdonald and George
Brown, men of strong personality and of intense
feeling. Both politically and personally, they were
bitterly opposed to each other; without their
powerful co-operation the project of union could
not have been realized. Even after Confederation
there was extreme difficulty in forming an adminis-
tration, and it should not be forgotten that Tupper
FROM THE CESSION TO CONFEDERATION 51
and D'Arcy McGee renounced just ambitions and
acknowledged claims to consideration, in order that
a Government with some assurance of permanence
might be established in 1867.
The second Tach6-Macdonald administration
was formed on March 20, 1864, and sustained an
adverse vote in the Assembly on June 14. Within
three years four administrations had gone down to
defeat, and two general elections had not resulted
in the establishment of stable government. On the
morning of June 15, Brown, in a spirit of unselfish
patriotism, made advances to supporters of the
administration ; and as a result of negotiations that
were fully disclosed by Sir John Macdonald to the
Assembly on June 22, a Coalition Government
was formed which included Brown, Mowat, and
McDougall. Brown had desired a larger repre-
sentation of his supporters, but Macdonald de-
clined this on the ground that the acceptance of
such a proposal would alienate necessary support.
As it was, the coalition was by no means popular,
and McDougall, who had entered the Cabinet with
Brown, met defeat at a by-election in North
Ontario despite Macdonald 's strong appeal to the
electors on his behalf. Brown was personally un-
willing to enter the Government, and it should be
remembered to his credit that he used his powerful
influence to bring about a reluctant acceptance by
his following of proposals which Macdonald and
his colleagues were unwilling and probably unable
to modify.
52 CONSTITUTIONAL DEVELOPMENT
Delegates from the three Maritime Provinces
met in Charlottetown on September 1, 1864, to
discuss proposals for a Maritime Union. A dele-
gation from the new Coalition Government pro-
ceeded to Charlottetown and placed before the
Maritime delegates their scheme for a larger union.
As a result the Quebec Conference assembled on
October 10, and continued in session until October
28. Upon the resolutions passed at that Conference
the British North America Act of 1867 was based.
In 1866 delegates from the United Province of
Canada and from Nova Scotia and New Brunswick
met in London, and their deliberations resulted in
the Act as it eventually passed the Parliament of
the United Kingdom.
In the letters of Sir John Macdonald and Sir
A. T. Gait we have a curious picture of the attitude
of British statesmen of the day; their indiffer-
ence, their lack of vision, and their apparent relief
at the prospect that the northern half of the
North American continent would pass out of the
orbit of the British Empire, are astonishing and
even bewildering. Macdonald has left it on record
that "the Union was treated by them much as if
the British North America Act were a private Bill
uniting two or three English parishes." fl5 Gait in
a letter to his wife, dated January 14, 1867, said:
"I cannot shut my eyes to the fact that they want
to get rid of us. ... Day by day I am more op-
pressed with the sense of responsibility of main-
FROM THE CESSION TO CONFEDERATION 53
taining a connection undesired here and which
exposes us to such peril at home . . . even Mac-
donald is rapidly feeling as I do." 6<5 Such was the
impression created by British statesmen upon men
whose whole desire and purpose was to maintain
the unity of the Empire, and to create on this con-
tinent a great nation within the ambit of the Bri-
tannic system. In later years, and especially since
the beginning of the present century, a truer con-
ception has been vouchsafed to statesmen of the
Mother Country. Their spirit of indifference or
repulsion half a century ago had a certain corrective
in the unfriendly attitude of American statesmen
of the same period, which was due to misunder-
standing and irritation arising out of the events of
the Civil War, and which undoubtedly had its
effect upon Canadian public opinion of the day.
It is a singular reflection that in this respect the
policy of American rather than that of British
statesmen aided in the maintenance of Canada's
connection with Britain. Fortunately the spirit in
both the United Kingdom and the United States
has wholly changed; and to-day Canada gladly
serves as a herald of good will and co-operation
between the two great Commonwealths.
In this brief summary of constitutional events
extending over a period of more than one hundred
years, we have seen Canada emerge from military
dictatorship to the position of a Crown Colony,
and thence to the status of a dependency enjoying
54 CONSTITUTIONAL DEVELOPMENT
representative institutions. We have followed
briefly the struggles and disorders which resulted
in the attainment of responsible government, with-
out full comprehension of the conventions and
principles upon which its successful operation de-
pended. Afterward came the difficult years in
which the lessons of responsible government were
learned by experience. Differences of race, lan-
guage, temperament, and ideal created groups
which made stable government impracticable, and
strengthened the influences that led to Confedera-
tion. But during all this period Canada became
more and more endowed with the attributes of
complete self-government, until, in 1867, the four
original Provinces fronting the Atlantic and reach-
ing toward the Pacific stood before the world as a
united Dominion. Already there was the germ of
a national spirit, and Canada slowly awakened to
the greatness of her destiny.
SECOND LECTURE
CONSTITUTIONAL DEVELOPMENT FROM
CONFEDERATION TO THE WORLD
WAR*
IT IS not my purpose nor is there occasion to
dwell at any length upon the provisions of
the British North America Act. In the pre-
amble it is recited that Canada, Nova Scotia, and
New Brunswick had expressed their desire to be
federally united into one Dominion under the
Crown, "with a Constitution similar in principle
to that of the United Kingdom." This would
seem to set at rest any question as to executive
responsibility, but, in more than one instance, the
Colonial Office proved that its vision was still
obscured by old traditions.
The provisions of any constitutional Act are
necessarily of so general a character that judicial
interpretation is required. Thus no inconsiderable
influence upon our Constitution has been exercised
by the body of judicial decisions which has grown
up in the examination and construction of its
provisions by the Courts. Like all written con-
stitutions it has been subject to development
through usage and convention. Lord Bryce has
pointed out the considerable effect of such influence
in the United States: "The American Constitution
56 CONSTITUTIONAL DEVELOPMENT
has changed, is changing, and by the law of its
existence must continue to change in its substance
and practical working, even when its words remain
the same. "Time and habit", said Washington,
"are at least as necessary to fix the true character
of Governments as of other human institutions":
and while "habit fixes some things, time remoulds
others." 2
' In considering constitutional relations between
Canada and other parts of the Empire, we observe
that the British North America Act sets forth with
no little particularity the distribution, between the
Dominion and the Provincial Governments, of
sovereign powers in domestic affairs. Such powers
in their entirety seem to be limited only by the
reservation of disallowance to the British Govern-
ment, and by previous unrepealed enactments of
the British Parliament applicable to the Dominions.
As no formal attempt was made to define the con-
stitutional relations between the British and Cana-
dian Governments, those relations were free to
develop by the same slow and sure steps which had
built up the system of government now obtaining
in the United Kingdom. Unfettered by a written
constitution in the ordinary acceptation of the
term, that system has been moulded and is con-
trolled by custom and convention to a remarkable
extent. In the words of Lord Bryce, "the always
changing Constitution becomes interpenetrated by
custom." 3 Anson puts it in much the same way:
FROM CONFEDERATION TO THE WORLD WAR 57
"If in our Constitution we find that law and
custom diverge, we must note first what is the law,
and then how it has been overgrown by custom." 4
Lowell employs another happy phrase: "The con-
ventions are superimposed upon the law, and
modify political relations without in the least
affecting legal ones." 5 In an interesting contribu-
tion to the history and study of relations between
the nations of the British Commonwealth, Mr. H.
Duncan Hall points out the vast scope of changes
that may be effected through new conventions of
the Constitution. 6
In tracing constitutional development, it is
useful to consider it in relation to the executive,
the legislative, and the international functions of
the instruments of government. This arrangement
of the subject, if not strictly logical, will be found
convenient. But before entering upon this phase
it is important to examine the advance in methods
of consultation and co-operation between the
Governments of the British Commonwealth.
Twenty years after the Union the first Colonial
Conference was held in 1887. The intention to hold
it was referred to in the Queen's speech on the
prorogation of Parliament. It was purely consulta-
tive; and, while many questions of common concern
were discussed, probably the main purpose of the
British Government was to find some method of
58 CONSTITUTIONAL DEVELOPMENT
more effective co-operation in defence. At that
time there was no conception of relations with the
Colonies other than as subordinates, and apparenty
there was no suggestion that they were to be con-
sulted or even informed as to foreign relations.
The representatives of Canada were not members
of the Canadian Government, and the Conference
was not between Governments as such.
The Conference of 1894 was summoned by the
Canadian Government, and was held at Ottawa.
Its genesis was the proposal for a conference be-
tween Canada and Australia respecting cable com-
munication, but it developed into a gathering at
which not only the Australian Colonies, but New
Zealand and the Cape of Good Hope were repre-
sented. Lord Jersey held a watching brief on
behalf of the British Government. Sir Mackenzie
Bowell, Canadian Minister of Trade and Com-
merce, was appointed President.
The third Conference was held in London in
/ 1897, on the occasion of the Diamond Jubilee of
Queen Victoria. Only Prime Ministers had been
summoned to the Jubilee, and, consequently, only
Prime Ministers attended the Conference. The
opinion was expressed that periodical conferences
between representatives of the Dominions and of
the United Kingdom were desirable, and a resolu-
tion to that effect was passed.
The fourth Conference was held in 1902, on the
occasion of King Edward's Coronation; subjects
FROM CONFEDERATION TO THE WORLD WAR 59
were indicated in the invitation to the delegates,
and Ministers from the Dominions attended to
assist the Prime Ministers. A formal resolution
was passed favouring the holding of such confer-
ences at intervals not exceeding four years, at which
"questions of common interest could be discussed
and considered, as between the Colonial Secretary
and the Prime Ministers of the self-governing
Colonies." The consultations were not to be with
the British Government but with one of its depart-
ments, to which the Dominions were supposed in
some measure to be attached.
In 1905, Mr. Lyttelton, then Colonial Secretary,
addressed a despatch to the Dominions in which
he proposed that the Colonial Conference should
be transformed into an Imperial Council. Great
Britain was to be represented by the Colonial
Secretary; and the other members of the Council
were to be the Prime Ministers of the Dominions
or representatives appointed for that purpose by
their Governments. India was to be represented
whenever her interests might require it. It was also
proposed to establish in London a permanent
Commission or Secretariat of the Imperial Council,
for the purpose of maintaining continuity between
the periodical meetings. All of the Dominions
except Canada approved of the proposal. The
Canadian Government expressed the view that
"the term Council indicates a more formal assembly
possessing an advisory and deliberative character
60 CONSTITUTIONAL DEVELOPMENT
and in conjunction with the word 'Imperial' sug-
gesting a permanent constitution, which, endowed
with a continuous life, might eventually come to
be regarded as an encroachment upon the full
measure of autonomous, administrative and legis-
lative power enjoyed by all the self-governing
Colonies." However, they agreed that the designa-
tion might be changed from "Colonial Conference"
to "Imperial Conference." When the Conference
assembled in 1907, the British Government with-
drew its proposal for an Imperial Council, and the
constitution of future conferences was settled in a
resolution that marked a new departure. 7 Future
conferences were to be held between the Govern-
ment of the United Kingdom and the Governments
of the self-governing Dominions; the Prime Minister
of the United Kingdom was to be President ex-
officio, and the Prime Ministers of the Dominions
and the Colonial Secretary were to be ex-officio
members. Firm insistence by Canada and Australia
upon conferences between Governments and not
between the Colonial Office and the Dominions
met with success, as was inevitable. The resolution
was a notable step in constitutional development. 8
The Conference of 1911 was summoned under
the arrangements approved in 1907. In 1915, the
Conference was postponed by reason of the war.
It was summoned again in 1917 and in 1918; refer-
ence will be made later to important developments
which the war brought about in those years; and
FROM CONFEDERATION TO THE WORLD WAR 61
resolutions other than those relating to the con-
stitution of the conferences will be alluded to, as
far as may be necessary, in connection with subjects
to which they are relevant.
In the discussion of executive competence it is
important to examine the status and functions of
the Governor General. Before 1848 he was re-
garded as an Imperial officer responsible primarily
to the British Government through the Colonial
Office. With the progress of responsible govern-
ment, there came a necessary change in his relation
to the administration of public affairs.
In Canada this relation is the same in all
essential respects as that of the King in Great
Britain. The administration of public affairs is
conducted by Ministers responsible to Parliament,
and the Governor General acts by their advice. 9
By convention, his appointment is subject to the
approval of the government of the day, and his
functions as an Imperial officer are formal rather
than real : his office as representative of the Crown
exhibits the constitutional unity of the Empire.
The development which has led to this result has
been gradual but certain, and it has necessitated
at times a firm stand by Canadian statesmen.
Among the many great public services of the
late Hon. Edward Blake, a distinguished graduate
of this University, for many years its Chancellor,
62 CONSTITUTIONAL DEVELOPMENT
was his success in procuring a most important
modification of the Governor General's Instruc-
tions. In 1876, a despatch from the Colonial
Secretary (Lord Carnarvon) explained a proposal
to issue permanent Letters Patent and Instructions,
to which the Commissions to be issued to successive
Governors General would refer. Under the previous
practice a special Commission and Instructions
had been issued on each appointment. The form
of permanent Instructions proposed was of an
extraordinary character and apparently a reversion
to the Crown Colony type. 10 There were clauses
providing that the Governor General should preside
at meetings of Council; that he might dissent from
the opinion of the major part, or of the whole
thereof, in executing his " powers and authorities";
and that he should consult the Council except when
in his judgment Her Majesty's service would
sustain prejudice by such consultation, or when the
matters were very urgent or unimportant. In
capital cases the Governor was to receive the
advice of Ministers, but he was to extend or with-
hold pardon and reprieve according to his own
deliberate judgment, whether the members of
Council concurred or not. 11 It was apparent that
the wisdom of the Colonial Office had not increased
with years. Mr. Blake, then Minister of Justice,
visited England in 1876, and secured an entirely
new form of Instructions, which was issued in 1878,
and in which the only provision that the Governor
FROM CONFEDERATION to THE WORLD WAR 63
General might act except on the advice of Ministers
related to the exercise of the pardoning power,
viz.: that in any case in which a pardon or re-
prieve might directly affect the interests of the
Empire, or of any country or place beyond the
jurisdiction of the Dominion Government, the
Governor General should take those interests
especially into his own personal consideration in
conjunction with the advice of the Ministers. 12
It was an important feature of the British North
America Act that the power to disallow Provincial
Acts, or to refuse assent to those reserved by a
Lieutenant Governor, was vested in the Canadian,
and not in the British Government. 13 There was
more than one reactionary attempt by the Colonial
Office to usurp this authority. 14 In 1869, the
Governor General (Sir John Young) informed the
Colonial Secretary of his view that it should be
exercised upon the advice of the Privy Council of
the Dominion, and he requested specific instruc-
tions. In reply, Lord Granville emphasized the
duty of the Governor General as an Imperial
officer, and directed him to exercise his own judg-
ment, even against the advice of Ministers, in
case a Provincial enactment was in his opinion
"gravely unconstitutional or ultra vires or objec-
tionable on grounds of Imperial policy." If, how-
ever, Ministers advised disallowance of any Pro-
vincial Act, as illegal or unconstitutional, he
should follow that advice. Subsequently in 1873,
64 CONSTITUTIONAL DEVELOPMENT
the Colonial Secretary (Lord Kimberley), thus
instructed the Governor General as to certain Acts
of the New Brunswick Legislature: "This is a
matter in which you must act on your own indi-
vidual discretion, and on which you cannot be
guided by the advice of your responsible Ministers."
In 1875, the Canadian Government, by Minute of
Council, took direct issue on this question, and
affirmed that the Governor General in such cases
must act upon the advice of Ministers. Lord
Carnarvon, who had succeeded as Colonial Secre-
tary, was not inclined to accept this view; and in
December, 1875, Mr. Blake, then Minister of
Justice, in an elaborate report, approved by Minute
of Council, again asserted the Canadian position.
Further communications from Lord Carnarvon
were met by Mr. Blake with equal firmness. 15 The
Canadian position was maintained, and the view
advanced by the Colonial Office may be regarded
as having been definitely abandoned.
In discussing legislative competence it is not
my purpose to attempt any examination of the
numerous questions which have arisen upon the
construction of the British North America Act in
its distribution of legislative authority between the
Dominion and Provincial Governments; but there
are other aspects in which the subject must be con-
sidered. The Act provides that the Governor
FROM CONFEDERATION TO THE WORLD WAR 65
General may assent to any bill, or that he may
reserve it for the signification of the Queen's
pleasure; that in case he assents to a bill, the
Queen in Council may within two years disallow
the Act, and such disallowance shall annul the Act
from the date of signification thereof by the
Governor General; and that any bill reserved for
the signification of the Queen's pleasure shall not
have force unless within two years the assent of
the Queen in Council is signified.
It appears that but one Act of the Dominion
Parliament has been disallowed. It was passed in
1873, and empowered any committee of the Senate
or House of Commons to examine witnesses upon
oath when so authorized by resolution. There was
confusion of opinion as to the competency of
Parliament to enact it. The law officers of the
United Kingdom eventually advised that the
Act was ultra vires, and it was accordingly dis-
allowed for that reason and not upon considera-
tions of policy. 16 Disallowance of either Dominion
or Provincial legislation on this ground is practi-
cally obsolete. Such questions are properly for
the Courts. Several Acts, however, have been
reserved, and some of them have not gone into
operation as they did not receive the assent of
the Queen in Council. For example, an Act of
1868, reducing the salary of the Governor General
from 10,000 to 6,500, was so reserved, and
failed to receive the assent of the Queen in Council.
5
66 CONSTITUTIONAL DEVELOPMENT
Probably this course was taken with the consent,
if not at the instance, of the Canadian Govern-
ment. The power of disallowance has not been
exercised by the British Government for more
than fifty years, and while it still has a legal
existence, it may be regarded as constitutionally
dead. Similarly the power of reservation has been
little used in recent practice, as a suspending
clause is usually inserted in any measure, the pro-
visions of which require negotiation with the
British Government or further consideration or
action by the Dominion Government before they
may properly become operative. 17
An important question arose in 1889 with
respect to legislative competence in regard to copy-
right. The Dominion Act of 1889, which with
minor modifications in form, but not in principle,
found place as Part II of the Copyright Act,
Revised Statutes, 1906, Chapter 70, contained a
provision that it should not go into force until
proclaimed by the Governor in Council. The con-
currence of the Government of the United Kingdom
was considered necessary, because the Act dealt
with a subject on which Imperial legislation extend-
ing to all the British Dominions had been enacted
before Confederation. 18 Sir John Thompson's report
to Council, dated August 3, 1889, pointed out that
the copyright system then in force under Imperial
and Canadian legislation had been found most un-
suitable to Canada. 19 In examining the long and
FROM CONFEDERATION TO THE WORLD WAR 67
somewhat irritating correspondence which ensued
between the Canadian Government and the
Government of the United Kingdom, one observes
in the attitude of the Copyright Association and of
the British Society of Authors the old theory of
colonial subordination. This is not surprising, as
their representative seems to have been less in-
telligent than aggressive. Sir John Thompson en-
countered a remarkable and unfortunate lack of
vision and comprehension on the part not only of
the Colonial Office but of the entire British Govern-
ment. Under the inspiration of interested organiza-
tions in Great Britain, they evinced a spirit very
similar to that which had induced the protest
against Canadian fiscal legislation. British minis-
ters from 1889 to 1894 seemed either incapable of
appreciating or unwilling to accept constitutional
realities reluctantly recognized by their predecessors
in 1859. Against the constitutional right of Canada
they set up the legal power of the British Parlia-
ment, and their attitude was distinctly reactionary.
After Sir John Thompson's death domestic con-
troversy on political questions of absorbing interest
caused the copyright question to lapse into the
background. Mr. Keith, 20 in his discussion of it,
concludes that the legal power was in the British
Parliament, but that the constitutional right was
undoubtedly with Canada. ' ' His [Sir John Thomp-
son's] constitutional claim could not possibly have
been resisted for a moment, if seriously examined.
68 CONSTITUTIONAL DEVELOPMENT
To insist that Canada should conform her copyright
legislation to that of the United Kingdom, merely
to please the publishers in the latter, was constitu-
tionally a monstrous doctrine, nor can it be won-
dered that the Minister described the state of the
law as odious and unjust." 21 A few years later
the British publishers and authors realized that
their attitude might eventually prove detrimental
to their own interests. Upon further consideration
of the question at a conference held in London in
1910 (under the arrangement for subsidiary con-
ferences, arrived at in 1907), it was finally deter-
mined that, with respect to copyright, the Domin-
ions must be free to legislate as they saw fit.
Accordingly the Imperial Copyright Act of 1911
repeals the enactments against which Thompson
protested, and does not itself extend to any Dom-
inion unless declared by the legislature thereof to
be in force therein; and such legislature may at
any time repeal any enactments relating to copy-
right passed by the Imperial Parliament, including
the Act of 1911, so far as operative within that
Dominion. Thus the principle for which Thompson
contended so long and so forcibly was eventually
recognized and established, as, in the very nature
of things, it was bound to be. 22
The power to legislate respecting naturalization
has been attended with less controversy. Pre-
vious to 1914 there was provision in the United
Kingdom and in each Dominion for the naturaliza-
FROM CONFEDERATION TO THE WORLD WAR 69
tion of aliens; but such naturalization, when ob-
tained in a Dominion, had no effect outside the
country in which it was granted. Thus a person
naturalized in a Dominion was in the United
Kingdom an alien. The subject was discussed at
the Imperial Conference in 1907, and again in 1911.
Much negotiation took place subsequently between
the Government of the United Kingdom and the
Governments of the Dominions. In the end an
arrangement was reached, and in 1914 an Act was
passed by the Parliament of the United Kingdom,
providing for the issue by the Secretary of State
of a certificate of naturalization to an alien on
proof of five years' residence and the fulfilment of
certain conditions as to character and other requi-
sites. To preserve the autonomous authority of
each Dominion, it was declared that these pro-
visions are not to have force within any Dominion
unless adopted by its legislature. They were so
adopted in Canada in 1914. The naturalization
thus granted takes effect in all parts of the Empire
that have adopted the Act. Under its terms, local
naturalization has the same effect as heretofore
but the Canadian statute providing therefor has
been repealed.
With regard to merchant shipping, however,
there has been much confusion and no little con-
troversy concerning the legislative powers of Dom-
inion Parliaments. The British Act of 1854 was
revised and consolidated in 1894. In the meantime
70 CONSTITUTIONAL DEVELOPMENT
certain enactments of the Canadian Parliament
had been validated by Imperial legislation, such
validation being regarded as necessary in so far as
the Canadian legislation was inconsistent with the
Act of 1854. Apparently this situation was not
taken into account when the Parliament of the
United Kingdom passed the Act of 1894, which
repealed the Act of 1854 and all amendments
thereto. The subject was discussed at the Imperial
Conference of 1911, and Mr. Brodeur, then Cana-
dian Minister of Marine and Fisheries, pointed out
the difficulties. Sir Joseph Ward had moved a
formal resolution demanding that wider legislative
powers should be entrusted to the self-governing
Dominions with respect to British and foreign
shipping. Sir Wilfrid Laurier took the ground that
by the British North America Act Canada had
received plenary power to legislate in such matters.
In the end Canada and New Zealand voted for the
resolution and the other four parties at the Con-
ference abstained. The questions raised are by
no means free from difficulty, and it is apparent
that further confusion and controversy will ensue
and continue unless the whole question is con-
sidered from every point of view, and a definite
agreement reached as to the conditions and limita-
tions governing the exercise of legislative power
by the United Kingdom and by each of the Dom-
inions with regard to the subject.
The incidents relating to the exercise of legisla-
FROM CONFEDERATION TO THE WORLD WAR 71
tive authority in connection with military and
naval defence will be considered in a subsequent
lecture. For the present it is sufficient to say that
during the period in question the legislative com-
petence of the Canadian Parliament in this respect
was fully recognized.
The Canadian people accomplished Confedera-
tion by means of a statute enacted at their instance
by the Parliament of the United Kingdom. Neces-
sary amendments have been effected by subsequent
Acts passed by that Parliament upon joint resolu-
tion of the Senate and Commons of Canada, and
no such amendment has been refused. Thus the
legal powers of the Parliament of the United King-
dom have been utilized as a convenient means of
effecting constitutional amendments. Doubtless
the Canadian Parliament would hesitate to pass
any such resolution if its effect could properly be
regarded as a violation of the original compact
between the Provinces. In any such case it would
be proper, and indeed necessary, to obtain the
consent of every Province affected by the proposed
amendment.
With the material growth and constitutional
development of the oversea nations the Parliament
of the United Kingdom has ceased to be an Imperial
Parliament in any real sense so far as the Dominions
are concerned. Its legal power is subject to the
limitations of constitutional right. Theoretically
it has power to impose direct taxation or compul-
72 CONSTITUTIONAL DEVELOPMENT
sory military service upon the people of any
Dominion; constitutionally and practically it pos-
sesses no such right or authority. The exercise of
any power contrary to established or developing
conventions would have legal sanction, but would
not be respected, and in the end could not be en-
forced. In practice the position is becoming toler-
ably clear; in theory there remains a singular
anomaly. Apprehensions may be quieted if we
remember that under our system of government
many such anomalies may be observed. The
King's veto is legally existent but constitutionally
dead. Effective administration of public affairs
would be impossible if any instrument of govern-
ment should continually exercise its legal powers
to the legal limit.
In considering international relationships we
find an impressive development with respect to the
negotiation of commercial and other treaties speci-
ally affecting Canadian interests. The present
status was reached in successive stages of a long
journey. In 1870 (March 16), Mr. Huntington,
in the Canadian Commons, moved a resolution
declaring, inter alia, that great advantage would
result from placing the Government of the Dom-
inion in direct communication with the several
states that might be willing to negotiate com-
mercial arrangements. On March 21, Sir A. T.
FROM CONFEDERATION TO THE WORLD WAR 73
Gait moved an amendment, which in this respect
was substantially the same as the original resolu-
tion. After considerable debate an amended
resolution was adopted declaring that any attempt
to enter into a treaty with a foreign power without
the strong and direct support of the Mother
Country as the principal party must fail. Events
of later years have by no means borne out this
view.
With much misgiving, and not a little reluctance,
Sir John Macdonald in 1871 became one of the
British commissioners at the conference that
resulted in the Treaty of Washington. Many
questions were involved, some of the widest Im-
perial concern, others having direct relation to
Canada alone. The British commissioners were
Lord de Grey, Sir Stafford Northcote, Lord Tenter-
den, and Mr. (later Sir) Montague Bernard. The
inner history of the conference, as detailed by Sir
John Macdonald, is not pleasant reading. 23 He
was much concerned at the apparent disposition
of the British commissioners to make concessions
at the expense of Canada in order to bring about
a more advantageous settlement of the difficulties
in which the Government of the United Kingdom
had become involved. The Treaty of 1818, relating
to the Inshore Fisheries of Canada, had been
carried into effect by an Imperial Statute (59
Geo. Ill, cap. 38). When Macdonald stoutly
maintained Canadian interests, Lord Tenterden
74 CONSTITUTIONAL DEVELOPMENT
suggested that this statute might be repealed and
Canada left helpless. According to Macdonald's
report, 24 the British commissioners seemed to have
only one thing in their minds: "to go home to
England with a treaty in their pockets settling
everything, at no matter what cost to Canada."
At one time he contemplated withdrawing from
the Commission, but refrained by reason of the
grave results that would follow. 25 He found it
difficult, if not impossible, to make the Americans
understand that the Government of the United
Kingdom had "no dispensing power as a paramount
authority which would override any action of the
Canadians. When Lord de Grey tells them that
England is not a despotic power, and cannot control
the Canadian Parliament when it acts within its
legitimate jurisdiction, they pooh-pooh it alto-
gether." 26 Sir John seemed to have been perplexed
throughout as to his duty: on the one hand he was
Prime Minister of Canada; on the other, he was a
British commissioner, and thus supposed to act
under instructions from the British Government.
In the course of his insistent struggle with the
British commissioners, he appealed to the Home
Government on one important point, and on April 5,
he wrote: "The Home Government has backed me
in a satisfactory manner, and given me rather a
victory over my colleagues." 27
In 1874, the Hon. George Brown, at the instance
of the Canadian Government, was officially associ-
FROM CONFEDERATION TO THE WORLD WAR 75
ated with Sir Edward Thornton, British Ambassa-
dor at Washington, for the purpose of negotiating
a treaty of commerce between Canada and the
United States.
Late in 1878, Sir A. T. Gait was commissioned to
undertake negotiations with Spain, and afterwards
with France, for better commercial relations. Lord
Salisbury was careful to say that they must be
conducted by the British Ambassador in each
instance.
In 1878, the Canadian Government desired
to appoint Sir A. T. Gait High Commissioner for
Canada in London and applied to the British Govern-
ment to have him appointed a Commissioner when
treaties were being negotiated in which Canada
was interested. The Secretary of State for the
Colonies (Sir Michael Hicks-Beach) made the
following cavalier reply:
"I have to inform you that it is not thought desirable to
appoint a Canadian Commissioner to take part in the negotiation
of any treaty, but if your Government desire to send a person en-
joying their confidence to advise with Her Majesty's Government,
or with the British Ambassador, on any questions that may arise
during the negotiations, Her Majesty's Government will be happy
to give attention to his representations." *
This short-sighted view soon passed into the
desuetude to which equally narrow opinions of
earlier days have been consigned.
Sir Charles Tupper, who succeeded Sir A. T.
Gait as High Commissioner, contributed in great
measure to this result. As Canadian representative
76 CONSTITUTIONAL DEVELOPMENT
at the international congress for the protection of
submarine cables in 1883, he took a very indepen-
dent position. 29
In 1884, he obtained fuller recognition of
Canada's status in negotiating treaties with foreign
countries. This right was recognized in a letter
from the Foreign Office, dated July 26, 1884, con-
taining the following extract:
" If the Spanish Government are favourably disposed, the full
power for these negotiations will be given to Sir Robert Morier and
Sir Charles Tupper jointly. The actual negotiations would probably
be conducted by Sir Charles Tupper, but the convention, if con-
cluded, must be signed by both plenipotentiaries." 80
Mr. Bayard, Secretary of State of the United
States, in correspondence with Sir Charles Tupper
in 1887, spoke of the difficulties which had arisen
over the treaty of 1818, and used the following
language :
"In the very short interview afforded by your visit I referred
to the embarrassment arising out of the gradual practical emancipa-
tion of Canada from the control of the Mother Country and the
consequent assumption by that community of attributes of auto-
nomous and separate sovereignty, not, however, distinct from the
Empire of Great Britain. The awkwardness of this imperfectly
developed sovereignty is felt most strongly by the United States,
which cannot have formal relations with Canada, except directly
as a Colonial dependency of the British Crown, and nothing could
better illustrate the embarrassment arising from this amorphous
condition of things than the volumes of correspondence published
severally this year relating to the fisheries by the United States,
Great Britain and the Government of the Dominion. The time
lost in this circumlocution, although often regrettable, was the
least part of the difficulty, and the indirectness of appeal and reply
was the most serious feature, ending, as it did, very unsatisfactorily."
FROM CONFEDERATION TO THE WORLD WAR 77
He expressed the expectation that Sir Charles
Tupper would be appointed plenipotentiary of
Great Britain in the negotiations with the United
States, and deplored the delay occasioned by the
roundabout manner in which the correspondence
on the fisheries had been conducted. 31 In reply,
Sir Charles Tupper agreed that direct personal
communication would save valuable time, and
render each side better able to comprehend the
needs and the position of the other. Mr. Chamber-
lain, Sir Lionel Sackville-West, and Sir Charles
Tupper were appointed plenipotentiaries, and in
1888 they succeeded in negotiating a treaty re-
specting the Atlantic Fisheries which the United
States Senate declined to ratify. Sir Charles
Tupper took a leading part in the negotiations.
In 1891, the Parliament of Canada by address
of both Houses 32 prayed Her Majesty to take such
steps as would be necessary to denounce and
terminate the provisions in the treaties with the
German Zollverein and the Kingdom of Belgium,
the effect of which was to prevent the British
Colonies from granting lower rates of customs
duties on goods the produce of the United Kingdom
than those imposed on similar goods the produce
of Belgium and Germany. It was declared that
the treaties were incompatible with powers vested
in the Parliament of Canada, and that their con-
tinuance tended to produce complications and
embarrassments, as the self-governing Colonies
78 CONSTITUTIONAL DEVELOPMENT
possessed the constitutional right to define their
respective fiscal relations to all foreign nations, to
the Mother Country, and to each other. In reply,
the Colonial Secretary (Lord Knutsford) pointed
out certain difficulties which, in his opinion, would
ensue from the proposed action, and no step was
taken.
In 1892, Sir Charles Hibbert Tupper, in co-
operation with the British Ambassador at Washing-
ton, conducted the negotiations which resulted in
the Behring Sea Treaty. He also acted as the
British agent in the subsequent arbitration at
Paris in 1893.
A commercial convention between Canada and
France was negotiated by Sir Charles Tupper in
1892-1893. The British Ambassador at Paris
(Lord Dufferin) was formally associated with him
for the purpose, but the actual negotiations were
conducted by Sir Charles.
At the Colonial Conference of 1894, the follow-
ing resolutions were passed :
"That provision should be made by Imperial legislation en-
abling the dependencies of the Empire to enter into agreements of
commercial reciprocity, including power of making differential
tariffs, with Great Britain or with one another.
"That any provisions in existing treaties between Great Britain
and any foreign power which prevent the self-governing dependencies
of the Empire from entering into agreements of commercial reci-
procity with each other or with Great Britain should be removed." M
This led to an important despatch (June 28,
1895) from the Colonial Secretary (Lord Ripon)
FROM CONFEDERATION TO THE WORLD WAR 79
to Canada and the Australian Colonies. He ex-
pressed the view that the power of negotiating
treaties without reference to the British Govern-
ment would give the Colonies an international
status as separate and sovereign states, and would
result in breaking up the Empire. Therefore, such
negotiations must be conducted by His Majesty's
representatives at the Court of the foreign power,
but such representatives should have the assistance
of a Colonial representative, either as a second
plenipotentiary or in a subordinate capacity. He
declared, inter alia, that any tariff concessions by
a Colony to a foreign country must be extended to
Great Britain and the rest of the Empire.
In 1897, the tariff introduced by Mr. Fielding
provided for preferential treatment of the products
of the United Kingdom. There was much debate
as to the effect of such provisions, but finally the
law officers of the Crown in Great Britain gave a
formal opinion that the effect of the treaties with
Germany and Belgium was to grant to those
countries the same preferences as those provided
in the new Canadian tariff for the products of the
United Kingdom. By reason of many treaties
containing the "most favoured nation" clause, it
followed that the preference thus granted to
Germany and to Belgium must also be accorded
to nearly every nation in the world.
At the Colonial Conference of 1897, the follow-
ing resolution was passed:
80 CONSTITUTIONAL DEVELOPMENT
"That the Premiers of the self-governing Colonies unanimously
recommend the denunciation, at the earliest convenient time, of
any treaties which now hamper the commercial relations between
Great Britain and her Colonies." M
The British Government accordingly gave notice
to Germany and Belgium that the treaties would
be denounced at the expiration of one year. The
notice of denunciation declared that treaties con-
taining such provisions were not in the interest of
the Empire as a whole. Thus the treaties came to
an end at the expiration of the year, but in the
meantime an informal arrangement was effected
between Great Britain and Germany by which the
provisions of the treaty, notwithstanding its de-
nunciation, should continue to apply to all the
Empire, with the exception of Canada. * 5 This
arrangement seemed wholly inconsistent with the
ground advanced for the denunciation. 86
In 1898, as a result of negotiations between the
Government of Canada and the Government of
the United States, a joint High Commission was
appointed to negotiate with the United States a
treaty or treaties covering certain questions, some
of which had special relation to Canadian interests.
In addition to Lord Herschel, who represented the
British Government, there were three Canadian
commissioners: Sir Wilfrid Laurier, Sir Richard
Cartwright, and Sir Louis Davies. The negotia-
tions proved abortive. In 1903 the Alaskan
boundary treaty was negotiated under the direction
FROM CONFEDERATION TO THE WORLD WAR 81
of the Canadian authorities, although the British
Ambassador at Washington acted as plenipo-
tentiary. In the subsequent arbitration, Sir Clif-
ford Sifton, then Minister of the Interior, was
appointed British agent. Mr. Fielding and Mr.
Brodeur in 1907 negotiated a commercial conven-
tion between Canada and France, and in 1909 a
supplementary convention.
The treaty of 1909 (promulgated February 2,
1912) relating to boundary waters and questions
arising between the United States and Canada,
was signed by Mr. Root on behalf of the United
States and by Mr. (now Lord) Bryce as British
Ambassador at Washington. Mr. Root also con-
ducted the negotiation of this highly important
treaty on behalf of the United States; while the
negotiation on behalf of Canada was carried on by
Sir George Gibbons (in co-operation with Mr.
Bryce) under the direct supervision of Sir Wilfrid
Laurier as Prime Minister. I doubt whether there
has been in either country a full appreciation of the
notable advance which the treaty effected in pro-
viding for the friendly determination of boundary
questions. It created a tribunal of six commis-
sioners, three appointed by the President of the
United States, and three by the King on the recom-
mendation of the Governor in Cduncil. In addition
to the provisions relating to boundary waters, it is
declared, by Article 9, that any other questions or
matters of difference involving the rights, obliga-
82 CONSTITUTIONAL DEVELOPMENT
tions, or interests of either country, or of the in-
habitants thereof, along the common frontier, shall
be referred to the Commission for examination and
report whenever either Government shall request
such reference. The report in such case is not to
have the character of an arbitral award, and in
certain cases separate reports may be made by each
section of the Commission to its own Government.
Article 10 contains still wider provisions, which,
however, can only be invoked on the part of the
United States with the consent of the Senate, and
on the part of Canada with the consent of the
Governor in Council. It is a remarkable but most
useful provision of this treaty that any interference
with or wrongful diversion of waters on either side
of the boundary, resulting in any injury on the
other side of the boundary, shall give rise to the
same rights and entitle the injured parties to the
same legal remedies as if such injury took place
in the country where such interference or diversion
may occur. During the past nine years the Com-
mission has had under consideration many ques-
tions of the highest importance, and in every case
its decisions were probably more satisfactory, and
certainly more expeditious, than could have been
reached by ordinary diplomatic action.
In 1910 direct negotiations were successfully
conducted by Canadian representatives with the
United States Government in order to obtain for
Canada the minimum rates under the Payne tariff.
FROM CONFEDERATION TO THE WORLD WAR 83
Sir Joseph Pope, Under Secretary of State for
External Affairs, negotiated with the Government
of the United States in 1911 a convention respect-
ing pelagic sealing.
The tariff negotiations at Washington in 1911
illustrated two points. In the Governor General's
speech at the commencement of the session, refer-
ence was made to the desirability of more equitable
tariff arrangements between the United States and
Canada. Then followed this significant passage:
"Following the negotiations which took place some months
ago between the President of the United States and my Govern-
ment, the results of which were at the time communicated to
Parliament, a further conference between representatives of the
two countries has been held at Ottawa." l7
It was a negotiation between the Government
of Canada and the Government of the United
States. Lord Bryce, then British Ambassador at
Washington, seems to have taken no part therein,
except to give the conventional introduction of the
Canadian representatives to the Government of
the United States; the negotiations were entirely
conducted by the two Canadian Ministers. The
principle laid down in the 13th paragraph of the
Colonial Secretary's despatch of June 28, 1895,
was not strictly adhered to. 88 Mr. Fielding an-
nounced that the favourable treatment accorded
to products of the United States would be extended
to the products of the Empire and to certain
nations entitled thereto by treaty. But the favour-
84 CONSTITUTIONAL DEVELOPMENT
able treatment accorded by the United States to
Canadian products was not to extend to the rest
of the Empire. In the debate which took place in
the British House of Commons on February 8 and
9, 1911, this was recognized by Mr. Asquith in the
following words:
"It is quite true that owing to the reductions which this agree-
ment provides for, certain commodities going from Canada will
enter into the United States upon lower terms than corresponding
commodities imported from this country. Mr. Bryce pointed that
out to the Canadian negotiators in the course of the negotiations." "
Mr. Keith expresses the opinion that while
plenipotentiaries of the Dominions to represent
them at international conventions may properly
be appointed, each appointment should be upon
the advice of the Imperial Government although
upon the nomination of the Dominion Government ;
otherwise he considers that the Crown would cease
to be an element of unity. He proceeds as follows :
"Moreover, the observance of these forms would avoid the dis-
advantages which now arise from attempts at separate treaty-
making, such as that of the Canadian Ministers in 1911, whose
action, had it been ratified by the Parliament of Canada, would
have undoubtedly tended to diminish the unity of the Empire, and
perhaps ultimately to destroy that unity altogether." 40
Mr. Keith writes under the impression (probably
unfounded) that the British Ambassador assisted
in the Reciprocity negotiations. 41 From that
standpoint the criticism of method does not seem
to be justified. In several previous instances the
same course had been followed in the negotiation
of commercial treaties.
FROM CONFEDERATION TO THE WORLD WAR 85
While Lord Bryce was Ambassador at Wash-
ington many treaties touching Canadian interests
were negotiated through him by the Canadian
Government. In addition to those otherwise
mentioned there were the International Boundary
Treaty of 1908, the Convention for Protection
of Food Fishes in the same year, the Treaty
respecting the Conveyance of Persons in Custody
and respecting Wrecking and Salvage, and the
treaty respecting the boundary in Passamaquoddy
Bay. Canadian interests were also affected by
the Pecuniary Claims Treaty. 42
At the Imperial Conference of 1911, Sir Wilfred
Laurier moved the following resolution:
"That His Majesty's Government be requested to open negotia-
tions with the several Foreign Governments having treaties which
apply to the Overseas Dominions with a view to securing liberty
for any of those Dominions which may so desire to withdraw from
the operation of the treaty without impairing the treaty in respect
of the rest of the Empire." 43
The discussion was adjourned, and upon its re-
sumption he answered effectively the criticism that
the proposal would destroy the principle of com-
mercial unity within the Empire, pointing out that
for many years Great Britain in negotiating com-
mercial treaties had reserved to the Dominions the
right to accede or refrain from acceding thereto. 44
His proposal, which was unanimously accepted, fol-
lowed naturally the action taken upon the initiative
of the Canadian Government at the Conference of
1897 to denounce the German and Belgian treaties.
86 CONSTITUTIONAL DEVELOPMENT
At the Conference of 1911, it was also resolved
that the Dominions should be consulted respecting
the instructions to British delegates at future meet-
ings of the Hague Conference, and that when time,
opportunity, and the subject matter permitted,
similar procedure should, as far as possible, be fol-
lowed when preparing instructions for the negotia-
tion of other international agreements affecting the
Dominions. The qualification greatly minimized
the value of the resolution, and surprise has been
expressed that it should have been accepted by
the Dominions. 45
On September 15, 1914, a very important treaty
was signed between the British Empire and the
United States. It declares that all disputes between
the high contracting parties, other than disputes
the settlement of which is already provided for,
shall, when diplomatic methods of adjustment have
failed, be referred for investigation and report to
a permanent International Commission, and that
war shall not be declared or hostilities begun during
such investigation or before the Commission shall
have reported. The five members of the Commis-
sion are appointed as follows: each government
chooses one member from its own country, and one
member from some third country; the fifth member
is chosen by agreement of the two governments. In
case the British interests affected are mainly those
of some one or more of the self-governing Do-
minions, the member chosen from the British
FROM CONFEDERATION TO THE WORLD WAR 87
Empire may be selected from the Dominion
principally interested. Before this treaty was
signed, and during its negotiation, the self-govern-
ing Dominions were consulted as to its terms, which
received their approval.
Questions having arisen between Canada and
the United States with regard to the fisheries on
both the Pacific and Atlantic coasts, Sir Douglas
Hazen, formerly Canadian Minister of Marine and
Fisheries, and the Hon. William C. Redfield,
Secretary of Commerce of the United States, were
appointed Commissioners by their respective
Governments in December 1918, to make a joint
inquiry. Two permanent officials of each Govern-
ment were also members of the Commission. As
one of the results of the inquiry, a treaty recom-
mended by the two Commissioners, and having for
its object the preservation of the Pacific Coast
fisheries, was signed by Sir Douglas Hazen and
Sir Auckland Geddes on behalf of Canada. It has
not been ratified by the United States, and thus
the necessary legislation to enforce it has not been
enacted.
Other developments during the war with respect
to the negotiation of treaties will be considered in
the concluding lecture.
The foreign policy of the British Government
has been largely directed, not by the Cabinet as a
whole, but by the Prime Minister and the Foreign
Secretary. It does not appear that their colleagues
88 CONSTITUTIONAL DEVELOPMENT
were consulted except upon questions of great
moment. Probably a Foreign Minister would have
been shocked at the suggestion of intervention or
influence from the Dominions. Although questions
touching foreign relations had occasionally come
under discussion at the Conferences from 1887 to
1911, there is no reason to suppose that the Domin-
ion representatives had been taken into the con-
fidence of the British Government with respect to
general policy or commitments. In the negotiation
of commercial treaties, in the framing of tariffs,
and in the control of immigration, each Dominion
had formulated and carried out its own policy.
It is manifest, as Mr. Jebb 46 and Mr. Hall 47 have
well pointed out, that there is an intimate con-
nection between these questions and foreign rela-
tions. In questions of "high policy" so called, it
is not apparent that the Dominions had been
informed or consulted, except in one notable
instance, when Mr. Chamberlain, in 1899, took
informal but effective steps to ascertain the attitude
of some of the Dominions with regard to impending
difficulties in South Africa.
At the Conference of 1911, Mr. Asquith speak-
ing as Prime Minister and President of the Con-
ference, laid emphasis upon the local autonomy,
"absolute, unfettered, complete," of the Dominions.
With this he coupled "loyalty to a common head,
co-operation spontaneous and unforced for com-
mon interests and purposes." 48 He decried cen-
FROM CONFEDERATION TO THE WORLD WAR 89
tralization in the governance of the Empire,
declaring that "just in proportion as centralization
was seen to be increasingly absurd, so had dis-
integration been felt to be increasingly impossible."
At the same Conference a discussion was initiated
by Sir Joseph Ward upon the expediency of
establishing an Imperial Council of State, with
representatives from all the self-governing parts
of the Empire, advisory to the Imperial Govern-
ment on all questions affecting the interests of the
Dominions. 49 As was pointed out by Sir Wilfrid
Laurier, Sir Joseph Ward's speech was not at all
germane to the resolution that he proposed. 50 No
member of the Conference supported the proposals
put forward by Sir Joseph in his speech, and none
of them seemed to favour his resolution, which he
failed to support by argument. General Botha
frankly recognized the difficulties involved, but
declared his faith in their ultimate solution. "De-
centralization and liberty," he said, "have done
wonders; let us be very careful before we, in the
slightest manner, depart from that policy. It is
co-operation and always better co-operation be-
tween the various parts of the Empire which we
want, and that is what we must always strive for." 61
The proposals outlined in the speech of Sir Joseph
Ward gave to Mr. Asquith the opportunity of
making a famous pronouncement. 62 He had little
difficulty in disposing of Sir Joseph Ward's pro-
posals; but he went so far as to affirm that, in
90 CONSTITUTIONAL DEVELOPMENT
respect of such grave matters as the conduct of
foreign policy, the conclusion of treaties, the de-
claration of war, and indeed all relations with
foreign powers, the authority of the Imperial
Government could not be shared, and must be
exercised by that Government subject only to its
responsibility to the Imperial Parliament. In this
aspect he based an argument on "our present
system of responsible Government." Apparently
he did not take into account other Parliaments,
responsible to the people of overseas nations whose
interests were directly affected by the authority
which in his judgment could not be shared. This
declaration of Mr. Asquith may be placed side by
side with that of Lord John Russell in 1837. One
declared that the principle of executive responsi-
bility to the people's representatives could not be
tolerated in the Colonies; the other affirmed that
in respect of foreign relations the principle of re-
sponsible government was of so limited application
as to debar the Dominions from any voice in such
questions however vital to their interests. The
policy propounded in either instance would tend,
if not lead, towards disruption. The Dominions
enjoy the protection of the common flag of the
Empire, a protection of inestimable value. As the
Empire cannot go to war in sections, a declaration
of war involves the Dominions. The extent of
participation rests always with the Dominion
Parliaments, but it must, at least, involve the
FROM CONFEDERATION TO THE WORLD WAR 91
protection of their territories and as far as possible
of their seaborne commerce. In view of that in-
evitable participation, how is it possible for the
Empire to endure if the Dominions are to be
without voice as to relations or commitments that
may involve them in war?
During the Conference the Dominion Ministers
were summoned to a meeting of the Imperial
Defence Committee. That body, in its then form,
had been established in 1904, and technically it
consisted of the Prime Minister of the United
Kingdom and such persons as he might summon
to its meetings. In practice the ministers re-
sponsible for the Treasury, the Admiralty, and the
Foreign, Colonial, Indian, and War Offices, together
with certain technical advisers were always sum-
moned. The responsibilities of each of these
ministers are intimately connected with the wide
problem of Imperial defence. While the Com-
mittee was only a consultative or advisory body,
it brought into close co-operation the important
departments of the British Government. One of
its sub-committees, known as the Overseas Defence
Committee, had special responsibilities in con-
nection with problems of defence beyond the
United Kingdom.
It appears from the concluding speeches at the
Conference, that in the Imperial Defence Com-
mittee the Prime Ministers of the Dominions had
been taken fully into the confidence of the British
92 . CONSTITUTIONAL DEVELOPMENT
Government with regard to foreign relations at
that time. In Mr. Asquith's eloquent phrase the
"arcana imperil' ' had been laid bare to them
"without any kind of reservation or qualification."
But his meaning was less inspiring than the elo-
quence of his phrases if his message to the Domin-
ions amounted to no more than this: "Centraliza-
tion is absurd except in foreign affairs, but there
it is absolutely essential. We must maintain the
principle of responsible government, but in those
affairs its application must be restricted to the
United Kingdom; you may gaze at the 'arcana
imperii' but in their control you shall have no
share."
In 1912, after a change of administration in
Canada, the Prime Minister of the Dominion and
four of his colleagues attended meetings of the
Committee of Imperial Defence. Among those
upon whose judgment surest reliance could be
placed there was grave apprehension as to the
purposes of Germany. The proceedings of the
Committee were of course confidential, but, as a
result, steps were taken in Canada to co-ordinate
the activities of those departments of government
upon which responsibility would fall in the event
of war. A Committee was constituted, active steps
were taken, and the work done was of immense
advantage when hostilities commenced.
On July 22, 1912, the British Prime Minister,
speaking in the House of Commons, made a state-
FROM CONFEDERATION TO THE WORLD WAR 93
ment which somewhat modified the position that
he had taken at the Conference of 1911:
"Side by side with this growing participation in the active
burdens of the Empire on the part of our Dominions, there rests
with us undoubtedly the duty of making such response as we can
to their obviously reasonable appeal that they should be entitled
to be heard in the determination of the policy and the direction of
Imperial affairs." M
In the half century which elapsed between
Confederation and the World War, constitutional
development was notable both in character and
extent. At the beginning the Governor General
in his quality of Imperial officer exercised no in-
considerable influence over certain public affairs;
at the close his functions in that character had
practically ceased. Appointed with the consent of
the Canadian Government, he had become in
effect a nominated President, invested with prac-
tically the same powers and duties in this country
as those appertaining to the King in the British
Isles. New and convenient methods of consulta-
tion had been established through periodical con-
ferences, in which at first the Dominions were re-
garded as subordinate dependencies attached to a
department of the British Government, but in
which they eventually took their places as sister
nations upon equal terms with the United King-
dom. The Dominions were originally included in
commercial treaties without much regard for their
94 CONSTITUTIONAL DEVELOPMENT
wishes or interests. Eventually no such treaty
bound them except by the expressed consent of
their Governments. At first Canada was told
somewhat brusquely that no Canadian commis-
sioner could take part in the negotiation of a
treaty affecting his country; in the end Canada
freely negotiated her own commercial treaties by
her own commissioners, without control, or inter-
ference except of a formal character. Canadians
acting as British agents represented the interests
of Canada and the whole Empire in the Behring
Sea and Alaskan Boundary arbitrations. Natura-
lization granted in Canada became effective in the
United Kingdom. Notwithstanding unfortunate
and formidable forces of reaction, the right of the
Dominion to full control of its copyright laws was
acknowledged. It was gradually realized that legal
power is over-ridden by constitutional right. The
power to disallow Canadian statutes fell into
desuetude. Canada's right to a voice in foreign
policy involving her interests as a great Dominion
of the Empire began to be recognized. Her com-
plete control over her policy in respect of military
and naval defence was acknowledged. By these
sure steps, Canada was steadily mounting to the
stately portal of nationhood.
Thus stood the relations of Canada to the
Empire in the fateful month of August, 1914.
There had arisen a truer comprehension of the ties
uniting the oversea nations and the motherland.
FROM CONFEDERATION TO THE WORLD WAR 95
At last it began to be realized that upon complete
liberty and full autonomy a unity and strength
capable of resisting the severest shock could be
established. When the day of trial came, the
response of the Dominions vindicated forever the
principle that they had consistently upheld.
THIRD LECTURE
CONSTITUTIONAL DEVELOPMENT
DURING THE WORLD WAR
AND AFTERWARDS 1
FOR many years before the outbreak of war
the German Government, through its diplo-
matic and consular service and by other
means, had made a special study of the British
Empire in almost every important aspect, with
particular attention to the extent and development
of natural resources, industrial progress, military
and naval power, and last, but not least, political
organization. However thoroughly the Germans
may have grasped other conditions, it is clear that
they thoroughly failed to comprehend the con-
stitutional relations between the British self-
governing nations; nor did they in the least realize
either the spirit or the resources of the overseas
Dominions. They believed that the political fabric
of the Empire would crumble under the shock of
war's impact; it stood firm as the everlasting hills.
Their military authorities were convinced that in
any European theatre the military power of the
Dominions might be regarded as negligible. During
the four years of war which preceded the armistice
there came into the battle line more than a million
men of unsurpassed courage, discipline, and effec-
DURING THE WORLD WAR AND AFTERWARDS 97
tiveness, to prove the falsity of the estimate; and
one Dominion (Canada) had produced in enormous
quantities, from her own resources, and by means
of her own industrial development, munitions of
war essential for the triumph of the allied cause. 2
The war brought prominently into the fore-
ground many considerations touching military and
naval defence. As early as 1862 a Canadian
Ministry had asserted, on behalf of the Canadian
Legislature, the constitutional principle established
in England by the Bill of Rights, that the raising
and maintenance of Canadian military forces was
subject to the unfettered control of the legislative
representatives of the Canadian people. 8 However,
before Confederation, and for some years after-
wards, considerable British forces were maintained
in Canada at the expense of the British Govern-
ment, and large sums had been expended by that
Government in fortifications and naval bases.
These forces were gradually withdrawn as Canada
began to assume increasing responsibility for the
defence of her own territory. In 1871 there was an
interesting debate in the Canadian Parliament
relative to the retention of Imperial forces in
Canada, and the points at which they should be
stationed. 4 During the Boer War, Canada took
over temporarily the defence of Halifax, where the
only remaining British garrison was stationed;
7
98 CONSTITUTIONAL DEVELOPMENT
and, in 1905, the offer of the Dominion to undertake,
in future, the defence of both Halifax and Esqui-
malt, was accepted, the Imperial forces being en-
tirely withdrawn. Upon the outbreak of war in
1914, the chief constitutional question that arose
related to the sufficiency of Dominion legislation for
the control and discipline of Canadian forces over-
seas. The authority of a Dominion to enact legisla-
tion effective beyond its limits had been judicially
challenged, and even denied. By Section 69 of the
Militia Act the Governor in Council is authorized
to place the militia on active service beyond
Canada for the defence thereof, whenever advisable
by reason of emergency. The officers and men
enlisted during the war became members of militia
units, and were thus subject to this provision.
Under Canadian legislation (Militia Act, Section 4)
the Army Act, the King's Regulations, and all
other relevant laws not inconsistent with Canadian
enactments and regulations, have force and effect
for the governance of the militia as if enacted by
the Parliament of Canada. The Army Act, thus
made applicable, provides (Section 177) that where
a force of militia is raised in a Colony, any law of
the Colony may extend to the officers, non-com-
missioned officers, and men belonging to such force,
whether within or without the limits of the Colony.
Thus any question as to extraterritorial jurisdiction
presented no difficulty. But at a later date there
was an important constitutional development in
DURING THE WORLD WAR AND AFTERWARDS 99
relation to the overseas control and administration
of Canadian military forces. By Order in Council
passed under the War Measures Act, the Canadian
Government, in October, 1916, established in
London a Ministry of Overseas Military Forces with
a resident Minister. This Department was charged
with the administration of military affairs overseas,
as well as with the expenditure connected therewith,
and the negotiations and arrangements incident to
that branch of the service. The first Division, which
crossed the Atlantic in the autumn of 1914, was
developing into a great army with a complex
organization whose activities began to extend into
every sphere of military action. Eventually, the
Overseas Ministry became an overseas Canadian
War Office, with an adequate staff and a system-
atic arrangement of necessary departments and
branches. After the promotion of General Sir
Julian (now Lord) Byng to Army Command, the
Canadian Corps came under the command of a
Canadian General. Military operations in the
field were under the final direction of British
General Headquarters. Apart from these, the
Canadian forces were administered as a thoroughly
autonomous body, under the primary direction of
the Overseas Ministry, with ultimate responsibility
to the Canadian Government and Parliament. As
the Commander of the Canadian Corps was re-
sponsible to a separate Government, the Canadian
Corps had an entirely different status from that
100 CONSTITUTIONAL DEVELOPMENT
of the ordinary British Corps or Army. To main-
tain effective relations with the British organiza-
tion, a Canadian section was established at British
General Headquarters in France. The relations
between the Overseas Ministry and the British War
Office, as well as those between the Canadian
section and British Headquarters, were never
strained or difficult. Good sense and a cordial
understanding enabled the system to be worked
out with perfect success on the basis of Canada's
complete autonomy in the administration of her
military forces.
Naval defence was the subject of discussion at
many of the Colonial and Imperial Conferences.
In 1909 considerable apprehension arose by reason
of the increasing strength of the German navy,
which eventually led to the concentration of
British naval forces in home waters. The Canadian
House of Commons passed a unanimous resolution
designed to promote the speedy organization of a
Canadian naval service. 5 This was followed by a
message from the Prime Minister of the United
Kingdom to the Prime Ministers of the Dominions,
inviting them to attend a Defence Conference in
July of that year. The Conference was held, and
certain conclusions were reached. As a result the
Canadian Naval Service Act was passed in 1910.
It made provision for a Canadian Naval Service;
and by Section 23 it provided that in case of
an emergency the Governor in Council might place
DURING THE WORLD WAR A
at the disposal of His Majesty, for general service
in the Royal Navy, any ships or vessels of the
Naval Service, and the officers and seamen serving
therein. In 1911, an important agreement was
concluded between the Government of the United
Kingdom and the Governments of Canada and
Australia, of which the salient features are as
follows :
1. The naval services and forces of these Dominions were to be
exclusively under the control of their respective Governments.
2. Their training and discipline were to be uniform with those of
the naval forces of the United Kingdom, and officers and men
were to be interchangeable.
3. The Canadian and Australian Governments were to have their
own naval stations, the limits of which were defined in the
agreement. Canada was to have both an Atlantic and a Pacific
station.
4. In the event of Dominion ships being despatched outside of
their respective stations the British Admiralty was to be
notified, and in case such ships were sent to a foreign port
necessary arrangements were to be made through the British
Foreign Office.
5. Where British and Dominion ships operated together the
senior officer was to take command, subject to certain condi-
tions.
6. Provision was made by which Dominion ships could take part
in fleet exercises or in any other joint training.
7. In time of war when the naval service of the Dominion or any
part thereof had been placed at the disposal of the Imperial
Government by the Dominion authorities, 6 the ships were to
form part of the British fleet, and to remain under the control
of the British Admiralty during the continuance of the war.
When war broke out little had been accomplished
in the creation of a Canadian Naval Service, and
-*< CONSTITUTIONAL DEVELOPMENT
the Dominion confined its efforts almost entirely
to military aid. 7
A proposal for centralized control of all the
naval forces of the Empire was put forward by the
Admiralty in 1918. It was based upon the following
resolution, passed by the Imperial War Conference
on March 30, 1917:
"That the Admiralty be requested to work out immediately
after the conclusion of the war what they consider the most effective
scheme of Naval Defence for the Empire for the consideration of
the several Governments summoned to this Conference, with such
recommendations as the Admiralty consider necessary in that
respect for the Empire's future security."
Detailed reasons were set forth by the Admiralty
in favour of a single navy under the control of an
Imperial naval authority both in peace and war.
Upon such Imperial naval authority the Dominions
were to be represented, and there were to be local
Naval Boards in each Dominion. The proposal
involved a number of details, upon which it is not
necessary to dwell. Considering the proposal im-
practicable, the Dominion ministers found them-
selves unable to accept it. 8
The result of discussions in the Imperial and
subsidiary conferences on naval defence has been
more valuable in the constitutional than in the
practical aspect. Whether in peace or war the
freedom of the seas is essential to the unity and
security of the Empire; it is also essential to the
prosperity and development of Canada so far as her
products must seek markets abroad. Incidents of
DURING THE WORLD WAR AND AFTERWARDS 103
the late war should give Canadians an object lesson
in this regard; but, not unnaturally, there is diffi-
culty in gaining the true perspective. For this
purpose a comprehension of our probable expendi-
ture as a separate nation would be useful. The
present situation may be summarized as follows:
each Government or Parliament determines for
itself upon the advice of its Naval Department, and
subject to the limitations of public opinion, the
extent of its naval programme. In the United
Kingdom that programme must be measured by
the extent of world-wide responsibilities. Until
the Dominions participate more fully and effec-
tively in directing foreign policy it is improbable
that this wider consideration will appeal strongly
to their people.
By reason of important developments during
the war, the discussion of control over immigration
has been reserved for this lecture. It has been the
subject of many legislative enactments in Canada,
and the Dominion has at all times vigorously as-
serted its right to such control. On some occasions
there have been attempts by Provincial Legislatures
to exercise, either directly or indirectly, a like
jurisdiction; and several Acts of the Province of
British Columbia were disallowed between 1896
and 1911, on the ground that they violated treaty
obligations to Japan. The strong feeling against
104 CONSTITUTIONAL DEVELOPMENT
unrestricted Chinese immigration in the early years
of Confederation led to enactments, still in force,
that impose severe restrictions on persons of
Chinese origin entering Canada. Among other
restrictions, a head tax of $500 has been enforced
for many years; and Chinese immigrants are
also subject to restrictions imposed by the general
immigration Acts. In consequence of a great in-
crease in Japanese emigration to British Columbia,
Mr. Lemieux, then Postmaster General and Minis-
ter of Labour, visited Japan in 1908. Apparently
he did not make great progress until he had secured
the support of the British Ambassador; but eventu-
ally an understanding was reached, under which
the Japanese Government undertook to restrict
emigration from Japan to Canada within certain
limits. It is believed that the understanding thus
reached has been faithfully observed by the
Japanese Government.
The enactments now in force are largely based
upon the Statute of 1910, which applied not only
to immigrants from foreign countries but to those
from the United Kingdom or other British Domin-
ions. It established a long list of prohibited classes,
which has been enlarged by subsequent legislation.
Very wide powers are conferred upon the Governor
in Council to extend such prohibitions from time
to time, whenever it may be deemed necessary or
expedient. This authority has been exercised on
many occasions, notably by prohibiting the en-
DURING THE WORLD WAR AND AFTERWARDS 105
trance of any immigrant who has come to Canada
otherwise than by continuous journey, and by for-
bidding the entrance of artisans or labourers at
designated ports in British Columbia.
Restriction of immigration from other parts of
the Empire, and especially from India, has re-
peatedly given rise to both irritation and misunder-
standing. The question is essentially one of
economic concern, and does not depend so largely
as has been imagined upon differences of race and
social usage. At the Imperial Conference of 1897
Mr. Chamberlain raised a discussion on the subject.
It was again discussed at the Imperial Conference
of 1911, the topic having been introduced by Lord
Crewe, then Secretary of State for India. Taking
as his text a memorandum circulated among the
members of the Conference, he frankly admitted
the right of the self-governing Dominions to decide
for themselves whom they would admit as citizens,
but he pointed out that Indian agitators made
mischievous use of restrictions against immigration
from that country. Sir Wilfrid Laurier, while
agreeing with Sir Joseph Ward 9 that each Dominion
was most anxious to avoid anything which would
impair the loyal spirit of the native population of
India, or which would place difficulties in the way
of the British Government, made it clear that the
immigration of Asiatic people accustomed to a
lower standard of living brought about competition
with our own labour and disturbances of economic
106 CONSTITUTIONAL DEVELOPMENT
conditions. Neither he nor any other member of
the Conference proposed any satisfactory solution,
and the discussion remained without result except
possibly a better understanding of the difficulties.
In 1917, the question was brought up at the Im-
perial War Conference. There was a preliminary
informal discussion between representatives of
India and of the Dominions, in which the Indian
case was put with much force, frankness, and
moderation by Sir Satyendra (now Lord) Sinha to
the Dominion ministers, who answered him in the
same spirit. As a result of the discussion the
principle of reciprocity of treatment between India
and the Dominions was adopted as a working basis
by resolution of the Conference. A memorandum
filed by the Indian representative was recom-
mended to the favourable consideration of the
Governments concerned. In the same year, the
Prime Minister of Canada submitted this resolution
to the Canadian Parliament and, paying a tribute
to the splendid loyalty of the Indian population
throughout the war, he commended the proposal
as eminently fair. There was no criticism of the
proposal, although Sir Wilfrid Laurier apparently
did not regard it as sufficiently definite.
At the Imperial War Conference of 1918, after
a further informal discussion, a resolution was
passed defining and elaborating the principle
already accepted. The complete power of the
Dominions was declared in the following terms:
DURING THE WORLD WAR AND AFTERWARDS 107
"It is an inherent function of the Government of the several
communities of the British Commonwealth, including India, that
each should enjoy complete control of the composition of its own
population by means of restriction on immigration from any of the
other communities." 10
Provision was made for temporary visits and for
reciprocal treatment; and it was declared that
Indians already permanently domiciled in the
Dominions should be allowed to bring in their
wives and minor children on certain conditions.
In Canada this policy was carried out by an
Order in Council (March 26, 1919) which repeats,
ipsissimis verbis t the important portions of the
resolution in question.
In 1912 the Imperial Government had given
assurance to the Government of Canada that,
pending a final solution of the question of voice
and influence in foreign relations, a Dominion
minister resident in London would be regularly
summoned to all meetings of the Committee of
Imperial Defence, and would be regarded as one
of its permanent members; there was a further
assurance that no important step in foreign policy
would be undertaken without consultation with
such representatives.
At the Imperial War Conference of 1918, the
question of more direct channels of communication
between Dominion Governments and the Govern-
ment of the United Kingdom was raised by the
108 CONSTITUTIONAL DEVELOPMENT
Dominion Prime Ministers, and a resolution moved
by Mr. Hughes was passed in amended form as
follows :
" 1. That this Conference is of the opinion that the development
which has taken place in the relations between the United Kingdom
and the Dominions necessitates such a change in administrative
arrangements and in the Channels of Communication between their
Governments as will bring them more directly in touch with each
other.
"2. That the Imperial War Cabinet be invited to give immedi-
ate consideration to the creation of suitable machinery for this
purpose." n
The subject was then taken up in the Imperial War
Cabinet, and as a result the following resolution
received its unanimous approval:
I. 1. "The Prime Ministers of the Dominions, as members of
the Imperial War Cabinet, have the right of direct communica-
tion with the Prime Minister of the United Kingdom, and
vice versa.
2. "Such communications should be confined to questions of
Cabinet importance. The Prime Ministers themselves are the
judges of such questions.
3. "Telegraphic communications between the Prime Ministers
should, as a rule, be conducted through the Colonial Office
machinery, but this will not exclude the adoption of more
direct means of communication in exceptional circumstances."
II. "In order to secure continuity in the work of the Imperial
War Cabinet and a permanent means of consultation during
the war on the more important questions of common interest,
the Prime Minister of each Dominion has the right to nominate
a Cabinet Minister, either as a resident or visitor in London,
to represent him at meetings of the Imperial War Cabinet to
be held regularly between the plenary Sessions." 12
In Canada the first part of the resolution did not
carry matters much beyond the point they had
DURING THE WORLD WAR AND AFTERWARDS 109
already reached. Whenever necessary during the
war it had been the practice for the Prime Minister
of the Dominion to send a direct message to the
Prime Minister of the United Kingdom. In form
the communication was from the Governor General
to the Colonial Secretary embodying the exact text
of the message. Replies were communicated
through the same channel. The necessity of con-
tinuous consultation in important matters of com-
mon Imperial concern has been recognized by the
constitutional resolution of 1917, to which further
reference will be made.
Throughout the war there was a resident
Canadian Minister in London, either as Acting
High Commissioner, or as Minister of Overseas
Military Forces. In recent years the High Com-
missioner of Canada has discharged in many re-
spects the duties and responsibilities of a diplomatic
agent, keeping in close touch with the Colonial
Office and with other important departments of
the British Government.
In 1915, after the outbreak of war, the Prime
Minister of Canada attended a meeting of the
British Cabinet. 13 But in 1917, a very important
step in advance was taken. The almost unlimited
flexibility of the British Constitution in meeting
new needs by new methods, and the remarkable
powers vested in the Prime Minister through the
gradual development of constitutional conventions,
enabled Mr. Lloyd George to call into operation
110 CONSTITUTIONAL DEVELOPMENT
what was known as the Imperial War Cabinet.
In its constitution, purpose, and scope, the imagina-
tion, comprehension, and foresight of the British
Prime Minister were discernible. It included the
five members of the British War Cabinet and the
Prime Ministers of "the self-governing Dominions. 14
Thus ministers from all the self-governing nations
of the Empire met around a common council
board. The expression "Cabinet" has been criti-
cized; that word has no precise legal meaning, and
its constitutional significance has changed and
developed from time to time. It was used as a
convenient designation of this conference of minis-
ters acting in co-operation and responsible to their
respective Parliaments. Each minister or group of
ministers represented a Government, and the
conference might fairly be termed a Cabinet of
Governments. It was but three-quarters of a
century since British ministers, supported by an
overwhelming majority of their Parliament, had
declared that responsible government could never
be granted to the Colonies and that separation
would be preferable. Less than half a century had
passed since the most commanding figures in the
statesmanship of Britain anticipated and even
hoped for the disruption of the Empire. Of what
consequence was half a continent in comparison
with an English county? Now a million fighting
men from free self-governing nations were in the
Empire's battle line, and Dominion statesmen took
DURING THE WORLD WAR AND AFTERWARDS 111
their equal places at the Empire's council table in
the supreme test of its destiny.
The Imperial War Cabinet met almost daily,
but its work was also advanced by means of com-
mittees. In 1917 consideration was given to the
conditions upon which peace might be made after
the war had been brought to a successful con-
clusion, and two committees were appointed to
inquire and report. Each of the Dominions was
represented on these committees. In consequence
of a discussion initiated on behalf of Canada, a
committee was appointed in June, 1918, to consider
and report upon important and even vital questions
in connection with the war. The committee con-
sisted of the Prime Minister of Great Britain and
the Prime Ministers of the Dominions, including
General Smuts as representative of the Prime
Minister of South Africa. The Secretary of State
for War, with the Chief of the Imperial General
Staff, was to attend the committee if his presence
was required. After several meetings, and an ex-
haustive inquiry, the committee in the latter part
of August prepared an elaborate report setting
forth its conclusions, which, however, were super-
seded by the rapid march of events on the western
front and the unexpected collapse of the enemy's
resistance.
During 1917 and 1918, the Imperial War Con-
ference also proceeded with its deliberations. Its
most important discussion in 1917 was concerned
112 CONSTITUTIONAL DEVELOPMENT
with the question of future constitutional relations,
and resulted in the following resolution:
"The Imperial War Conference are of opinion that the read-
justment of the constitutional relations of the component parts of
the Empire is too important and intricate a subject to be dealt with
during the war, and that it should form the subject of a special
Imperial Conference to be summoned as soon as possible after the
cessation of hostilities.
"They deem it their duty, however, to place on record their
view that any such readjustment, while thoroughly preserving all
existing powers of self-government and complete control of domestic
affairs, should be based upon a full recognition of the Dominions
as autonomous nations of an Imperial Commonwealth, and of India
as an important portion of the same, should recognize the right of
the Dominions and India to an adequate voice in foreign policy
and in foreign relations, and should provide effective arrangements
for continuous consultation in all important matters of common
Imperial concern, and for such necessary concerted action, founded
on consultation, as the several Governments may determine." 16
Before this resolution was proposed in the Con-
ference, its terms had been carefully considered by
the Dominion Ministers, and, after a conclusion was
reached, it had been submitted to the British
Government. Having been accepted without hesi-
tation by Mr. Lloyd George and his colleagues, it
was passed unanimously by the Conference. This
resolution establishes the basis of future co-opera-
tion; it gives clear recognition to equality of
nationhood between the Dominions and the Mother
Country; and it marks one of the most important,
and possibly one of the final stages in the evolution
of constitutional relations within the British Com-
monwealth.
DURING THE WORLD WAR AND AFTERWARDS 113
A summary of the transactions at the Con-
ference of 1921 has recently been made public.
The 14th Resolution has reference to constitutional
relations, but it can hardly be said that its pro-
nouncement is progressive or even illuminating.
After citing the constitutional resolution of 1917,
the resolution of 1921 proceeds as "follows:
(a) "Continuous consultation, to which the Prime Ministers
attach no less importance than the Imperial War Conference of
1917, can only be secured by a substantial improvement in the
communications between the component parts of the Empire.
Having regard to the constitutional developments since 1917, no
advantage is to be gained by holding a constitutional Conference."
(b) "The Prime Ministers of the United Kingdom and the
Dominions and the Representatives of India should aim at meeting
annually, or at such longer intervals as may prove feasible."
(c) "The existing practice of direct communication between
the Prime Ministers of the United Kingdom and the Dominions, as
well as the right of the latter to nominate Cabinet Ministers to
represent them in consultation with the Prime Minister of the
United Kingdom, are maintained."
Clause (c) is merely a reiteration, while clause (b)
recommends a greater frequency of meetings,
which, while highly important, is probably im-
practicable. It is rather difficult to attach any
effective meaning to the first sentence of clause (a).
The second sentence is not absolutely clear, but it
seems to imply that constitutional development
since 1917 makes further consideration of the
subject unnecessary. Much remains to be done
before a constitutional conference can be held with
advantage, and there was good reason for delay,
but not for this conclusion. In May, 1921, the
114 CONSTITUTIONAL DEVELOPMENT
Canadian Prime Minister declared that the relations
between the constituent parts of the Empire must
be based upon a conception of complete freedom
and equality in national status. 16 Further he
observed that the practical need would be met by
clearly understood and definitely accepted declara-
tions of principle with improvements in so much of
the form and content of the existing mechanism as
may be found to be obsolete. This declaration sets
forth a reasonable view of present conditions and
of necessary development. More than two years
ago, Lord Milner, speaking before representatives
of the overseas Dominions, emphasized the same
view in these words:
"The only possibility of a continuance of the British Empire
is on a basis of absolute out-and-out equal partnership between the
United Kingdom and the Dominions. I say that without any kind
of reservation whatsoever. It is very easy to say tnat; but un-
doubtedly the working out of it in practice without bringing about
the severance of relations between us and the Dominions will be
one of the most complicated tasks which statesmanship has ever
had to face. I am not afraid of it, and yet I have to admit that the
difficulties are such that our best efforts may end in failure. I hope
not. At any rate, there is no other way out." 17
Foreign countries, as Lord Milner further obser-
ved, must realize that the Dominions are in the first
place members of a British league of nations, while
they are also members, side by side with the
United Kingdom, of the general society of nations.
No one would be inclined to minimize the difficul-
ties of which Lord Milner has spoken so gravely;
on the other hand no one should doubt their
DURING THE WORLD WAR AND AFTERWARDS 115
ultimate satisfactory solution. The constitutional
resolution of 1917 laid down certain principles
which may reasonably be regarded as essential to
the future unity of the Empire. If the self-govern-
ing Dominions may not have adequate voice and
influence in the direction of the Empire's foreign
policy, it is not improbable that some of them will
eventually have distinctive foreign policies of their
own; and that may mean separation. But the
resolution of 1917 will be barren of further results
unless a way is found to work out its principles in
practice. It can hardly be claimed that any de-
velopment since 1917 has accomplished this. In
the Foreign Office men of the highest distinction
and ability have found their careers; from that
Office have gone forth Ambassadors and Ministers
to posts of great responsibility ; it has behind it the
splendid traditions of many centuries during which
there was no oversea nation to claim unaccustomed
rights. It was not unnatural that in such an
atmosphere the spirit of Lord Stanley should linger
or the attitude of Mr. Asquith be reflected. But
the spirit of to-day, while not unconscious of the
profound difficulties to which the earnest words of
Lord Milner call our attention, will realize that the
resolution of 1917 was based upon vital considera-
tions which cannot lightly be disregarded. While
it is true that the Dominions were represented at
Paris, that they took their place at the Peace Con-
ference, and that they became signatories of the
116 CONSTITUTIONAL DEVELOPMENT
Peace Treaty, I have yet to learn that since the
conclusion of peace their right to "an adequate
voice in foreign policy and in foreign relations"
has been recognized in any effective or practical
way. This result does not seem to justify com-
placency or inaction. It is perfectly competent for
the nations of the British Commonwealth to declare
their constitutional relations, and to have them
accepted by foreign powers. Until this is done
there will be not only difficulty and uncertainty,
but danger of reaction. Even within the Empire
those relations are imperfectly realized, and abroad
their implications are misunderstood, if not re-
sented. Having regard to the resolution of 1917,
and to the status gained by the Dominions in the
war, it is essential that this condition should not
continue.
In the early stages of the war there had been
announcements in the Parliaments of the Empire
that the Dominions would be fully consulted con-
cerning the terms of peace. The sessions of the
Imperial War Cabinet in 1917 and 1918 afforded
in a certain measure the means for carrying out
this undertaking. On October 29, 1918, the ques-
tion of representation of the Dominions in the peace
negotiations was raised by Canada in a despatch
from the Prime Minister of Canada to the Prime
Minister of the United Kingdom. 18 After the
DURING THE WORLD WAR AND AFTERWARDS 117
arrival of the Canadian ministers in London
(November, 1918) the question was taken up
formally. The discussion, which continued until
their departure for Paris, early in January, 1919,
raised a most interesting and important question.
It was debated informally at conferences between
British and Dominion ministers, and in the formal
meetings of the Imperial War Cabinet. At first it
was assumed that only five places could be secured
for the British Empire at the peace table. The
panel system, under which the representation of
the British Empire at the sessions of the Peace
Conference would be selected from day to day as
the nature of the subject demanded, was not re-
garded as satisfactory in itself. Finally, Canada
proposed that in the general representation of the
British Dominions the panel system might be
utilized when necessary, but that there should be
distinctive representation for each Dominion, simi-
lar to that accorded to the smaller Allied Powers.
Eventually the Imperial War Cabinet accepted
this principle, and it was also accepted at the pre-
liminary conference in London between representa-
tives of the British Empire, France, and Italy.
Throughout the discussion the proposals of the
Dominion ministers received full sympathy and
support from Mr. Lloyd George and his colleagues.
When the question of procedure, including that
of representation, came before the Peace Conference
at Paris on January 12, the proposal for distinctive
118 CONSTITUTIONAL DEVELOPMENT
representation of the British Dominions aroused
strong opposition. Again it was discussed in the
British Empire delegation, 19 and the representatives
of the Dominions, standing firmly upon the principle
recognized in London, declined to accept any in-
ferior status. In the result their insistence pre-
vailed; and through the combination of the panel
system with their own distinctive representation,
the Dominions secured a peculiarly effective posi-
tion. The conditions of peace were worked out
through a series of committees or commissions,
whose reports and resolutions were eventually con-
solidated into the treaty of peace. In the meetings
of the British Empire delegation, of which the
Dominion representatives were members, the report
of each commission was thoroughly discussed before
final acceptance. On many of the commissions
Dominion ministers had important places, and they
took no inconsiderable part in the proceedings of
the Conference.
A further development relates to the signature
and ratification of the various treaties concluded
at the Conference. In view of the new position
secured, and of the part played by the Dominion
representatives at the peace table, it was considered
that the treaty should be signed by Dominion
plenipotentiaries, and should be submitted for ap-
proval to the Dominion Parliaments. Accordingly
the Prime Minister of Canada proposed that the
assent of the King as High Contracting Party to
DURING THE WORLD WAR AND AFTERWARDS 119
the various Treaties should, in respect of the
Dominions, be expressed by the signature of
Dominion plenipotentiaries, and that the preamble
and other formal parts of the treaties should be
drafted accordingly. This proposal, having been
adopted in the form of a memorandum by all the
Dominion Prime Ministers, at a meeting summoned
by the Prime Minister of Canada, was put forward
and accepted. 20 It involved the issuance by the
King as High Contracting Party, of "Full Powers"
to the Dominion delegates; and in order that
those issued to the Canadian plenipotentiaries
might be based upon formal action of the Cana-
dian Government, an Order in Council conferring
authority for that purpose was passed on April
10, 1919. 21 The new status of the Dominion
is manifested again in the constitution of the
League of Nations. Having gained at the Peace
Conference the position of "Powers with special
interests," the Dominions took the ground that
they should be similarly accepted in the future
international relationships contemplated by the
League. The League of Nations Commission, while
inclined to admit this position in principle, did not
at the outset accept all its implications. In the
first draft of the Covenant of the League provision
was made for Dominion membership, but it was
obscure as to the character of Dominion repre-
sentation. 22 However, the document was admit-
tedly tentative, and the Dominion case was pressed.
120 CONSTITUTIONAL DEVELOPMENT
In its final form, as amended and incorporated in
the Treaty of Peace with Germany, the Covenant
fully recognizes the status of the Dominions. As
signatories of the Treaty they became members of
the League; and their position as to membership
and representation in the Assembly is in all respects
the same as that of other signatory members. 28
As to representation on the Council, and with
special reference to Article 4, the Prime Minister
of Canada obtained from President Wilson and
Messrs. Clemenceau and Lloyd George, a signed
declaration "that upon the true construction of the
first and second paragraphs of that Article, repre-
sentatives of the self-governing Dominions of the
British Empire may be selected or named as
members of the Council."
Some difficulty arose as to the constitution
of the International Labour Organization, which
formed part of the Treaty of Peace. In the end
the view advanced and insisted upon by the
Dominions prevailed. 24
On the battlefields of Europe and at the council
table of the nations, the British Commonwealth
entered upon a new stage of its existence and de-
velopment. The principle established by the con-
stitutional resolution of 1917 was carried to a logical
conclusion at the Peace Conference. There were
anomalies at Paris; but the Britannic system of
government, and for that matter international law
itself, are full of anomalies. The important con-
DURING THE WORLD WAR AND AFTERWARDS 121
sideration is the outstanding fact that the Domin-
ions secured a recognized status in the family of
nations. It was not without strong insistence that
the principle affirmed in the Imperial War Con-
ference of 1917, and acted upon in the Imperial
War Cabinet of 1918, was accepted by the Peace
Conference. Other nations had learned during the
war to realize the strength of the ties that unite
the British Dominions, but they could not be ex-
pected quickly to comprehend their nature. The
principle of equal nationhood and complete
autonomy has been established. It remains to
determine the system and method by which that
principle shall receive vitality and force in the
practical administration of the Empire's affairs. 25
During the war a question of some importance
arose respecting an exercise of executive authority.
The Government of the United Kingdom advanced
the view that it had authority to requisition ships
owned and registered in Canada. This view was
controverted by the Canadian authorities, who
took firm ground that in such case the executive
power was constitutionally vested in the Govern-
ment of Canada. The Canadian view was ex-
pressed in a Minute of Council, dated January 30,
1917, from which the following is extracted:
"The question to be determined is not one of legal power but
of constitutional right. This distinction is well recognized in the
Conventions which control the exercise of legislative power. For
122 CONSTITUTIONAL DEVELOPMENT
example, the Parliament of the United Kingdom has the legal
power but not the constitutional right to legislate directly in respect
of Canadian affairs and in doing so to repeal pro tanto the British
North America Acts. It is submitted that the exercise of His
Majesty's prerogative with respect to Canada must be governed
by the like considerations. It is the Parliament of Canada alone
which constitutionally can determine and prescribe the burdens to
be borne by this Dominion or by any of its citizens for the purposes
of this or any other war. Similarly when the prerogative of the
Crown is to be exercised, the minister has no doubt that in respect
of all matters which involve a contribution by citizens domiciled in
this country, this prerogative must be exercised upon the advice of
Your Excellency's Ministers and not upon the advice of the Govern-
ment of the United Kingdom. ... If a ship be registered and the
owners be domiciled and reside within Canada, the compulsory dis-
placing of the ownership or control of the ship in favour of the
Crown for any public purpose should, independently of the actual
location at the time of the ship itself, be likewise a matter for the
consideration and sanction of the Government of Canada through
the means with which the Government is constitutionally endowed."
The Minute of Council further declared that in any
case when the requisitioning of a ship was con-
sidered necessary for war purposes, representations
from the British Government would receive prompt
and sympathetic consideration from the Govern-
ment of Canada. It cannot be doubted that the
principle thus affirmed was constitutionally sound,
and that the prerogative of the Crown in such a
case must be exercised by the Governor General
upon the advice of his ministers.
The question of diplomatic representation was
raised soon after Confederation. Mr. Blake, in
1882, Sir Richard Cartwright, in 1889, and Mr.
DURING THE WORLD WAR AND AFTERWARDS 123
Mills, in 1892, moved resolutions, and made notable
speeches in which the importance of Canadian
diplomatic representation at Washington was fully
discussed in the Canadian Commons. They em-
phasized the view that a Canadian diplomatic re-
presentative would be an envoy of the Queen, and
entitled to respect and consideration as such; that
he would act in co-operation with the British
Ambassador at Washington; that he would be in
direct communication with the Government of
Canada, to whom he would be responsible; and
that the growing importance of Canada's relations
with the United States made such an appointment
desirable. Leading men on both sides of the House
participated in the discussion, and many interesting
speeches were made. Sir Wilfrid Laurier favoured
the proposal, and advanced the view that it was
merely a stage in a natural evolution toward com-
plete citizenship. In 1892 Mr. D'Alton McCarthy
moved a resolution advocating the appointment of
a representative of Canada who would be attached
to the staff of Her Majesty's Minister at Washing-
ton, and who would be specially charged to watch,
guard, and represent the interests of Canada. On
this motion an important discussion also took
place. An amendment moved by Sir Charles
Hibbert Tupper urged the necessity of consultation
with the British Government before any final
action was taken. This amendment was declared
carried on division. In December, 1909, Sir Wilfrid
124 CONSTITUTIONAL DEVELOPMENT
Laurier, speaking upon a somewhat similar resolu-
tion, which was withdrawn, paid a well deserved
tribute to Mr. (now Lord) Bryce, then British
Ambassador at Washington, and expressed the view
that under then existing circumstances the pro-
posal was inexpedient and unnecessary. He ob-
served, however, that the time might come when
it would be advantageous to have a Canadian
diplomatic representative at Washington.
By reason of war conditions it was found
necessary at the beginning of 1918 to establish a
Canadian War Mission at Washington, which was
in effect, although not in form, a diplomatic mis-
sion. It was created under the War Measures Act
by Order in Council which authorized the Mission
to represent the Canadian Government and its
various departments in negotiations with adminis-
trative departments of the United States, and with
British or Allied War Missions operating in that
country.
During the war the subject of diplomatic re-
presentation was taken up by the Prime Minister
of Canada with the Prime Minister of the United
Kingdom and with the Foreign and Colonial Secre-
taries. The arrangement finally arrived at was
announced to the Canadian Parliament (May 10,
1920) in the following terms:
"As a result of recent discussions an arrangement has been
concluded between the British and Canadian Governments to pro-
vide more complete representation at Washington of Canadian
DURING THE WORLD WAR AND AFTERWARDS 125
interests than hitherto existed. Accordingly, it has been agreed
that His Majesty, on advice of his Canadian ministers, shall appoint
a Minister Plenipotentiary who will have charge of Canadian affairs
and will at all times be the ordinary channel of communication with
the United 'States Government in matters of purely Canadian con-
cern, acting upon instructions from, and reporting direct to, the
Canadian Government. In the absence of the Ambassador, the
Canadian Minister will take charge of the whole embassy and of
the representation of Imperial as well as Canadian interests. He
will be accredited by His Majesty to the President with the necessary
powers for the purpose.
"This new arrangement will not denote any departure either
on the part of the British Government or of the Canadian Govern-
ment from the principle of the diplomatic unity of the British
Empire.
"The need for this important step has been fully realized by
both governments for some time. For a good many years there has
been direct communication between Washington and Ottawa, but
the constantly increasing importance of Canadian interests in the
United States has made it apparent that Canada should be repre-
sented there in some distinctive manner, for this would doubtless
tend to expedite negotiations, and naturally first-hand acquaintance
with Canadian conditions would promote good understanding. In
view of the peculiarly close relations that have always existed be-
tween the people of Canada and those of the United States, it is
confidently expected as well that this new step will haVe the very
desirable result of maintaining and strengthening the friendly rela-
tions and co-operation between the British Empire and the United
States." 2
This proposal led to several debates in the Canadian
House of Commons, of which the latest and most
important took place on April 21, 1921. In support
of the proposal reliance was placed upon the
grounds advanced in the earlier debates already
alluded to; and it was urged that objections put
forward in those debates had been removed by
126 CONSTITUTIONAL DEVELOPMENT
the arrangement now proposed, which gave an im-
portant and definite status to the Canadian repre-
sentative. It was pointed out that a very large
part of the affairs engaging the attention of the
British Embassy at Washington related to the
needs and conditions of this country, with which
a Canadian Minister would be specially familiar.
The advantage of constant conference and associa-
tion with members of the American Government,
the opportunity for explaining and comprehending
divergent points of view, and the advance in
Canada's constitutional status during the war and
at the Peace Conference were relied upon. It was
urged that Canadian Ministers negotiating treaties
with the United States had occupied for the time
being a diplomatic status, and that much advantage
and no detriment had resulted. If such representa-
tion, though temporary in its character, was sound
in principle as well as advantageous, objection to
its permanency could not be sustained. The
principle was actually in operation, as the members
of the Canadian section of the International Joint
Commission were appointed by the Crown on the
recommendation of the Canadian Government.
That Commission, comprising two sections, one
Canadian, the other American, dealt with many
questions formerly referred to diplomatic repre-
sentatives.
Against the proposal was raised the time-worn
objection that it would imperil our relations with
DURING THE WORLD WAR AND AFTERWARDS 127
the Mother Country; Russell's and Stanley's
theories were dressed in a new garb. Reliance was
placed on the supposed unwisdom and danger of
authorizing a Canadian Minister to discharge the
functions of the British Ambassador during the
absence of the latter; the appointment of a Cana-
dian Minister was declared to be unnecessary, and
it was said that no such appointment could be
properly made, according to international usage,
except by a sovereign power. To the latter argu-
ment came the reply that His Majesty, being King
of Canada as well as of all other portions of the
Empire, had the undoubted right to appoint a
Minister specially to represent this country in its
diplomatic relations with the United States; and
that this view had been fully accepted in constitut-
ing the International Joint Commission. 27
For many years Consuls General at Ottawa or
Montreal, and especially the Consuls General of.
the United States, of Japan, of Italy, and of Ger-
many, have discharged certain functions of a
diplomatic or semi-diplomatic character. This
novel feature of international usage was discussed
by Sir Wifrid Laurier in the House of Commons
on December 7, 1910. 28 He observed that all this
had been done without authority, and was not in
accordance with the rules ordinarily applied among
civilized nations; but he considered that it had
become "a necessity because of the development
of the larger Colonies of the British Empire, which
128 CONSTITUTIONAL DEVELOPMENT
have become practically nations." He thought
Canada should have an understanding with the
Government of the United Kingdom that "the
Consuls should be allowed semi-diplomatic recog-
nition amongst us." The practice has continued
since 1910, when Sir Wilfrid Laurier spoke, and
has been found both convenient and advantageous.
For example, in 1913 direct negotiations took place
between the Prime Minister of Canada and the
Consul General of Japan as to the conditions under
which Canada would accede to the treaty between
Great Britain and Japan of April 3, 1911. 29 In the
discussion of the Bill introduced for that purpose,
the Prime Minister announced an understanding,
that, in case it should become law, the Government
of Japan would declare its intention to maintain
the limitation and control that it had previously
exercised in regulating emigration from Japan to
Canada. After the passage of the Act this declara-
tion was communicated directly to the Canadian
Government in a letter from the Consul General
to the Prime Minister in the following terms:
"The undersigned, His Imperial Japanese Majesty's Consul
General at Ottawa, duly authorized by his Government, has the
honour to declare that the Imperial Japanese Government are fully
prepared to maintain and intend to maintain with equal effective-
ness the limitation and control which they have since 1908 exercised
in the regulation of emigration from Japan to Canada." *
From time to time there have been judicial
decisions which either denied or doubted the extra-
DURING THE WORLD WAR AND AFTERWARDS 129
territorial effect of statutes enacted by Dominion
Parliaments. The subject is discussed by Mr.
Keith. 31 In the Canadian Parliament, during the
session of 1920, a resolution was proposed by the
Government, to the effect that the British North
America Act should be amended by providing that
any enactment of the Parliament of Canada other-
wise within its authority shall operate extraterri-
torially according to its intention to the same
extent as if enacted by the Parliament of the United
Kingdom. In moving the resolution, which re-
ceived the unanimous assent of Parliament, the
Minister of Justice explained that its purpose was
to give an interpretation to the provisions of the
British North America Act which would settle
what was then a disputable- or unsettled question.
It was not intended to encroach on the jurisdiction
of the Parliament of the United Kingdom, but to
make certain that any laws enacted by the Cana-
dian Parliament would be enforceable in Canada
against Canadian citizens who might violate those
laws outside the territorial limits of the Dominion.
He instanced, as an illustration, the necessity of
enforcing regulations to govern Canadian aerial
navigation. Since the passage of the resolution there
has been communication with the Imperial Govern-
ment. Any such legislation will probably be made
applicable, not to Canada alone, but to all the self-
governing Dominions.
130 CONSTITUTIONAL DEVELOPMENT
In the session of 1921 the Canadian Parliament
passed an important measure to define Canadian
nationals and to provide for the renunciation of
Canadian nationality. The definition of a Canadian
national was in the following terms:
(a) "Any British subject who is a Canadian citizen within the
meaning of The Immigration Act, chapter twenty-seven of
the statutes of 1910, as heretofore amended;
(&) the wife of any such citizen;
(c) any person born out of Canada, whose father was a Canadian
national at the time of that person's birth, or with regard to
persons born before the passing of this Act, any person whose
father at the time of such birth possessed all the qualifications
of a Canadian national, as defined in this Act." 32
It was explained by the Minister of Justice that
the measure was made necessary by the status of
Canada under the Peace Treaty, and especially
under the Covenant of the League of Nations.
For example, each member of the League has the
right to nominate two of its nationals for election
as members of the Permanent Court of Inter-
national Justice. In the words of the Minister of
Justice the recognition that each member of the
League has nationals of its own made it necessary
to define Canadian nationals. The Act does not
in the least modify the status of such persons as
British subjects; it merely declares that among
British subjects certain persons shall have a definite
and distinct status as Canadian nationals. As the
measure was undoubtedly necessary for the purpose
mentioned, it received the unanimous approval of
Parliament.
DURING THE WORLD WAR AND AFTERWARDS 131
Hitherto I have spoken only of the past; it is
strewn with unfulfilled prophecies and anticipa-
tions, which must give pause to any one who pro-
poses to speak of the future. What shall be the
path of democracy in the years to come; what
shall be our place in the British Common wealth ;
what shall be our relations to the great neighbouring
democracy, and generally to the world-wide society
of nations? The conditions are too complex and
the issue is too uncertain to justify any confident
anticipation.
We may sometimes forget that the system of
social organization and government which is termed
democracy, and which has attained its most ad-
vanced development among the English-speaking
nations and in one or two other -states, has held
the stage but for a moment in the long drama of
human affairs. Its permanence as a form of
organized civilization is highly probable, but it is
by no means assured. Other types of social
organization, after enduring for centuries, have
disappeared, undermined by inherent excesses and
weaknesses, or overthrown by the onset of external
barbarism. Democracy is a great and worthy
experiment. Even if it should fail the world will
be the better for what it has accomplished and
attempted. To invest a people with the franchise
of self-government, carried out through a system
in which the entire adult population is represented
in the legislative body, is the highest conception of
132 CONSTITUTIONAL DEVELOPMENT
government hitherto attained. But how shall de-
mocracy be assured of the moral fibre, the intelli-
gence, the self-control, the active interest, the
spirit of service, and the capacity of developing
effective leadership that are essential to ensure its
permanency? Many difficulties have been sur-
mounted, but there are still dangerous passes to
be traversed through the mountains that loom up
before us. It is easy to rail at the imperfections of
the party system through which democratic govern-
ment is carried on, or to expose the injustice and
inequality which it may engender; criticism is so
easy that it has become almost commonplace. The
tyranny of the majority may be not less oppressive
than that of a despot. Men whose service would be
most valuable to their country may be excluded
from office through long continuance of their party
in opposition. When there is no real difference of
principle the struggle in parliament and before the
electorate degenerates into a battle between the
"ins" and the "outs." Legislation may be influ-
enced by the desire to secure popular support, and
not by the real interests of the country. Inde-
pendence of thought may be discouraged, politics
may become degraded, and upright men may be
prevented from allying themselves with either
party. Public office may be used as a reward for
party service, civic and municipal affairs may be
unworthily affected by party issues with which
they have no concern. In communities where
DURING THE WORLD WAR AND AFTERWARDS 133
parties are very highly organized, the "machine,"
as it is called, may control nominations, popular
will may not find adequate expression, and electors
of high intelligence may be reduced to a choice of
two evils, both of which they abhor. But all these
are imperfections rather of human nature than of
the system. And no one has invented any practical
substitute for the party system; the group system
merely intensifies its anomalies and defects. In
point of efficiency, it must be admitted that parlia-
mentary government carried on by the party or
group system is clumsy in method ; and its prestige
has not been heightened in recent years. If one
might compare the State to a great corporation,
we find its elected directors (the legislative body)
in session during many months of the year. An
Executive Committee (the Cabinet) is composed
of men who retain their position so long as they
have the confidence of the directors. They preside
over great administrative departments which should
receive their constant and undivided attention;
but during the months of session they must engage
incessantly in a debating struggle with a strong
minority of directors who seek to oust them from
their positions. During the other months of the
year they must occupy themselves for no incon-
siderable period in explaining their policy and com-
mending their administration to the shareholders
(the people), in order that they may be sustained
at the next election of directors (general election).
134 CONSTITUTIONAL DEVELOPMENT
The burdens imposed upon ministers are excessive,
and they often come to their posts with no adequate
administrative training or experience. In their
selection ability must sometimes give place to
domicile, race, or creed. Great corporations would
find it difficult, perhaps impossible, to conduct their
affairs successfully under such conditions; and it is
not surprising that comparisons unfavourable to
public administration are occasionally made. The
safeguards of the system afford some compensating
advantages. Direct and constant supervision by
Parliament is essential to stimulate ministerial and
official activity, and to restrain any tendency to-
ward corruption or other disregard of the public
interest. It is important both for the people and
for the ministers that they should be brought into
close and intimate touch as thoroughly and as
often as possible. The electorate must be taught
to realize individual responsibility, and that the
franchise not only confers a privilege but imposes
a duty. That duty cannot be effectively performed
unless democracy is endowed with the qualities
that I have mentioned. Mr. Ramsay Macdonald
has made timely comment on "the difficulty which
the absence of wisdom in the use of power creates." 33
There have been two recent tendencies in some
British democracies which deserve consideration.
One is the menace to orderly government that
arises from threat of a general strike by highly
organized and powerful elements in a community.
DURING THE WORLD WAR AND AFTERWARDS 135
This danger has been more manifest in Great
Britain than elsewhere. The organization of
labour for self-protection was made necessary by
former injustice and oppression in that country. It
has attained vast power, the unrestrained use of
which, for political control, has been threatened if
not carried out. Perhaps the relation of labour
representatives in the United Kingdom to the
organizations of which they are members cannot
be exactly defined ; but if in these organizations, or
if in agrarian organizations in Canada, there is a
power which may eventually direct and control
the vote of the majority in Parliament, a situation
may arise in which not the Government of the day,
but an independent, unofficial body will exercise
final judgment in public affairs. It does not seem
possible that parliamentary government in its
present form could continue to be effective under
such conditions. A ministry so controlled would
be little more than a Merovingian King, a mere
puppet in the hands of a Mayor of the Palace.
Another tendency, which does not make for
efficiency or stability in government, is group re-
presentation in Parliament. Before Confederation
there was experience of that tendency in Canada;
administrations succeeded one another with startling
rapidity, and stable government became practically
impossible. President Lowell of Harvard Univer-
sity has pointed out the effect of the group system
in France. During the twenty-three years from
136 CONSTITUTIONAL DEVELOPMENT
1873 to 1896 there were thirty-four different
administrations, so that the average duration of a
French Cabinet in that period was less than eight
months and a half. 34 Lord Bryce mentions nine
French parliamentary groups which existed in
1914, and eight at the beginning of 1920. 35 He
alludes to the kaleidoscopic changes of government
in France. 36 Of the party as contrasted with the
group system he says: " Parties are inevitable.
No free large country has been without them. No
one has shown how representative government
could be worked without them. . . . Where there
are small groups each becomes a focus of intrigue,
in which personal ambitions have scope. The
groups make bargains with one another and by
their combinations, perhaps secretly and suddenly
formed, successive ministries may be overturned,
with injury to the progress of legislation and to the
continuity of national policy. Since there must be
parties, the fewer and stronger they are the bet-
ter." 87 In the first Parliament elected in Poland
after the recent war, more than a dozen political
groups were represented, and no less than thirteen
parties compose the present Parliament. "They
are perpetually involved in petty feuds and there
is no stable majority. As a result there are frequent
and, to outsiders, inexplicable changes in the per-
sonnel o the Cabinet. Constructive reforms are
indefinitely delayed by the futile vicissitudes of
the mere game of politics." The dangers of the
DURING THE WORLD WAR AND AFTERWARDS 137
group system are intensified when groups are
differentiated by occupation, race, or creed, rather
than by political opinion.
With all the difficulties and dangers which have
been, or which may be pointed out, democracy
possesses elements of stability which no other sys-
tem has hitherto afforded. In his preface to the
English translation of Ostrogorski's Democracy and
the Organization of Political Parties, Lord Bryce
says that the author "has made a valuable contri-
bution perhaps the most valuable we have had
in recent years to what may be called the patho-
logy of party government." 38 Ostrogorski's chal-
lenge of democracy is formidable; much of his
criticism is concentrated upon the evils of control
by great political organizations. His view is pessi-
mistic, but he does admit that there is still hope.
''There is no proof that democracy will come off
victorious, but there is no proof either of the con-
trary. ... It is therefore premature to speak, as
people do, of the failure of democracy; it is still far
from having said its last word, and no one can
foretell what that last word may be. ... If
democracy does not succeed in filling its forms with
a moral substance and adapting its modes of action
thereto, it will run the risk of meeting the fate of
previous political civilizations, which perished
through inability to realize liberty." 39 Perhaps
the pessimist expresses his hope too faintly. In
the English-speaking nations qualities most needed
138 CONSTITUTIONAL DEVELOPMENT
to sustain democracy have sometimes been strong-
est when the need was greatest: self-control, poise
of judgment, the spirit of service and self-sacrifice,
the saving grace of common sense.
The political future of our country is a legiti-
mate subject of discussion. Canadians of great
eminence and distinguished ability have enter-
tained a sincere opinion that the ultimate goal is
complete independence as a separate nation. In
some instances such opinions have been modified
or withdrawn ; in no case should they incur reproach
or contempt. But I have never wavered in the
firm and constant belief that, within the British
Commonwealth of Nations, Canada will find her
most commanding influence, her widest usefulness,
and her highest destiny. With that opinion is
coupled a fixed and absolute conviction that the
unity of the Empire can alone find its expression
in complete autonomy and in equality of nation-
hood. A strong Canadian national spirit is entirely
consistent with a firm purpose to maintain our
country in a high place within the British Com-
monwealth. It is instructive and satisfactory to
observe how strong a spirit of Canadianism ani-
mates those of our people who were born in the
British Isles, and to whom the unity of the Empire
is a vital consideration. The assumption of
equal nationhood carries with it grave responsi-
bilities. There is no alternative except complete
independence, whereof the responsibilities will as-
DURING THE WORLD WAR AND AFTERWARDS 139
suredly be not less onerous. In the future direction
of the British Commonwealth the Dominions will
undoubtedly exercise a material, and, I believe, a
beneficial influence. To us in Canada it seems
that the vision of Downing Street has been turned
too much upon Europe and the Near East, too
little upon the vast possessions comprised within
our Empire. There is danger that these possessions
may become unwieldy; there is urgent need that
we develop what we have. Perhaps with less we
might in the end accomplish more. It would not
be amiss to take sober account of the Empire's
responsibilities and commitments.
Of those who took part in the Peace Conference
at Paris some at least returned to this continent
with a sense of depression. The fierce antagonisms,
the ancient hatreds, and the bitter jealousies of
European nationals there assembled were not in-
spiring. Neither in its methods nor in its results
can the highest success be claimed for the Peace
Conference. The creation or recognition of numer-
ous small states, whose populations are wholly un-
trained in self-government, can hardly assist in
preventing war. That every race should clothe
itself in the garment of self-determination is in
theory wholly unwise and in practice wholly un-
workable. Races are and they always will be
inextricably intermingled. But even if it were
otherwise, human progress is not advanced by the
segregation of races, or by any influence which
140 CONSTITUTIONAL DEVELOPMENT
tends to perpetuate racial antagonism. Lord
Acton has pointed out 40 that the true ideal lies in
the union of different races in one state, to the
service of which each brings its own peculiar
qualities. In the past such unions have been too
often attended by the dominance of one race and
the oppression of others. The highest hope is in
their consummation under the happier and more
stable conditions that justice, liberty, and auto-
nomy will create. On this continent two nations
speaking the same language constitute in effect
one community in social and business aspects and
relations. Each has its own laws and institutions,
each is jealous of its rights and privileges, each has
its own intense national spirit. At times there are
strong differences, but there is no bitterness and no
hatred. Therein is a vivid contrast to what may
be observed in continental Europe. Yet we cannot
separate ourselves from world-wide conditions.
No Monroe Doctrine or self-denying ordinance can
roll back the tide of events that surges through
the years. Every nation has become the neighbour
of every other. The people of other continents sit
at our threshold.
Whatever the imperfections of the League of
Nations, its purpose must command the effort of
mankind if our present civilization is to endure.
Wars of by-gone centuries between rival kings with
professional armies were mere comedies compared
with that through which we have just passed. In
the war of yesterday all the forces of the nations
DURING THE WORLD WAR AND AFTERWARDS 141
were arrayed, and neutrals as well as belligerents
fell under its malign and devastating influence. A
world war of the future would be more deadly and
more terrible to a degree that we are unable as yet
to realize. On what can we rest an assurance that
our present civilization may not hasten to its
downfall through fullness of material growth and
barrenness of spiritual life? Before we venture an
answer let us remember that over the destructive
energies of nature man has gained a command far
exceeding the control which he has acquired over
his own primeval instincts and passions; consider
the result if there should be unrestrained use of
those forces in future war between the nations that
regard themselves as most highly civilized. The
world lies within the shadow of this menace. In
her own armoury may be found the weapon by
which civilization may perish. Is there not, then,
supreme and compelling need for every effort and
safeguard to preserve the peace among nations, as
securely as in organized communities? Never did
there rest upon any people a more vital re-
sponsibility than that which the present conditions
of the world impose upon the British and
American Commonwealths. In their united hands
rests world peace; above their disunion hovers the
shadow of world destruction. By their sense and
acceptance of that responsibility these democracies
will be sternly, and perhaps finally, tested. As they
meet the test, so shall their worth be measured in
the ultimate judgment of history.
NOTES
FIRST LECTURE
1 "The student of government finds in the organization of the
British Empire an astonishing confusion of varied systems. To
govern such an Empire at all is as great an undertaking as history
has ever known. In administering the affairs of your great Republic,
vast and complex problems continually make themselves manifest.
May I ask a moment's consideration of those involved in the govern-
ance of the British Dominions? A territory more than three times
greater than that of the United States, scattered over all the con-
tinents and through all the oceans; a total population four times
as great as yours; a white population little more than one-half
your own, of which three-fourths reside within the relatively in-
considerable area of the British Islands; an almost infinite variety
and divergence of race and creed; discordant ideals and social con-
ditions; conflicting economic interests; five self-governing nations,
two in the Northern and three in the Southern hemisphere, all rapidly
developing in power and influence; a great dependency with a popu-
lation of three hundred millions embracing a dozen races with be-
wildering differences of creed, caste, tradition, custom, and language ;
protectorates imposing responsibility for the development of great
territories and the protection and welfare of large populations; a
score of fiscal systems under which each unit of the Empire levies
customs duties against the remainder; the safeguarding of territories
which in some part of the world touch those of every other great
power; the securing of the ocean pathways without which necessary
inter-communication could not be assured; the necessity of con-
sidering all these heterogeneous and sometimes conflicting interests
and conditions in determining questions touching foreign relations;
a varied and seemingly confused medley of statutes, charters, orders
in council, conventions, traditions, and understandings for the
governance of all these widespread possessions; consider this very
imperfect summary of the conditions and problems which confront
those called upon to administer the affairs of our vast Common-
wealth. A hasty judgment would determine that any structure so
apparently unstable must crumble at the first great shock. It shall
144 NOTES FIRST LECTURE
be to the honour of the British race as long as this war is remembered,
that the principle on which is founded the governance of our Empire
bound together all its far-flung Dominions and all its people of
varied and divergent race, language, creed, and ideal, by ties which
proved stronger in war than in peace. It is founded upon the
principle of liberty, and upon the theory and practice of autonomous
government, applied wherever conditions permit, and to the most
generous extent that experience can possibly sanction. For this
supreme reason the Empire is strong in the day of trial." Sir
Robert Borden, Address to the New England Society, New
York, December 22, 1915.
2 Shortt and Doughty, Constitutional Documents, 1759-1791,
2nd Ed., Pt. I, pp. 78-79.
Ibid., p. 79.
4 Ibid., pp. 42-46, 223.
6 Ibid., p. 115,
6 Ibid., p. 163
7 Ibid., p. 165.
8 Ibid., p. 165.
9 Ibid., p. 182.
10 Ibid., p. 185.
" Ibid., p. 191.
12 Ibid., p. 191.
18 Ibid., p. 191.
14 Ibid., p. 205-206.
16 Ibid., pp. 206-207.
J8 Lefroy, Const. Law of Canada, p. 8.
17 Shortt and Doughty, op. cit., pp. 212-213, 231.
18 "The most immoral collection of men I ever knew; of course
little calculated to make the new subjects enamoured with our laws,
religion and customs, far less adapted to enforce these laws and to
govern." Murray to Lord Shelburne, August 20, 1766, Canadian
Archives, Haldimand Papers, Vol. B8, p. 2.
19 Shortt and Doughty, op. cit., p. 572.
Ibid., pp. 572, 573.
21 Lefroy, op. cit., pp. 20-21.
22 The general idea of representation was of very early origin and
was discussed with much elaboration and refinement by mediaeval
writers. "Within the scope of the powers constitutionally assigned
NOTES FIRST LECTURE 145
to him, (the Monarch) as Head represented the whole Body. . . .
The Emperor was not the Empire but only, by virtue of his rank,
represented the Empire and the Community that was subject to
him. . . . The powers ascribed to the Community of the People
were not the private rights of a sum of individuals but the public
right of a constitutionally compounded Assembly. . . . The exercise
of the Popular Sovereignty or of any other right of the Community
was possible only in a properly constituted Assembly, and if and
when all formalities had been duly observed." Gierke, Political
Theories of the Middle Ages, tr. by F. W. Maitland, pp. 61-67. See
also Hallam, Middle Ages, New Ed., 1872, Vol. II, pp. 19, 20, where
it is pointed out that the Commons were represented in the General
Assemblies (or Cortes) of Spain as early as 1188.
23 Lord Acton, Hist, of Freedom and other Essays, p. 36.
24 Ibid., p. 36.
25 Ibid., p. 37. See also La Grande Encyclopedic, Vol. 23, p. 311 :
"ETAT. Marsile ne se sert jamais de ce mot, que nous employons
ici pour nous conformer aux habitudes modernes, ni du mot nation;
il dit: REGNUM, CI VITAS. L'fitat est une reunion d'individus
volontairement unis et travaillant ensemble a un m6me objet, qui
est le bonheur et la paix de la communaute. Les citoyens donnent
a 1'fitat un forme adaptee aux diverses regions et aux diverses
poques. L'ensemble des citoyens, c'est le peuple (populus); son
activite doit e"tre repartie entre six professions ou fonctions neces-
saires (partes seu officia) : 1'agriculture, 1'industrie et le commerce,
la magistrature, Tarmee et le sacerdoce. Le pouvoir legislatif
appartient au peuple et au peuple seul, car lui seul peut statuer sur
ce qui 1'interesse. Quoiqu'il soit convenable de confier la prepara-
tion et la redaction des lois a des hommes specialement choises a
raison de leur vertu et de leur capacite, les lois ainsi preparees ne
resolvent leur autorite que de 1'acceptation faite par le peuple. Pour
eviter 1'anarchie, le pouvoir executif doit e"tre delegue a un seul
(principans). Ce prince, plus puissant que chaque citoyen, mais
moins puissant que tous, doit 6tre elu par le peuple; il peut 6tre
depose par lui."
26 Walpole, Life of Lord John Russell, Vol. I, p. 171.
"For a hundred years after the Revolution Settlement the
English acquiesced in the political system then established. It was
an oligarchy of great landowners, qualified, however, by the still con-
-10
146 NOTES FIRST LECTURE
siderable influence of the Crown and also by the power which the
people enjoyed of asserting their wishes in the election of members
for the counties and for a few large towns. The smaller boroughs,
from which came a large part of the House of Commons, were
mostly owned by the oligarchs, and through them the oligarchy
usually got its way." Bryce, Modern Democracies, Vol. I, pp. 28, 29.
27 Low, Governance of England, pp. 24, 25, 28, 29. May, Const.
Hist. (1912), Vol. Ill, pp. 17, 18. Bagehot, English Const. (1896),
pp. 240, 241, 285, Anson, Law and Custom, (3rd Ed.), Vol. II, Pt.
I, pp. 44, 48, 49. Boutmy, English Const., p. 175. Blauvelt, Cabinet
Government, pp. 284, 286, 288, 289, 291.
28 Keith, Imperial Unity, p. 89, and Anson, Law oJnd Custom,
(3rd Ed.), Vol. II, Pt. I, pp. 38-39, point out that William IV did
not dismiss Lord Melbourne; their view is based upon Lord Mel-
bourne's Papers, pp. 220-226. Constitutional writers, before the
publication of these papers in 1889, had asserted the contrary. The
correction does not affect the important consideration, that according
to public opinion, and in the judgment of constitutional writers,
the King had the right to dismiss under the constitution as it had
developed at that time. Moreover, Peel, when he accepted office,
believed, although erroneously, that Melbourne had been dismissed
by the King, and he recognized that by taking office he had made
the dismissal his own act.
29 Disraeli, Whigs and Whiggism, ed. by William Hutcheson,
pp. 58, 62, 63, 102, 108, 148, 150, 156, 183, 185, 228.
16 "But the oligarchic garrison which sat in the House of Lords
was insensible to the influences which had moved the House of
Commons. On October 7, it threw out the Bill by a majority of
199 votes to 158. Perhaps the Lords who composed the majority
failed to see the full significance of the division. It brought the
country to the verge of civil war. In one sense, indeed, it would be
almost possible to contend that civil war actually broke out in con-
sequence of this division. Riots occurred in London and the pro-
vinces. The Duke of Wellington's windows were broken; Lord
Londonderry was attacked by the people and seriously hurt;
Nottingham Castle was burned to the ground; and, before the end
of October, Bristol was in possession of a mob which treated it as,
forty years afterwards, Paris was treated by the Commune. More
significant than these disturbances was the attitude of the great
NOTES FIRST LECTURE 147
meetings which were everywhere summoned to denounce the Lords
and to support the Administration. At Birmingham in particular,
the headquarters of the Political Union, a gathering which was
computed to comprise 150,000 persons voted an address to the
Crown, expressing alarm at the awful consequences which might
ensue from the failure of Reform, and praying the King to create
as many peers as might be necessary to carry the measure. The
persons pledged themselves to pay no taxes if Reform were not
passed." Walpole, Life of Lord John Russell, Vol. I, p. 172. See
also Goldwin Smith, United Kingdom, Vol. II, p. 347.
81 On April 19, 1877, the Queen wrote a letter to be read by
Lord Beaconsfield to the Cabinet for the purpose of influencing their
decision. She protested against feebleness and vacillation, and she
authorized Lord Beaconsfield to make use of her statement that
she would not be a party to the humiliation of England and would
lay down her Crown. Buckle, Life of Disraeli, Vol. VI, p. 132.
On June 27, she wrote to Lord Beaconsfield: "Why not call
your followers together of the House of Commons as well as of the
House of Lords; tell them that the interests of Great Britain are at
stake. . . . You will have a large and powerful majority." Ibid.,
p. 148. This was a remarkable and doubtless a unique proposal for
a party caucus, which apparently has no place in British practice,
although it may have been employed by the Irish parliamentary
party at times. In the same letter she expressed her horror at the
views entertained by the Foreign Secretary (Lord Derby). Ibid.,
p. 149. See also Lytton Strachey, Queen Victoria, passim.
It is improbable that any Governor General of Canada since
Confederation has attempted in any such degree to influence the
policy of his ministers; it is certain that during the past quarter of
a century there has been no such attempt.
82 Egerton and Grant, Can. Const. Development, pp. 190-252.
83 Lucas, Lord Durham's Report, Vol. II, p. 278.
84 Ibid., p. 282.
36 Lord Acton, op. cit., p. 243.
M Despatch, Sept. 7, 1839, Egerton and Grant, op. cit., p. 256.
87 Egerton and Grant, op. cit., pp. 266-270.
38 Mirror of Parliament, Vol. 35, p. 1025. On March 6,
previous he had elaborated the same idea. Ibid., Vol. 34, p. 458.
148 NOTES FIRST LECTURE
89 The House of Commons had affirmed the grant of constitu-
tions conferring responsible government upon the peoples of the
Transvaal and Orange River Colonies.
40 Speeches oj Sir Henry Campbell-Bannerman, Times Ed.,
pp. 232.
41 Egerton and Grant, op. cit., 173 to 188.
43 Shortt, Life of Lord Sydenham, p. 291.
43 Ibid., pp. 224, 226, 227.
44 The resolution, as amended, affirmed the principle that
"the chief Advisers of the Representative of the Sovereign, con-
stituting a Provincial Administration under him, ought to be men
possessed of the confidence of the representatives of the people."
Journals, Legislative Assembly, Canada, 1841, p. 481.
45 Morison, Brit. Supremacy and Can. Self-Government, pp.
139, 140.
49 Ibid., pp. 148-151.
47 Ibid., p. 155.
48 Kaye, Life of Lord Metcalfe, Vol. II,. p. 230.
49 Ibid. t pp. 344, 349, 359, 367, 368, 478, 479.
80 Ibid., pp. 383, 389; Morison, op. cit., pp. 179-180.
61 Earl Grey, The Colonial Policy of the Administration of Lord
J. Russell, Vol. I, pp. 212.
62 Mirror of Parliament, Vol. 34, p. 534.
83 "It is above all things necessary to inculcate the belief (to
which I must with great deference say a shake was given under
Lord Metcalfe's rule) that the British Government and its Repre-
sentative place entire confidence in the loyalty of all parties in the
Province that they seek in the exercise of their influence only the
good of the Colony and that they seek it by means that are strictly
constitutional. I may be mistaken, but I have no apprehension
whatsoever that a change of administration, should such an event
take place, will weaken my influence or render me less able to carry
on the Government to your satisfaction." Lord Elgin to Earl Grey,
May 18, 1847, Canadian Archives, Elgin-Grey Correspondence,
(original manuscripts, not published), Vol. III. ". . .. It is not
without much pains and circumspection that I have succeeded
in impressing the leading men of all parties with a thorough
conviction of my impartiality and sincerity and of my readi-
ness not only passively to endure, but within constitutional
NOTES FIRST LECTURE 149
limits, to give active support to, any administration which might
commend itself to me as possessing the confidence of Parliament. . . .
As it is, I start fair with the new men and by everything which I
have done since I came here the ground is laid for a good under-
standing. . . . My present council unquestionably contains more
talent and has a firmer hold on the confidence of Parliament and of
the People, than the last." Lord Elgin to Earl Grey, March 17,
1848, Ibid., Vol. III.
64 Lord Elgin to Earl Grey, March 2, 1848, Ibid., Vol. III.
66 "My ministers admit that they are beaten, and the press is
unanimous in this sense. I left it to them to determine whether
they would meet Parliament or resign at once, stipulating that if
they adopted the former course Parliament should be summoned
without delay. . . . The Council will resign in a body. I have
I think placed myself in a favourable position to meet the crisis.
The working of the system of Government established in these
Colonies is about to be subjected to a trial under conditions which
are on the whole advantageous." Lord Elgin to Earl Grey, Feb-
ruary 5, 1848, Ibid., Vol. III.
66 "I am very anxious to hear that you have taken steps for a
repeal of so much of the act of Union as imposes restrictions on the
use of the French language. ... I must moreover confess that I
for one am deeply convinced of the impolicy of all such attempts to
denationalize the French. Generally speaking they produce the
opposite effect from that intended, causing the flame of national
prejudice and animosity to burn more fiercely. But suppose them
to be successful what would be the result? . . . Depend upon it,
by methods of this description, you will never Anglicise the French
inhabitants of the province. Let them feel on the other hand that
their religion, their habits, their prepossessions, their prejudices if
you will, are more considered and respected here than in other
portions of this vast continent . . . and who will venture to say
that the last hand which waves the British flag on American ground
may not be that of a French Canadian?" Lord Elgin to Earl Grey,
May 4, 1848, Ibid., Vol. III.
w Murdock, Hist, of Nova Scotia, Vol. II, p. 324.
88 Gierke, op. tit., p. x.
69 Egerton and Grant, op. tit., pp. 349-351.
150 NOTES SECOND LECTURE
60 H. G. Wells in his Outline of History, considers that the great
historical event of 1867 was the death of Emperor Maximilian;
Vol. Ill, p. 623. See Skelton, Life of Gait, p. 473.
61 Goldwin Smith, Can. Question, p. 143.
82 Skelton, op. tit., p. 195.
63 Ibid., p. 158.
84 Ibid., pp. 238-244.
86 Letter to Lord Knutsford, July 18, 1889; Pope, Memoirs of
Sir John Macdonald, Vol. I, p. 313.
M Skelton, op. cit., pp. 410-411.
SECOND LECTURE
1 For the sake of continuity the limits imposed by the title
have not been strictly observed in some instances.
2 Bryce, American Commonwealth, new Ed. 1910, Vol. I, p. 401;
see also pp. 363-364, 397-400.
3 Ibid. t p. 397.
4 Anson, Law and Custom, 3rd Ed., Vol. I, p. 23.
6 Lowell, Govt. of England, Vol. I, pp. 10-11; see also Dicey,
Law of the Const. (8th Ed.), pp. 414-428. Maitland, Const. Hist, of
England, pp. 341-343, 398, 526-529.
6 "Such is the flexibility of the British constitution that the
great changes which this declaration would involve in inter-imperial
relations could be made for the most part without resort to Imperial
legislation simply by the creation of new 'conventions of the
Constitution' or by giving authoritative expression to conventions
already existing in an immature form. By this means the Domin-
ions, in the eyes of the whole world, would be placed upon a footing
of complete constitutional equality with the United Kingdom or
any other independent state. Complete legal equality could only
be obtained by adding to this a declaration of legal independence
that is, by the formal disruption of the Empire. . . . Just as the
royal veto in England has been limited out of existence by the
growth of a constitutional convention, more effectively than it could
NOTES SECOND LECTURE 151
have been by means of a statute, so the constitutional conventions,
established by means of this general declaration, would limit out of
existence the royal veto on Dominion legislation, and the sovereignty
of the British Parliament in respect of the Dominions." British
Commonwealth of Nations, p. 230. See also pp. 230-235.
7 "That it will be to the advantage of the Empire if a Con-
ference, to be called the Imperial Conference, is held every four
years, at which questions of common interest may be discussed and
considered as between His Majesty's Government and His Govern-
ments of the self-governing Dominions beyond the seas. The Prime
Minister of the United Kingdom will be ex-officio President, and
the Prime Ministers of the self-governing Dominions ex-officio
members of the Conference. The Secretary of State for the Colonies
will be an ex-officio member of the Conference and will take the
chair in the absence of the President. He will arrange for such
Imperial Conferences after communication with the Prime Ministers
of the respective Dominions. Such other Ministers as the respective
Governments may appoint will also be members of the Conference,
it being understood that, except by special permission of the Con-
ference, each discussion will be conducted by not more than two
representatives from each Government, and that each Government
will have only one vote." Col. Conf., 1907, Vol. I, p. v.
8 It also made provision for a secretarial staff, and for sub-
sidiary conferences when necessary on particular subjects.
9 The British practice under which the Prime Minister con-
fers with the Sovereign as to important matters of public policy, and
gives explanations where that course seems desirable, prevails also
in Canada in respect of the relations between the Prime Minister
and the Governor General. The counsel or suggestions of a Sovereign
or a Governor General experienced in public affairs may often be
helpful and valuable.
10 Can. Sess. Pap., 1879, No. 181 (not printed), referred to in
Keith, Resp. Govt., Vol. I, p. 159 et seq.
11 In this respect the instructions followed the form then in use
since 1867.
12 Commissions, Letters Patent of Office, and Instructions of the
Governors General of Canada, p. 26. Mr. Blake's views, generally,
on the relations between the Government of Canada and the
Imperial Government appear in the following passage:
152 NOTES SECOND LECTURE
"As a rule the Governor does and must act through the agency
of Ministers, and Ministers must be responsible for such action. . . .
Upon the argument that there are certain conceivable instances in
which, owing to the existence of substantial Imperial as distinguished
from Canadian interests, it may be considered that full freedom of
action is not vested in the Canadian people, it appears to me that
any such cases must, pending a solution of the great problem of
Imperial Government, be dealt with as they arise. . . . The effort
to reconcile, by any form of words, the responsibility of Ministers
under the Canadian Constitution with a power to the Governor to
take even a negative line independently of advice, cannot, I think,
succeed. The truth is, that Imperial interests are, under our present
system of Government, to be secured in matters of Canadian execu-
tive policy, not by any such clause in the Governor's instructions
(which would be practically inoperative, and if it can be supposed
to be operative would be mischievous) ; but by mutual good feeling,
and by proper consideration of Imperial interests on the part of
His Majesty's Canadian advisers; the Crown necessarily retaining
all its constitutional rights and powers, which would be exercisable
in any emergency in which the indicated securities might be found
to fail." Can. Sess. Pap., 1877, No. 13, p. 4. Keith, Resp. GovL,
Vol. Ill, pp. 1415-1416, 1561-1566, points out that the Governor
General's Instructions do not authorize him to pardon an offence
committed outside, but triable in, Canada.
18 B.N.A. Act., sees. 55-57, 90.
14 "At first, a distinct claim was preferred by Her Majesty's
Secretary of State for liberty to review, and under certain excep-
tional circumstances to disallow, provincial legislation, through in-
structions to the Governor General as an Imperial Officer. After-
wards this ground was abandoned, and the constitutional propriety,
if not the abstract right, of the Imperial Government to interfere
with provincial legislation, unless in extraordinary cases and under
very exceptional circumstances, was no longer urged. The Secretary
of State then claimed that the Governor General personally had an
'independent' right (without the consent of his ministers, whether
actual or prospective) to determine upon the expediency of allowing
or disallowing provincial statutes; and in proof of this contention he
appealed to the wording of the British North America Act. Mr.
Blake's argument was directed to show the inconsistency of this
NOTES SECOND LECTURE 153
position, with an acknowledgement of the principle of self-govern-
ment in matters of local concern." Todd, Part. Govt. in the Brit.
Colonies, pp. 452-453. Todd, op. cit., pp. 453-454, puts forward
considerations (criticized by Keith, Resp. Govt., Vol., II, pp. 729-
730) in support of the view advanced by Mr. Blake.
16 Todd, op. cit., pp. 453-455; Keith, op. cit., Vol. II, pp. 726-730.
18 Pope, Memoirs of Sir John Macdonald, Vol. II, pp. 168;
Todd, op. cit., pp. 179, 180. Keith, op. cit., Vol. II, p. 1031.
17 Todd, op. cit., pp, 158, 177-184; Keith, op. cit., Vol. II,
pp. 1010 et seq., 1025; Keith, Imp. Unity, p. 151; Sir Charles
Tupper, Recollections, p. 95.
18 See Colonial Laws Validity Act, 28-29 Vic. cap. 63.
19 Correspondence on the Subject of the Law of Copyright in
Canada, 1895, C. 7783, p. 4.
80 Keith, Resp. Govt., Vol. I, pp. 413-420, and Imperial Unity,
pp. 237-243.
21 Keith, Imperial Unity, p. 239.
22 Sir John Thompson in his letter of July 21, 1894, said: "the
treatment which Canada has received on this subject is too bad to
be spoken of with patience." Correspondence on the Subject of the
Law of Copyright in Canada, 1895, C. 7783, p. 93.
28 Pope, op. cit., Vol. II, pp. 88-140.
24 Ibid., p. 105.
26 Ibid., p. 132.
26 Ibid., p. 133.
27 Ibid., p. 106. The British Government had the right to
appoint one of the three arbitrators who were to determine the
compensation to be paid to Canada and Newfoundland under the
Treaty of Washington. The Canadian Government insisted that
a Canadian should be selected and Sir A. T. Gait was appointed.
28 Unpublished Despatch, June 26, 1879, Dept. of External
Affairs, Ottawa, quoted from Tupper, op. cit., p. 174. The same
supercilious tone is to be observed in the correspondence relating to
the status and duties of the High Commissioner. Correspondence
between the Imperial and Canadian Governments, 1880, C 2594 p. 3.
See also Skelton, Life of Gait, pp. 523-526.
29 Tupper, cp. cit., p. 175. \
154 NOTES SECOND LECTURE
80 Unpublished Despatch, July 26, 1884, Dept. of External
Affairs, Ottawa, quoted from Tupper, op. cit., pp. 174-175. See also
Col. Conf., 1887, Vol. I, pp. 475-476.
31 Can. Sess. Pap., 1888, No. 366, p. 1.
82 Can. Hams., 1891, Vol. Ill, p. 6310.
88 Col. Conf., 1894, pp. 82, 154.
84 Col. Conf., 1897, p. 14.
85 Canada thereupon imposed a sur-tax on importations from
Germany, and eventually an amicable solution was reached, Can.
Hans., 1903, Vol. I, p. 1411 et seq.; Can. Hans., 1906, Vol. I, p. 1882
et seq., p. 1894 et seq.
86 Moreover the arrangement effected with Germany by Lord
Salisbury hardly seemed consistent with the principle laid down
in Lord Ripon's despatch of June 28, 1895, which contained the
following paragraph:
"13. In regard to the other side of the question, namely, as to
the terms which a Colony seeks from a foreign power, the con-
siderations mentioned appear to require that a Colony should not
endeavour in such a negotiation to obtain an advantage at the
expense of other parts of Her Majesty's Dominions. In the case,
therefore, of preference being sought by or offered to the Colony
in respect of any article in which it competed seriously with other
colonies or with the Mother Country, Her Majesty's Government
would feel it to be their duty to use every effort to obtain the ex-
tension of the concession to the rest of the Empire and in any case
to ascertain as far as possible whether the other Colonies affected
would wish to be made a party to the arrangement. In the event
of the excluded portions of the Empire being seriously prejudiced,
it would be necessary to consider whether it was desirable, and in
the common interests, to proceed with the negotiation." Despatches
from the Secretary of State for the Colonies on Questions of Trade and
Commercial Treaties, 1895, C. 7824, p. 17.
87 Can. Hans., 1910-11, Vol. I, p. 4.
38 See Note 34.
89 Brit. Hans., 5th Series, Vol. 21, p. 470.
40 Imperial Unity, p. 294.
4l Resp. Govt., Vol. Ill, p. 1149, note.
42 Mr. Bryce took every means of making himself acquainted
with the conditions and needs of Canada. Shortly after his appoint-
NOTES THIRD LECTURE 155
ment he visited Ottawa and during his tenure of office he made
periodical visits. This useful and desirable practice which he in-
augurated has been followed by his successors.
Imp. Conf., 1911, p. 333.
44 It had long been the practice to insert a provision in com-
mercial treaties that no self-governing Dominion should be bound
thereby, unless it acceded thereto. A period within which the
Dominion shall communicate its determination is usually fixed by
the terms of the treaty. Canada did not in the first instance accede
to the treaty of 1894 between Great Britain and Japan. In 1906
a supplementary treaty or convention was negotiated at the instance
of the Canadian Government under which Canada finally adhered
to the treaty of 1894.
46 Hall, op. cit., pp. 151-152.
46 The Imp. Conf., Vol. II, p. 273.
47 Op. cit., p. 146.
48 Imp. Conf., 1911, p. 22.
4 Ibid., p. 46.
* Ibid., pp. 52, 54, 68.
11 Ibid., p. 70.
" Ibid., p. 71.
68 London Times, July 23, 1912.
THIRD LECTURE
1 For the sake of continuity the limits imposed by the title
have not been strictly observed in some instances.
* No further allusion will be made to the military events of
the war as these lectures are concerned solely with constitutional
development.
8 In 1862, as a result of the rejection by the Legislature of
Canada of the Militia Bill, the Secretary of State for the Colonies
(Duke of Newcastle) wrote to the Governor General that this
action had
"produced a disadvantageous impression on the minds of the
English people,"
156 NofEs THIRD LECTURE
and while the British Government did not infer from it
"that either the Canadian Ministry or the Canadian people
are reluctant to make proper provision for their own defence
. . . they . . . regretted that, at such a moment, both should
be exposed to misconstruction of their motives and intentions,
not only by the people of England but by those of the United
States. Her Majesty's Government disclaim both the right
and desire to interfere in the party politics of Canada, and
they would evince no concern ... if it were not connected
with an event which appears to impugn the patriotism of her
people. . . . We have the opinions of the best military authori-
ties, that no body of troops which England could send would
be able to make Canada safe without the efficient aid of the
Canadian people."
The Secretary of State made certain suggestions as to the organiza-
tion of the Canadian Militia which were disapproved by the Gov-
ernor General in his reply, with which was forwarded a report of
the Canadian Executive Council. The report expressed surprise at
a suggestion from the Secretary of State that the charge for the
militia, or a fixed portion of it, should be voted for a period of three
or five years. Such a measure, the report stated,
"will never and ought never to be entertained by a people
inheriting the freedom of British institutions,"
and it added that
"popular liberties are safe against military despotism wielded
by a corrupt government, only when they (the people) have in
their hands the means of controlling the supplies required for
the maintenance of a military organization." Can. Sess. Pap.,
1867-8, No. 63, pp. 3, 4, 9.
4 Can. Hans., 1871, pp. 819-821.
1 "That this House fully recognizes the duty of the people of
Canada, as they increase in numbers and wealth, to assume in
larger measure the responsibilities of national defence.
"The House is of opinion that under the present constitutional
relations between the Mother Country and the self-governing
Dominions, the payment of regular and periodical contributions to
the Imperial Treasury for naval and military purposes would not,
so far as Canada is concerned, be the most satisfactory solution of
the question of defence.
NOTES THIRD LECTURE 157
"The House will cordially approve of any necessary expenditure
designed to promote the speedy organization of a Canadian Naval
Service in co-operation with, and in close relation to the Imperial
Navy, along the lines suggested by the Admiralty at the last Imperial
Conference, and in full sympathy with the view that the naval
supremacy of Britain is essential to the security of commerce, the
safety of the Empire, and the peace of the world.
"The House expresses its firm conviction that whenever the
need arises the Canadian people will be found ready and willing to
make any sacrifice that is required to give to the Imperial authorities
the most loyal and hearty co-operation in every movement for the
maintenance of the integrity and honour of the Empire." Can.
Hans., 1909, Vol. II, p. 3564.
Mr. Asquith, at Cardiff, November 5, 1920, is reported to
have said:
"In time of war the Dominion Governments agreed to transfer
their fleets bodily to the control of the Admiralty." London Times,
November 6, 1920. By the terms of the agreement the two Domin-
ions reserved to themselves liberty of action. See also the Canadian
Naval Service Act, 1910, sees. 22, 23.
7 In the autumn of 1915 effective measures became necessary
to guard against attacks of submarines on the Atlantic Coast of
Canada, and large numbers of small craft were acquired both for
defence and for mine sweeping.
8 The reply of the Dominion ministers was as follows :
"The Dominion ministers, having considered the Admiralty
Memorandum of May 17th, 1918, on the Naval Defence of the
British Empire, which was circulated to the Imperial War Con-
ference, 1918, submit the following conclusions and observations:
1. "The proposals set forth in the Admiralty Memorandum
for a single navy at all times under a central naval authority are
not considered practicable.
2. "Purely from the standpoint of naval strategy the reasons
thus put forward for the establishment of a single navy for the
Empire, under a central naval authority, are strong but not un-
answerable. The experience gained in this war has shown that in
time of war a Dominion Navy (e.g. that of Australia) can operate
with highest efficiency as part of a united navy under one direction
and command established after the outbreak of war.
158 NOTES THIRD LECTURE
3. "It is thoroughly recognized that the character of con-
struction armament and equipment, and the methods and principles
of training, administration and organization, should proceed upon
the same lines in all the navies of the Empire. This policy has
already been followed in those Dominions which have established
naval forces.
4. "For this purpose the Dominions jwould welcome visits
from a highly qualified representative of the Admiralty who, by
reason of his ability and experience, would be thoroughly competent
to advise the naval authorities of the Dominions in such matters.
5. "As naval forces come to be developed upon a considerable
scale by the Dominions it may be necessary hereafter to consider
the establishment for war purposes of some supreme naval authority
upon which each of the Dominions would be adequately repre-
sented." Caw. Hans., 1920, Vol. IV, p. 3499.
9 Imp. Conf., 1911, pp. 394-408.
10 This resolution is as follows:
"The Imperial War Conference is of opinion that effect should
now be given to the principle of reciprocity approved by Resolution
XXII of the Imperial War Conference, 1917. In pursuance of that
Resolution it is agreed that:
1. " It is an inherent function of the Governments of the several
communities of the British Commonwealth, including India, that
each should enjoy complete control of the composition of its own
population by means of restriction on immigration from any of the
other communities.
2. " British citizens domiciled in any British country, including
India, should be admitted into any other British country for visits,
for the purpose of pleasure or commerce, including temporary
residence for the purpose of education. The conditions of such
visits should be regulated on the principle of reciprocity, as follows:
(a) "The right of the Government of India is recognized to
enact laws which shall have the effect of subjecting British citizens
domiciled in any other British country to the same conditions in
visiting India as those imposed on Indians desiring to visit such
country.
(b) "Such right of visit or temporary residence shall, in each
individual case, be embodied in a passport or written permit issued
by the country of domicile and subject to vise there by an officer
NOTES THIRD LECTURE 159
appointed by, and acting on behalf of, the country to be visited,
if such country so desires.
(c) "Such right shall not extend to a visit or temporary resi-
dence for labour purposes or to permanent settlement."
3. "Indians already permanently domiciled in the other British
countries should be allowed to bring in their wives and minor
children on condition (a) that not more than one wife and her
children shall be admitted for each such Indian, and (6) that each
individual so admitted shall be certified by the Government of
India as being the lawful wife or child of such Indian.
4. "The Conference recommends the other questions covered
by the memoranda presented this year and last year to the Con-
ference by the representatives of India, in so far as not dealt with
in the foregoing paragraphs of this Resolution, to the various
Governments concerned with a view to early consideration."
Imp. War Conf., 1918, p. 195.
li 'lmp. War Conf., 1918, p. 165.
12 Ibid., p. 165.
18 Keith regards this step as important: "The attendance of
a cabinet by a Dominion minister is totally without precedent in
the history of the Empire, and its significance was duly noted at
the time. It is a privilege not even accorded to Lord Onslow when
acting in lieu of the Secretary of State during the visit of Mr.
Chamberlain to the South African colonies; when his opinion was
desired on colonial matters it could not be given and discussed by
him in cabinet, but only to some members of the Government, who
could repeat it in Cabinet." Imperial Unity, p. 545.
14 This was the formal constitution of the Imperial War Cabinet,
but other ministers and important officials constantly attended as
required.
15 Imp. War Conf., 1917, p. 5.
16 Manchester Guardian, Centenary Number, May 5, 1921.
17 London Times, July 10, 1919.
18 "There is need of serious consideration as to representation
of the Dominions in the peace negotiations. The press and people
of this country take it for granted that Canada will be represented
at the Peace Conference. I appreciate possible difficulties as to
the representation of the Dominions but hope you will keep in mind
that certainly a very unfortunate impression would be created and
160 NOTES THIRD LECTURE
possibly a dangerous feeling might be aroused if these difficulties
are not overcome by some solution which will meet the national
spirit of the Canadian people. We discussed the subject to-day in
Council and I found among my colleagues a striking insistence
which doubtless is indicative of the general opinion entertained in
this country. In a word they feel that new conditions must be met
by new precedents. I should be glad to have your views." Can.
Sess. Pap., 1919, Special Session, No. 41j.
19 The British Empire Delegation was really the Imperial War
Cabinet under another name.
20 The proposal was accepted by the British Empire Delegation
and by the Peace Conference substantially as made; and the various
treaties have been drawn up accordingly. Thus the Dominions
appear as Signatories, and their concurrence in the treaties, subject
to ratification, is given in the same manner as that of other Powers.
21 The Prime Minister of Canada made a formal request for
some appropriate step to establish the connection between this
Order in Council and the issuance of the Full Powers, so that it
might appear of record that they were issued on the responsibility
of the Government of Canada. Can. Sess. Pap., 1919, Special
Session, No. 41 j. Under British practice the Letters Patent
constituting full powers are signed by the King as Head of the
State without any counter-signature, so that the formal connection
between the action of the Canadian Government and the issuance
of these Full Powers by the King can be established without anomaly.
Full Powers is the technical designation of the special empowering
document that sets forth the authority of a plenipotentiary sent on
an extraordinary mission, e.g. representation at a Congress, etc.
See Oppenheim, Infl. Law, 3rd Ed., Vol. I., Sec. 371.
22 See Preamble and Articles 1, 2, 3, and 7 of the draft Covenant
presented to the Plenary Session of February 14, 1919, by the Com-
mission on the League of Nations.
28 See Preamble and Articles 1, 2, 3, and 4 r and Annexe of
Covenant, as incorporated in the Treaty of Peace.
24 Corresponding to the Council of the League there is a Labour
Governing Body, consisting of Delegates nominated by a limited
number of Governments, in addition to employers' and employees'
Delegates. Corresponding to the Assembly of the League there is
the General Labour Conference. The draft Convention presented
NOTES THIRD LECTURE 161
by the Commission on International Labour Legislation to the
Plenary Session of April 11, 1919, while contemplating that Domin-
ion Government Delegates might be sent to the General Conference,
definitely excluded them by definition from the Governing Body; a
resolution having been moved in the same Plenary Session that the
Peace Conference approve this draft Convention, the Prime Minister
of Canada moved that the resolution be amended by adding the
following:
"The Conference authorizes the Drafting Committee to make
such amendments as may be necessary to have the Convention
conform to the Covenant of the League of Nations in the character
of its membership and in the method of adherence."
This amendment carried, and as a consequence the Labour
Convention was finally amended so that the Dominions were placed
on the same footing as other members of the International Labour
Organization, becoming eligible for selection to nominate Govern-
ment Delegates to the Governing Body.
25 Oppenheim, op. cit. t Vol. I, sees. 94a, 94b, sets forth the fol-
lowing interesting conclusions as to the effect of the war upon the
self-governing nations of the British Commonwealth:
"94a. Formerly the position of self-governing Dominions, such
as Canada, Newfoundland, Australia, New Zealand, and South
Africa, did not in International Law present any difficulties. Then
they had no International position whatever, because they were,
from the point of view of International Law, mere colonial portions
of the mother country. It did not matter that some of them, as,
for example, Canada, and Australia, flew as their own flag the
modified flag of the mother country, or that they had their own
coinage, their own postage stamps, and the like. Nor did they
become subjects of International Law (although the position was
somewhat anomalous) when they were admitted, side by side with
the mother country, as parties to the administrative unions, such
as the Universal Postal Union. Even when they were empowered
by the mother country to enter into certain treaty arrangements
of minor importance with foreign states, they still did not thereby
become subjects of International Law, but simply exercised for the
matters in question the treaty-making power of the mother country
which had been to that extent delegated to them."
"94b. But the position of self-governing Dominions underwent
162 NOTES THIRD LECTURE
a fundamental change at the end of the World War. Canada,
Australia, New Zealand, South Africa, and also India, were not
only separately represented within the British Empire delegation
at the Peace Conference, but also became, side by side with Great
Britain, original members of the League of Nations. Separately
represented in the Assembly of the League, they may, of course,
vote there independently of Great Britain. Now the League of
Nations is not a mere administrative union like the Universal Postal
Union, but the organized family of Nations. Without doubt,
therefore, the admission of these four self-governing Dominions and
of India to membership gives them a position in International Law.
But the place of the self-governing Dominions within the family
of Nations at present defies exact definition, since they enjoy a
special position corresponding to their special status within the
British Empire as 'free communities, independent as regards all
Jiheir own affairs, and partners in those which concern the Empire
at large.' Moreover, just as, in attaining to that position, they
have silently worked changes, far-reaching but incapable of precise
definition, in the Constitution of the Empire, so that the written
law inaccurately represents the actual situation, in a similar way
they have taken a place within the family of Nations, which is none
the less real for being hard to reconcile with precedent. Further-
more, they will certainly consolidate the positions which they have
won, both within the Empire and within the family of Nations. An
advance in one sphere will entail an advance in the other. For
instance, they may well acquire a limited right of legation or limited
treaty-making power. But from this time onward the relationship
between Great Britain and the self-governing Dominions of the
British Empire is not likely to correspond exactly to any relation-
ship hitherto recognized in International Law unless the British
Empire should turn into a Federal State."
26 Can. Hans., 1920, Vol. Ill, pp. 2177-2178. Among diplo-
matic envoys Ambassadors are of the first rank and next to
them are Ministers Plenipotentiary and Envoys Extraordinary.
The difference in rank between Ambassadors and Ministers
Plenipotentiary is of theoretical rather than practical, importance.
Ambassadors have the right to be received by the Head of the
State personally, and enjoying of right the title of Excellency,
which is accorded to Ministers only by courtesy. The privilege of
NOTES THIRD LECTURE 163
such direct negotiation is now of little value, as all important business
is transacted through the hands of the Foreign Secretary in States
enjoying constitutional government: See Oppenheim, op. tit., Vol.
I, Sees. 365, 366; Satow, Diplomatic Practice, Vol. I, p. 235, note 2.
A State has a right to appoint more than one permanent
diplomatic Envoy to represent it in a Foreign State. A few years
ago, in the reorganization of the British Embassy at Washington,
three Ministers Plenipotentiary were appointed to act under Lord
Reading, the High Commissioner and Ambassador Extraordinary.
27 Oppenheim, op. tit., Vol. I, Sec. 361, enumerates several
States not possessing full sovereignty which enjoy the right of
legation, among them several States of the German Empire before
the World War. Bavaria, for example, used to send and receive
separate diplomatic envoys. "It would be wrong to maintain
that States which are not fully sovereign can never be parties
to international negotiations. For they can indeed conduct
negotiations on those points concerning which they have a
standing within the Family of Nations. Thus, for instance,
while Bulgaria was a half-sovereign State, she was nevertheless
able to negotiate on several matters with foreign States inde-
pendently of Turkey. Or they may be separately represented
at an international conference. For instance, the British
Dominions Canada, Australia, South Africa, New Zealand, and
India were separately represented at the Peace Conference at
Paris in 1919." Ibid., Sec. 478.
28 Can. Hans., 1910-11, Vol. I, p. 953.
29 Can. Hans., 1912-13, Vol. IV, pp. 6958-6960.
10 Ibid., p. 7550.
HResp. Govt., Vol. I, pp. 372-401; Imperial Unity, pp. 216,
217, 444.
32 11-12 Geo. V, (Can.) cap. 4, sec. 1.
33 Parliament and Revolutions, p. 88.
84 Gov'ts. and Parties in Confl. Europe, Vol. I, pp. 128-129.
36 Modern Democracies, Vol. I, p. 252.
38 Ibid., p. 254.
87 Ibid., pp. 119, 122.
88 Ostrogorski, Democracy and the Organization of Political
Parties, Vol. I, p. xliv.
88 Ibid., Vol. II, p. 739.
40 Lord Acton, Hist, of Freedom and other Essays, p. 298.
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