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 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 
 
 
 
 'i ^ •* A ^ 
 
 UNIVERSITY OF TORONTO PRESS 
 1922
 
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 THE MARFLEET LECTURESHIP 
 
 In November, 1910, Mrs. Lydia A. Marfleet of 
 
 Prophetstown, Illinois, gave the sum of S5,000 to 
 
 found a lectureship in the University' of Toronto to 
 
 be called in memory of her late husband the Pearson 
 
 •* Kirkman Marfleet Lectureship. 
 
 s 
 
 ^ 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.
 
 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, IQ21.
 
 k- 
 
 7' 
 
 ^V 
 
 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 obsei-\^er 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.' 
 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 v\-hom, 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. ^ 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, ^ 
 
 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.'* 
 
 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." ^ The Treaty was followed by a 
 Royal Proclamation on October 7, 1763, which 
 established the limits of the new Province of 
 Quebec.^ The Proclamation provided that, as 
 soon as circumstances should admit, General Assem- 
 blies should be summoned, with power to enact 
 laws for the public w^elfare and good govern- 
 rfient 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." ^ 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. 5 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 Coxfederatiox 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.^ 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. ^° 
 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" ^^ 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.^- By Clause 32 Murray was forbidden 
 to "admit of any Ecclesiastical Jurisdiction of the 
 See of Rome." '^ 
 
 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;" ^^ 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 ahd British subjects were 
 eligible as jurors. Appeals could be taken to the 
 Privy Council. ^5 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." ^^ 
 
 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. 1^ Murray's description of the British 
 minority is far from flattering and may have been 
 exaggerated by his warmth of temper. ^^ 
 
 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- 
 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; ^^ 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. In 
 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 
 cure a disease which it had not in reality diagnosed, frequently 
 overstepped its sphere, with the result that it was dissolved time 
 after time." ^i 
 
 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 who 
 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. -^ 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."" 
 
 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." -'' 
 
 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." ^b 
 
 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 Confederatiox 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." ^e 
 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." 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. 2s 
 
 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, who, like the Peers of 
 England, enjoyed "for the advantage of the nation 
 in general certain powers of a very eminent and 
 exalted character." "
 
 - 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.^" 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 now 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. '^ 
 
 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. 3- 
 
 After pointing out that representative institu- 
 tions had been established in the North American
 
 From the Cessiox to Coxfederatiox 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." ^ 
 
 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 onlj- points on which the Mother Country requires a con- 
 trol." « 
 
 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." ^^ 
 
 Between 1839 and 1854, live 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; such 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.^^ 
 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," 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." '^ 
 
 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:^9 
 
 "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." ^ 
 
 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 a'n 
 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 
 Ofhce 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.'*^ 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." 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.^^ 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 
 
 i ij^ U *J
 
 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 Avas 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
 
 Fkom the Cession to Confederation 39 
 
 better to let the Colonies go altogether.^^ 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.*^ Finally on October 28, 1842, 
 he told the Colonial Secretary quite frankly that 
 whether responsible government was openly 
 acknowledged or only tacitly acquiesced in, it 
 virtually existed.*^ 
 
 His successor, Sir Charles (afterwards Lord) 
 Metcalfe, was a distinguished civil servant who 
 enjoyed a high reput&,tion 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. ^^ 
 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/^ 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.^" 
 
 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 3'ears 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." " 
 
 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." ^^ 
 
 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. ^3 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." ^* 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.^^ 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.^^ 
 
 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." 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." '8 
 
 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 CONSTITUTIOXAL 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." ^^ 
 
 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.^° 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." 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. ^^ Between 1841 and 
 1867, eighteen different ministries were formed." 
 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 Sandfield 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.*^* 
 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 Tach^-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 IMacdonald 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 IVIacdonald's strong appeal to the 
 electors on his behalf. Brow^n 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." ^^ 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." «' 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 
 
 WARi 
 
 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." * 
 Lowell employs another happy phrase: "The con- 
 ventions are superimposed upon the law, and 
 modify political relations without in the least 
 affecting legal ones." ^ 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 CoxsTiTUTioxAL Developmext 
 
 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 Hfe, 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.' 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.^ 
 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 Confeder.\tion 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.^ 
 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.^^ 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 urg-ent 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.^^ 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. ^2 
 
 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. ^^ There was 
 more than one reactionary attempt by the Colonial 
 Office to usurp this authority.^* 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, ^^ 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 tiltra vires, and it was accordingly dis- 
 allowed for that reason and not upon considera- 
 tions of policy. ^^ 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.
 
 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. ^^ 
 
 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, ^^ 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.i^ 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, 2° 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." ^i A fiew 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.^^ 
 
 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. ^^ Hq 
 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. ^^ 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."-^ 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." ^^ 
 
 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 cavaJier 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." ^' 
 
 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.'^ 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 ^^ 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 Dufi"erin) 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." '^ 
 
 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." ^* 
 
 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. ^^ This 
 arrangement seemed wholly inconsistent with the 
 ground advanced for the denunciation. ^^ 
 
 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 w^as 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- 
 
 —6
 
 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." " 
 
 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.^^ 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." *° 
 
 Mr. Keith writes under the impression (probably 
 unfounded) that the British Ambassador assisted 
 in the Reciprocity negotiations. ^"^ 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 W^recking and Salvage, and the 
 treaty respecting the boundary in Passamaquoddy 
 Bay. Canadian interests were also affected by 
 the Pecuniary Claims Treaty.^^ 
 
 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." *^ 
 
 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." 
 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. ^-"^ 
 
 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 Cokfedeil\tion 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 presers^ation 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 inters-ention 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^^ and Mr. HalP^ 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." ^^ He decried cen-
 
 From Confederation to the World War 89 
 
 tralization in the governance of the Empire, 
 declaring that "just in proportion as centraHzation 
 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 \Vard 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. ^^ As was pointed out by Sir Wilfrid 
 Laurier, Sir Joseph Ward's speech was not at all 
 germane to the resolution that he proposed.^" 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."^^ 
 The proposals outlined in the speech of Sir Joseph 
 Ward gave to Mr. Asquith the opportunity of 
 making a famous pronouncement." 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 imperii" 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." ^ 
 
 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 ' 
 
 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. ^ 
 
 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.^ 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 HaHfax 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 offfcers, 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 ]\Iinistry 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.^ 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>rD Afterwards 101 
 
 at the disposal of His Majesty, for general service 
 in the Royal Navy, any ships or vessels of the 
 Naval Service, and the of^cers 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,' 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
 
 102 Constitutional Development 
 
 the Dominion confined its efforts almost entirely 
 to military aid.^ 
 
 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.^ 
 
 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 reserA^ed 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 feehng 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^ 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 difhculties. 
 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." i° 
 
 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, 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 : 
 
 " L 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." " 
 
 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." '^ 
 
 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. ^^ 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.^* 
 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, w^ere 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 W^ar 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." ^* 
 
 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." 
 
 (&) "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) 
 recommxcnds 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 
 
 —8
 
 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. ^^ 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." ^^ 
 
 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. ^^ 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, ^^ 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. 2 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, 1919.2' 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." 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. ^^ 
 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 difiiculty 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. ^^ 
 
 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 afifirmed 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 aflfairs 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 W^ilfrid
 
 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. ^^ 
 
 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.^8 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.^9 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. 
 
 —9
 
 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: 
 
 (c) "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; 
 
 (6) 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." '^ 
 
 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 Commonwealth; 
 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."'^ 
 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.^* Lord Bryce mentions nine 
 French parhamentary groups which existed in 
 1914, and eight at the beginning of 1920.35 He 
 alludes to the kaleidoscopic changes of government 
 in France. 3^ 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." " 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 of 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." ^^ 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." ^^ 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 w411 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 *° 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. 
 
 3 Ibid., p. 79. 
 
 < Ibid., pp. 42-46, 223. 
 
 6 Ibid., p. 115. 
 
 ^Ibid., p. 163 
 
 ' Ibid., p. 165. 
 
 8 Ibid., p. 165. 
 
 9 Ibid., p. 182. 
 1" Ibid., p. 185. 
 
 11 Ibid., p. 191. 
 
 12 Ibid., p. 191. 
 " Ibid., p. 191. 
 
 " Ibid., p. 205-206. 
 
 15 Ibid., pp. 206-207. 
 
 '^ Lefroy, Const. Law of Canada, p. 8. 
 
 " 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. 
 2o/W£/., 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. 
 
 ^ Lord Acton, Hist, of Freedom and other Essays, p. 36. 
 
 2* Ibid., p. 36. 
 
 25 Ibid., p. 37. See also La Grande Encyclopedie, 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, CIVITAS. L'Etat est une reunion d'individus 
 volontairement unis et travaillant ensemble k un meme objet, qui 
 est le bonheur et la paix de la communaute. Les citoyens donnent 
 h r£tat un forme adaptee aux diverses regions et aux diverses 
 epoques. L'ensemble des citoyens, c'est le peuple (populus); son 
 activite doit Itre r^partie entre six professions ou fonctions neces- 
 saires (partes seu ofificia): I'agriculture, I'industrie et le commerce, 
 la magistrature, I'armee et le sacerdoce. Le pouvoir legislatif 
 appartient au peuple et au peuple seul, car lui seul pent statuer sur 
 ce qui I'interesse. Quoiqu'il soit convenable de confier la prepara- 
 tion et la redaction des lois a des hommes specialement choises k 
 raison de leur vertu et de leur capacite, les lois ainsi preparees ne 
 regoivent leur autorite que de I'acceptation faite par le peuple. Pour 
 eviter I'anarchie, le pouvoir executif doit 6tre delegue k un seul 
 (principans). Ce prince, plus puissant que chaque citoyen, mais 
 moins puissant que tous, doit etre 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. 
 
 *' 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 Co7ist., p. 175. Blauvelt, Cabinet 
 Covernmetit, pp. 284, 286, 288, 289, 291. 
 
 28 Keith, Imperial Unity, p. 89, and Anson, Law dnd 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. 
 
 2' Disraeli, Whigs and Whiggism, ed. by William Hutcheson, 
 pp. 58, 62, 63, 102, 108, 148, 150, 156, 183, 185, 228. 
 
 3' "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 prajdng 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. 
 
 ^1 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. 
 
 ^ Egerton and Grant, Can. Const. Development, pp. 190-252. 
 2' Lucas, Lord Durham's Report, Vol. II, p. 278. 
 ^ Ibid., p. 282. 
 " Lord Acton, op. cit., p. 243. 
 
 »« Despatch, Sept. 7, 1839, Egerton and Grant, op. cit., p. 256. 
 " Egerton and Grant, op. cit., pp. 266-270. 
 '* 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 
 
 '' The House of Commons had affirmed the grant of constitu- 
 tions conferring responsible government upon the peoples of the 
 Transvaal and Orange River Colonies. 
 
 *° Speeches oj Sir Henry Campbell-Bannerman, Times Ed., 
 pp. 232. 
 
 " Egerton and Grant, op. cit., 173 to 188. 
 
 " Shortt, Life of Lord Sydenham, p. 291. 
 
 « Ibid., pp. 224, 226, 227. 
 
 ^ 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. 
 
 ** Morison, Brit. Supremacy and Can. Self -Government, pp. 
 139, 140. 
 
 « Ibid., pp. 148-151. 
 
 *' Ibid., p. 155. 
 
 " Kaye, Life of Lord Metcalfe, Vol. II, p. 230. 
 
 " Ibid., pp. 344, 349, 359, 367, 368, 478, 479. 
 
 ^'^ Ibid., pp. 383, 389; Morison, op. cit., pp. 179-180. 
 
 '^ Earl Grey, The Colonial Policy of the Administration of Lord 
 J. Russell, Vol. I, pp. 212. 
 
 ^' Mirror of Parliament, Vol. 34, p. 534. 
 
 *' "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), V^ol. III. "... It is not 
 without much pains and circumspection that I have succeeded 
 in impressing the' leading men of all parties -ftnth 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. 
 
 " Lord Elgin to Earl Grey, March 2, 1848, Ihid., Vol. IIL 
 
 ^ "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. 
 
 ^^ "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. 
 
 " Murdock, Hist, of Nova Scotia, Vol. II, p. 324. 
 
 '* Gierke, op. cit., p. x. 
 
 " Egerton and Grant, op. cit., pp. 349-351.
 
 150 Notes — Second Lecture 
 
 *" 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. 
 
 ^1 Goldwin Smith, Cati. Question, p. 143. 
 
 «2 Skelton, op. cit., p. 195. 
 
 « Ibid., p. 158. 
 
 «^ Ibid., pp. 238-244. 
 
 •* Letter to Lord Knutsford, July 18, 1889; Pope, Memoirs of 
 Sir John Macdonald, Vol. I, p. 313. 
 ««Skelton, op. cit., pp. 410-411. 
 
 SECOND LECTURE 
 
 ^ 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., p. 397. 
 
 * Anson, La%v and Custom, 3rd Ed., Vol. I, p. 23. 
 
 ^Lowell, Govt, of England, Vol. I, pp. 10-11; see also Dicey, 
 Laiv of the Const. (8th Ed.), pp. 414-428. Maitland, Const. Hist, of 
 England, pp. 341-343, 398, 526-529. 
 
 8 "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. 
 
 ^ "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-ofificio 
 members of the Conference. The Secretary of State for the Colonies 
 will be an ex-ofHcio 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. 
 
 ^ It also made provision for a secretarial staff, and for sub- 
 sidiary conferences when necessary on particular subjects. 
 
 ^ 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. 
 
 ^" Can. Sess. Pap., 1879, No. 181 (not printed), referred to in 
 Keith, Resp. Govt., Vol. I, p. 159 et seq. 
 
 1^ In this respect the instructions followed the form then in use 
 since 1867. 
 
 ^^ 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."— Com. Sess. Pap., 1877, No. 13, p. 4. Keith, Resp. Govt., 
 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. 
 
 " B.N.A. Act., sees. 55-57, 90. 
 
 " "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, Pari. Govt, in the Brit. 
 Colonies, pp. 452-453. Todd, op. cii., pp. 453-454, puts forward 
 considerations (criticized b}' Keith, Resp. Govt., Vol., II, pp. 729- 
 730) in support of the view advanced by Mr. Blake. 
 
 15 Todd, op. cit., pp. 453-455; Keith, op. cit.. Vol. II, pp. 726-730. 
 
 1" Pope, Memoirs of Sir John Macdonald, Vol. II, pp. 168; 
 Todd, op. cit., pp. 179, 180. Keith, op. cit., Vol. II, p. 1031. 
 
 " 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. 
 
 1' Correspondence on the Subject of the Law of Copyright in 
 Canada, 1895, C. 7783, p.. 4. 
 
 20 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. 
 
 23 Pope, op. cit., Vol. II, pp. 88-140. 
 2'' Ibid., p. 105. 
 
 ^'•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. 
 
 2« Tupper, cp. cit., p. 175.
 
 154 Notes — -Second Lecture 
 
 »» 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. 
 
 »' Can. Sess. Pap., 1888, No. 366, p. 1. 
 
 '2 Can. Hans., 1891, Vol. Ill, p. 6310. 
 
 " Col. Conf., 1894, pp. 82, 154. 
 
 3* Col. Conf; 1897, p. 14. 
 
 ^* 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. 
 
 ^^ 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 oi 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. 
 
 " Can. Hans., 1910-11, Vol. I, p. 4. 
 
 '8 See Note 34. 
 
 89 Brit. Hans., 5th Series, Vol. 21, p. 470. 
 
 *° Imperial Unity, p. 294. 
 
 *^Resp. Govt., Vol. Ill, p. 1149, note. 
 
 *^ 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. 
 
 " 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. 
 
 « Hall, op. cit., pp. 151-152. 
 
 « The Imp. Conf., Vol. II, p. 273. 
 
 *' Op. cit., p. 146. 
 
 " hnp. Conf., 1911, p. 22. 
 
 " Ibi<L, p. 46. 
 
 " Ibid., pp. 52, 54, 68. 
 
 " Ibid., p. 70. 
 
 « Ibid., p. 71. 
 
 " London Times, July 23, 1912. 
 
 THIRD LECTURE 
 
 ^ For the sake of continuity the limits imposed by the title 
 ha^•e 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. 
 
 ' 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 Notes — 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. 
 * Can. Hans., 1871, pp. 819-821. 
 
 ' "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, 
 60 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, igio, sees. 22, 23. 
 
 * 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. 
 
 * 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 Na\'y {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. 
 
 4r "For this purpose the Dominions would 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. ConJ., 1911, pp. 394-408. 
 
 ^"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 (c) that not more than one wife and her 
 children shall be admitted for each such Indian, and (b) 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. 
 
 " /m/>. War Conf., 1918, p. 165. 
 
 " Ibid., p. 165. 
 
 1^ 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. 
 
 " 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. 
 
 " Manchester Guardian, Centenary Number, May 5, 1921. 
 
 " London Times, July 10, 1919. 
 
 1* "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. 
 
 1' The British Empire Delegation was really the Imperial War 
 Cabinet under another name. 
 
 2° 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. 41j. 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, Int'l. Law, 3rd Ed., Vol. I., Sec. 371. 
 
 2^ 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. 
 
 2' "See Preamble and Articles 1, 2, 3, and 4, and Annexe of 
 Covenant, as incorporated in the Treaty of Peace. 
 
 " 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. 
 
 ^^Oppenheim, op. ciL, 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 e.xact definition, since they enjoy a 
 special position corresponding to their special status within the 
 British Empire as 'free communities, independent as regards all 
 their 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." 
 
 2» 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. cit., 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. 
 
 2' Oppenheim, op. cit., 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." Ihid., Sec. 478. 
 
 28 Can. Hans., 1910-11, Vol. I, p. 953. 
 
 " Can. Hans., 1912-13, Vol. IV, pp. 6958-6960. 
 
 " Ihid., p. 7550. 
 
 ^^ Resp. Govt., Vol. I, pp. 372-401; Imperial Unity, pp. 216, 
 217, 444. 
 
 5= 11-12 Geo. V, (Can.) cap. 4, sec. 1. 
 
 '^ Parliament and Revolutions, p. 88. 
 
 " Gov'ts, and Parties in Cont'l. Europe, Vol. I, pp. 128-129. 
 
 '* Modern Democracies, Vol. I, p. 252. 
 
 36 Ibid., p. 254. 
 
 " Ihid., pp. 119, 122. 
 
 '* Ostrogorski, Democracy and the Organization of Political 
 Parties, Vol. I, p. xliv. 
 
 " Ihid., Vol. II, p. 739. 
 
 *" Lord Acton, Hist, of Freedom and other Essays, p. 298.
 
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