April 19, 1910

IND

William Findlay Maclean

Independent Conservative

Mr. W. F. MACLEAN.

Is it not, in other words, a guarantee of responsible government that these clauses appear in various places in the constitution?

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

The right hon. gentleman has evidently misunderstood my contention. I never contended that the King was unable to delegate authority. I quite recognize that he can, but that is a quite different proposition from this section, which undertakes to withdraw his authority from him. The view I advanced to the House was this, that the royal prerogative extended to the navy, whereas under the system in England the royal prerogative had been so whittled down by parliamentary Acts with regard to the army that it was not by virtue of the prerogative that the Crown controlled the army. Parliament in the old country has continually dealt with the army and the Sovereign has been a party to every Act of parliament so dealing with it. He stands in a different position with regard to the navy, and my whole argument was that inasmuch as the authority of the Sovereign over the navy is a matter of prerogative precisely the same power as his power to make treaties, and is not derived from parliament at all, therefore, this House could no more interfere with the Crown's prerogative with regard to the navy than it could interfere with its prerogative touching the treaty-making power.-

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

Do I understand my hon. friend to mean that at the present time the navy is still under the prerogative of the Crown in England?

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

Yes, I contend that the authority over the navy is vested in the Crown by mere prerogative, just the same as the treaty-making power.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

I do not think, Mr. Chairman, that the hon. member's contention can be substantiated at all by authority. At the present time, the prerogative of the Crown in England whether it concerns the army or whether it concerns the navy, is no longer in existence. The navy and the army of course are under the control of parliament. Up to the early part of the 19th century the Crown made good the right with the Commons and parliament to preserve its prerogative over the army, and navy, but I can only recall to my hon. friend that from the last 60 or 80 years, I should say for the last 100 years, the prerogative of the Crown, both with regard to the army and navy, has not existed for the will of the Crown, has been subject to the will of parliament in these matters above all others. George III, I 'agree with my hon. friend, tried to preserve his authority, but as democratic ideas advanced, he had to give away on this point, and the authorities are that in 1806, under the 'administration of Lord Grenville, the point was settled for ever. I have only to refer my hon. friend to Todd, who makes the point very clear.

This is what Todd says on page 383 of the first volume, speaking of the prerogative of the Crown:

The term ' prerogative ' may be defined as expressing those political yawers which are inherent in the Crown and that have not been conferred by Act of parliament and which accordingly continue within the competency of the Sovereien. except in so far as they have been modified or restrained by positive legislation. For the King's prerogative is a part of the law of the realm and hath bounds set unto it by the laws of England. All that is meant by 1 prerogative ' nowadays is the practical division which it is necessary to make between the duties of the executive and the duties of the legislative power.

Now upon this very point Todd has given the history of the ease. At page 121 my hon. friend will read this:

After the death of Mr. Pitt in 1806, the King was obliged to accept of an administration taken chiefly from the Whig party, in which he had no confidence. The ministry of 'All the Talents,' under the presidencv of Lord Grenville and Mr. Fox, was forced by political considerations upon the King. Before the arrangements were completed, a difficulty arose on a point of prerogative. During the negotiations Lord Grenville proposed to His Majesty some changes in the administration of the army by which the question was raised whether the army should be under fhe immediate control of the Crown through the commander in chief, or be subject to the supervision of the ministers.

The King at once contended that the management of the army rested with the Crown alone; and that he could not permit his ministers to interfere with it, beyond the levying of the troops, their pay and clothing.

Then at page 527, Todd proceeds as follows:

We have already seen that the control of the army and navy was the last of the prerogatives to be surrendered into the custody of responsible ministers. Even of late years there have been those who have contended that the administration of the military and naval forces of the kingdom should remain altogether in the hands of the executive without any interference with the same by either House of Parliament. But sound doctrine forbids a distinction to be drawn between the exercise of the royal authority over the army and navy and over other branches of the public service; upon all alike it is equally competent for either House of Parliament to tender its advice, and there can be nothing done in any department of state for which some minister of the Crown is not accountable to parliament.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

What page is that? Sir WILFRID LAURIER. Page 527.

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L-C

Samuel Hughes

Liberal-Conservative

Mr. HUGHES.

Is the Prime Minister not confusing parliament with the cabinet? The point I have in view is this. At the time the right of purchase of commissions was done away with in the army, Gladstone completely overruled parliament, claiming that it was the prerogative of the Crown acting on Sir WILFRID LAURIER.

the advice of the minister, not the prerogative of the Crown as represented by the cabinet and the sovereign.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

My hon. friend will remember that the action of Mr. Gladstone was very severely criticised at the time. I am an admirer of Mr. Gladstone, but even the best men can make mistakes. Mr. Gladstone bad been a Tory in his early days, and perhaps he was expressing his Tory ideas on that occasion. At any rate, I well remember that the action of Mr. Gladstone, which was approved by public opinion in one sense, was severely criticised from the parliamentary point of view. At this date I do not think that anybody can contend that the King of England can have any power, either with regard to the army or with regard to the navy, which he can exercise through anybody else except through his responsible ministers who are responsible to the parliament. This is the position we take in this instance, and we say that the 'Constitution of England was introduced into Canada in 1867. At that time the prerogative of the Crown was limited to the authority of parliament in the matter of the army and navy, and therefore we have jurisdiction over the same.

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L-C

Samuel Hughes

Liberal-Conservative

Mr. HUGHES.

Go back to the early part of last century. The contention then was that the control of the army and navy was the personal prerogative of the sovereign independent of the ministers or of parliament. That was contested, and the Prime Minister may remember that I had occasion formerly to bring before him an instance.

I think when Duncan was commander in chief of the forces he claimed the right to pass over the minister and go direct to the sovereign and consult him in all matters with reference to the army. Palmerston was Secretary for War at the time, I think, it was in 1810 that the commander in chief took that position, and from that time onward the control of the army and navy was regarded as the prerogative of the Crown acting on the advice of ministers, only indirectly responsible to parliament but not directly responsible to parliament. .

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WLIFRID LAURIER.

I suppose my hon. friend will have no objections to the minister being responsible to parliament. At all events, as minister of the Crown, he becomes responsible to parliament.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE.

Does the right hon. gentleman claim that the prerogative as regards, the militia forces was not contained in the Crown at the time of the union?

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LIB
CON
LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

That is my contention, yes.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE.

Has the Prime Minister read the Acts passed in 1861-62, passed by the British parliament? Todd is no auth-

ority on any constitutional question. The Acts speak for themselves and I would suggest that the right hon. gentleman read that Act. When he illuminates this House on constitutional questions of this kind, he should know the constitutional law, and not acquire his knowledge from some hazy authority who is very ill read and not to be judged as a constitutional authority.

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LIB

Wilfrid Laurier (Prime Minister; President of the Privy Council)

Liberal

Sir WILFRID LAURIER.

I never professed to be an authority on military matters, and I am quite willing to defer to my hon. friend on that point. But on parliamentary matters he will pardon me if I do not accept his views. As a soldier I would be quite willing to defer to him on any military affairs second, of course, to my hon. friend the member for Victoria and Haliburton (Mr. Hughes). I am quite willing to accept the views of my hon. friend on military matters, but in parliamentary matters he will excuse me if I do not accept his authority. The very fact he refers to, this statute of 1661-I am not familiar with the statute-but I must say the very fact that there was a statute passed upon the army and navy and militia in England is conclusive evidence that there is a prerogative subject to the. control of parliament. Anything that becomes subject to a parliamentary statute, is not a prerogative of the Crown, and further parliament has exerted its authority. I say positively thalt in 1867 at the time of the union, the authority of the sovereign and his prerogative over the army and navy had become very anceint history. Wherein did the power to command the army and navy rest previous to that? Before parliament, it rested with the King. It rested with the" King when parliament declared that it should rest with the King. But what I say is that everything that Is concerned with the navy has ceased in England to be the prerogative of the King, and has become a matter over which parliament has the supreme authority.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE.

The right hon. gentleman seemed to be pretty hazy on the matter, but I agree with what he says as I understand it. As a matter of fact, the control was with the lieutenants of counties until the Act of 1662. The Act of 1852 reinvested authority and control over both the army and navy in the Crown. The right hon. gentleman can easily find that, if he will take the trouble to look it up.

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

Without entering into the question of the comparative authority of Todd's utterances, I beg to quote a few words from Todd which the right hon. Prime Minister did not go on to read. Speaking of responsibility for the operations of the army and navy, he says, at page 528:

As the command of the army and navy is the peculiar privilege and strength of the executive power, and cannot be surrendered to parliament without a virtual overthrow of the monarchy, it is essential that the scrutiny of parliament into military affairs should be cautiously and sparingly exercised.

Nothing could be clearer than these words ' cannot be surrendered to parliament without a virtual overthow of the monarchy.' I agree with every word that the Prime Minister has said as to the exercise of the prerogative. We have an illustration quite familiar to us in the prerogative of pardon. Everybody knows that parliament has nothing to do with the pardoning of criminals; that is a matter for* His Excellency the Governor General. But in this matter the Governor General acts upon the advice of his ministers. If the prerogative of pardon be improperly exercised, the recourse of parliament is to punish the minister. That we can do-we can turn him out of office. But we have no control over his right to advise His Excellency. The same is true with regard to the navy. No doubt, the sovereign has the power, but some minster must take the responsibility for his act. As in the case of pardon, the sovereign has the right tc act without parliament interfering, but if he acts contrary to the wish of the people, parliament can only punish the adviser who has improperly advised the sovereign.

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I do not entirely agree with the view that the Prime Minister (Sir Wilfrid Laurier) has expressed with regard to the prerogative. The prerogative of the Crown to-day is different from what it was five hundred years ago. In those cases in which the prerogative has disappeared, it has been lost in one or two ways; first, by the custom and practice of the constitution developed from time to time and, second, bv direct parliamentary enactment. I do not think it is accurate to say that the Crown has no prerogative in respect of a matter, because that matter has been dealt with by parliament. The Crown can consent to an Act of Parliament which infringes upon its prerogatives, and it gives up its prerogative by that very consent. But an entirely different question arises here from that which must be met in Great Britain. Great Britain is not limited as we are limited by a written constitution. Parliament in Great Britain, passing an Act which obtains the consent of the King, can do anything it may see fit to do with respect either to the army or the navy,-no man who has the slightest acquaintance with constitutional principles will deny that. But that is not the case with us. We are limited by a direct specific enactment. One part of that enactment -the British North America Act-section 15, provides as follows:

The command in chief of the land and naval militia, and of all naval and military forces, of and in Canada, is hereby declared to continue and be vested in the Queen.

What is the object of this section of the Bill which we are now discussing? Does it propose to limit this section 15 of the British North America Act? It does not repeat it in so many words, but repeats it with a qualification. If that qualification is inconsistent with the British North America Act, it can have no effect, because the British North America Act must prevail over every enactment of this parliament if the two be inconsistent. What, then, is the object of this section 4 in introducing a qualification to which I have referred? I do not, at the present moment, quite understand the Object of the government in introducing it. So far as some observations of the Prime Minister with respect to the use of the Queen's name in the British North America Act are concerned, you will notice that there are provisions in the British North America Act which contemplate the exercise of certain authority by the Queen, not upon the advice of the cabinet in Canada, hut upon the advice of her own cabinet. There can be no doubt about that. For example, section 26 provides:

If at anv time, on the recommendation of the Governor General, the Queen thinks fit to direct that three or six members be added to the Senate, the Governor General may, by summons to three or six qualified persons (as the case may be), representing equally the three divisions of Canada, add to the Senate accordingly.

I do not suppose that the Prime Minister will contend that he could add a qualification to that section and declare that the Queen should exercise that authority through the Governor General and by the advice of the cabinet here. That would hardly be a reasonable argument, it seems to me. I do not go into the question of control by parliament, because the parliament in Great Britain has control over the army and navy by virtue of its control over appropriations. No doubt, this parliament could have the same control; parliament *could refuse appropriations for a standing army, a militia or a navy, and in that way could exercise most effective control in this country over anv of these forces. But there is the distinction to which I have alluded in the fact that we are limited by a written constitution, and an enactment of this parliament inconsistent with the British North America Act can have no force against that Act.

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LIB

Allen Bristol Aylesworth (Minister of Justice and Attorney General of Canada)

Liberal

Hon. A. B. AYLESWORTH (Minister of Justice).

I did not take any part in the debate on this measure at the earlier stages, and I should not do so now, but that the subject under discussion relates to Mr. R. L. BORDEN

questions which, -in the main if not entirely, are of a purely legal character. I should like to premise, in what I wish to say about the matter, that I am merely expressing my opinion about the law as a member of this House, and that I do not for a moment expect that any views I hold with regard to this subject should be received with any greater weight than would be attached to expressions of opinion on the point by any other lawyer who happened to be a member of this House.

I would like to say just one thing further by way of preface. A good deal has been said, in the course of the earlier stages of this debate, upon the subject of persona] loyalty or the attachment and devotion which every British subject ought to feel towards the Crown and towards the mother country. Some aspersions-I think I may without impropriety say-have been cast, in that regard, upon, not only the leader of the House (Sir Wilfrid Laurier) and the leaders of the political party on this side of the House, but upon that political party generally, or, at all events, some sections of it. I do not want to go into anything of that sort. It seems to me that this matter can be discussed, and ought to be discussed, without any question of that character being raised. I think that, personally, I am thoroughly and entirely loyal to the British Crown, to British institutions, and to Great Britain as our mother country. I think the same thing of the right hon. gentleman who leads this House, and of his compatriots in this country; and, with' regard to this measure, I only want to say that if I thought there was anything in it which, insidiously, secretly or colourably, was endeavouring to introduce the thin end of the wedge of any division between Canada and Great Britain, or to make for disloyalty towards Great Britain, or to make even for voluntary separation between Canada and Great Britain, I not only would not be supporting this measure, but I would not remain for one single hour in anv government that would introduce it into this House. I have said before now on that subject in this place that some of my friends referred to me sometimes as a political jingo, or a Toronto jingo, equal in that regard even to my hon. friend from Victoria find Haliburton (Mr. Hughes). I am quite content to accept that description. I believe that the hon. the leader of the opposition said not long ago, (I saw it reported in some newspaper), that he came from a race of men who were proud to say, that they had never lived under any other flag than that of Great Britain. I can say the same thing; and coming with such a family history, I think it would be a strange thing if I did not feel, as I have said, not merely

the warmest affection, but a personal devotion and loyalty to Great Britain, to British institutions and to the British Royal family.

Now if hon. gentlemen will do me the credit of believing that I am sincere in what I have said, premising that much, I wish to say a few words with reference to the argument which was presented on the question now under discussion by my hon. friend from East Hastings (Mr. Northrup) in moving the six months hoist upon the motion for the second reading of this Bill. He took the position that this measure was one which it was not competent for this parliament to pass because it constituted an encroachment upon the Royal prerogative, and was in direct contradiction to the provisions of the Imperial Act governing colonial naval defence. That was a statute passed in 1865, and my hon. friend relied for his argument with regard to its application to the present measure, upon the provisions of the third section of that statute. The statute recites the expediency of enabling the several colonial possessions of Her Majesty to make better provision for naval defence, and then it goes on in the third section to declare :

It shall be lawful for the proper legislative authority, with the approval of Her Majesty in Council, from time to time to make provision for effecting at the expense of the colony all or any of the purposes following:

Among them being the establishment of a navy. Now the argument of my hon. friend, as I gathered from what I saw reported in Hansard, was that we cannot in this country, being governed by the provisions of this Imperial statute of 1865, legislate in the way this measure proposes to legislate, unless we have in that behalf the approval of the imperial government, the approval of His Majesty in Council. The question in that respect seems to turn upon the consideration of the power of the King, upon the advice of his government for Canada, or upon the advice of the imperial government, as apparently is provided for in the Imperial Act of 1865 upon which my hon. friend based his argument. Now that statute was passed two years before^ the British North America Act. The British North America Act passed by the same imperial parliament modified the provisions of the statute of two years before in a very important degree. The statute of 1865 empowers any colonial legislature, with the approval of Her Majesty in Council, to make provision for the establishment of a navy. Then in 1867 the same imperial parliament passed the British North America Act in which, by section 91, they enacted that :

It shall be lawful for the Queen, by and with the advice and consent of the Senate and 2354

House of Commons of Canada, to make laws for the peace, order and good government of Canada in relation to

Then coming to sub-paragraph 7 :

in relation to militia, military and naval

service and defence.

So we have the same parliament which, in 1865, had enacted that it should be lawful for any colony, (which may be said to have included Canada, therefore that it should be lawful for Canada), with the approval of Her Majesty in Council, to legislate for the establishment of a navy, saying two years later that it should be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons of Canada, to do that identical thing. It seems to me that the argument is manifest that the later statute plainly empowers this legislative body, the Senate and House of Commons of Canada, to do the identical thing which, by the statute of two years before, it may be, could only be done with the approval of Her Majesty in Council. That view, it seems to me, is made abundantly clear by a subsequent provision of the Imperial Act of 1865, which possibly did not strike my hon. friend from Hastings as having a bearing upon the matter, but which it seems to me is very important in considering the purely legal aspect of the case. Section 10 of the Imperial Act of 1865 provides :

Nothing in this Act shall take away or abridge any power vested in or exercisable by the legislature or government of any colony.

So we have the very imperial statute which has, in section 3, given authority to establish a navy by a colony, proceeding to declare that where any power was vested in or exercisable by the legislature or government of a colony, nothing in this statute would take away any such power or abridge it. The power then, which is conferred upon the parliament of Canada to make laws for the peace, order and good government of Canada in relation to naval service and defence, is not taken away or abridged by the previous Imperial Act of 1865. That statute, which, of course, like any other public Act, is always speaking-speaking to-da,y, as my hon. friend read it, speaking a month ago when he addressed this House, does, at the same moment at which it declares the approval of Her Majesty in Council to be necessary, declare equally that no provision of that statute should take away or abridge any Canadian powers. It would seem to me, therefore, with all respect to the argument of my hon. friend, that the very statute upon which he relied as its basis affords a complete answer to it. Just one other reference to that statute as having a bearing upon the provisions of this particular legislation. A good deal

of criticism was, at the earlier stages of this discussion, devoted to the provisions of sections 17 and 18 of the Bill before the House. These sections empower the Governor in Council to place the naval force of Canada on active service at any time when it appears advisable, and empower him, in case of emergency, to place the navy at the disposal of His Majesty for general service in the Royal Navy. That step seems plainly contemplated by the imperial statute of 1865, .because, by section 6 of that statute, it is ' made lawful for Her Majesty in Council,' that is to say, for the British government ' from time to time, as occasion requires, and on such conditions as seem fit, to authorize the admiralty to accept any offer for the time being made or to be made by the government of a colony, to place at Her Majesty's disposal any vessel of war provided by that government.' That statute of 1865 contemplated the establishment of navies, or of naval forces, by any possession of the British Crown in any part of the world, applying, as I think every one will agree, to Canada, as Canada was then constituted prior to confederation, and it conferred authority upon the proper legislative body in Canada, with the approval of Her Majesty in Council, to make provision for the establishment of a navy, and it empowered further, by this section 6, the imperial government, to authorize the admiralty to accept any offer that a colony, to wit, Canada, might make to place her ships at the disposal of the admiralty upon occasions seeming to require it. But, when, two years later, the British North America Act was passed, and power to legislate on this very subject was conferred upon the Canadian parliament, not as before, with the approval of the British government, but simply upon the approval, advice and assent of the Canadian House of Commons and the Canadian Senate, it seems to me that the argument of my hon. friend, entirely built, as it is, upon the Imperial Act of 1865, falls to the ground.

Now, a larger question, perhaps-I do not know if my hon. friend views it .as a larger question-but the question of the royal prerogative is also one in regard to which goes beyond our powers. The language of section 15 of the British North America Act is apt, if I may venture to say so. I think it means exactly what it says, as statutes which aTe well drawn usually do, but it contains a phrase that English lawyers, at any rate, and 1 presume, civil lawyers as well, are very familiar with. Something is vested in the Queen. The word ' vested ' has its special force and meaning that lawyers are familiar with. We speak of property, of real estate, as being vested in a certain man, as being possessed or owned by him. That word would be a proper word to describe the manner in Mr. AYLESWORTH.

which the public, ungranted lands of the Crown in Canada are held. The Crown lands of any of the old provinces of Canada, of Ontario or of Nova Scotia, are vested in the Queen, or in the King, as the case may be. We perfectly understand the meaning of the phrase. The grant proceeds from the King. It is a relic of the old feudal system when the lord, or the over-lord, owned all of the ungranted lands in his dominions, but no one would for a moment suppose that that precludes the parliament of the colony in which such lands lie, or the executive government of that colony, from dealing with those lands. The control over them, the management of them, the administration of them are vested in the representatives of the people, although the legal title may be in the Crown personally^ so that one would speak of the land as being vested in the King. Well, now, it is exactly in the same way, I venture to think, that the same phrase is used in section 15 of the British North America Act:

The command in chief of the land and naval militia, and of all naval and military forces, of and in Canada, is hereby declared to continue and be vested in the Queen.

I would like to compare with that section, section 9 of the same statute, because we find in section 9 the concluding words identical with those of section 15. Section 9:

The executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen.

There is no good reason, except for sake of clearness, why these two sections might not have been in one. The disposition of the two subjects dealt with by the respective two sections is identical. Certain things are declared to continue to be vested in the Queen. First we have ' the executive government and authority of and over Canada,' and likewise ' the command in chief of the land and naval militia, and of all naval and military forces of and in Canada.' If they were grouped into one in that way we would understand them perfectly because we have been familiar with it for forty years, and agree what the meaning of the expression with regard to the ' executive government and authority of and over -Canada ' is. That is vested in the Queen in exactly the same words as the command in chief of the naval force is vested in the Queen. But the executive government and authority of and over Canada is exercised by the Queen's advisers in this country, or by the parliament of Canada, each within its own functions and according to its own powers. What ground is there for attributing to the phrase ' is vested in the Queen,' when used with regard to the naval force, any other meaning than you would attribute to it, and which

we universally know it bears when speaking of the executive government and authority of and over Canada? How is that command in chief of the naval forces or that executive government and authority of and over Canada, which is declared by the British North America Act to be vested in the Queen, to be exercised in this country? The first preamble to the statute throws a great deal of light upon it. The provinces of Canada are to be federally united. How? With a constitution similar in principle to that of the United Kingdom, and whatever parliamentary restrictions there are in the United Kingdom, or whatever restrictions the parliament of the United Kingdom itself has power to impose upon the royal prerogative, such restrictions exactly, I maintain, this parliament^ as representing the people of Canada, has power similarly to impose within Canada. Just as, according to the constitution of the United Kingdom, the control of the naval forces is subject to parliamentary authority, is something in regard to which the minister of the Crown is responsible, so it is to be in this country, and the circumstance that by section 15 the command in chief continues vested in the Queen, does not, in my submission, prevent at all the administration of that force and the control and regulation of it being exercised by this parliament and by this eovernment of Canada.

It is not a new field of legislation that we are entering upon. I think that is an important circumstance always to be borne in mind. This proposed legislation repeals our existing naval law. By section 53 of the Bill, chap. 41 of the Revised Statutes of 1886 is repealed in so far as it concerns the active and reserve militia marine forces. That statute has never been repealed, it is still in force and it contains legislation on this very subject which has been upon the Canadian statute-book for years, which has never been disallowed or animadverted upon ithe imperial government It invited disallowance quite as much as this Bill would if there was any encroachment upon the authority of Her Majesty in Council, or of the imperial government or upon the royal prerogative. Section 3 of the Act as it stood in 1886 provided:

The command in chief of the land and naval militia, and of all military and naval forces, of and in Canada, is vested in the Queen

How is it to be exercised?

And shall be exercised and administered by Her Majesty personally or by the Governor General as her representative.

In 1868, when our Militia and Defence Act was passed, the provision was, by section 1:

As provided by the 15th section of the British North America Act, 1867, the command in chief of the land and naval militia and of all naval and military forces of and in Canada, is vested in the Queen, and shall be exercised and administered by Her Majesty personally or by the Governor General as her representative.

That enactment, put before the imperial authorities over 40 years ago, has never, to my knowledge, been so much as commented upon; it certainly has never been disallowed, and has never been viewed by the imperial authorities with any alarm or as constituting'any encroachment upon the royal prerogative or upon imperial rights.

We are certainly not going any further in the present legislation. The Act of 1868, repeated as it was in the consolidation of 1886, makes substantial provision for something in the way of naval forces in Canada. By section 12 the militia is divided into land forces and marine forces. The marine forces may be active or reserve militia marine, which is to be raised by enlistment or ballot, and which is to be composed of seamen, sailors and persons whose usual occupation is upon any steam [DOT] or sailing craft navigating the waters of Canada. Our present Militia Act has repealed the land sections of this legislation, but left untouched the sections with regard to the naval forces or the militia marine, and it is those provisions which it is now proposed to repeal by section 53 of the present Bill, because something else is substituted for that which previously appeared. The provisions of section 15 of the British North America Act were, I think, as much encroached upon by this previous legislation as by anything in the present Bill, but I think that there was no encroachment at all. because if we remember the position of the royal prerogative, as it has been declared by the highest authority to be at the present time, I think we will see what the meaning of the phrase is and what the full effect of section 15 of the British North America Act may be declared to be. The subject was considered, incidentally, it may be, but a very important pronouncement in regard to it was made by the Judicial Commitee of the Privy Council in England in the case of the liquidators of the Maritime Bank of Canada against the Receiver General of New Brunswick to be found in the appeal cases of 1892. At page 443 Lord Watson discusses incidentally this very subject, and I want to read a sentence or two from what he said. But to explain first how the question came up, let me say that the province was claiming certain moneys as a royal prerogative. It was a creditor of the bank which was in liquidation, and it claimed the right in priority to other creditors upon the ground that it represented the royal prerogative, and was entitled to the same rights in that regard as

the Dominion government or as the imperial government undoubtedly would have. Lord Watson upheld the view of the province, and in discussing the argument to the contrary, said it was based mainly if not entirely upon the circumstance that whereas the Governor General of Canada was appointed directly by the Queen, the Lieutenant Governor of each province was appointed, not by Her Majesty, but by the Governor General, who had also the power of dismissal; and he said that if the British North America Act had not committed to the Governor General the power of appointing and removing the Lieutenant Governors, there would not have been any room for this argument. That argument, he said, if pushed to its logical conclusion, would prove that the Governor General, and not the Queen whose viceroy he is, became the sovereign authority of the province whenever the British North America Act came into operation. Then he goes on to say with regard to this argument:

But the argument ignores the fact that by section 58 the appointment of a provincial governor is made by the Governor General in Council by instrument under the Great Seal of Canada, or, in other words, by the executive government of the Dominion, which is by section 9 expressly declared to continue and be vested in the Queen. There is no constitutional anomaly in an executive officer of the Crown receiving his appointment at the hands of a governing body, who have no powers and no functions except as representatives of the Crown. The act of the Governor General and his Council in making the appointment is, within the meaning of the statute, the act of the Crown.

Now, that is the language of the Privy Council of England, speaking through its members, the Judicial Committee of its own body-the action of the Privy Council of England is the action of the King himself. The order of the court in this very cause was the order of the Queen herself in council, advised by her advisers, and issuing her own mandate. We have it therefore, upon the highest possible authority in a matter of this character, that the meaning of section 9 of the British North America Act, the meaning of the expression that the executive government and authority over Canada is vested in the Queen, is that the Act of the Governor General and his council is the Act of the Crown. That is the way in which the executive government and authority over Canada is exercised by the Crown; and my submission is that in absolutely and precisely the same way the control over our naval forces, just as over our militia, while it is vested in the King, is to be exercised by the Governor General and his council. I do not suppose any one, even though we have a King at present upon the throne, would read these words in section 15 as meaning that the King person-Mr. AYLESWORTH.

ally was to take command of the navy anymore than of his army. It is 200 years nearly since any King of Great Britain was upon a battlefield in time of actual war. In the old days, we know, the King was the leader, the commander in chief, personally at the head of his forces, issuing his orders and taking charge of the military campaign. I am not prepared to say whether or not at the present day, if we happened to have a ruler who personally had warlike ambitions, or felt that he was competent to take personal command in chief of his forces, he would be entitled to do so. I am only seeking to point out that although the command in chief is by law vested in him, the way in which it is exercised is the constitutional manner in which the executive government of the country is exercised, through his representatives and upon the advice of his council. If it were not so, how could there be the responsibility which we know rests upon the minister and upon the government of which the minister is a member? If the command in chief of the naval forces is something which the government, or the member of the government who is the minister in charge of the naval forces, cannot exercise, how is he to be responsible? If it is something which is a personal prerogative of the King, then surely the minister who is powerless in the matter cannot be held responsible for the consequence of possible mistakes. I think therefore that no difficulties exist in the provisions of the present Bill when read in company with the controlling provisions of the British North America Act. The parliament of Canada has been declared in more than one instance by the authority of the Judicial Committee of the Privy Council to have, within the scope of its own powers as defined in section 91 of the British North America Act, absolutely the same jurisdiction and to the same extent, which the imperial parliament itself possesses; and just as the imperial parliament has power to legislate with regard to the control of not only the land forces, but equally the naval forces of Great Britain, so the parliament of Canada has power, and in virtue of the provisions of section 91 of the British North America Act, to legislate in regard to the navy that we establish or the ships that we build or buy.

Topic:   NAVAL SERVICE OF CANADA.
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April 19, 1910