April 19, 1910

CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

I am very glad we have reached that stage of this discussion where we can calmly and dispassionately discuss the question before the House as a purely legal question; and while I differ from the hon. gentleman, I propose for the sake of argument to admit the first part of his argument, and see where it lands him and the government. The hon. gentleman admitted that apart from the British North America Act, the statute to which I referred, 28-29 Victoria, provided that such a colony

as Canada could only pass such a Bill as this if it were in accordance with orders made by the King and council; but the hon. gentleman said that apart from that, the wording of the British North America Act gives Canada a power which withdraws it from the control of the Colonial Defence Act. He has referred to the words of the statute. Now let us look at the words of the statute and see the practical working out of it. Section 91 of the British North America Act says ;-

It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make the laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the legislatures of the

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

Without another word being said, and the courts held that that authority might properly be exercised by the Governor General on the advice of his responsible ministers. Take clause 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 con-

The same argument would apply there, and why would it not apply to clause 4 m this Bill before the House. If we read:

The command in chief of the land and naval forces is vested in the King.

provinces.

Therefore, he said, power having been given by the British North America Act to Canada to legislate on these four subjects, militia, military, naval service and defence, therefore we have power to legislate without regard to the motherland.

I admit that for the sake of argument while I dispute it as a matter of law. Reading down the list of subjects, dealt with by section 91, we find that No. 2 3 is copyrights. Exactly the same argument applies to copyrights; this country has an exclusive right to legislate with regard to copyrights without regard to the motherland, but yvho does not know that we tried to do so and failed because we have no such power. I go to No. 25 in the list of subjects "and I find that just as we have power to legislate, with regard to the militia, military, naval service, and defence, so we have a power to legislate with regard to the naturalization of aliens. This House has a power to legislate with regard to naturalization, but will the Prime Minister pretend for a moment to say that we have any such power under the sun. It is provided by an imperial Act of 1879, but all we have a right to do is to give a limited apologetic form of naturalization to those only within the borders of Canada. Yet the words of this section 91, are so complete that if the argument of the hon. gentleman is sound with regard to naval matters it is equally sound with regard to each of the three, and being certainly and demonstratively wrong, with regard to the latter two, I submit it falls also to the ground in regard to subsection 7- Now, another point. He referred to the judgment of the Privy Council to show that under section 9 of the British North America Act precisely the same powers had been held by the Privy Council to belong to the Governor General as are given to him by this clause. I do not think the right hon. gentleman appreciated the force of his own argument. In section 9 it is declared:

-and stop there, what is the object of inserting those other words? I am not going to insult the intelligence of this government by suggesting that_ they are cumbering the statute-book with words that are utterly meaningless, and yet it is quite clear that the Privy Council has admitted that without these words the clause would allow the Governor in Council to administer the law. Why then put these words in? They are either superfluous, being already provided for, or they are void, having no power.

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An hon. MEMBER.

Ultra vire3.

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CON

William Barton Northrup

Conservative (1867-1942)

Mr. NORTHRUP.

Why, therefore, cumber the statute-book with words that are either superfluous or void. There is only one reason that I can understand why they are there. It would be impossible to read clause 18 in this Bill if we had not those additional words added in clause 4. If we left the command of the fleet vested in the King it would be rather absurd for the Governor in Council to place it at his own disposal if he liked. But we are to have two distinct bodies, the King on the one hand, and the government to control the navy on the other; and then we begin to see why these words which are either superfluous, or void, are introduced.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE.

As an ordinary layman it is a little rash perhaps for me to project myself into a legal argument of this kind, but having had some connection with the military side of life, perhaps I can take a cooler view of a question of this kind, than the legal gentlemen who have discussed it. Now the only way to get at the root of a question of this kind is to get right down to the foundation and find out whether in the beginning of things or at any stage of the procedure the command of the army and navy was vested either in the King, or in the parliament of Great Britain and Ireland. In the year 1661 Charles was restored to his throne.

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M. J. A. CURRIE.


By this means they establish a constitutional check on the Crown or on what is known as the prerogative of the Crown. Now, that right was given up by the parliament of England by the Acts of 1852, 1858 and 1876. And the sole right to command the militia and the whole army to-day rests with the King. We never had the right, nor had the parliament of England, to declare that ,the King had not the sole command. But what does this command consist of? It consists of issuing commissions and orders and moving the forces. It is quite true-I acknowledge that it is per- . fectly right-that this parliament has the authority to establish a navy, to arm it, equip it, man it. But when it comes to ordering that navy, or moving it, or saying what it should do, that is within the prerogative of the King. There are various prerogatives of the King. There is, for instance, the prerogative relative to real estate, water-powers, and that sort of thing. But this is an arm of the King-the army and navy is an arm of the King. It is true, and has always been true, as the learned gentleman has quoted, that we could establish a navv. He states that the British government, or naval department of the government, should have the right to accept ships from the colonies. Quite true. But the King has had the right to accept ships from his subjects from time immemorial, and letters of marque have been issued to privateers, as everybody knows. As I said there is nothing to prevent this parliament from establishing a navy, arming, equipping and manning it; but when it comes to the question of appointment, of moving and ordering that navy, that rests with the King as I have shown by the clause I have read from the Act of 1661 which has never been repealed, and certainly could not be repealed by Act of this parliament. But what does this Naval Bill propose? It proposes by order in council to assume to pass a law, to issue commissions and order and move this navy, to compel this navy to act and fight or retreat as .it wishes. Tomy mind knowing a little about military law, as it was necessary for meto know, it seems absurd for this parliament to assume that such a power exists, for there is no ground for such assumption. While it is quite true that the army and the navy may be moved by the Crown without respect to either the English parliament or this parliament, there has never been any question that this would be done on the advice of the minister, and, in this case, the minister whose advice would be sought would be the Minister of the Marine here. But, in case of necessity arising there is no doubt that the absolute command to this navy is in the King, this having been declared by the highest authority of the realm, parliament itself over four hundred years ago. Can we, a small por- tion of the British empire, propose to remove that authority and that power of command? Now, Sir, this question assumes a very grave aspect, because I think the enactment here proposed does not show that respect for the dignity of the Crown which we, as a parliament, and as good British subjects ought to show. The question of the right of command should not have been raised in connection with this navy? I asked the Minister of Justice to quote the words of the statute of 1886. And the House has waited for his reply. This is the clause: The command in chief of the land and naval militia, and of all naval forces of and in Canada is vested in the Queen and shall he exercised and administered by her personally, or by the Governor General as her representative. I wish hon. members to note the words * as her personal representative,' because that expresses exactly the idea that was contained and is well recognized by the English law. In Great Britain, for instance, the pay of the army and navy is by royal warrant, and not by vote of supply as is done here. The other question brought up by the minister is the right of the Crown in civil matters. This is not a civil matter. It is the armed power, not the civil power we are dealing with. Even in the matter of the civil power the King is supreme. _ His prerogatives have, however, been limited by statutes and the interpretations of the courts. His prerogative, however, exists. It is the same as his right in real property. We all know that all real property is vested in the Crown, and that we as citizens have only the use of Teal property. But the command of the army and navy is on an altogether different basis. The old statutes of 1661 never having been repealed 'by England, whereby the parliament of England declares the control of the marine and naval forces of the empire and all its dominions to be vested in the Crown is to be challenged at this late day. For that reason, in my opinion, it would be better to modify this section and not try to set up a new principle of constitutional right. ' Mr. CONGDON. The hon. member for North Simcoe (Mr. J. A. Currie) is endeavouring to revive a doctrine that cost one King of England his head and another his throne. There is nothing clearer m the British constitutional system than that these prerogatives of the Crown were usurpations, brought about by the arguments of lawyers-such arguments as we have listened to to-day. These lawyers were trained in the unmitigated tyranny of the latter Roman empire. Their doctrines were written on the statute books of many European kingdoms, and, if carried into effect, would have made the British empire worse than any oriental despotism that ever existed. Because you find that, as a result of these refinements, the King is represented as perfect, as immortal, as legally ubiquitous, the fountain of honour, the vicegergent of God, and responsible to Him above, owning all the land in the country, and as even invisible. In conflict with this, you have the corrections introduced, into the British constitution by actual practice. The Roman lawyers might indite their doctrines as strongly as they liked, but the barbarous Germans, amongst whom they endeavoured to propagate these ideas, refused to recognize the arguments and corrected the proposals in practice. It is the old confusion of the King as an actual person with the King as a body politic. As a corporation sole, of course, the King has all these powers. In that sense, it is true, as> said by Louis XIV, ' L'etat c'est moi. For the King in that sense is the state. He does not exercise these rights m his own person, but, since the Bill of Rights, since the Act of Settlement, by the advice of his ministers responsible to parliament. ^ The real question here is whether His Majesty shall exercise command and control of the Canadian navy solely and wholly upon the advice of British ministers responsible to the British parliament which in turn is responsible to the British people, or shall exercise these powers on the advice of his Canadian ministers responsible to the parliament of Canada in its turn responsible to the people^ who pay the expense of the navy both in its original construction and subsequent operations. It seems to me that to contend in this late day that the colonies are to do nothing in the shape of defence without handing over the control to imperial ministers, is to discourage all parts of the empire, except Great Britain and Ireland from doing anything in the way of contribution to Imperial defence.


CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

The hon. member for Yukon (Mr. Congdon) is to be congratulated on his frankness in stating the issue. I agree that the issue is as he has stated. I do not agree that we have the right to practically amend the British North America Act. I have said what I thought about this matter on the second reading, of the Bill, and I am confirmed m my opinion and strengthened in it since, and have discussed it with gentlemen more learned than I am, and I have no doubt the latter part of section 4 is ultra vires of this government, and the British government would have a perfect right, and it would be their duty to the empire, to disallow that section. We have a constitution in this country which gives us full

power in domestic matters, but we have no constitution that allows us to butt in, so to speak, upon imperial matters. We have been politely told by the imperial government, when we undertook to suggest what they should do in respect to the government of Ireland, that we had better mind our own business, and we were told so correctly. We are now here to-day undertaking to say that the British North America Act should practically have words in it that it does not contain. The British North America Act is similar to clause 4 of this Bill, if you stop at the word King,' but we undertake to add that the command m chief of the naval forces shall be invested in and exercised by His Majesty, or by the Governor in Council, as his representative. We have no right to say that as loyal citizens of the empire- and I make no insinuation against the loyalty of any one who thinks we have such a right. But, speaking for myself, I dare not do it; we dare not do it, because we have no authority to put into the hands of the government of this country a right to do something which the British North America Act never said they should have a right to do as loyal citizens of that great empire. I cannot agree with the conclusion of the hon. member for Yukon (Mr. Congdon) who frankly says what _ he believes, and says that tnis is the issue before the country to-day I agree with him that it is the issue but I take strong grounds that we have no legal right under the British North America Act, outside of any question of loyalty to the United Kingdom, to say that that Act puts a prerogative in the Governor General of this country as dis-tmguished from the imperial government.

At one o'clock, committee took recess

Committee resumed at three o'clock.

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

I do not wish to detain the committee very long with any observations of mine. In so far as my position towards this legislation is concerned, I have already endeavoured to make it clear that such objections as I have to it do not rest upon the particular wording of any section; they are very much broader than that. Personally, I would be disposed to leave to the government the entire responsibility of the form in which they express their intention with regard to the establishment of this navy. In connection with this section, however, it seems to me that we are wasting our 'time in discussing what is the proper meaning of section 15 of the British North America Act, and defining where the command lies, unless it is contended that the general provisions of section 91, which give to this parliament power to legislate with regard to militia and defence, confer

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CON

Edward Arthur Lancaster

Conservative (1867-1942)

Mr. LANCASTER.

.power on us to place the command ot the forces somewhere else than where section 15 places it. I propose to ask my hon. friend the Minister of Justice (Mr. Aylesworth) a question. What I would like to ask the Minister of Justice is whe-t"er I should understand him to argue that the effect of the provision of section 91 of the British North America Act conferring legislative power with regard to militia and defence was to confer on this parliament any power to place the command of any force, either naval or military, elsewhere than where section 15 places it?

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LIB

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

Liberal

Mr. AYLESWORTH.

I think there is nothing inconsistent in the two sections and that full effect can be given to both.

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

I believe certainly that full effect can be given to both, but what I would like to understand is whether the Minister of Justice takes the position that under section 91 this parliament can, if it so determines, legislate to place the command of the force elsewhere, than in His Majesty, whatever meaning' is to ,be attached to the words 'His Majesty'.

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LIB

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

Liberal

Mr. AYLESWORTH.

The phrase 'command of the forces' is perhaps confusing. If the hon. gentleman means to ask, whether, in my opinion, parliament can authorize the appointment of a general or admiral who would have command of the forces then I would say certainly I think so. ' '

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

Of course, but that does not answer my question. I presume it is because I do not make myself understood. What I would like to get quite clear is whether in the opinion of the hon. minister section 15 is not legislation of the imperial parliament determining where, for all time, at all events, as far as the subsequent action of this parliament is concerned, the command of the forces shall be; I do not mean to say the actual command in the sense of naming a general, but the control of the naval force of this country, and possibly the appointment of a general.

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LIB

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

Liberal

Mr. AYLESWORTH.

I think that certainly section 15 is an absolute determination of the matters there dealt with, but the hon. gentleman, I am sure, is not losing sight of the view expressed by the Judicial Committee to which I referred in the case of the Maritime Bank that the command or control was to be exercised by the government of the country.

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

I take it then to be agreed that whatever may be the meaning to be attached to the phrase ' declared to continue and be vested in the Queen ' as found in the British North America Act, it is settled that this parliament cannot step

in and by any enactment, for instance bv this Act, provide that the command shall be vested somewhere else than in His Majesty, or, as it states, in the Queen.

I do not want to question the interpretation put upon section 15 by the right hon. First Minister (Sir Wilfrid Laurier) or the Minister of Justice, though I must confess that it did not seem to me that one of the arguments made in support of that contention was very conclusive. It was argued that because under section 9 which provides that the executive government of Canada shall be vested in His Majesty it was held, and I have no doubt that it was rightly held, that that meant that the executive government of Canada was vested in His Majesty, represented by the Governor General, in Council that holding settles the meaning of the words ' the Queen ' in setcion 15. I do not dispute that holding at all, but in so far as it was argued that because in section 9 the words ' Her Majesty ' or ' the Queen ' were to be taken as meaning ' Her Majesty' through the Governor in Council it necessarily followed that the same expression in section 15 meant the same thing, that did not seem to be quite conclusive. Because it is to be pointed out that section 15 deals with the command, not merely of the military forces of Canada, but deals with the military forces of and in Canada. Now, at the time of the passage of the British North America Act, and for a long time subsequent, we had in Canada regular forces of Her Majesty. We may not for the moment have these, but there is no reason why we should not at one time or another have within Canada the regular forces of Her Majesty. Section 15 determines, without making any distinction between the two, that the command of all forces of and in Canada shall continue to be vested in Her Majesty. I hardly think it would be argued that the effect of that section was to place the regular forces of Her Majesty in Canada under the control of the Governor in. Council and in the same section the Queen, or her Majesty, as constituting the commander of the regular forces, could hardly be held to be a different personage from the Queen as _ constituting the commander of the militia. I do not propose to argue from that in support of either one or the other proposition as to what is meant by 'Her Majesty'. All I desire to point out is that the argument by analogy from section 9 does not seem to me to be at all conclusive, and I think it may further >be pointed out as showing that those who were in the beginning called upon to deal with the interpretation of this section recognized the then existence in Canada of regular forces of Her Majesty, which they did not in any way pretend under this section

came under the control of the Governor in Council, that in the original Militia Act-and I am not certain that this is not carried on in the Act to-day-that_ you have a special provision that Her Majesty might in certain cases place the militia under the command of the commander of her regular forces in this country. Now the commander of Her Majesty's regular forces was not the officer of the Governor in Council, there was a separate commander of the militia forces. But as I said I do not desire to argue for or against the pretention that the control of our own militia may have been intended to be in Her Majesty in Council in Canada; that is to say Her Majesty as represented by the Governor General in Council in Canada. All I wanted to point out is that the argument made in support of the propositioii does not seem to me to be as conclusive as it apparently seemed to the gentleman who invoked it.

It seems to me that the discussion by this House of what is meant by the provisions of the British North America Act is quite nugatory. We have not power by legislation here to determine what that meant, and it seems to me that we have not properly speaking, power to determine where the command of the forces of this country rests, that is determined by the British North America Act, and as was pointed out by the hon. member for Hastings (Mr. Northrup) if the British North America Act means, as it was contended on the part of the government, that the command is vested in His Majesty through the Governor General here and vested in him in council, that is so, whether we make an enactment on the subject or not; and if, on the other hand, it does not mean that our enacting that it does will not alter the state of the law. Apparently this parliament in taking upon itself as a matter of substantial legislation to determine where the command lies is taking on itself to determine something which the parliament of the United Kingdom by the British North America Act has determined for all time to come. In that connection one may safely say that that was the view of it entertained by the authors of the original Militia Act and they might perhaps be correctly enough described as having been at the same time the authors of the British North America Act. At least the minister who was primarily and particularly responsible for the Militia Act, the late Sir George E. Cartier, may fairly be described as having been one of the authors of the British North America Act, and it is a noteworthy thing that when they came to enact the Militia Act, the first one enacted under the British North America Act they did not ask parliament to determine on its own authority where the command rested, they enacted a section 1 which recited that the British North

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CON
CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

I am also disposed to take the view that the government must accept the responsibility of legislation of this kind-of course that goes without saying. The point of my objection was precisely that which has been emphasized by my hon. friend (Mr. Doherty), inasmuch as this parliament has no legislative authority to qualify or limit the language- of section 15 of the British North America Act, it ought not to undertake to do it. Indeed I have some support in- that from a former Minister of Justice, although apparently none from the present Minister of Justice. I observe what took place when the Militia Act was before this House in 1904, during the discussion on section 4 which read:

The command in chief of the militia is vested in the King and shall be exercised and administered by His Majesty, or the Governor General as his representative.

The hon. member for Victoria and Hali-burton (Mr. Hughes) who has brought the passage to my attention, inquired:

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LIB

Frederick William Borden (Minister of Militia and Defence)

Liberal

Sir FREDERICK BORDEN.

The word personally ' is left out.

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Charles Fitzpatrick

Mr. FITZPATRICK.

I would suggest that this whole section would be dropped. It is absolutely unnecessary and in any event would have to be altered. Section 15 of the British North America Act provides:

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 to be vested in the Queen.

That does away with the necessity for this section.

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April 19, 1910