April 19, 1910

LIB

Frederick William Borden (Minister of Militia and Defence)

Liberal

Sir FREDERICK BORDEN.

Let the section stand.

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Mr FITZPATRICK.

If it is to stand, I would suggest this modification. Instead of reading, ' The command in chief of the militia is vested in the King/ it should read, as in the words of the British North America Act, is hereby declared to continue and be vested in the King/ Because we are not conferring upon His Majesty authority over the army. That authority is conferred by the constitution.

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LIB

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

Liberal

Sir WILFRID LAURIER.

This seems to be a wordy warfare. I rather agree with the Minister of Justice (Mr. Fitzpatrick) that there is no necessity for the clause. I think we might allow it to stand in the meantime.

That was the view expressed then.

Then let us remember once more that the authority of the imperial parliament is one thing, and the authority of this parliament is another thing so far as the prerogative of the Crown is concerned. The imperial parliament under modern conditions can deal with the prerogative of the Crown in any way that it sees fit, but this parlia-

inent cannot do so where it is limited by the terms of the British North America Act.

A gentleman whose opinions on constitutional questions were quoted very freely in this parliament in 1905 in connection with the Autonomy Bill, and who- has since been appointed to be a judge of the highest court of one of the provinces of Canada, speaks on the very subject we are now discussing-I am quoting from _ Clements' work on the Canadian Constitution at page 253. He is dealing with the prerogatives of the Crown and section 9 of the British North America Act cpioted by the Prime Minister, and he says:

The power (1) to disallow colonial legislation; (2) to appoint the Governor General; (3) to appoint a commander over the military and naval forces of Canada; (4) to make international arrangements which will bind Canada; and (5) to hear appeals from Canadian courts in her Privy Council (j); would seem to be about all the common law prerogatives of the Crown in connection with colonial affairs, over which colonial legislatures have no legislative power.

Nothing could be much more explicit or definite than that. He classes interference with the command of the militia and naval forces in the same category as the power to appoint a Governor General of Canada or the power to disallow colonial legislation, or the power for His Majesty to hear appeals from Canadian courts before the Judicial Committee of his Privy Council. These are all placed in the same category.

I do not know by whait pretense we can undertake to practically amend section 15 of the British North America Act.

The prerogatives of the Crown have been very tersely described by Professor Dicey in a passage quoted in the late work of Mr. Lowell, president of Harvard University on the Government of England.

The authority of the Crown may be traced to two different sources. One of them is statutory, and comprises the various powers conferred upon the Crown hy Acts of parliament. The other source gives rise to what is more properly called the prerogative. This has been described by Professor Dicey as the original discretionary authority left at any moment in the hands of the King; in other words, what remains of the ancient customary or common law powers inherent in the Crown.

He points out that the distinction is not always easy to draw because the prerogative of the Crown has sometimes been amplified by statute, and in some of the statutes which do modify it additional prerogatives have been conferred on the Crown itself. He points out, however, that these are not what are commonly known as the prerogatives of the Crown, but special statutory powers created by parliament, and conferred upon the Crown. The prerogatives in regard to the army and navy are very well understood. I realize that a

constitutional writer in a work published only a few years ago declares that in Great Britain the army and navj are the creatures of parliament. So they are the creatures of parliament in one sense that they could not exist at all except for the annual appropriations voted by parliament, and so far as the army is concerned, it could not exist except by virtue of the^ annual ^enactment of the Army Act which provides for discipline within the army. That is not the case with regard to the -navy. So they are the creatures of parliament in that sense, but the old common law prerogative of the Crown to hold the command of the army and navy has not been taken away. Indeed, the prerogatives Qf the Crown in Great Britain are somewhat more extensive to-day than many people suppose. There is a well known passage in this work of Lowell, cited from Bagot:

' It would very much surprise people,' as Bagehot remarked in his incisive way, ' if they were only told how many things the Queen could do without consulting parliament.' . [DOT] [DOT] Not to mention other things, she could disband the army (by law she cannot engage more than a certain number pi men, but she is not obliged to engage any men); she could dismiss all the officers, from the General commanding in chief downwards; she 'could dismiss all the sailors, too; she could sell off all our ships of war and all our naval stores; she could make a peace by the sacrifice of Cornwall, and begin a war for the conquest of Brittany. She could make every citizen in the United Kingdom, male or female, a peer j she could make every Parish in the United Kingdom a ' university ; she could dismiss most of the civil servants; she could pardon all offenders.

And all of us remember that the beginning of Civil Service reform in Great Britain was through the prerogative of the Crown, and not through any Act of parliament. The measure could not be put through parliament in Great Britain as parliament at that time was opposed to it, and the real beginning of civil service reform in Great Britain was effected by the exercise of the prerogative of the Crown:

In a word, the Queen could, hy prerogative, upset all the action of civil government within the government. We might add that the Crown could appoint bishops, and in many places clergymen, whose doctrines were repulsive to their flocks; could cause every dog to be muzzled, every pauper to eat leeks, every child in the public elementary schools to study Welsh; and could make all local improvements, such as tramways and electric light, well-nigh impossible.

He sums it all up so far as the army and navy are concerned, at page 22 by saying this; On page 22 we read: 'As head of the army and navy it (that is the Crown) raises and controls the armed forces of the nation and makes regulations for their government, subject of course to the statutes,

and to the passage of the annual Army Act.' That is the situation in Great Britain. Parliament can modify that situation, and we can modify that situation in this country, but only within limits, and so far as we purport to qualify the limits set upon our power our action would be inoperative.

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L-C

Samuel Hughes

Liberal-Conservative

Mr. HUGHES.

Is the Prime Minister going to pass section 4 after hearing read the statement of Sir Charles Fitzpatrick?

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LIB

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

Liberal

Sir WILFRID LAURIER.

I think I can satisfy my hon. friend very easily upon that question. The British North America Act gave a new entity to this country and provided that the executive power was vested in the Queen, the sovereign of the day, and the legislative power was vested in the Queen, in the Senate and in the House of Commons. That Act was passed, it came into effect, and we have had the advantage of having had parliamentary interpretation of the powers vested in parliament upon this very question, that is to say, in whom should be vested the command of the naval forces and military forces. I shall have to quote once more section 15 of the 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 have not apprehended exactly what was the meaning of hy hon. friend from Hastings (Mr. Nor-thrup), 'but I think he stated that the command, as far as the navy was concerned, was vested in the King, and under the conditions of things prevailing in Great Britain, under the constitution, could not be delegated to anybody, not even to the Governor in Council.

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CON
LIB

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

Liberal

Sir WILFRID LAURIER.

Perhaps not. At any rate, that is the way I interpreted; it. Perhaps I may quote the constitution of Australia upon this point. Section 51 is analogous to ours and vests in the Australian parliament the naval and military defence of the Commonwealth and of the several states and the control of the forces. Section 68 is in these words: 'The command in chief of the naval and military forces of the Commonwealth is vested in the Governor General as the Quen's representative.' The Act is clearer in this respect than ours, because it says in so many, words that the command is vested in the Governor General. But though clearer on this point, it is not more effective than ours. Now, from the early days of confederation we have had the interpretation of parliament upon this clause, and the first interpretation is to be found in the Act which has been quoted by several of my friends on the other side, and later by my hon. friend from 8t. Anne's (Mr. Doherty). These words are to be found in the very

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CON

Robert Laird Borden (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. R. L. BORDEN.

first Act on this subject, which w'as drafted by Sir George Cartier:

The command in chief of the militia is declared to continue and be vested in the Ring:, and shall be exercised and administered by His Majesty or by the Governor General as his personal representative.

Now,^ it is to be noticed here that the word ' personal ' was introduced in the section, though it pretended to follow and to keep close within the language of the British North America Act. The word personal ' was interpolated for reasons as to which I have not been able to satisfy myself in any study I have been called upon to give to that question. But it is not of very great consequence. In later legislation on the same subject, the word [DOT] personal ' was eliminated. The Act, the Militia Act of 1867 came to be revised, not in the general codification of 1896, but by this parliament in 1904, and there the section was interpreted again, and interpreted in these words: 'The command in chief of the militia is declared to continue and be vested in the King and shall be exer-i cised and administered by His Majesty or by the Governor in Council.' My hon. friend (Mr. Borden) has just quoted a discussion which took place on this question in this House._ He quoted the observation made at the time by the Minister of Justice (Sir Charles Fitzpatrick), that the section was unnecessary, because the matter was provided for in the British North America Act, and that they could not depart from the terms of the British North America Act. So far as I know that is the only opinion which he quoted, and as I understood him, the matter was allowed to rest there. But though the Minister of Justice of the day stated, in the 'Opinion which was read by my hon. friend (Mr. Borden), that the clause was not necessary and should be eliminated, the clause was allowed to remain in the Bill.

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LIB

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

Liberal

Sir WILFRID LAURIER.

I do not know that that changed the condition at all. In the clause which is adopted in this Bill, and which is in these words: ' The command in chief of the naval forces is vested in the King and shall be exercised and administered by His Majesty,' this parliament does not pretend to go back upon anything which is declared in the British North America Act. The only words which are eliminated are these: ' the command in chief is declared to continue and be vested.'

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L-C

Samuel Hughes

Liberal-Conservative

Mr. HUGHES.

Might I point out that *when Sir Charles Fitzpatrick asked that the clause stand, it read then :in the Militia Act the same as section 4 in this Act now reads, but when it was represented to the House it read as it now stands in the Militia Act with these extra words.

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LIB

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

Liberal

Sir WILFRID LAURIER.

Does my hon. friend think these words make the clause any stronger?

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L-C
LIB

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

Liberal

Sir WILFRID LAURIER.

I am sorry I have not been able to read the whole discussion. If the point is simply this, that in the opinion of my hon. friend instead of reading as it does to day ' the command in chief or the naval force is vested in the King,' it should read ' the command in chief is declared to continue,' I do not know that it would make much difference, and for my part I would have no objection at all. If he insists upon these words, I will ask it to stand and will consult the Minister of Justice upon this point. For my part I do not think it makes any difference at all whether the clause reads as it is here, ' the command in chief of the naval force is vested in the King,' or whether it reads 'the command in chief is declared to continue and be vested in the King.' This seems to me to be a distinction without any difference. Of course we cannot change the law of the British North America Act; we are bound by it. And whether we recognize it in so many words or not makes no difference.

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CON
LIB

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

Liberal

Sir WILFRID LAURIER.

I have no objection to make this in conformation with the Militia Act and I move that m the first line of section 4. after the word k be inserted ' declared to continue and be.

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CON

John Allister Currie

Conservative (1867-1942)

Mr. J. A. CURRIE.

Why not insert the words of the original Militia Act?

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LIB

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

Liberal

Sir WILFRID LAURIER.

This Militia Act was adopted after long discussion, as appears from the quotations that have been made, and as it is the latest utterance of parliament on the subject, I think we should adhere to it.

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CON

Charles Joseph Doherty

Conservative (1867-1942)

Mr. DOHERTY.

I do not wish to persist too much, but I still do not think that this alteration meets the objection as it presents itself to my mind. It seems to me an entirely illogical proceeding for this House to enact something, whether by declaration or by _ substantial enactment, something which is already law, made the law by a parliament different from this, a parliament whose legislation this parliament has absolutely no power to alter. It seems to me we might as well, in any other Act, enact some section of the British North America Act dealing with the same subject. Now putting upon the statute-book such an enactment, prima facie, is a declaration on our part of the power to deal with the matter. Yet, we all seem to be agreed that we cannot determine that matter in this House, it having been once for all determined by the British North America Act. It is true, as stated by the leader of the opposition, and as apparently held by a. former Minister of Justice in regard to a similar matter, that it may possibly do no harm. But it would seem to be more rational for us to proceed under the law that governs us and not to make a pretense of enactment on the subject.

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April 19, 1910