January 19, 1937

CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

In what regard does it alter the law?

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

In the particular which I have just quoted in what I read from the statement of the Prime Minister of Great Britain.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

The succession to the throne is still the same as it was under the Act of Settlement; the Duke of York succeeded.

Topic:   ABDICATION OF KING EDWARD VIII
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

But the children of Edward will be barred.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

There are none.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

There have been days, as I think my right hon. friend said yesterday, when there were pretenders to the throne, and it might be advisable to provide in advance that no pretender who might arise in future should be able to cite his right to the succession by virtue of no change having been made in the law touching on the succession at the time George VI succeeded Edward VIII. It was necessary expressly to amend the act of settlement by eliminating the former King Edward VIII and his issue and descendants from the succession.

May I mention another reason why it is advisable that this parliament should give its assent to the alteration in the law respecting the succession. The British North America Act, the written part of our constitution, repeatedly makes specific reference to the crown and the position the crown holds with respect to legislation in our parliament and in the legislatures of the several provinces. The preamble reads:

Whereas the provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to be federally united into one dominion under the crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom

I direct the attention of the house to the fact that the reference there is to the crown of the United Kingdom of Great Britain and Ireland. Similarly section 2 contains the following words:

2. The provisions of this act referring to Her Majesty the Queen extend also to the heirs and successors of her majesty, kings and queens of the United Kingdom of Great Britain and Ireland.

And in other sections of the act-section 9, for example-executive government and authority of and for Canada is hereby declared to continue and be vested in the queen. I might mention sections 17, 55, 56, 57 and 91, all of which have reference to the queen and her successors. I shall leave it to my hon. colleague the Minister of Justice (Mr. Lapointe) to deal with the legal aspects of the matter. I hope I have explained, in a manner which will permit debate to proceed intelligently, the purpose and significance of the measure and why it is introduced at this time.

Before concluding may I address a few remarks to my hon. friend, the member for St. Lawrenee-St. George (Mr. Cahan). Last night he and I spoke with reference to the relation of parliament to abdication, and I thought at the time and saw, when reading Hansard later, that we were speaking at cross purposes. I had in mind the right of a sovereign to abdicate. My hon. friend was emphasizing the necessity of parliament acting with respect to abdication. I thought he was pointing out that the sovereign could not abdicate unless parliament permitted him so to do. If that was his point of view I must maintain the position I took at the time, namely that parliament cannot prevent a sovereign from abdicating if he wishes to abdicate. 'I grant that action by parliament is essential to validate the position of the successor where a sovereign has abdicated or been deposed, and it was for this reason the parliament at Westminster took the action it did when Edward VIII executed an instrument of abdication, and1 asked parliament to give effect to it.

I had in mind at the time of speaking one or two authorities on the subject. In this connection I should like to quote a paragraph from an article by Mr. J. A. Spender, which appeared in the January Fortnightly under the heading King and People. I believe hon.

Succession to the Throne-Mr. Cahan

members will agree that few if any persons are more qualified than Mr. Spender from a wide knowledge and close study of parliament and its proceedings to speak with authority upon the position of the sovereign in relation to parliament and the people. In this article at page 7 Mr. Spender says:

Learned lawyers suggested all manner of

difficulties in the Statute of Westminster when the question of the King's abdication arose. It has never been questioned that abdication is within the discretion of the sovereign. It was a favourite device of Queen Victoria's to hint at this possibility when displeased with her ministers. She had this remedy, she reminded them in 1871, if they would insist on keeping parliament sitting interminably and compelling her to remain in England until it was prorogued. Taking from the Lords their power to alter or reject measures, she told Campbell-Bannerman when he was minister in attendance at Balmoral in 1894, was something which "might be obtained from a president, not from her." The question at this point was not whether the sovereign has the right to withdraw, but what measures would be necessary to validate the position of his successor and to bar the succession to any children of the former king.

There was no difficulty about this in the British parliament, but corresponding legislation was necessary in all the dominion parliaments, and it was asked with some apprehension, would they all accept the Duke of York, might not some of them seize the opportunity to advance republican ideas, and if one of them dissented, would not the validity of the succession be open to question by all under a strict interpretation of the Statute of W estminster ?

The event dissipated all these fears and alarms. The commonwealth parliaments acted in unison with Great Britain and with remarkable unanimity and promptness.

This quotation, I trust, will serve to make clear what I was seeking to assert with respect to a sovereign's right to abdicate, and the function of parliament with respect thereto.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Hon. C. H. CAHAN (St. Lawrence-St. George):

Mr. Speaker, with regard to the authorities-or alleged authorities-which are quoted, and particularly with reference to the observations of Mr. Spender, may I say that I regard Mr. Spender's article as a popular interpretation of the difficulties which arose in England by reason of the king signing his letter of abdication, rather than an expert opinion upon the constitutional difficulties therein involved.

At the outset I desire without reservation whatsoever to acknowledge the validity and sufficiency of the act of parliament of the United Kingdom enacted on December 11 last, and entitled His Majesty's Declaration of Abdication Act, 1936, which received the assent of His former Majesty King Edward

VIII. There can be no doubt about that, and I will not find it necessary to repeat this observation in the argument I am about to make. That is fundamental. The act known as His Majesty's Declaration of Abdication Act was enacted by a parliament having paramount jurisdiction and authority, and its validity cannot be questioned. Therefore I say that there is no doubt whatever, and that no doubt can arise as to the status of our present king, George VI. His Majesty has succeeded to the throne, and to all the rights, privileges and dignities thereunto belonging.

I desire nevertheless to consider the act of the parliament of the United Kingdom and the measure before us in the light of the grave constitutional precedents which have been established thereby. Upon the former king assenting to the act in question, there was a demise of the crown. I suggest, still, that there was no demise of the crown until that act passed and was assented to. It is not necessary for us to split verbal subtleties over the matter. Upon the demise of the crown, the act expressly provided for the succession of our present king, George VI. Furthermore it provided a few details in connection with the demise and the exclusion of any possible heirs of the former king I shall repeat the provisions:

(1) Immediately upon the royal assent being signified to this act, the instrument of abdication executed by His present Majesty on the 10th day of December, one thousand nine hundred and thirty-six, set out in the schedule to this act, shall have effect and thereupon His Majesty shall cease to be king and there shall be a demise of the crown, and accordingly a member of the royal family next in succession to the throne shall succeed thereto and to all the rights, privileges and dignities thereunto belonging.

That act was passed by a supreme parliament. Notwithstanding the provisions of the Statute of Westminster, in so far as those provisions may not have been in accord with the act passed on December 11, that latest act was valid.

A proclamation was then made that the new king had ascended the throne. The ordinary formalities were complied with in the streets of London and in the public places of tihat city. Thereupon an instrument was signed by His Excellency the Governor Genera! of Canada, and also I think by the Secretary of State of Canada, which declared to the people of Canada that King George VI had succeeded to the throne. It was provided, and properly so, by whoever had jurisdiction in the matter, that every member of this house should subscribe to the oath of allegiance to the new king before taking his seat in the 'house.

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Succession to the Throne-Mr. Cahan

The king mentioned in the British North America Act, which- has not -been amended, is the king of the United Kingdom of Great Britain and Ireland. I suggest that there can be no division of the throne. At times I read in the papers of the king as the king of Canada, which may be a popular style of reference. I saw also what I thought was a rather silly and grotesque statement by a newspaper in one of the maritime -provinces to the effect that for the first time the king was being recognized -as the king of certain provinces in this dominion. The king is the king of the different provinces, in a sense; the king is the king of the city of Ottawa; the king is the king of the county of Wright, but only because these different localities with certain geographical descriptions are included in the Dominion of Canada, in the commonwealth of nations and with the possessions and territories of the crown throughout the British Empire.

There is but one king and no matter what action was taken by the government of Canada it could not effectively destroy the legal fact that the proclamation of George VI as king in London under a statute of the imperial parliament constituted him as king with all the attributes and qualities which are mentioned in the British North America Act. In fact we had to consider this whole question in a statute passed in 1934 with reference to the oaths of allegiance, after the Statute of Westminster had been duly enacted in 1931. Chapter 21 of the statutes of 1934 provided that except in the case of the oath to be given under the provisions of the Naturalization Act, which is provided for by a special statute in accordance with another imperial statute dealing with naturalization, and excepting the oath prescribed for members of parliament by the British North America Act, which this parliament could not amend or modify, the oath of allegiance to be administered in Canada on all occasions shall be the following:

I, A.B., do swear that I will be faithful and bear true allegiance to His Majesty King George the Fifth, his heirs and successors according to law. So help me God.

Then follows another provision:

(2) Where in the said oath of allegiance the name of His present Majesty is expressed, the name of the king or queen of Great Britain. Ireland and the British dominions beyond the seas, for the time being, shall be substituted from time to time.

Clearly admitting that there could be no separate king for Canada, and clearly admitting that in accordance with the provisions of the British North America Act, which we all recognize, the king of the United Kingdom

I^Ir. Cahan.]

is and will continue to be the king mentioned and described in the British North America Act, 1867, which establishes the Canadian constitution. The king of the United Kingdom is "His Majesty" who is a constituent part of all legislation passed by the parliament of Canada.

I am not dealing -with the provisions of other dominion constitutions because they are somewhat different. There was a distinct provision in the Union of South Africa Act of 1909, and again in the act of 1934. My impression, which is that of one who is not acquainted with their law and constitution beyond reading from time to time the provisions thereof, is that the Union of South Africa has declared that the king of the United Kingdom shall be deemed to be the king of South Africa under its constitution. Certain reservations have been made which just suggest the possibility that South Africa might change its allegiance -by secession. Similar suggestions have come from the Irish Free State from time to time, but none of these have any validity except as hypothetical oases suggested for the purposes of political discussion.

When an abdication has taken place which is recognized by a statute applying to every part of the king's dominions, colonies and possessions, why should we at this stage take the novel and ineffective course of providing by statute that this king, who has been proclaimed in Canada as elsewhere throughout the empire, should be deemed by an act of the parliament of Canada to be the king of the United Kingdom and of all parts of the empire? I should like to suggest that the drafting of the bill to confirm the abdication act was perhaps hurriedly done. But the "whereases" provided in the preamble to that act are not binding provisions of the statute, and have no legal effect in construing the enacting clauses themselves.

I notice that in a statement which was given to the public by the Prime Minister on December 10 last he said:

Following upon the receipt this morning of the expression of the king's declaration and desire, an order of his excellency the governor general in council was approved, embodying the necessary request and consent to the enactment of the appropriate legislation as regards Canada by the parliament of the United Kingdom, and the government of the United Kingdom was advised accordingly.

He then proceeds to deal with the Statute of Westminster, and says:

The statute as a whole does apply to Canada, which is therefore guaranteed under section 4 that no legislation of the United Kingdom

Succession to the Throne-Mr. Cahan

parliament can apply to Canada unless Canada has expressly requested such application in advance, and consented to its terms.

The order in council of December last, as the Prime Minister stated last evening, is the only document by which Canada requested and consented to the proposed act of the imperial parliament. The newspapers state that the meeting of council was convened at 9.30 in the morning. I assume that some time must have elapsed for so momentous a decision to be given by the members of His Excellency's council, but 9.30 in the morning in Ottawa is 2.30 in the afternoon at Westminster. About three o'clock at AVestminster the bill was introduced in the parliament of Great Britain. So that any criticism I make of the order in council and of the statute which is alleged to have been passed in consequence of that order in council is softened and modified somewhat by the fact that these hon. gentlemen meeting at 9.30 in the morning, had only a half an hour in which to approve and finally carry through the order in council dealing with so momentous a matter, and then have it embodied in the form of a cable addressed to the government at Westminster.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

May I say to my hon. friend that I explained yesterday that the government had very carefully considered all possibilities and had given the utmost time and thought to what it might be necessary to do in what necessarily would be a very short time. The fact that council met formally between 9 and 9.30 to pass the order in council does not mean that the order in council had not been very carefully considered and very carefully drafted a day or two days before it was approved.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I was trying to excuse the right hon. gentleman, as one who, with his colleague the Minister of Justice (Mr. Lapointe), introduced that draft order to council, because on its face it seems to be one of the most hopelessly confused examples of draftsmanship that has ever come to my knowledge among the records of the privy council.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

That is only my hon. friend's opinion.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

That is my opinion, and I am stating it frankly.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

Ernest Lapointe (Minister of Justice and Attorney General of Canada)

Liberal

Mr. LAPOINTE (Quebec East):

We have had my hon. friend's views on other legislation before.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Let us deal with the Statute of Westminster. The Statute of Westminster

was not drafted with such expedition as was the Act of Abdication or the order in council upon which it was assumed to be 'based. The Statute of Westminster was approved at an imperial conference, which reported upon the operation of the dominion legislation in 1929, and the provisions of the proposed statute, so far as they refer to Canada in that recommendation and report of 1929, signed by the present Minister of Justice, were accepted and approved at a later date by resolution of a provincial conference held at Ottawa in 1931. In the meantime the imperial conference of 1930 had met and approved of the recitals to the proposed Statute of Westminster, but the prime minister of that day, the present leader of the opposition (Mr. Bennett), suggested that before final assent should be given to the provisions of that statute they should be considered by the representatives of the provinces of Canada. The result was that a provincial conference was convened in Ottawa early in 1931; on June 30. 1931, a joint resolution of both houses of parliament was approved by the Commons, and on July 6, 1931, that same joint resolution approving of the terms of the statute was passed by the Senate of Canada. It appears in the volume of our statutes for 1931.

The Statute of Westminster was subsequently enacted in December 1931. My right hon. friend the prime minister in his address stated that some significance was attributable to the fact that in respect of the request and consent of the dominions, it was not stated in section 4 of the Statute of Westminster that that should be the request and consent of the parliament of Canada; and by reason of the fact that the parliament of Canada was not mentioned he assumed, as he often makes assumptions, that the government of Canada could act in requesting and consenting that imperial legislation should apply to the Dominion of Canada in a special way, as provided under section 4 of the Statute of Westminster.

Topic:   ABDICATION OF KING EDWARD VIII
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

My hon.

friend's leader made the same assumption.

Topic:   ABDICATION OF KING EDWARD VIII
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I did not catch it if he did, but even if he did, if it came up for discussion my leader is always open to hear discussion of legal points, and I have known him as well as eminent men on the bench to reverse their preliminary opinions after hearing a full discussion.

Where, I would like to know, does the dominion government get authority for any order in council except through a Canadian statute? Has it not been declared time and

72 COMMONS

Succession to the Throne-Mr. Cahan

time again by the competent courts of Canada that an order in council passed and approved by His Excellency the Governor in Council is valid and legally effective only when there is found supporting statutory authority for the passing of that order in council? This is not the United States of America. There, by their constitution, the president is made the chief executive of the republic, with vast powers vested in him, the like of which are not known outside of one of the modern states-fascist or nazi or communist. We have lived so long in proximity to the United States and the Prime Minister has considered American legislation and American methods to such an extent that he evidently loses sight of the fact that this country is not a part of the United States of America, and that the United States constitution does not apply to Canada. In this country no order in council is effective unless it has the authority of a Canadian statute behind it to render it valid and effective. In the conference of the premiers of the dominion that was the issue we were considering; we considered it time and again, studying the possible effect of those clauses of the proposed Statute of Westminster which would have effect within the confines of Canada. As I remember, it was distinctly said that the request and consent of the Dominion of Canada inevitably and necessarily meant one of two things: either that that request and consent should be made by parliament, as we were discussing it then, in the way in which parliament has always made similar requests and consents, by joint resolution of the Senate and House of Commons of Canada; or that it must be made, if made by a government, in virtue of some statutory authority enacted by the parliament of Canada, expressly vesting in the government the right by order in council to transmit such request and consent.

The right hon. gentleman and those associated with him have presumed without any such statutory authority, by an order in council passed by the governor in council alone, to request and consent to imperial legislation, and to secure that imperial legislation passed by the parliament of the United Kingdom should extend to Canada as part of its fundamental law. This action by order in council had never entered1 the mind of any sane man who attended either of those conferences at which I was present. It never was discussed; it never was suggested. What does it mean? And it is to this that I wish to call attention, because the action of the government, in requesting the passing of this

[Mr. Cahan.)

Declaration of Abdication act, establishes a precedent of most momentous import to the whole people of Canada. It implies that a government in Canada, simply because it deems it politic to do so, without statutory authority from the parliament of Canada- with no more authority than the three tailors of Tooley Street had to enact imperial legislation-may propose that legislation intimately concerning and affecting Canada, passed by the United Kingdom, shall apply as part of the law of Canada and become effective and be recognized necessarily by all the courts of Canada without the Commons consenting, and without the Senate of Canada consenting. What does that signify?

The right hon. gentleman says that if the Commons of Canada does not approve of the arbitrary action which has been taken, then it can vote to turn out the government and put another government in office. That is the reply he makes.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

No; it was my hon. friend's leader who said that.

Topic:   ABDICATION OF KING EDWARD VIII
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

No.

Topic:   ABDICATION OF KING EDWARD VIII
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

Oh, yes.

Topic:   ABDICATION OF KING EDWARD VIII
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CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

You said it first.

Topic:   ABDICATION OF KING EDWARD VIII
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LIB

William Lyon Mackenzie King (Prime Minister; Secretary of State for External Affairs; President of the Privy Council)

Liberal

Mr. MACKENZIE KING:

Surely the hon. gentleman does not think that I would be able to get ahead of his leader to that extent.

Topic:   ABDICATION OF KING EDWARD VIII
Subtopic:   ALTERATION IN THE LAW TOUCHING THE SUCCESSION TO THE THRONE
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January 19, 1937