January 19, 1937

CON

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

I am not trying to get ahead of anyone. I did not understand him to say so. But what does it mean? It means that the Commons of parliament has supreme authority and is in a position to exclude the Senate from legislative action in respect of important measures affecting the life and property of the people of this country. That is what it means. It means a violation of the express provisions of our own British North America Act, that legislation shall be enacted by the two houses of parliament, and that they alone can grant authority to the government. They alone have authority to enact and apply legislation to the whole dominion.

Now this order in council is a precedent. In my lifetime, which is short, it may not cause grave difficulties in Canada. It may not do so within a year or two, but I am convinced as I stand here to-night, with eternity in front of me, that the time will come when that precedent will be regarded by the people of the country as a whole as a most violent disruption or attempt to disrupt the whole constitution of Canada as at present expressed in our British North America acts, and as expressed in the com-

Succession to the Throne-Mr. Cahan

plementary legislation which parliament has passed by virtue of the authority of those acts.

I have an entirely different theory. I may be wrong, but I doubt whether section 4 of the Statute of Westminster applied to this condition at all. I doubt whether it applied to the abdication of King Edward VIII. I doubt whether legislation should have been passed under that section, because, no constituted parliament or government of any dominion had the legislative jurisdiction to deal with an act of abdication. We are circumscribed within the four corners of the British North America Act. Do you find there any authority for the parliament or Canada to change the succession or to deal with the accession of a new king, or to exclude a former king and the heirs of his body from the succession? Do you find that anywhere in the British North America Act? That is one of the subjects which have never been vested by the imperial parliament in any dominion of the commonwealth. It never was vested in Canada. Therefore, when we dealt with that matter, the imperial parliament was unwilling and regarded it as imprudent to divest itself of its exclusive authority to deal by legislation with such matters.

The right hon. gentleman read the provision :

. . . that any alteration in the law touching the succession to the throne or the royal style and titles shall hereafter require the assent as well of the parliaments of all the dominions as of the parliament of the United Kingdom.

That was not placed in one of the enacting clauses of the Statute of Westminster and in the deliberations of the several imperial conferences attention was directed to that fact. The Minister of Justice has subscribed his name to at least two reports which I remember, in which it is expressly stated that the placing of such a clause in the preamble to the Statute of Westminster was a mere convention, that it simply stated expressly what were the conventions then existing which had grown out of the use and custom of the United Kingdom in its relations to the dominions and others. And it was said that if that clause were inserted in the statute as one of its enacting clauses of the Statute of Westminster it would effect such rigidity as would render it almost inapplicable to cases of exigency and crisis which might hereafter arise. Therefore that clause was placed in the preamble where it has no effective legal binding authority or obligation.

But in dealing with that clause the various conferences or parliaments considering the

matter never suggested that the assent of the government of this dominion might be required. It was not left open to the suggestion that following some precedent of some despotic country the government or the despotic head of that government, without statutory authority from its parliament, could deal with such an important matter without consulting the popular assembly if such existed. But this preamble has no legal or [DOT]binding authority; it is inserted by way of advice as to the constitutional procedure that should be followed. It says:

And whereas it is meet and proper to set out by way of preamble to this act that, inasmuch as the crown is the symbol of the free association of the members of the British Commonwealth of Nations, and as they are united by a common allegiance to the crown, it would be-*

It does not say it is.

it would be in accord with the established constitutional position of all the members of the commonwealth in relation to one another that any alteration in the law touching the succession to the throne or the royal style and titles shall hereafter require the assent-

Of whom? Of the governor general in council? Of the Minister of Justice? Of the Prime Minister? No. It expressly states:

-shall hereafter require the assent as well of the parliaments of all the dominions as of the parliament of the United Kingdom.

Yet the right hon. gentleman goes to another section and says that because the word* " Dominion of Canada " are there mentioned it is left perfectly free for the governor in council without statutory authority to assume that position and to fulfil that definite requirement of constitutional custom and procedure.

I have taken a good deal of time. I have a number of authorities; I do not intend to cite them, but when this matter was before the imperial conference of 1930, at which Canada was represented by the present leader of the opposition, it was made clear on page 18 of the British report-I have not the Canadian report at hand-as follows:

To this end it seemed desirable to place on record the view that the sections of the statute relating to the Colonial Laws Validity Act should be so drafted as not to extend to Canada unless the statute was enacted in response to such requests as are appropriate to an amendment of the British North America Act. It also seemed desirable to place on record the view that the sections should not subsequently be extended to Canada except by an act of the parliament of the United Kingdom enacted in response to such requests as are appropriate to an amendment of the British North America Act.

That paragraph clearly indicates the nature of the request which was to be made by or

74 COMMONS

Succession to the Throne-Mr. Cahan

on behalf of Canada in order that an imperial enactment might hereafter extend to Canada as a part of the law of Canada.

Now I ask the right hon. gentleman what is the real significance of this bill which he proposes to enact? The bill contains certain recitals by way of preamble, and then goes on to say:

1. The alteration in the law touching the succession to the throne set forth in the act of the parliament of the United Kingdom intituled "His Majesty's Declaration of Abdication Act 1936" is hereby assented to.

What is the recital? The recital is:

Now, therefore, His Majesty by and with the advice and consent of the Senate and House of Commons of Canada enacts as follows:

Who is "His Majesty"? His Majesty King George VI, if you please. He is the king to whom we owe allegiance. It in fact recites:

Now therefore His Majesty King George VI, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows.

It proceeds to enact a ratification, or purports to enact a ratification, of the abdication of his predecessor, which was already ratified and confirmed only with the assent of his predecessor; it ratifies and enacts that his own succession to the throne is confirmed and made regular, and that the heirs of the body of the late king shall no longer be entitled to assume the office of sovereign of the empire. And that we, the parliament of Canada duly assembled should now pretend to enact such a statute as that with the consent of his present majesty, appears to me to be the most ridiculous suggestion that I have heard in my time.

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 ask my hon. friend a question: Did I understand him to say that King George VI succeeded to the throne only with the assent of King Edward VIII and that such assent was essential to King George Vi's succession to the throne?

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 say he did succeed to the throne by an act assented to by the former King Edward VIII; there is no doubt about that. And until King Edward VIII had given his assent to the abdication act, King Edward VIII remained king of the United Kingdom of Great Britain and Ireland.

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 just the point I want to bring out. Suppose King Edward VIII, instead of waiting after he had signed the instrument of abdication, had left England and gone to the South Pole, and had refused to take any further part in

legislation. Does my hon. friend still say that his assent would have been necessary in order to effect a demise of the crown?

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:

We have one precedent for what the right hon. gentleman has stated; it is clear, and I need not go into it. There was a king, King James II, who did not formally abdicate but who left the kingdom, went abroad and took up his residence there. The parliament of Great Britain enacted a bill known as a declaration of rights; in fact I think there were two declaration of rights dealing with the matter, the final one being dated February 16. 1689, declaring that James had abdicated and that the throne was vacant.

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

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

Liberal

Mr. MACKENZIE KING:

Yes, but James did not-

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

Charles Hazlitt Cahan

Conservative (1867-1942)

Mr. CAHAN:

Wait a moment. In defiance of the law and of the constitution that then existed, he had abandoned the throne, had fled to a foreign country although he had not signed an act of abdication. The parliament which was summoned declared that his acts were equivalent to an abdication and should be regarded as a formal abdication. Parliament declared that the throne was vacant, and proceeded to provide that the succession should be through William and Mary and their heirs failing, to the heirs of the body of Anne, and failing them to the heirs of the body of William.

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:

They validated the position of James IPs successor.

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 disagree with the words; rather than validating his abdication they practically expelled him from the throne.

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

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

Liberal

Mr. MACKENZIE KING:

I said they validated the position of his successor as king.

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 was involved, but I do not quite see how that applies to this case. This succession is established. King George VI is king. The succession remains to the heirs of his body, and the descendants of King Edward VIII are precluded from claiming the throne. There is not one scintilla of legal enactment required to perfect it, yet we are asked or we invite the new king to go through the farcical action of assenting to a Canadian act ratifying the abdication of his brother, his own accession to the throne and certain other results that flow therefrom. What is necessary, rather, is to find some formula whereby the precedents established on this occasion by my right hon. friend may be limited for all time to this particular incident.

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):

Oh, oh.

Succession to the Throne-Mr. Cahan

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:

Well, it is easy to laugh, but I think it is more serious than that. What have we done? The statute passed in England asserts in its preamble that this dominion- I am not referring to the others-has requested and consented to the enactment of this abdication act, and the imperial statute is based upon that preamble. It was Mark Twain, I think, who wrote a story about a boy who declared, "It is so because my father says it is so, and if my father says it is so it is so even if it ain't so." That is about the position in which we are placed.

Whether the government of Great Britain were fully advised as to the confusing contents of the order in council that was passed, or whether it was simply stated to them by cable that Canada requested and consented to this enactment, I do not know. I do not agree at all with the contention of the right hon. gentleman that whatever correspondence passed should not be brought down by him in parliament, on the ground which he stated, that these were communications between two parties. That may be so, but the communications which are relevant and material were the communications sent by the right hon. gentleman for the purpose of procuring an act of the parliament of Great Britain. They are not exempt from production by reason of the fact-

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

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

Liberal

Mr. MACKENZIE KING:

The order in council covers that; it is all set forth there.

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:

No request and consent is contained in the order in council. All that is contained in the order in council is approval of the imperial parliament making a misstatement in a preamble to an imperial act.

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

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

Liberal

Mr. MACKENZIE KING:

The order in council is all there was.

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:

If that is all there was it is clear that this order in council does not contain an express request and consent. The right hon. gentleman had many precedents available. Time and again this parliament, by joint resolution, has approved of addresses to his majesty requesting and consenting that certain legislation should be enacted applicable to this country. I remember that on two or three occasions-as the Minister of Justice must recall, although I have not the record before me-we passed joint resolutions containing requests and consents of that kind. For instance, I believe we did it in connection with parliament's request for extraterritorial jurisdiction.

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

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

Liberal

Mr. MACKENZIE KING:

Is my hon. friend arguing that we should have waited and called parliament?

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 am not saying my right hon. friend should have waited for parliament, but he seems always to have in his mind that he should have followed the precedent set by Australia. I have information before me which would indicate Australia was so well advised of what was impending -I do not know whether they were better advised than my right hon. friend-that on December 4 a special summons was issued for a special session of parliament on December 10.

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

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

Liberal

Mr. MACKENZIE KING:

Does my hon. friend think we should have done that?

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

January 19, 1937