January 19, 1937

CON

Richard Bedford Bennett (Leader of the Official Opposition)

Conservative (1867-1942)

Mr. BENNETT:

It is sound to make the declaration.

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):

-precautions had to be taken. These were two different things. The recital in the preamble, upon which the hon. member for St. Lawrence-St. George bases his whole contention, mentions that it is according to the present practice under the new constitutional situation that any alteration in the law of succession should be assented to -by the parliaments of the dominions. But the only alteration is the one I have just mentioned. I agree with my right hon. friend the leader of the opposition (Mr. Bennett) that the giving effect to the abdication and making the road free for the accession of the next in line, the Duke of York, did not constitute an alteration in the law of succession, not at all.

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

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. WOODSWORTH:

Would the minister repeat that? I want to be sure about that.

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):

I say that

1 agree with the leader of the opposition that giving effect to the abdication of his former majesty by the imperial parliament and clearing the road for the accession of the next in line, the Duke of York, under the statutes as they then existed did not constitute an alteration in the law of succession. What constitutes an alteration in the succession law is, in my opinion, the provision in subsection

2 of section 1 of this bill, which precludes the possible children of His former Majesty Edward VIII from having any claim to the throne of England. That was an alteration, and that was the only part of the law that comes under the recital in the preamble of the Statute of Westminster. We are acting within the four corners Of that act by asking parliament to assent to this alteration in the succession act.

My hon. friend from St. Lawrence-St. George states that our assent to that part of the imperial act providing for giving effect to the abdication and the accession of King George VI should have been given by way of parliamentary legislation, not by order in

TMr. E. Lapointe.]

council. The position in that respect has been very well explained both by the Prime Minister and by the leader of the opposition.

The third recital of the Statute of Westminster reads as follows:

And -whereas it is in accord with the established constitutional position that no law hereafter made by the parliament of the United Kingdom shall extend to any of the said dominions as part of the law of that dominion otherwise than at the request and with the consent of that dominion:

This new convention in that recital was adopted for the purpose of reconciling the existence of the legal power in the parliament of the United Kingdom to legislate for the dominions, which legal power undoubtedly exists, with the now established constitutional position, namely, equality of status between the United Kingdom and the dominions. But there is a difference between the convention embodied in recital number three and the convention embodied in recital number two. There it was regarded as a practical consideration affecting the drafting and interpretation of statutes; it was thought desirable that the principle should be expressed in the enacting part of the act, and that gave birth to section 4. Section 4 of the Statute of Westminster reads:

No act of parliament of the United Kingdom passed after the commencement of this act shall extend, or be deemed to extend, to a dominion as -part of the law of that dominion, unless it is expressly declared in that act that that dominion has requested, and consented to, the enactment thereof.

Well, the difference of opinion between the hon. member for St. Lawrence-St. George, and myself, the Prime Minister and the leader of the opposition-and here I disagree with my hon. friend from Winnipeg North Centre- is that the term "dominion" as it is used in the second last line of section 4 of the Statute of Westminster clearly applies to the government, and not to the parliament of the dominion. There are many reasons for that. In other parts of the Westminster act, whenever it was the intention that the parliament of a dominion should act, it was so expressly declared. As was stated yesterday, in the section referring to the Commonwealth of Australia it is specifically provided that:

The request and consent referred to in section 4 shall mean the request and consent of the parliament and government of the commonwealth.

If section 4 meant the request and consent of the parliament of the dominion, why should the statute, three sections later, refer to the parliament, when it comes to the Common-

Succession to the Throne-Mr. Lapointe

wealth of Australia? What the leader of the opposition said yesterday with respect to this matter is quite right. When the resolution to concur in the Statute of Westminster was discussed in the parliament of the commonwealth, Mr. Latham, now Sir J. G. Latham-

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 Chief Justice.

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):

I had the privilege of meeting him at the conference of 1926, and when this matter was under discussion in the parliament of the commonwealth he took the position that the word "dominion" there meant the government. Here is what Mr. Latham said:

What is meant by "that dominion"? Generally it means, in practice, the executive government of the dominion. I propose to ask the house to amend that provision by requiring that the request and consent shall be made and given by the parliament and by the government. We are asked to do something very remarkable.

Further he says:

For the word "dominion" I am proposing to insert the words "parliament and government." The object of my amendment is that, instead of the request being from a dominion, it should be from the parliament and the government of a dominion.

I consulted the reports of the debates in the commonwealth and I saw that Mr. Latham's amendment was not agreed to by the then government-the Scullin government-but they accepted another amendment along the same lines, moved by Mr. Lyons; and it is that amendment, then adopted by the parliament of the commonwealth, that has been inserted in the Westminster act, to make a special provision and disposition as far as t'he Commonwealth of Australia is concerned. And later, when the Westminster bill was before the British House of Commons, Sir James Withers moved:

That section 4 be amended by inserting, after the second word "that", in line 5, the words "the parliament of". But upon Mr. J. H. Thomas, Secretary for the Dominions, explaining that the clause was drafted in its present form at the request of the dominions themselves, the amendment was negatived.

There is therefore no doubt that the intention was that it should be the government of the dominion.

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:

Will the hon. gentleman allow me a question?

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):

I have only forty minutes. I did not interrupt my hon. friend.

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:

It was not in the clause as submitted to the government.

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):

If the Speaker will allow me extra time I shall be glad to answer the question.

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:

The clauses dealing with Australia and Australia's procedure were not included with the clauses submitted to the Dominion of Canada or the government of Canada at the time. Only those clauses were submitted to the Dominion of Canada which referred to action by the Dominion of Canada, and so, at the time that the clause with reference to Canada was approved, there was no way of comparing the two or noting the difference.

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):

Does not my hon. friend think that as a member of the government at the time, if he thought it should be the parliament instead of the government, he might have moved and tried to get the change that Mr. Latham succeeded in getting in Australia?

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:

It was perfectly clear without that.

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):

That is not the opinion of everyone else.

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:

It was the opinion of the conference that dealt with it.

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

Jean-François Pouliot

Liberal

Mr. POULIOT:

Is St. Lawrence-St. George dissatisfied with our king?

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):

I agree that the idea underlying the placing of the section as it is with regard to Canada and the other dominions, which did not ask for a special exemption from this provision, was to meet occasions such as the one that confronted us in the month of December- occasions of emergency when it was necessary, in spite of what is being said to the contrary, to act speedily. And the result shows the marvellous elasticity of the British constitution, which always meets emergencies as they arise and deals with matters in such a way that the common sense of statesmen in a time of crisis prevails over the precision of a distinguished lawyer. We were at a time when the situation was a disturbing factor in Canada as well as in Great Britain and in every other nation of the commonwealth, and I believe that even my hon. friend will admit that a prompt decision then was a service rendered to the nation. Indeed, every British citizen, in Canada and elsewhere, was hoping, and expressing the hope in very clear language, that this crisis would come to an end as speedily as possible. Well, then, I repeat, the elasticity of the British constitution worked, and it resulted

80 COMMONS

Succession to the Throne-Mr. Lapointe

in a decision that satisfied everybody in Canada except those who cannot be satisfied with anything the government does. My hon. Mend from Winnipeg North Centre, I am afraid, is among those. I must say that his famous telegram, of which he spoke the other day did not raise in Canada the disturbance which was expected. Everybody everywhere expressed the hope that we would deal with this matter immediately and without confusion.

If the constitutional convention, which is enacted in section 4, requiring the assent and request of the dominion, means anything- and it does mean something-it means that everything that is of concern to all the members of the commonwealth should be dealt with by all the members of the commonwealth. If we had to do anything it had to be done immediately or there would have been chaos in Canada. Even with what was done, I was constantly receiving telephone messages, even from distinguished judicial authorities, asking what should be done- whether they should hold court, whether there was still a king, and so on. My hon. friend laughs, but they were not all so sure of their ground as he is, and they were afraid of what might be the outcome of procrastination and further delay. The whole matter was settled by the government interpreting. correctly as I believe, the feelings of the population of Canada; and after all that is what is meant by the Westminster act in providing that the assent of the dominions shall be given. It means the assent of the people of a dominion, and the will of the people was clearly manifested. I claim that it was legal and more than legal; it was sensible. With all due respect to my hon. friend, I must say, when he uses the words "absurd," and "ridiculous," and "frivolous," that we would have done the absurd thing if we had done what he suggests.

My hon. friend ridiculed the argument that if a wrong has been done in any way parliament has the remedy in its hands. That is quite true. There is nothing extraordinary in that contention. Parliament has always the remedy in its hands, and parliament is satisfied with the way in which this matter has been settled. My hon. friend has tried to convince his leader and in my turn I hope to convince him; I hope he will see that we could not have acted otherwise in the circumstances.

The present bill, as I have said, is necessary because of the alteration in the law of succession, which is quite a different thing. Subsection 2 of section 1, according to my view,

changes the law of succession by depriving of the throne the possible children and heirs of Edward. In the event of marriage there is, as I said, no retroactivity needed, because there is no child, no marriage even, at the present time.

May I now just sum up my contention on these two points. Upon the abdication of Edward VIII it became necessary because of the attendant circumstances for the parliament of the United Kingdom to enact legislation for two main purposes: first, to make the abdication and the accession of George VI effective; second, to alter the law touching the succession to the throne. In so far as the contemplated legislation would relate to the abdication and succession it would extend at once to the dominion as part of the law of that dominion, and would consequently require the previous request and consent of the dominion to the enactment thereof, in accordance with section 4 of the Statute of Westminster. In so far as the legislation would operate to alter the law touching the succession to the throne, the assent of the dominion parliament is required in accordance with the constitutional convention set out in the second recital to the Statute of Westminster, but such assent could be given within any reasonable time thereafter, as it would not be a condition precedent to the enactment of the legislation but merely a convention limiting its operation in the dominion. With regard to the former the government took the action which was required under section 4, which admittedly does not require the assent of parliament. With regard to the latter the government now asks the assent of parliament to the alteration in the law touching the succession to the throne, so as to give effect to the convention. Inasmuch as such alteration can operate in the future only in the event of there being issue of the Duke of Windsor, it is not necessary that such assent should have any retroactive effect.

I desire, Mr. Speaker, to conclude these remarks by a word or two as to the importance of the throne in the British constitution. It is the bond. When His Majesty's Abdication Act was discussed in the British House of Commons a socialist member, Mr. Stephen, supporting an amendment to the effect that the throne should be done away with and we should have a republic, said-I have his words here-that it was a fallacy to claim that the dominions are bound to the empire by the British throne, that there was no bond between the various parts of the commonwealth embodied in the throne, but that

Succession to the Throne-Mr. Woodsworth

the only bond was economic necessity, and this would last even if a republic were instituted in the United Kingdom. I am pleased that when the vote was recorded in the British House of Commons the amendment was rejected by a vote of 403 to 5. Mr. Stephen certainly did not interpret correctly the feelings of the dominions. I have been a long time in public life in Canada; I have been in this parliament I am ashamed to say how many years, and I think I know pretty well the sentiments of Canadians as a whole. I have had relations with public men in the other dominions. I desire to say to-day that the British throne is the cement, the bond that unites all of us, and if it should disappear and be replaced by some other form, as suggested by this gentleman, I am afraid that the end of the British Empire would be in sight and that Canada would soon not be part of the British commonwealth of nations. That is the great and the consoling lesson which comes to us as an outcome of all these troubles, which caused concern to many people throughout the commonwealth and even throughout the world. But we are proud to say at the end that the action which has been taken, the sentiments which have been expressed, the feeling of all British citizens throughout the world, have been such that we have demonstrated not only to everyone in our own dominions but to all the world the granite strength of the British constitution enshrined as it is in the British throne.

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

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. J. S. WOODSWORTH (Winnipeg North Centre):

This is obviously rather a field day for the constitutional lawyers. Neither by training nor by temperament am I fitted to enter upon the purely legal aspects of this case. But since the vast majority of the people of Canada are not constitutional lawyers perhaps I may be permitted to say a few words with regard to some other aspects of the matter.

I confess that as I have listened to the discussion so far I have not been very greatly enlightened, but indeed somewhat confused. We have had brought before us a great many legal and metaphysical subtleties. Whether the crown is unitary or divisible and multiple I do not quite know. I would say this, that as a Canadian I believe that Canada ought to be able to have something to say with regard to who is to rule over Canada. Whatever that may mean as to the throne being divisible or unitary, let the lawyers argue. Again I confess that even the genial Minister 31111-6

of Justice (Mr. Lapointe) did not altogether clear up my difficulties with regard to the distinction between legal and constitutional. Possibly it is because the Prime Minister (Mr. Mackenzie King) has not had as long and formal training in law as have some of the others who have spoken, that I could not follow his argument, but I thought that he mixed the two on occasions, even when he was trying to make the distinction clear. Again that may be merely because I cannot clearly follow a strictly legal argument.

I feel the same way when we are told that the preamble to the Statute of Westminster does not constitute an operative part of the statute. As I said the other day, it seems to me that whatever may be true ordinarily, in this particular case at least the preamble occupies a very important place, since it lays down a constitutional convention. It would appear to me, with only a layman's outlook, that it ought to have a real place in the statute if we invoke the statute at all, concerning the desirability of which there seems to be some question.

Again, we heard the leader of the opposition (Mr. Bennett) talking about the demise of the crown. I think I had better read his statement. He said:

We call it in technical parlance his abdication, but we had no precedent for abdications and as to the implications of them, and the statute, in order that there might be no difficulty, in that section declared that there was a demise of the crown. The king was dead.

Mr. Lapointe (Quebec East): Hear, hear;

that is right.

Mr. Bennett: The king was dead. And from

that there followed

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):

My "hear, hear" applied to the part concerning the 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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CCF

James Shaver Woodsworth

Co-operative Commonwealth Federation (C.C.F.)

Mr. WOODSWORTH:

The minister took that interpretation, did he?

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