The Constitution of Canada: An Introduction to its Development and Law

Front matter

0JC MBM«

.V

THE CONSTITUTION OF CANADA

Preface

Any historical work which attempts to traverse the whole period of a nation’s life, even if it be that of a young nation like Canada, must be either an outline of events or a study of development. In this work I have essayed the latter of these, endeavouring to present to my readers neither a description nor an analysis of the political institutions of Canada, but rather an evolutionary account of the various movements and stages which have issued into the organized political life of the Canada of to-day. Canada as a political unity has a distinctive, to some it may seem an anomalous, character. It is well worth studying, both as a recent example of the process of nation-making and as a most significant illustration of that real and yet not absolute sovereignty which defies the older theories of government and thereby leads us to a truer conception of the state. I have sought to unite these two aspects in this work. To understand the former it is necessary to keep the social background always in view, to show how, under the special conditions of a new land, the conjuncture of groups detached from older countries, particularly England and France, the insistent near influence of a great neighbouring country already ahead in economic development, and the later influx of more heterogeneous elements from many lands, with all the meeting and clash of traditions which this implied, have worked in the end to a certain unity and a sure nationhood. To understand the latter it is necessary to observe how the evolution of Canadian government has constituted a decisive challenge to the absolute Austinian doctrine of sovereignty.

vm

PREFACE

This doctrine the very fact of the British Empire, as it has grown into a unity of self-governing peoples, by itself may be said to refute,Jbut nowhere is that refutation so convincing as in the case of the country which names itself a Dominion and yet never hesitates in its allegiance to the mother country and to the Imperial system of which it constitutes a part. Without doubt Canada is a nation, and beyond question Canada owns a sovereignty. The situation creates both new problems and new visions. It is part of the whole world situation which the War emphasized. Absolute sovereignty in the last resort proves to be an illusory but most perilous claim in face of the facts of interdependence. While the civilized world is groping for the solution of the problem thus created, the British Empire is at least adumbrating the form wEich that solution must take. Canada has a special significance in this development. I have sought to bring out something of that significance in this w'ork, and, particularly in the concluding chapter, have suggested the bearing of the Canadian situation on the whole issue of the interpretation of sovereign power. At any rate the history of Canadian constitutional development must be regarded as one of great moment, being full of achievement which once seemed to lie completely outside the possibilities admitted by time-honoured political theory.

Without attempting to record on every occasion my obligations to historians whose work has passed into the common heritage of history, I have however made every effort both in the foot-notes and in the lists of authorities to acknowledge my sources. The former are more particularly meant for students who may wish to follow the history more closely. The latter are deliberately placed at the end of each chapter, and I have, with special purpose, repeated the full titles of books. Of course, an exhaustive bibliography was out of the question,

PREFACE

IX and I have only attempted to provide a working one to which reference on specific subjects can easily be made.

Finally I should like to hope that this study in Canadian history will be received as at least objective in spirit. I am quite conscious that I may have made interpretations which are incomplete or even invalid, and that I may have over looked material which would alter or modify my conclusions. On the other hand, I have tried to follow the development with as great detachment as possible, and all that I can venture to hope is that I have made a contribution to Canadian history not quite unworthy of its romantic development, its social values, its political import, and of the genuine pleasure which it has given me since my residence in Canada.

It would be impossible for me to acknowledge in detail the generous help which I have received from many friends both in England and in Canada, and I can only ask them to accept this general acknowledgement of their kindness and interest. I owe, however, debts which require more definite payment. To Professor R. M. Maciver, University of Toronto, I am under the greatest obligations, and in the dedication I attempt not merely to acknowledge these, but to record a friendship which lies deeper than a common interest in history would suggest. To Dr. A. G. Doughty and Dr. Adam Shortt I owe a sincere debt. I take this opportunity to place on record my appreciation of the services which they have rendered to historical research through the Dominion Archives and the Historical Manuscript Commission of Canada. I should also like to add that Dr. Doughty has gone far beyond his official duties to help me, and that he has freely placed at my disposal on every occasion not only his own services but those of his assistants. Colonel Fraser, Archivist of Ontario, has given me the greatest assistance, and has directed me to material which

X

PREFACE has helped to fill in the picture. Professor G. M. Wrong, University of Toronto, has taken an active interest in the book as it was written, and if I have escaped gaucheries into which a writer who is not a Canadian might easily fall, I owe it to him. Mr. W. S. Wallace has given me, especially in the earlier chapters, the benefit of his knowledge of Canadian history. Mr. C. R. Fay, Christ’s College, Cambridge, has kindly read my manuscript and has given me many important suggestions. My wife has seen the book through the press and has compiled the index. My last acknowledgement is to the late Professor A. H. F. Lefroy, University of Toronto. For three years before his death he and I worked through carefully the cases in constitutional law while preparing his Short Treatise on Canadian Constitutional Law for publication. We discussed their bearing and importance, and in determining the form of his work we mutually agreed on many phrases and generalizations. Almost naturally I have fallen back on these, and I acknowledge my obligations elsewhere. I cannot, however, let this book go to the press without a recognition of Professor Lefroy’s insight into Canadian federalism, and of a friendship which was so courteously willing to guide me in a new and difficult field.

Toronto.

PAGE

Chapter I. Introduction 1

The unbroken growth of constitutional development — The government of New France — Evolution through representative and responsible government to federalism — Religious liberty — Developments since 1867 — Growth of Canadian national feeling — ^The purpose of this study.

CHAPTER V. THE ESTABLISHMENT OF CIVIL GOVERN- MENT IN QUEBEC 32 The Proclamation of 1763 — ^Murray’s Commission and Instructions

The administrative scheme of the Proclamation — Criticism of the Proclamation — Scope of Murray’s Instructions — The difficulties of the situation — Murray’s criminal and civil courts — Authorities.

Chapter VI. The Civil Government Of Quebec, 1764-74 39

Early note of repression — Opposition — ^The growth of conciliation —

The difficffities created by the British in the Province — ^Murray’s and Carleton’s estimates of them — Demands for House of Assembly- —

The Imperial Government and the constitutional issues — Reports and suggestions for constitutional changes — Estimate of the period — ^Authorities.

PAGE

Chapter VII. The Quebec Act, 1774 .... 50

The passing of the Act — The new constitution — Carleton’s Instructions— Carleton’s dubious proceedings — The legal system under the Act — The ecclesiastical system under the Act — Carleton’s attitude towards the problem of government — His dispatches prior to 1774 —

Their influence on the Act — The Act and the American Revolution —

The motives behind the Act — The wisdom of the Act — Its results in history — Authorities .

Chapter VIII. The Coming Of Representative Government 71

The influence of the American Revolution on Canada, (a) boundaries,

(6) government, (c) the loyalists — Government during the Revolution— Carleton (Lord Dorchester) finds new situation after the peace — ^Newer demands for an Assembly — The plan for a division of the Province takes form — Official correspondence on the plan — The motives behind division — Representative institutions in the Maritime Provinces — The scheme of the Constitutional Act of 1791 — The division of the Province — Discussion of the principles governing the new constitution — Authorities.

Chapter IX. Representative Government In

The organization of the Province — The first Legislature and racial cleavage — The question of language in the Assembly — Early development of French Canadianism — ^Milnes’s estimate of the situation —

The Gaols Bill — ^Nationalism takes form — Le Canadien — Craig’s regime — The parting of the ways — The policy of conciliation —

‘ Gens en Place ’ — Sherbrooke continues policy of conciliation in alliance with the clergy — ^The financial issue — Papineau — Dalhousie and the clash of extremes — Attempt to reunite the Provinces in 1822 — ^Discussions on the proposal — The Assembly becomes more aggressive in financial affairs — The Imperial Committee’s Report of 1828 —

The problem of the Civil List — The Revenue Control Act of 1831 — Extremes in demands and in language — The Ninety -two Resolutions of 1834 — Their weaknesses and their strength — Rebels and Constitutional Reformers — The Imperial Committee’s Report of 1834 — Gosford and a Royal Commission — Their Reports — The constitutional issues and Russell’s Ten Resolutions — The effect of the Ten Resolutions — The appeal to arms — Suspension of the constitution — Provisional Government set up — Authorities.

Chapter X. Representative Government In

John Graves Simcoe — His conception and organization of government— The social background — ‘ The Family Compact ’ — Early

Xlll

PAGE

Reformers, Weekes, Thorpe, Wyatt, Willcocks, Jaeksoii, Firth — ^The War of 1812 — The political ideas of the Executive and of the Assembly — The physical background — ^Robert Gourlay — The political beginnings of reform— The alien question — The position of the Church of England and of the Clergy Reserves — Pin-prick ’ repression — The Report of 1828 — Colborne’s Instructions — His estimate of the situation — ^The Mackenzie affair — The Seventh Report on Grievances — Colborne creates rectories — ^The regime of Francis Bond Head —

Head and his council — Head as a party leader — Reports on the Province — Authorities .

Chapter XI. The Failure Of Representative Government In The Canadas . . . .156

The French- Canadian group — ^The recognition of French nationality — The problem of race — Race in action — The motives behind French- Canadian unrest— The failure of ’37 — The political problem in Upper Canada — ^The struggle against privilege — ^The motives behind Upper Canadian radicalism — The Crown in the Canadas — The clash of legislative authorities — ^The political impotence of the Assemblies — The independence of the Executive — The problem of sovereignty — ^The gift of the experience to constitutional development.

Chapter XII. Lord Durham And The Affairs Of

Durham’s arrival and proclamation — His preconceived scheme of government — -General estimate of his Report — ^The Maritime Provinces— The political situation there — Durham’s necessary conditions for a general federation — His estimate of the French- Canadian problem — The conditions on which he recommended the union of the Canadas— Responsible Government — ‘ Can authority be divided ? ’ — Durham’s division of colonial and imperial subjects — ■

Lord John Russell’s colonial theory — The political letters of Joseph Howe — ^Authorities .

Chapter XIII. Lord Sydenham’s Colonial System 182

Sydenham’s mission and instructions — Russell’s analysis of the constitutional issues— His advice to Sydenham — ^Sydenham and the Speeial Council of Lower Canada — His dealings with it in the matter of the Union — ^His estimate of political and social conditions in Lower Canada — His practical methods in Upper Canada — The dispatch on the tenure of public offices — He pilots the measures for union through the Upper Canadian Legislature — His tact in avoiding theoretical discussions — ^His conception of ‘ responsibility ’ — The Clergy Reserves — ^His tour in Lower Canada — Overtures to La Fontaine —

Racial hatred — The necessity for loeal government — Reforms in Lower Canada — His growing popularity — In the Maritime Provinces — Howe and Sir Colin Campbell — The Act of Union — The orientation

XIV

PAGE

of parties — The ‘ Baldwin crisis ’—Sydenham’s ‘ Assembly ’ — The discussions on ‘ Responsible Government ’ — Baldwin’s Resolutions— The Sydenham-Harrison Resolutions — Sydenham’s system of government — Bagot’s estimate — Authorities.

Chapter XIV. The Testing Of Sydenham’s System 210

Bagot’s suitability for the government of the Canadas — The literary quality and insight of his dispatches — Contrasted with Metealfe — Bagot’s Instruetions — The ideas of the Colonial Office — The diffieulties which lay before Bagot — The French- Canadian problem — Break-down of local government in Lower Canada — Bagot’s criticism of Sydenham’s poliey — His Executive fears to meet Assembly — Reconstruction of the Executive — Francis Hincks — The racial solidarity of Lower Canada — The implications of the Sydenham-Harrison Resolutions — Harrison and Draper advise the recognition of the French as a political party — Bagot’s attitude towards Baldwin — Bagot’s conviction that the Province could not be governed without the Freneh — Lord Stanley under the influence of Sir Alan MacNab —

Sir Robert Peel’s advice to Bagot — Stanley’s attitude towards the French- Canadians — ‘ Multiply “ vendus ” ’ — Bagot meets the legislature — The dramatie politieal crisis — Bagot writes to La Fontaine and makes the offer of offiee — La Fontaine’s conditions — MacNab’s inconsistent policy — Final negotiations — Baldwin and La Fontaine in office — The storm of abuse — The news in England — Approval of Bagot’s action — Conditions which governed the approval — Bagot welcomes Metcalfe’s appointment— Authorities.

Chapter XV. Self-governing Or Crown Colony 230

Metcalfe’s personal character — His administrative experience — -His conception of eolonial government — His early analysis of the Canadian situation — The attitude of the Canadian Exeeutive — ‘ What is to become of the governor-general ? ’—Metcalfe’s idea of patronage— Meeting between La Fontaine and Metealfe’s civil secretary — The meaning of executive responsibility — Different interpretations of the Sydenham-Harrison Resolutions — Metcalfe and party government— The gathering difficulties in the Assembly — Resignation of Baldwin and La Fontaine — Their defence — Metealfe’s estimate of the crisis— The pamphlet literature — Draper’s provisional government— ^Metcalfe’s position on the eve of the eleetion— The general election — The Metcalfe regime and constitutional development —

The Sherwood-Daly ministry — Baldwin on ‘ double majority ’ — Authorities.

Chapter XVI. The New Colonial Policy . . 249

The appointment of Lord Elgin — ^His political outlook — The background of British opinion — Earl Grey — ^His dispatches to Sir John Harvey — The new colonial policy — Modifying influences — Elgin

XV and the Canadian Executive — The governor-general s new position— Dissolution of 1847 — Robert Baldwin’s election address — La Fontaine and Baldwin in power— Full responsible government — Elgin and the French- Canadians — French an official language — The Rebellion Losses Bill — Elgin’s constitutional attitude — The aftermath— The Annexation movement — British opinion — Hincks’s defence of the new system — Free trade — The Reciprocity Treaty — Elgin and the imperial connexion — The Clergy Reserves, Seigniorial Tenure, and the ministry — The end of ‘ the Great Administration ’ — The re-orientation of parties — ‘ Clear Grits ’ and ‘ Rouges ’ — George Brown— The Hincks-Morin njinistry — The MacNab -Morin ministry — The rise of John A. Macdonald, G. E. Cartier, and liberal-conservatism— The settlement of the Clergy Reserves and Seigniorial Tenure — An elective legislative council— Responsible government in Nova Scotia, New Brunswick, and Prince Edward Island — Authorities.

Chapter XVII. The Failure Of Responsible Government In The Canadas

The new position of the governor-general — George Brown on the question of the provincial capital — The significance of his speech — ■ The tariff — The City of Sheffield and protection in Canada — Indiscretions of the Colonial Secretary — Galt’s report defending Canada — Its political and constitutional importance — The problem of defence — ■ The American Civil War — Rejection of the Militia Bill — Misinterpretation in England — -The reply of the Canadian Government — ^Untying the formal bands of Empire — Distinction between self-government and responsible government — The failure of party government — ■ Fundamental difficulties in the constitution — Attempts to overcome ‘ deadlock ’ — ,1. S. Macdonald and the ‘ double majority ’ principle — - Authorities.

Chapter XVIII. The Growth Of The Federation Idea

General difficulties— Galt’s proposals of 1858 — Federation made a government measure — Cartier, Galt, and John Ross in England — Galt’s memorial on federation presented to Bulwer-Lytton — The framework of a federal government outlined — The Canadian delegation meets in London a delegation from the Maritime Provinces — Apathy in England — The Canadian Government weakens in its support — The Reform Convention at Toronto, 1859 — Proposals for federation of the Canadas rejected — John A. Macdonald supports general federation — D’Arcy McGee and Alexander Morris widen the national vision — The economic necessity for a united British North America in face of the new enthusiasm for protection in the United States — The influence of the American Civil War — ^ Anti-British sentiment in the North reacts on the political problem in British

PAGE

XVI

PAGE

North America — The narrowness of outlook in England — The political situation in the Maritime Provinces — Defeat of the Tache- Macdonald ministry — George Brown and John A. Macdonald come together — The negotiations for a coalition government — Difficulties over the formation of a Cabinet — Brown’s venture of faith — Authorities. '

Chapter XIX. The Coming Of Federation . .298

The Charlottetown Conference — Arrival of the Canadian delegates — Joseph Howe absent — The Quebec Conference — The critical situation — Details of procedure — The general principle defined and accepted — Strong bias in favour of the central government — The financial terms — The organization of the Senate — Representation in the House of Commons — The Seventy-two Resolutions — Their essential nature — Brown in London — The federation debates — The scheme approved in Canada — Disaster in the Maritime Provinces — Tilley defeated in New Brunswick — John A. Macdonald criticizes Tilley’s methods — The New Brunswick situation affects Nova Scotia — Howe supports the anti-federation sentiment — Tapper temporarily postpones consideration of general federation — He gains approval for the old plan of a Maritime union — The wisdom of his course — The Imperial Government removes the lieutenant-governor of Nova Scotia and instructs the lieutenant-governor of New Brunswick to further federation — Prince Edward Island rejects any form of Union — Macdonald, Cartier, Brown, and Galt visit England to discuss the general situation — Death of Tache — Brown resigns^ — Reaction in New Brunswick in favour of federation — Tupper gains support in Nova Scotia — ^The Colonial delegates in England — Westminster Palace Hotel Conference — Difficulties and discussions — Galt and education — Various drafts of a bill — ‘ The Kingdom of Canada ’ —

The passing of the British North America Act — The public opinion of England — The first federal ministry — The beginnings of conventions in the formation of a Dominion Cabinet — The first federal elections — Federation supported except in Nova Sedtia — Tupper alone returned — The demand in Nova Scotia for repeal — Howe in London — Tupper opposes him with the Imperial Government — The Imperial Cabinet refuses to act- — Tupper and Howe discuss the situation — Howe returns doubtful — The good offices of Tilley — Ho^we joins the federal Cabinet — Authorities.

Chapter XX. The Dominion Of Canada . . .322

The Western Lands — Rival Companies — Selkirk’s Settlement — John A. Macdonald begins to urge expansion — The Dominion Parliament addresses the Crown in favour of uniting to Canada Rupert’s Land and the North-western Territory — The Rupert’s Land Act of 1868 — Negotiations with Hudson’s Bay Company completed — ‘ The Northxvii west Territories ’ — The Red River Rebellion — The formation of the Province of Manitoba — The political development of the North-west Territories — Alberta and Saskatchewan — The organization and government of the Yukon and the North-west Territory — ^Vancouver Island — Governor Douglas — The first legislature of Vancouver Island — British Columbia — Projects for the union of the Pacific colonies — -Political, economic, and social difficulties — -Governor Seymour in opposition — -The two colonies united — Growth of sentiment in favour of union with the Dominion — ^The Yale convention — Governor Musgrave urges the plan — Full responsible government— The terms of union agreed on and union with Canada accomplished — The final refusal of Newfoundland — ^The political independence of Prince Edward Island — ^Financial difficulties in Prince Edward Island — Sir John Rose approaches John A. Macdonald — ^Reopening of negotiations — ^Prince Edward Island enters federation — The Railway Builders — -From Ocean to Ocean — -Authorities.

Chapter XXI. The Development Of Canadian Autonomy

‘ The Canada First Party ’ — Blake’s Aurora speech— Limitations on Canadian self-government — Blake and the creation of the Supreme Court — ^Blake brings about modifications in the powers of the governor-general — ^His memorandum on the status of the Dominion — The history of the development of Canadian control in trade treaties — -The creation of the office of high commissioner — Difficulties in England over the matter — ^The Canadian Cabinet outlines Canada’s position — Galt appointed high commissioner — He looks to a federation of the Empire — J. A. Macdonald’s conception of the office and functions of high commissioner — Discussions over methods of procedure in negotiating trade treaties — The agreements of 1895 and 1907 — Difficulties over ‘ most-favoured nation ’ clauses — -The principles at present holding in arranging trade treaties — The Radio-telegraphic conference — Political treaties — Developments within the

, limitations imposed by international law — Quasi-political agreements— -Canadian ministers admitted to the Committee of Imperial Defence — ^Military and naval defence— Gradual withdrawal of Imperial forces — The Dundonald affair — The constitutional basis of Canadian defence — Debates on the Canadian Naval Act of 1910 — Laurier’s position — The advent of Sir Robert Borden — ^The Senate rejects his naval programme— The dispatch of December 10, 1912, on Imperial defence — Sir R. Borden accepts principle of a Canadian minister in London — He sees the implications of Canada’s taking part in the defence of the Empire — He claims a share for Canada in foreign policy — Sir George Perley goes to London— The Colonial and Imperial Conferences — Canada’s attitude — The agreement of 1907 for consultation between Governments — ^An estimate of the history before 1914 — The emphasis on Canadian autonomy — The

PAGE xviii CONTENTS outbreak of the War — The legal consequences for Canada of the Imperial declarations — The Imperial Government careful not to infringe Canadian autonomy — Sir Robert Borden emphasizes in England Canadian status — The new Government in England in 1916 — -The creation of the War Cabinet — Canadian ministers invited to attend — Mr. Lloyd George explains the scheme— Sir Robert Borden lays stress on the new situation — The Imperial War Conference of 1917 — Resolution on the status of the Dominions and of India — The War Conference of 1918 — Discussion on channels of communication with the Imperial Government — ^The matter referred to the War Cabinet — The present arrangements governing such communications— Discussion of the term ‘ Cabinet ’ — The Imperial Conference of 1921 — Canada at the Peace Conference — ^The significance of Canadian signatures to the Peace Treaty — The unity of the Empire — The law of the ratification — The League of Nations — Canada’s position— Canada and membership of the Council of the League — The difficulties of the Covenant — ‘ Canadian nationals ’ — Parliamentary discussions of the Treaty and the League— Mr. Doherty’s theory of ‘ nationhood ’ — Sir Robert Borden’s conception of the present position of the problem of Empire — ^The federal elections of 1921 — No discussions of constitutional difficulties — Authorities.

Chapter XXII. The Framework And Scheme Of Government

General outline of the British North America Acts — The Crown in Canada — The Privy Council ’ — The office and status of the governor-general — The lieutenant-governors — The federal Executive — Conventions in relation to its formation — ^Cabinet responsibility — The governor-general and the Cabinet — Dismissal of ministers — Dissolution— The provincial Executives — The recall of lieutenant-governors— The Parliament of Canada — The Senate — Distribution of membership — ^Appointment of extra members by the Crown — Constitutional rules governing the choice of a senator — The Senate and finance bills — ^The House of Commons — Constitutional rules governing the number of members — Qualifications for membership — ■ Electoral districts or ridings — Controversy over constituencies — The pact of 1903 — The history of the federal franchise — The Dominion Elections Act of 1920 — Regulations governing an election — Procedure in the House of Commons — The French and English languages — Speaker and Deputy-Speaker — The Leader of the Opposition — The Legislative Councils of Nova Scotia and Quebec — The provincial Houses of Assembly — Limitations on a province in changing its constitution — The privileges of the Canadian legislatures— The judicial system — The tenure of judicial offices — The federal courts — The anomalous position of divorce — Appeals to the Judicial Committee of the Privy Council — Authorities.

PAGE

XIX

Chapter XXIII. The Nature Of Canadian Fede- Ralism

Vagueness of the conception of proposed unions in Canadian history — ^Lord Durham’s definitions — The meaning of the term ‘ Confederation ’ in American history — Vague use of terms in Memorandum of 1864 — ^J. A. Macdonald’s use of the terms ‘ Federation ’ and ‘ Confederation ’ in 1865 — Dorion challenges the lack of clearness— ‘ Provincial rights ’ — The Privy Council and the British North America Act — The Dominion Parliament not a delegate— The provincial parliaments not delegates — The sovereignty of the Canadian legislatures within their reference — Lord Watson’s conception of the Act of 1867 — The effect of federation on the provinces — Criticism of Lord Haldane’s definitions of Canadian federalism — - The Canadian Senate — -The Canadian Cabinet — ^The office of lieutenant-governor— The Dominion power of disallowance— The history of provincial Acts which have been disallowed — ^Principles on which such disallowance has been based — The golden age of provincial rights ’ — Joseph Chamberlain on the principle of responsible government — Sir Allen Aylesworth’s dicta — Revival of dist allowance by Mr. Doherty on principles apparently abandoned —

Criticism of Mr. Doherty's position — Dicta of Mr. Justice Riddell — Cartier’s coneeption of the power of disallowance — Delegatus non potest delegare.

Chapter XXIV. The Distribution Of Legislative Power

Education — Agriculture and immigration — The Dominion powers — The provincial powers — ^Limitations on discussion — The distribution of power eonsidered as a whole — ^The federal ‘ residuary power ’ — The completeness of legislative power in Canada — The general test of the validity of any Act— The recognition of alternative aspects in the testing of the validity of an Act — Intrusion of federal legislation on provineial legislation and vice versa — ^Authorities.

Chapter XXV. The Imperial Tie

The real position of Canadian infiuenee in Imperial affairs — The bands of freedom — The limitations on Canadian autonomy owing to the Imperial tie — The weakness of current terms in describing the Empire — Canada’s status in international law — Canada ‘ under the Crown of the United Kingdom of Great Britain and Ireland ’ — The ‘ right ’ of seeession — The constitutional method of dissolving the Imperial connexion — The League of Nations strengthens the Empire — The governor-general — Legislation by the Imperial Parliament for Canada — Extra-territorial jurisdiction — Difficulties in changing the Canadian eonstitution — These impose severe limitations on Canadian autonomy — The problem of foreign affairs —

PAGE

XX

Canada not a sovereign state — Canada’s status illustrated from a possible state of war — Canada has no powers to declare neutrality — The possibilities of advance in the functioning of the League of Nations — The Austinian and absolute state — The necessity for abandoning the old theories of sovereignty — Sovereignty ’ must conform to facts — Political unity and final authority — The dangers of premature constitutions and of the regime of doctrinaires.

APPENDIX. THE BRITISH NORTH AMERICA ACT, 1867 . TABLE OF CASES CITED

PAGE

. 489

Chapter I

Canadian constitutional development begins in the ages of absolutism and grows down the centuries. We can trace the stream of evolution with comparative ease, and though it is a long journey back to the rock of paternalism which French pioneers struck in the pathless wilderness, yet even to-day in the full flood of liberty it is possible to discern in the mingled waters something of the far-off source. Circumstances now and then changed the direction of the current, and it is quite easy to point to these ; but the changes of direction could not prevent the stream from reaching inevitably the ocean of constitutional life. The persistent onflow lends a romantic fascination to Canadian history. In the spheres of political and constitutional liberty, of religious toleration, and of local autonomy within an empire, its course can be followed from point to point. To-day, political thinkers are watching a newer problem arise inexorably out of those already solved — the formal reconciliation of full Canadian citizenship with full citizenship of the British commonw’ealth.