The principle official independence, with particular reference to the political history of Canada

Front matter

BOUGHT WITH THE INCOME OF THE

FISKE ENDOWMENT FUND

THE BEQUEST OF

Preface

This book is an attempt to analyse the conception of independence in the modern state — ^an idea which, though it finds expression in a multitude of practical forms, has been ignored by the majority of writers on politics. In order to make the discussion more concrete, I have thought it wiser to confine myself to Canadian government, and have only enlarged this sphere when comparison with some other country demanded it.

While writing those chapters dealing with the officials of the Canadian state, I have often feared that the text might not accurately portray the actual conditions which exist — 'a fear based largely on the method of analysis that has been used in discovering the position and powers which the officials occupy and exercise. A quotation from Mr. G. K. Chesterton may make this point more clear :

"It is the one great weakness of journalism as a picture of our modern existence, that it must be a picture made up entirely of exceptions. We announce on flaring posters that a man has fallen off a scaffolding. We do not announce on flaring posters that a man has not fallen off a scaffolding. . . . That a man has not fallen off a scaffolding is really more sensational ; and it is also some thousand times more common. But journalism cannot reasonably be expected thus to insist upon the permanent miracles. Busy editors cannot be expected to put on their posters ' Mr. Wilkinson Still Safe ' or ' Mr. Jones, of Worthing, Not Dead Yet.' They cannot

ix

X PREFACE.

announce the happiness of mankind to all. They cannot describe all the forks that are not stolen or all the marriages that are not judiciously dissolved. Hence the complete picture they give of life is of necessity fallacious ; they can only represent what is unusual."

How accurate a parallel this is to the study of political science may be seen by the alteration of a few words :

"It is one great weakness of political science as a picture of our modern state, that it must be a picture made up entirely of exceptions. It announces in a conspicuous paragraph that a judge has been removed for corruption. It does not announce in a conspicuous paragraph that a judge has not been removed for corruption. . . . That a judge has not been removed for corruption is really more noteworthy ; and it is also some thousand times more common. But political science cannot reasonably be expected thus to insist upon the permanent miracles. Students cannot be expected to head their paragraphs ' No judge has as yet been removed for improbity,' or ' 30,000 civU servants still retain office.' They cannot announce the virtues of tlie state to all. They cannot describe all the judges who are not removed, or all the Commissions which function without friction. Hence the complete picture they give of the state is of necessity fallacious ; they can only represent what is unusual."

In short, the study of the institutions and the officials of a state must be largely pathological ; it must be concerned with iUness rather than health, with weakness rather than strength. I therefore make my apology for perhaps unduly stressing this aspect of Canadian government — 'an apology which is the more sincere because made by a Canadian who would desire to present his own country in a favourable light.

My thanks for aid in the writing of this book

PREFACE. xi

are due above all to Professor Graham Wallas, whose advice, experience and time were constantly at my disposal. Only those who have come in contact with his delightful personality and stimulating mind can judge of the assistance I have received from him. I am also greatly indebted to members of the Canadian House of Commons, to members of the Canadian Civil Service, and to other public officials at Ottawa for a clearer insight into the actual working of the Canadian governmental system, and I can only regret that inasmuch as their information was given in confidence, I am unable to be more explicit in my thanks. I wish to express my appreciation of the courtesy and help rendered by the library staff at the Parliamentary Library, Ottawa, the British Library of Political Science, the Royal Colonial Institute, and the British Museum.

Finally, I am much obliged to my colleague. Professor George E. Wilson, for his careful and painstaking work in the revision of proof.

R. MacG. DAWSON.

Dalhousie University, Halifax, N.S.

October 20, 1921.

Introduction

I HAVE, as professor and examiner, seen a good deal of this book at the various stages of its production. Now I have again read it through in proof, and will try to indicate what I believe to be its value, both to the general reader and to the special student.

In the first place it is a contribution drawn from firsthand sources to the history of Canada since confederation. Freeman said that history is " past politics." We are beginning to include in our history-books economic and cultural facts which do not come under Freeman's definition ; but meanwhile political history retains its predominance, and itself suffers from too narrow a conception of " politics." A conventional " poUtical " history of Canada during the last seventy years wiU deal with the formation of the confederation, the electoral victories and defeats of races, parties, and churches, the contests over education, railwa)^ and tariffs, the changing constitutional relations between the provinces and the confederation, or between Canada and the British Empire. Dr. Dawson, however, shows that in the true political history of Canada the evolution of various Boards and Commissions for dealing with the Civil Service and railways and harbours, was often as influential as more conspicuous parliamentary events, and that one of the most important political processes is to be found in the attempts to keep certain administrative functions " out of politics."

But Dr. Dawson's book will be found useful and interesting not only by the reader and student of Canadian history, but also by the working politician, and by the student of political science, in any modern state. The most striking political tendency of our time is a movement away from the simple optimism of nineteenth-century parliamentarism. Now that we have made the world safe for democracy we

xiii xiv INTRODUCTION.

are asking ourselves what democracy is, and whether (as Nurse CaveU said of patriotism) it is " enough." Since the armistice of 1918 we have watched with growing distrust the actual working of our political systems. The tactics of parhamentary majorities and parhamentary elections seem utterly inadequate to provide wise and progressive direction for the organised co-operation of great industrial societies. If we read history, we see for how short a period men have accepted from thinkers hke Bentham, and Jefferson, and Gambetta, the doctrine of the all-sufficiency of representative government. In the long past of human civilisation men have mainly trusted for political guidance to the thinking and willing of kings, or nobles, or landowners, or the leaders of organised guilds, or of professions, or of churches ; and those leaders, in so far as their guidance has been good, have been impelled not by the fear of losing votes or parliamentary salaries, but by the sep.se of responsibility arising out of a relation to their fellows less mechanical than that which is created by victory in a modern election. Many students and writers on political science, and many disillusioned political reformers, are now asking whether this more subtle kind of relation cannot be used either as a substitute for or as a complement to parliamentary democracy. Hundreds of books and thousands of speeches and pamphlets have been produced by Bolshevists, and Syndicahsts, and Guild Socialists, or Pluralists and Monarchists and ultramontanes. The material of their propaganda has been drawn in the main from idealised generahsations about mediaeval society or from partisan rhetoric in praise or dispraise of revolutionary Russia. Hardly any use has been made of the expedients and experiences of a modem nation under normal conditions.

I know of no book which offers the student of politics a better body of material for judgment on this problem than Dr. Dawson's. He is a parliamentary democrat who yet believes that parliamentarism is " not enough." Instead of talking vaguely about the Florentine Guilds, or Gregory the Great, or the Investiture Controversy, or Lenin's latest manifesto, or the plans of Herr Stinnes, he shows us to what extent and for what reasons the Canadian Railway Commission, the Ottawa Improvement Commission, and the Montreal Harbour Commission, have succeeded, and the

INTRODUCTION. xv

Board of Commerce, or the Conservation Commission, have failed. He shows us how complex is the problem of " Civil Service principles," and how easy it is to go wrong by emplojdng a body of professional experts to solve it on "business" lines. Canada took over from England and America the principle of the independence of judges. Dr. Dawson shows that the relation of that principle to parhamentary government stiU requires careful watching and' hard thinking. The fathers of the Federation intended that the two main organs of independent political initiative in Canada should be the Governor-General and the Senate. Dr. Dawson shows how and why the Governor-General has lost all his initiative, and the Senate aU its independence.

To me one of the most interesting of Dr. Dawson's points is his suggestion that the " principle of independence " is of special value in international relations. Among the institutions which he describes perhaps the most successful is the International Joint Commission for dealing with the problems of the American-Canadian frontier. The motives on which the Principle of Official Independence relies, and which it does so much to encourage, are not, indeed, primarily national. A judge sent to the International Court at the Hague feels the responsibility of his independence even more strongly than one who sits at Ottawa or Washington. Dr. Dawson proposes, therefore, that when two countries are sufficiently near to each in language and institutions to understand each other's problems, the practice of borrowing commissioners from each other (as was done in the case of the Drayton-Acworth Railway Commission of 1916) should be extended.

The Dominions which belong to the British Commonwealth of Nations have hitherto been fertile in poUtical experiment and much less fertile in poUtical thought. Dr. Dawson encourages me to hope that the weary Titans of Europe may some day receive intellectual guidance for the problems of civilisation from those eager communities that are now beginning to transfer the centre-point of human life from the Atlantic to the Pacific sea-board.

This work has been approved by the University of London as a thesis for the D.Sc. (Econ.) degree.

GRAHAM WALLAS.

London University.

THE PRINCIPLE OF OFFICIAL INDEPENDENCE

Chapter I. The Principle Of Official Independence

The doctrine of parliamentary responsibility has long been accepted as a fundamental principle ^ of the British constitution and of those other constitutions which have owed their inspiration to the United Kingdom. The following passage by Sir Sidney Low may be taken as a typical expression of that doctrine as it is generally understood by writers on British government.

" Like the golden chain that Homer teUs us binds heaven and earth and sea to the throne of Jove, this great official catena is supposed to join the highest and the lowest, and to stretch from the humblest messenger or door-porter to the exalted seats, where the statesmen who rule the Empire lie beside their thunder. Through one superior or another aU grades of the service are responsible to the highly-placed gentlemen, titled and ribboned, who are the heads of the permanent staff ; they themselves, these accomplished under-secretaries, are responsible to the noble lords or eminent commoners who hold the ministerial seals ; while these ministers, in the fulness of their power, are liable at any moment to be arraigned, not merely for their own acts, but for the acts of their subordinates, before the Assembly, which again is itself responsible to the sovereign People."^

Such a statement of the doctrine of parliamentary responsibility is, however, far from accurate ; it is not in accord

1 The word " principle " as used here and hereafter has no ethical connotation, but simply means an idea or device.

" Low Sir Sidney, The Governance of England (1914 ed.), pp. 137-38.

1 B

2 PRINCIPLE OF OFFICAL INDEPENDENCE.

with all the theory or all the facts. There are a number of officials 1 in the state who do not come under the doctrine, even in theory, and a stiU larger number who, though theoretically responsible to parliament, are in effect free from its control.

One example will suffice to show that the doctrine quoted above does not agree with other accepted theories on the British constitution. Sir Sidney Low would admit that it could not be reconciled with the position of the judge, who occupies the centre of a charmed circle whose circumference may not be violated by any government. The judge may be held accountable in only the rarest instances for decisions that are given by him within his jurisdiction. He may have committed an error of judgment, he may have had a slight lapse of memory, he may even have been animated by motives that were far from laudable — parliament wih consider that he is politically irresponsible and wiU allow the decision to remain unchallenged. Such an office, therefore, knows no golden chain, and pays but nominal homage to the throne of Jove.

When we come to consider how the work of government is actually carried on, the exceptions to the doctrine of parliamentary responsibility are innumerable. Even in those offices which are nominally covered by the theory, there are a large number of facts left unexplained — a condition which is largely due to the growth of convention and custom in the direction of extending the irresponsible area, or, as I shall call it, the area of independence. Take, for example, a Royal Commissioner who is engaged upon any enquiry for the government. Theoretically he holds office at pleasure and may be removed at any time by the government, which is supposed to take fuU responsibiUty for the Commissioner's acts and decisions. In actual practice it is quite different. The custom has now become firmly established that his tenure is during good behaviour, and that no interference will be allowed to interrupt his

1 The word " of&cial " is used throughout the book in its widest and most comprehensive sense ; it includes all those who are in the service of the state, members of parliament, judges, civil servants, etc.

investigations, even though his views and the results of his enquiry may prove very embarrassing to the ministry. A similar freedom is granted to a large number of other officials, who, though in nominal subservience to the government, are in reality independent and not held politically responsible for their actions.

Both examples cited have been extremely simple and will give little or no cause for dissent. But the relationship between the two parties to this political responsibility or irresponsibility is frequently much more subtle ; there are a large number of officials who occupy an intermediate position, and who enjoy a sort of quasi-independence. The responsibility may attach for certain functions or at certain times ; it may be enforced at the will of the government ; it may be allowed to lapse and be revived sporadically or capriciously. The uncertain element in this latter group renders any generalisation extremely difficult, and makes it impossible at times to state with certainty where responsibihty ends and independence begins.

Inasmuch as the questions of official independence and responsibility are closely linked together, it will be advisable to state more explicitly what is meant by the term " responsibility." There are three kinds of responsibility which affect the official and determine his independence ; and some explanation of each is necessary.

Criminal and Civil Responsibility.

The courts will hold any official responsible for acts done in violation of his duty, and they will enforce that responsibility by a fine, imprisonment, or the payment of damages. It is to these two responsibilities that Professor Dicey alludes in the following passage from The Law of the Constitution : —

" In England the idea of legal equality, or of the universal subjection of aU classes to one law administered by the ordinary Courts, has been pushed to its utmost .limit. With us every official from the Prime Minister down to a constable or collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the Courts, and made, in their personal capacity, liable to punishment, or to the pa3niient of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and aU subordinates, though carr5dng out the commands of their official superiors, are as responsible for any act which the law does not authorise as is any private and unofficial person. "^

Political or Administrative Responsibility.

In the majority of cases violation of an official duty leads to the enforcement of political rather than civil or criminal responsibility, and it is to this that Sir Sidney Low refers in the passage quoted at the beginning of the chapter. Such enforcement may take many forms, official displeasure, a fine, a loss of promotion, or, in extreme cases, loss of the position itself. The chief power of political responsibihty lies in its immanence rather than its actual use ; it is a threat that is always present, and may be made operative at the will of the superior.

In discussing the statement of Sir Sidney Low, I have said that the independent condition arises when the political responsibihty is abandoned or suspended. But a civil or criminal irresponsibiUty is another form of independence ; it is an immunity not from political interference, but from the power of the law and the courts. The member of padiament, for example, enjoys a civil and criminal irresponsibility for words spoken in the House of Commons : he cannot be prosecuted for libel or slander, even though his words may be false and may have inflicted serious damage. This form of independence, however, is comparatively rare ; it allows the official such immense privileges and such opportunities for their abuse, that it is generally given with extreme caution.

How then does the principle of independence, whether arising from political, civil or criminal irresponsibihty, manifest itself in ofiicial life ? It may take a multitude

1 Dicey, A. V., Law of the Constitution (6th ed.), p. 189.

of forms, each one different in some particular from the others. The judge, the most extreme case, is left independent in all his actions so long as he keeps within his jurisdiction. The Royal Commissioner is given carte blanche so far as the purpose of his investigation is concerned, and in preparing his report is only limited by the terms of his instructions . The ordinary civil servant enj oys an immunity from political interference and is assured of a permanent position if he but proves efficient. A civil servant engaged in some highly technical research work wiU enjoy the protection accorded to all his feUow employees, and in addition have full powers of initiative to carry on his research. The general in the field will have the whole battle front under his unquestioned direction and control so long as he is in command ; but, should he not achieve the results anticipated, his responsibility to parliament may be enforced at any moment and his command taken from him. A more complex relationship sometimes occurs where the government exercises financial control. In some cases, as the Harbour Commissions in Canada, all powers may be given save the spending of authorised loans over which the government retains the general supervision. In other instances, as the Ottawa Improvement Commission, the government may even interfere in a question of policy, although such intervention may be rarely exercised. The work of the independent official is often limited to the determination of questions of fact, the matter of policy being left to those who will take full political responsibiUty for it. Yet another form, though somewhat similar to the last, is that which occurs when the end is stated and this means is left to the official's judgment. Plato had a similar idea in mind when he wrote on the supervision of poets : —

" The founders of a State ought to know the general forms in which poets should cast their tales, and the limits which must be observed by them, but to make the tales is not their business." 1

These are typical instances of the diverse forms in which official independence appears, and it may be possible by

1 The Republic, II. 379.

studying them more closely to arrive at a better understanding as to what " independence " really means. It is evident, in the first place, that the word implies a relationship ; the official must be independent of some thing or person other than himself. Generally speaking, the other party to the relationship is the sovereign community, which has voluntarily abandoned its control within certain limits. In a few rare instances, the relationship is directly between the community and the official, as is the case with the member of parliament, though in most cases the community acts through its representatives, and it is between these and the official, sometimes directly, sometimes indirectly, that the independent association exists. The ofiicial may owe his independence to a single or double relationship ; he may, like a judge, be free from outside interference, or he may, like some of the higher civil servants, add to this an independence within the organisation itself.

It will be seen that I am dealing with the independence of the individual and not with that of a corporate body. Corporate independence, as in the case of the judiciary or the civil service, may be a convenient way of stating that all the individuals in the group are independent ; but it may mean on the other hand the independence of the group as such, as in the case of the Roman Catholic Church. In this book I am not studying corporate independence in the latter sense, except in so far as it may affect the personal independence of the individual.

In all the instances of independence that have been cited, there has been a substitution of freedom for unquestioned obedience, of undirected action for dictated action ; the discretionary sphere has been widened as a consequence of the lessening of the civil, criminal or political responsibilities. There is given a freedom of choice, an initiative for action, an opportunity for forming and expressing a frank opinion, combined or not combined with the power to act and to make that opinion effective. In all cases an intense and sustained effort of mind is expected of the official who occupies the independent position ; he is asked to do his work conscientiously and to the limit of his ability, and in return he usually receives an assurance that he will not be subject to undue interference.

Independence is not a mystical formula that will solve all the problems which confront a modern government ; but it does give scope for the development of the positive side of the official's character. Instead of the physical threat of loss of office, independence supplies the moral inducement to do well ; in place of distrust, it gives confidence ; it calls forth a host of qualities that otherwise might have remained dormant — the oihcial's vanity, his conscience, his desire for applause, his zeal for the public good, his feeling of special fitness for his post, his craftsman's delight in his skill — any one or all of these are given freer play.

" There is," says M. Emile Faguet, " a moral as well as a technical efficiency, and in limiting the independence that is essential to moral efficiency, democracy neutralises the technical efficiency of its servants. . . . Formerly the magistracy . . . enjoyed an absolute independence. This gave, or rather preserved intact, its moral efficiency. For moral efficiency consists in an ability to act according to the dictates of conscience, and is equivalent to a sort of moral independence."^

An independent position gives the official not only an opportunity for using his peculiar skill but also an opening for self-expression^ — he will feel that he is more than a cog in a vast machine, and that he is an individual unit with the power of impressing himself on the direction of affairs. The independent position of the judge sprang originally from a demand for men who could not be bullied into obeying another's will. Courage is in some degree still necessary in a judge ; but it has been thrust into the background, and efficiency, both technical and moral, is the quality most desired to-day. In short, what M. Faguet has termed moral efficiency is the direct result of the stimulation of moral consciousness.

Alexander Hamilton regarded permanence in office and security of salary as the two essential conditions of independence ; 2 but although these may constitute the form, they

1 The Cult of Incompetence, pp. 99-100.

2 The Federalist, §§ 78, 79.

may fail to obtain the most important benefits of the independent position. The Canadian Senator, for example, possesses the historical formula of independence ; but he is the last person to dream of exercising any independent will or judgment. The purely negative means of independence and irresponsibility lose their virtue unless they are augmented by positive forces and inducements for good. Jeremy Bentham has pointed out with his customary shrewdness i that this positive side is in reality " dependence." So indeed it is ; but in relation to quite different factors. The official is made independent of certain undesirable influences by being made dependent on other influences which it is wished to encourage ; he must possess such traits of character and be provided with such stimuli and inspiration as to produce his best efforts and to permit public confidence being placed in him.

Any discussion of official independence must therefore include in its scope not only the negative factors which create the independent condition, but also the ethical and psychological forces which will make the independence valuable to the state. We must ensure that men of exceptional ability and character are selected for public office ; we must train them in a certain way ; we must give them our confidence and trust them to make an effort ; we must endeavour to surround their offices with the proper traditions ; we must give them honour, social position and adequate salaries, There must be, above everything else, an earnest endeavour to approach the ideal of Plato, of those " toiling also at politics and ruling for the public good, not as though they were performing some heroic action, but simply as a matter of unavoidable duty." 2

The abstention from interference in the work of the official may take one of three general forms. He may only be allowed to think and speak for himself without the privilege of putting his ideas into practice. This is very

* "It is dependence, then, dependence in the true and absolute sense of. the word, that is the cause and measure of that relative quality which has been so much magnified under the name of independence." Works (1843), IV. p. 362, Judicial Establishment, Chap. V. Tit. III.

" The Republic, VII. 540.

rare, and in its strict sense is only applicable to advisory bodies. Secondly, the forbearance may take the form of allowing the official to act as he pleases as well as to make his own decisions. This is comparatively common, and applies to all persons who hold office during good behaviour and to many who hold at pleasure. Lastly, the government may refuse to bind itself, and adopt the non-committal attitude of allowing the official to do as he pleases but at his own peril. He is permitted to stay in office and will not be removed unless he displeases the appointing power ; in short, he holds his position strictly at pleasure. It is evident that no official is totally free from political responsibility ; he may be made so within certain limits and for certain purposes, but if he exceeds his powers or violates any of the conditions under which they are granted he may be called to account. The lack of enforcement of political responsibility may be due to several causes. It may be a legal inability to enforce created by a statute which parliament has erected as a safeguard, or it may be a simple repugnance or voluntary abstention from interference which has arisen through custom or tacit understanding.

A striking divergence of opinion on this whole question arose a few years ago in the Canadian Parliament. The debate illustrates both the extent to which the political irresponsibility of judges may be stretched, and the manner in which custom may increase the protection that is given by the letter of the law.

" Mr. Fielding. — ^This responsibility of judges to parliament is very largely a dream, because we know that practically there is no responsibihty. There are judges who are neglecting their duties, there are judges who are too old, there are judges who are ill, and there are judges who are not performing their duties, and every man in this parUament knows it.

" Mr. Monk. — -The remedy is here.