The National Association for Constitutional Government was formed for the purpose of preserving the representative institutions established by the founders of the Republic and of maintaining the guarantees embodied in the Constitution of the United States. The specific objects of the Association are: 1. To oppose the tendency towards class legislation, the unnecessary extension of public functions, the costly and dangerous multiplication of public offices, the exploitation of private wealth by political agencies, and its distribution for class or sectional advantage. 2. To condemn the oppression of business enterprise,—the vitalizing energy without which national prosperity is impossible; the introduction into our legal system of ideas which past experience has tested and repudiated, such as the Initiative, the Compulsory Referendum, and the Recall, in place of the constitutional system; the frequent and radical alteration of the fundamental law, especially by mere majorities; and schemes of governmental change in general subversive of our republican form of political organization. 3. To assist in the dissemination of knowledge regarding theories of government and their practical effects; in extending a comprehension of the distinctive principles upon which our political institutions are founded; and in creating a higher type of American patriotism through loyalty to those principles. 4. To study the defects in the administration of law and the means by which social justice and efficiency may be more promptly and certainly realized in harmony with the distinctive principles upon which our government is based. 5. To preserve the integrity and authority of our courts; respect for and obedience to the law, as the only security for life, liberty, and property; and above all, the permanence of the principle that this Republic is "a government of laws and not of men." The Constitution of Canada in a War-Time Election PART I. By William Renwick Riddell, LL. D., F. R. Soc. Can., etc. The actual working of the Constitution of Canada is as well shown in a recent general election as in any occurrence of recent years.1 anything which is unconstitutional is illegal, no matter how right it may be. With the American, anything which is unconstitutional is illegal; with us, to say that a measure is unconstitutional rather suggests that it is legal but inadvisable."2 The British North America Act of 1867 (30, 31 Vict., c. 3, Imp.), with its amendments, may be called the written Constitution of Canada, but one who confined his attention to the written Constitution would have a very erroneous and imperfect view of the real Constitution. As I have more than once pointed out, even the "word 'constitution' carries with it a different connotation in English and in American usage, and we in Canada follow the English. In our usage, the Constitution is the totality of the principles more or less vaguely and generally stated upon which we think the people should be governed; in American usage, the Constitution is a written document containing so many words and letters, which authoritatively and without appeal dictates what shall and what shall not be done. With us anything unconstitutional is wrong, no matter how sions. legal it may be. With the American, 1 The British North America Act was the production of statesmen of Canada, devised and drawn by them without interference or aid from those of the mother country. It set out what the colonies desired, and was passed word and letter as so drawn. In form it was an act of the Imperial Parliament; in fact it was a compact between the Provinces forming the Dominion.3 Whatever the theories of the people of the Thirteen Colonies or their successors, there can (for a British subject) be no doubt of the legal power of the Imperial Parliament to enact valid legislation for all British possessions; and it was found necessary to seek the aid of that Parliament to give a binding character to the compact and its provi 1A general election is an election common to all Canada, at which the members of the House of Commons are chosen; with negligible exceptions, the elections for all constituencies are held on the same day, fixed by the Governor-in-Council, that is, by the Government of the day. See Revised Statutes of Canada (1906) c. 6. A special election or by-election is one held in a constituency by reason of a vacancy in its representation by death or otherwise. R. S. C. (1906), c. 11, Secs. 9 et seq. "The Constitution of Canada in its History and Practical Working," Yale University Press, 1917 (The Dodge Lectures, Yale University, 1917) p. 52. Bell v. Burlington, (1915) 34 Ontario Law Reports, 619 at p. 622 (Appellate Division of the See also my judgment in Supreme Court of Ontario). A reasonably full account of the genesis of the British North America Act will be found in a paper of mine read before the Royal Society of Canada last year and printed in the Transactions of the Society for 1917, Section II, pp. 71 et seq. The authorities are referred to with particularity in that article. Other Provinces were added to the Dominion on terms arranged with them, and three new Provinces were formed out of the territory acquired by the Dominion. (Those interested will find an account of the accretions to the Dominion in my Dodge Lectures, cited in note 2, pp. 28, 50, 51.) Prince Edward Island and British Columbia were added as Provinces to the original four, Ontario, Quebec, New Brunswick, and Nova Scotia, by Imperial power; Manitoba, Saskatchewan, and Alberta were created by the Dominion under powers given the Dominion by Imperial legislation-all this was in fact Canadian, though in form part was Imperial. The Parliament agreed upon and provided for by the British North America Act consisted of two houses, the Senate, whose members were to be appointed by the Government for life, and the House of Commons, whose members were to be elected. (Sections 17, 24, 37.) "Every House of Commons shall continue for five years. (subject . . to be sooner dissolved by the Governor and no longer.)" (Section 50.) The Twelfth House of Commons had been elected in 1911, when Sir Wilfred Laurier went down to defeat on the reciprocity issue, and it must needs come to an end in 1916, unless an amendment were made in the British North America Act. There had been considerable talk about the Governor dissolving the House before it should come to an end by lapse of time. This suggestion was, however, (speaking generally), confined to a section of the Conservative party, the party in power; the greater part of the Conservatives and practically all the Liberals were opposed to a wartime election, and the scheme did not meet the approval of the Administration.* In 1916, the war continued to be actively waged, and all the resources of Canada were devoted to its successful prosecution. It was thought unwise to dissipate the energies of the nation and rouse the antagonisms which would naturally result from an election. Accordingly the Prime Minister, Sir Robert L. Borden, proposed that the term of the existing House of Commons should be extended. The Canadian Parliament had no power to do this; an attempt to do so would be "unconstitutional" in the American sense of the word and therefore ineffective. In proposing a resolution for an Address to the King for an amendment to the British North America 'While in form the Governor-General has the power to dissolve the House of Commons, in this as in all other official acts he is a roi faineant; like the King, all his official acts are determined by the Ministry who have the confidence of a majority of the House of Commons, and he must always find a Ministry responsible for such acts. The Governor is a lucus a non lucendo, called the Governor because he does not govern. This is one of the things in our Constitution which are difficult of comprehension by Americans, accustomed to find the powers of their officers in written form in some document, and accustomed to governors who are such in fact and not merely in name. (See my Dodge Lectures, pp. 89 et seq.) Nay, even the word "Ministry" is not found in the written Constitution, the British North America Act! What the American calls "constitutional" and "unconstitutional" we call intra vires and ultra vires. The American use is, however, sometimes met with, and even in the halls of Parliament. Occasionally a barrister has been known to transgress; this is not to be wondered at where, as in our courts, American decisions are cited freely and treated with respect. Act extending the term of the House I am sure, will never under any cir- 632, 634.) The Senate concurred af- Unfortunately the war did not come to an end before that day, and the Government were faced with the alterna Official Report of the Debates of the House of Commons for 1916, Vol. 122, pp. 622, 625 (Revised Edition). This is an official publication and is generally known as "Hansard." 'It may be thought worth while while to set out this address in full: "Resolved that an humble address be presented to His Most Excellent Majesty the King, in the following words: To the King's Most Excellent Majesty: Most Gracious Sovereign: We, Your Majesty's most dutiful and loyal subjects, the Senate and Commons of Canada in Parliament assembled, humbly approach Your Majesty praying that you may graciously be pleased to give your consent to submit a measure to the Parliament of the United Kingdom to amend the British North America Act, 1867, in the manner following or to the following effect: An Act to amend the British North America Act, 1867. Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same as follows: 1. Notwithstanding anything in the British North America Act, 1867, or in any Act amending the same, or in any Order in Council, or terms or conditions of union, made or approved under the said Act, or under any Act of the Canadian Parliament, the term of the Twelfth Parliament of Canada is hereby extended until the seventh day of October, 1917. 2. This Act may be cited as the British North America Act, 1916, and the British North America Acts, 1867 to 1915, and this Act may be cited together as the British North America Acts, 1867 to 1916. All of which we humbly pray Your Majesty to take into your favourable and gracious consideration." |