Constitutional Development

CONSTITUTIONAL DEVELOPMENT During the Imperial Conference of 1911, dominion delegates for the first time received important confidential information upon foreign relations. It was resolved, on the motion of Sir Wilfrid Laurier, that the British Government should secure the consent of foreign powers that any dominion might withdraw from the opera tion of a treaty affecting that dominion, without impairing the effectiveness of the treaty for the rest of the Empire. A rather in effective resolution was passed as to consultation with the domin ions respecting the negotiation of international agreements affect ing them.

In 1912 Sir Robert Borden, the prime minister, and three of his colleagues, attended a meeting of the imperial defence committee at which the foreign relations of the British Commonwealth and the necessary safeguards against aggression were usefully dis cussed. In the same year the British Government gave assurances to the Government of Canada that, pending a final solution of the question of voice and influence in foreign relations, a dominion minister resident in London should be regularly summoned to the committee of imperial defence and regarded as one of its perma nent members, and that no important step in foreign policy would be undertaken without consultation with such representative.

In Oct. 1916 the Canadian Government established in London a ministry of overseas military forces with a resident minister. This department was charged with the administration of military affairs overseas, and with the expenditure connected therewith. Eventually it became an overseas Canadian war office. Military operations in the field were under the final direction of British general headquarters, but otherwise the Canadian forces serving in the war were administered as a thoroughly autonomous body, under the primary direction of the overseas ministry, with ulti mate responsibility to the Canadian Government and Parliament.

The Imperial War Cabinet and War Conference.—The prime minister of Canada was summoned to and attended a meet ing of the British cabinet in 1915. This was regarded as an event of constitutional significance. In 1917, however, a more important step was taken. The British prime minister called into operation the imperial war cabinet. It included the five ministers of the British war cabinet, the prime ministers of the dominions, and a representative from India. Thus ministers for all the self-govern ing nations of the Empire sat on terms of equality at a common council board, acting in co-operation and responsible to their respective Parliaments. Each minister, or group of ministers, represented a government, and the conference might fairly be termed a Cabinet of governments. In 1917 the British Govern ment advanced the view that it had authority to requisition ships owned and registered in Canada. This view was effectively contro verted by the Canadian government, which held firmly to the prin ciple that, in such cases, the executive power was properly vested in the government of the dominion. The legal power which un doubtedly existed was effectively limited by the controlling force of constitutional right.

The Imperial Conference sat as the Imperial War Conference in 1917 and 1918, and was occupied with questions not directly con cerned with war measures and operations. In 1917 the question of immigration from India to the dominions was considered, and the principle of reciprocity of treatment between India and the dominions was adopted by resolution as a working basis. The most important contribution of the conference in that year was a reso lution to which the British Government was a party, recognizing the dominions as autonomous nations of an imperial common wealth, with the right of Canada, the other dominions, and India to an adequate voice in foreign policy and in foreign relations. This resolution, which formed the basis of future co-operation, gives distinct recognition to equality of nationhood between the dominions and the mother country.

The Dominions and the League of Nations.

The principle thus established was carried to its logical conclusion at the Peace Conference of 1919, at which Canada, the other dominions, and India were distinctively represented by their delegates. There was serious opposition at Paris to such distinctive representation ; but the insistence of the dominions, with the strong support of the British Government, eventually prevailed. The imperial war cab inet functioned at Paris under the designation of the British Em pire delegation.

It was determined that Canada, the other dominions, and India should be parties to the peace treaty and members of the League of Nations, and that the treaty should be signed by dominion and Indian plenipotentiaries and submitted for approval to dominion parliaments. This decision involved the recognition by foreign powers of the dominions as nations on an equality with Great Britain.

In 1918 a resolution of the Imperial Conference acknowledged the inherent function of each dominion government and of India to enjoy complete control of the composition of its population by restricting immigration from any other communities. In the same year the conference by resolution declared that the prime min isters of Great Britain and of the dominions should have the right to direct communication with each other. This principle was re affirmed at the conference of 1921. A Canadian war mission had been established at Washington at the beginning of 1918. It was, in effect, although not in form, a diplomatic mission, and during the last year of the war and the first year of reconstruction it proved of great service. In view of this, the Canadian prime min ister discussed with British ministers in 1919 the right of legation, which was acknowledged by an arrangement announced to the Canadian parliament in 1920. The proposed appointment of a Canadian minister at Washington was not to denote any departure from the principle of the diplomatic unity of the British Empire.

In 1921 the Canadian parliament passed an important measure to define Canadian nationals, which was rendered necessary by the status of Canada under the Versailles treaty and especially as a member of the League of Nations. In the same year the voice of Canada and of other dominions with regard to the proposed re newal of the Anglo-Japanese treaty exercised an important influ ence upon the subsequent course of events.

Washington Conference.

The President of the United States did not extend to Canada and the other dominions invi tations to the disarmament conference (1921) at Washington. Precedent existed for separate invitations, and there was a ques tion whether certain dominions would not stand aloof. It was wisely decided that the absence of special invitations should be overlooked and that the dominions should be represented at Wash ington by their special plenipotentiaries, to whom full powers should be issued under the practice established at Paris in 191q. In the result the status and distinctive consideration that the do minions had received at Paris were accepted at Washington, and each dominion plenipotentiary signed on behalf of his government.

The Canadian Model for the Irish Free State.

The agree ment (Dec. 6, 1921) between Great Britain and Ireland, which was subsequently ratified by imperial statute, provides that the Irish Free State shall have the same constitutional status as the dominions and that its position in relation to the imperial parlia ment and government shall be that of the Dominion of Canada. By Article I of its constitution it is declared to be "a co-equal member of the Community of Nations forming the British Com monwealth of Nations." The Treaty Power.—A question having arisen about the sign ing and ratification of treaties which concern only the interests of one dominion, the whole subject was under consideration at the Imperial Conference of 1923, when principles were formulated and procedure laid down which should govern such cases and which fully recognize the right of each dominion to negotiate and enter into a treaty affecting only its own interests, but not without due consideration of its possible effect on other parts of the common wealth or on the commonwealth as a whole. Such a treaty, impos ing obligations on one part only, should be signed by a representa tive of the government of that part. The ratification of such a treaty is effected at the instance of the government concerned.

The Anglo-French treaty of 1919 (defence of France) which was ratified by the British Parliament, but which never came into force as the corresponding treaty between the French republic and the United States was not ratified, provided that it should impose no obligation upon any of the dominions unless and until it should be approved by the parliament of the dominion con cerned. The security pact (Locarno, Oct. 16, 1925) between Germany, Belgium, France, and Great Britain provides (article 9) that it shall impose no obligation upon any of the British domin ions or upon India unless the government of such dominion or of India signifies its acceptance. In the one case Parliament, in the other case the Government, must approve. At Locarno the dominions did not take part in the negotiations, and it does not appear that they were invited to do so. Thus, at Locarno there was a distinct departure from the spirit of the 1917 resolution and from the precedent established at Paris. The reasons for such departure have not been made public. (R. L. B.) Definition of Equality with Great Britain.—Following this development, the movement towards full recognition as nations of the dominions reached the climax in the Imperial Conference in Oct. 1926. The agreement was then made and confirmed by sub sequent legislation that the King's title should be changed to read "By the Grace of God, of Great Britain, Ireland, and the British Dominions beyond the Seas, King, Defender of the Faith, Emperor of India." The changed title places Canada and Great Britain in the same relation to the King and it involved that the Governor General should not be regarded as the representative of the Gov ernment of Great Britain but as that of the Crown, with functions analogous to those of the King in Great Britain. The decisions of the conference of 1923 were extended to embody the principle that while all treaties with foreign countries should be made in the name of the King and with regard to all interests affected by them, "the various British units should have full powers issued in each case by the King on the advice of the Government con cerned." Thus a treaty made by Canada would be made in the name of His Majesty the King "for the Dominion of Canada," just as that for Great Britain would be made "for Great Britain and Northern Ireland and all parts of the British Empire which are not members of the League of Nations." The right of each dominion to negotiate directly with foreign governments was fully recognized and the principle was laid down that a dominion is bound only by a treaty signed by its representative. Membership of the League of Nations was taken as the guarantee of inter national status, so that for this status the Treaty of Versailles was recognized as the Magna Charta of the dominions. The conference could only express opinions which had in themselves no legal valid ity and involved many anomalies such as that Canada, though a nation, would change its constitution only by an Act of the British Parliament and that, should Great Britain declare war, Canada was also legally at war. The British mind does not attempt to apply logic in politics, and British constitutional practice is not based on formal law. Immediately after the conference, Canada, following what the Irish Free State had already done, appointed a minister plenipotentiary to the United States, and the changed status of the Governor-General was made clear when, in 1927, he visited Washington and was received with the formalities accorded to a reigning sovereign.

In effect, the British Commonwealth may now be regarded as a league of nations, owning a single allegiance. In all essentials touching its continued existence and development there must be a real unity among its members, based upon common ideals of liberty and autonomy and upon close and sympathetic co-oper ation between the Commonwealth governments. Each, with due regard to its own point of view and special interests, must survey the aspects of external relations from the higher standpoint of Commonwealth unity and welfare.

BIBLIOGRAPHY.-Sir

R. L. Borden, Canadian Constitutional Studies Bibliography.-Sir R. L. Borden, Canadian Constitutional Studies (Toronto, 1922) ; W. P. M. Kennedy, The Constitution of Canada (1922) ; W. R. Riddell, The Canadian Constitution in Form and Fact (Yale, 1923) ; the various Reports of the Imperial Conference.

(G. M. W.) In addition, the Canadian Geological Survey has published (Ottawa, 1845) a series of reports covering a great number of subjects. Several provinces have bureaux or departments of mines, also issuing reports. The various departments of the federal and the provincial governments publish annual reports and frequent special reports, such as the decennial report on the census, from which a vast quantity of information may be obtained. Most of this is summed up in the Canada Year Book, published annually by the Bureau of Statistics of the Department of the Interior (Ottawa). See also Atlas of Canada, published by the Department of the Interior (Ottawa, 1915) ; the Canadian Annual Review (Toronto, 1901) ; A. P. Coleman and W. A. Parks, Elementary geology, with special reference to Canada (London, 1922) ; W. P. M. Kennedy, The Constitution of Canada (Toronto, 1923) ; Sir E. Walker, A History of Canadian Banking (Toronto, 19o9) ; W. T. Jackman, Economics of transportation (Toronto, 1926) ; H. A. Innis, A History of the Canadian Pacific Railway (London, 1923) ; A. H. R. Buller, Essays on wheat (Toronto, 1919) ; W. P. Davisson, Pooling wheat in Canada (Ottawa, 192 7) ; H. A. Innis, The fur trade of Canada (Toronto, 1927) ; J. Mayor, Niagara in politics (New York, 1925) ; National problems of Canada, McGill University Economic Studies (Montreal, 1925) ; P. Sandiford, "Canada" in Comparative Education (London, 1918) . A good general account of Canada is to be found in the Handbook of Canada (To ronto, 5924), published on the occa sion of the visit of the British Association to Canada in 1924.

(W. S. WA.)