REFERENCE has been made to the facts that Big Business has up to the present been unable to get control of the reins of government in Canada, that the courts have been kept comparatively free of political influence and that the doors of underground politics are not easily pried open by corruption. Why is this? Canadians would fain take unction to themselves that it is owing to their superior national integrity, but this is nonsense.
Exuberant forest growth is always characterized by some fungus and dry rot. How has Canada escaped so much of this fungus excrescence of representative government? To get at the reason for this it is necessary to trace back for a little space the historic growth of Canada’s form of government. We speak of Canada’s constitution being the British North America Act. As a matter of fact, Canada’s constitution is more than an actmore than a dry and hard and inflexible formula to which growth must conform. Rather than plaster cast into which growing life must fit itself, Canada’s constitution is a living organism evolved from her own mistakes and struggles of the past and her own needs as to the present. Canada’s constitution is not some pocket formula which some doctrinairewith apologies to Francehas whipped out of his pocket to remedy all ills. Canada’s constitution is like the scientific data of empirical medicine ; it is the result of centuries’ experiments, none the less scientific because unconscious.
One need not trace the growth of government to the days prior to English rule. When England took over Canada by the Treaty of Paris in 1763, the main thing to remember is that the French-Canadian was guaranteed the free exercise of his religion. This-and not innate loyalty to an alien governmentwas the real reason for Quebec refusing to cast in her lot with the revolting American colonies. This was the reason for Quebec remaining stanch in the War of 1812, and this is the reason for Quebec today standing a solid unit against annexation. We must not forget what a high emissary from Rome once jocularly said of a religious quarrel in CanadaQuebec was more Catholic than the Pope.
Following the military régime of the Conquest came the Quebec Act of 1774.Please note, contemporaneous with the uprising of the American colonies, Canada is given her first constitution. The Governor and legislative council are to ‘be appointed by the Crown, and full freedom of worship is guaranteed. French civil law and English criminal law are established ; and the Church is confirmed in its title to ecclesiastical propertywhich was right when you consider that the foundations of the Church in Quebec are laid in the blood of martyrs. Just here intervenes the element which compelled the reshaping of Canada’s destiny. When the American colonies gained their independence, there came across the border to what are now New Brunswick and Nova Scotia and Ontario some forty thousand Loyalists mainly from New England and the South. These Loyalists, of course, re-fused to be dominated by French rule ; so the Constitutional Act was passed in 1791 by the Imperial Parliament. The people of Canada were represented for the first time in an assembly elected by themselves. The Governor-General for QuebecLower Canadaand the Lieutenant-Governor for OntarioUpper Canadawere both appointed by the Crown. The Executive, or Cabinet, was chosen by the Governor. The weakness of the new system was glaringly apparent on the surface. While the assembly was elected in each province by the people, the assembly had no direct control over the Executive. Downing Street, England, chose the Governors ; and the Governors chose their own junta of advisers; and all the abuses of the Family Compact arose, which led to the Rebellion of ’37 under William Lyon MacKenzie in Ontario and Louis Papineau in Quebec. Judges at this time sat in both Houses, and Canada learned the bitter lesson of keeping her judiciary out of politics. As the power of appointment rested exclusively with the Governor and his circle, it can be believed that the French of Quebec suffered disabilities and prejudice.
Hopelessly at sea as to the cause of the continual unrest in her colonies and undoubtedly sad from the loss of her American possessions, England now sent out a commissioner to investigate the trouble; and it is to the findings of this commissioner that the United Kingdom has since owed her world-wide success in governing people by letting them govern themselves. People sometimes ask why England has been so successful in governing one-fifth of the habitable globe. She does not govern one-fifth the habitable globe. She lets much of it govern itself ; and it was Lord Durham, coming out as Governor-General and high commissioner at this time, who laid the foundations of England’s success in colonizing. His report has been the Magna Charta and Declaration of Independence of’ the self-governing colonies of the British Empire.
First of all, government must be entrusted to the house representing the people. Second, the granting of moneys must be controlled by those paying the taxes. Third, the Executive must be responsible not only to the Crown but to the representatives of the people. It is here the Canadian system differs from the Ameriean. The Secretary, or Cabinet Minister, can not hold office one day under the disapproval of the House, no matter what his tenure of office.
The Act of 1840 resulted from Durham’s report. Upper and Lower Canada were united under one government which was really the forerunner of confederation in ’67. The House was given exclusive control of taxation and expenditure. Nothing awakened Canada so acutely to the necessity of federating all British North America as the Civil War in the United States, when the States Right party fought to secede. Red River and British Columbia had become ‘peopled. The maritime provinces settled by French from Quebec and New England Loyalists were alien in thought from Upper and Lower Canada. The cry “54-40 or fight,” the setting up of a provisional government by Oregon, the Riel Rebellion in Manitoba, the rush of California gold miners to Cariboo all were straws in a restless wind blowing Canada’s destiny hither and whither. Confederation was not a pocket theory. It a result born of necessity, and the main principles of confederation embodied in the British North America Act had been foreshadowed in Dur-ham’s report. Durham himself suffered the fate of too many of the world’s great. He had come out to Canada to settle a bitter dispute between the little oligarchy round the royal Governor and the people. He sided with neither and was abjured by both. The sentences against the patriots he had set aside or softened. The royalists he condemned but did not punish. Both sides poured charges against Durham into the office of the Colonial Secretary in England. Durham died of a broken heart, but his report laid the foundation of England’s future colonial policy.
By the British North America Act of 1867, passed by the Imperial Parliament, Ontario, Quebec, Nova Scotia and New Brunswick came into the Union. Later Prince Edward Island, Manitoba, the North-west Territories and British Columbia joined. Up to the present Newfoundland has stood aside. Under the British North America Act, Canada is ruled to-day.
There is first the Imperial government represented by a Governor General. The commandant of Canada’s regular militia is also an Imperial officer.
There is second the federal government with executive, legislative and judicial powers ; or a cabinet, a parliament, a supreme court.
There are third the provincial governments with executive, legislative and judicial powers.
Details of each section of government can not be given here but several facts should be noted ; for they explain the practical workings of Canada’s system.
The Witenagemotor Saxon council of wise men stands for Canada’s ideal of a parliament. It is not so much a question of spoils. It is not so much a case of “the outs” ejecting “the ins.” I have never heard of any party in Canada taking the ground, “Hereyou have been in long enough ; it’s our turn.” I have never heard a suggestion as to tenure of office being confined to “one term” for fear of a leader becoming a Napoleon. If a leader be efficientand it is thought the more experienced he is, the more efficient he will behe can hold office as long as he lives if the people keep on electing him.
The Cabinetor inner council of advisers to the Governor General must be elected by the people and directly responsible to the House. At its head stands the Premier.
Within her own jurisdiction Canada’s legislature has absolute power. If her treaties or acts should conflict with Imperial interests, they would be disallowed by the Imperial Privy Council as unconstitutional, or ultra vires. Likewise of the provinces, if any of their acts conflicted with federal interests, they would be disallowed as ultra vires.
Should the Governor-General differ from the Cabinet in office, he must either recede from his own position or dismiss his advisers and send them to the country for the verdict of the people. Should the people endorse the Ministry, the Governor-General must; either resign or recede from his stand. I know of no case where such a contingency has arisen. A Governor General is careful never to conflict with a Ministry endorsed by the electorate.
Once a man has received an appointment to a position in the civil service of Canada he must keep absolutely aloof from politics. This is not a law but it is a custom, the violation of which would cost a man his position.
The Parliament in the Dominion consists of the Commons and the Senate. The Commons are elected by the people. The Senators are appointed by the Governor-General, strictly under advice of the party in office, for life. Senators must be thirty years of age and possess property over four thousand dollars in value above their liabilities. The Senator resides in the district which he represents. The Commoner may represent a district in which he does not reside, and, on the whole, this is more of an advantage than a disadvantage. It permits a district that has special needs to choose a man of great character and power resident in another district. If he fails to meet the peculiar needs of that district, he will not be reelected. If he meets the needs of the district which he represents he has the additional prestige of his influence in another electoral district. A Senator can be removed for only four reasons: bankruptcy, absence, change of citizenship, conviction of crime,
At a time when. the United States is so generally in favor of the election of Senators by direct vote, when England is trending so preponderately in favor of curbing the veto power of the House of Lords, it seems remarkable that Canada never questions the power of the Senator appointed for life.
Though officially supposed to be appointed by the Governor General, the Senator is in reality never appointed except on recommendation of the prevailing Cabinet which means the party in power. The appointments being for life and the emolument sufficient to guarantee a good living conformable with the style required by the official position, the Senator appointed life like the judge appointed for life soon shows himself independent of purely party behests. He is depended upon by the Commoners to veto and arrest popular movements, which would be inimical to public good, but which the Commoner dare not de-feat for fear of defeat in reelection. For instance, a few years ago a labor bill was introduced in the Commons as to compensation for injuries. In theory, it was all right. In practice, it was a blackmail levy against employers. The Commoners did not dare reject it for fear of the vote in one particular province, What they did was meet the Senate in unofficial caucuses. They said; We shall pass this bill all three readings ; but we depend on you–the Senateto reject it. We can go to the province and say we passed the bill and ask for the support of that province; but because the bill would be inimical to the best interests of other provinces, we depend on you, the Senate, to defeat it. And the Senate defeated it.
When older democracies are curtailing the strength of veto power in upper houses, it is curious to find this dependence of a young democracy on veto power. In-stead of the life privileges leading to an abuse of insolence and Big Business, up to the present in Canada, life tenure independent of politics has led to independence. The appointments being for life guarantees that many of the incumbents are not young, and this imparts to the Upper House that quality of the Witenagemot most valued by the ancient Saxons the council of the aged and the experienced and the wise.
Active, aggressive power, of course, resides chiefly with the Commons. Representation here is arranged according to the population and must be readjusted after every census. “Rep. by Pop.” was the rallying cry that effected this arrangement. No property qualification is required from the member of the House of Commons, but he must be a British subject. He must not have been convicted of any crime, minor or major.
Franchise in Canada is practically’ universal suffrage. At least it amounts to that. Voters must be registered. They must be British subjects. They must be twenty-one years of age. They must not be insane, idiots or convicts. They must own real property to the value of three hundred dollars in cities, two hundred dollars in towns, one hundred and fifty, dollars in the country ; or they must have a yearly income of three hundred dollars. A farmer’s son has the right to vote without these qualifications, evidently on the ancient Saxon presumption that a free-holder represents more vitally the interests of a country than the penniless floater, who neither works nor earns. In other words, the carpet-bag voter does not yet play any part in Canadian politics. Bad as the corruption is in some cases among the foreigners, when votes are Bought at two dollars to five dollars, the point has not yet been reached when a carpet-bag gang of boarding-house floaters and saloon heelers can be transferred from a secure ward to a doubtful ward and so submerge the political rights of permanent residents.
Judges can not vote in Canada. In fact, they can take no part, direct or indirect, by influence or speech, in politics. This was one of the things fought out in the ’37 Rebellion and forever settled. Canada could not conceive of a man who had been a judge being nominated for the premiership or as Governor. Of course, when Liberals are in power, as advisers of the Governor-General, they recommend more Liberals for judgeships than Conservatives ; and when Conservatives are in power, they recommend for judge-ships more Conservatives than Liberals. I think of attorneys who were penniless strugglers in the Liberal ranks of my childhood days in Winnipeg who are to-day dignified judges ; and I think of other attorneys, who were penniless strugglers in Conservative ranks who have been advanced under the Borden régime to judgeships; but the point is, having been so advanced, they pass a chasm which they can never retrace without impeachmentthe chasm is party polities. They are independent of popular favor. They can be impeached and displaced. They are for-ever disgraced by defalcation in office. By observing the duties of office, they are secure for life and held in an esteem second only to that of the Governor-General.
You will notice that it is all more a matter of public sentiment than a law ; of custom than of court. That is what I mean when I say that Canada’s constitution is a vital, living, growing thing, not a dead formula by which the Past binds and impedes the Present and the Future.
There must be a session of the Dominion Parliament once every year. Five years is the limit of any tenure of office by the Commons. Every five years the Commoners must go to the country for reelection.
Usually the government in power goes to the country for reendorsement before the term of Parliament expires.
Laws on corrupt practices are very strict and what is morethey are generally enforced. The slightest profit, direct or indirect of a member, vacates his seat. Corruption on the part of underlings, of which they have known nothing, vacates an election. A member nt Parliament can not participate directly or indirectly in any public work benefiting his district. He is not in it for what he can get out of it. He is in it for what he can give to it. Expenses of election to a postage stamp must be published after election.
The methods of conducting business in Parliament , need not be discussed here, except to say that any member can introduce a bill, any member can present a petition from the humblest inhabitant of the commonwealth, and any member can speak on a motion provided he gains the floor first.
Judges are appointed and paid by the Dominion government, not by the provincial. Decisions by provincial judgesappointed by the Dominion governmentcan be appealed to a Supreme Court of Canada. Judges can be removed only on petition to the governor-General for misbehavior.
Dominion taxes in Canada are indirect on imports. As stated elsewhere, the main power in Canada is vested in federal authorities. Only local affairs education, excise, municipal matters, drainage, local railroads, etc: are left to the provinces.
Every man in Canada is supposed to be liable for military training if called on, but the number of men annually drilled is about fifty thousand. Hitherto a man appointed from the Imperial Forces has been the commanding general in Canada. It need scarcely be said that if Canada is to hold her own in Imperial plans, if she is to become a power in the struggle for ascendency on the Pacific, her equipment both as to land forces and marine are ridiculously inadequate. They are the equipment of a member in Imperial plans who is skulking his share.
Provincial courts are, of course, administered by provincial officers ; but these are appointed by the Governor-General advised by the Cabinet of the federal party in power. The Lieutenant-Governor of the province is appointed by the Governor-General advised by the party in power. He is paid by the Do-minion. Judges of superior courts must be barristers of ten years’ good standing at the bar of their provinces. All judges and justices of the peace must have some property qualification. Rascals with criminal records are not railroaded into judgeships in Canada. I know of a judge in San Francisco who until the advent of the woman vote literally held his position by reason of his alliance with the white slavers. I know of another judge in New York who held his position in spite of a criminal record by reason of the fact he could get himself elected by the disreputable gangs. These things are virtually impossible under the Canadian system. In the future the system may prove too rigid. At the present time it works and keeps the courts clear of political influence.
Juries are not so universal in Canada as in the United States. In civil cases, where the points of law are complicated, the tendency is to let the judge guide the verdict of the court.
There is one feature of Canadian justice which sentimentalists deplore. It is that the lash is still used for crimes of violence against the person and for bestiality. This is not a relic of barbarism. It is the result of careful thought on the part of the Department of Justice-the thought being that it is useless to speak to a man capable of bestiality in terms not articulate to his nature ; and the fact remains that criminals of this class seldom come back for second terms of punishment for the same sort of crimes.
If you ask why few homicides are punished in the United States, and few escape in Canada I can not answer. Political expediency, party heelers, technicalitiesthe dotting of an i, the crossing of a t, the omission of a commahave no effect whatsoever on Canadian justice. The courts are never defied, and the law takes its course.
The law not only takes its course relentlessly but the pursuit of crime literally never desists. This feature of Canadian justice is a rude sharp shock to the unruly element pouring in with the new colonists. A Montana gunman blew into a Canadian frontier town and in accordance with custom began “to shoot up” the bar rooms. In twenty-four hours he awakened from his spree under sentence of sixty days’ hard labor. “Let me out of this blamed Can-a-day,” he cursed. “Who’d ‘a’ thought of takin any offense from touchin’ up this blamed dead town?”
A Texas outlaw succeeded in inducing a young Englishman of the verdantly bumptious and moneyed sort to go homestead hunting with him. The Indians saw the two ride into the back country. In spring only the Texan came out. I forget what his explanation of the Englishman’s disappearance was. In any other country under the sun, who would have ridden two hundred miles beyond nowhere to investigate the story of an outlaw about a young fool, who had plainly been ‘a candidate for trouble? But an old Indian chief meandered into the barracks of the nearest Mounted Police station, sat him down on the floor and after smoking countless pipes let drop the fact. that two settlers had “gone in” and only “one man he come out.” That was enough. Two policemen were detailed on the case. They rode to the abandoned homesteads. In the deserted log cabin nothing seemed amiss, but some distance away on a bluff a stained ax was found; yet farther away a mound not a year old. Beneath it the remains of the English-man were found with ax hacks in the skull. It was now a year since the commission of the crime and the murderer was by this far enough away. Why put the country to the expense of trailing down a criminal who had decamped? Those two young Mounted Policemen were told to find the criminal and not come back till they had found him. They trailed him from Alberta to Montana, from Montana to the Orient, from China back to Texas, where he was found on a homestead of his own. Now the proof of murder was of the most tenuous sort. One of the Mounted Policemen disguised himself as a laborer and obtained work on an adjoining homestead. It took two years to gain the criminal’s confidence and confession. The man was arrested and extradited to Canada. If I remember rightly, the trial did not last a week, and the murderer was hanged forthwith.
Instances of this kind could be retailed without number, but this one case is typical. It is something more than relentlessness. It is more than keeping politics out of the courts. It is a tacit national recognition of two basic truths : that the protection of innocence is the business of the courts more than the protection of guilt ; that having delegated to the Department of Justice the enforcement of criminal law, Canada holds that Department of Justice responsible for every infraction of law. The enforcement is greatly aided by the fact that criminal law in Canada is under federal jurisdiction. An embezzler can not defalcate in Nova Scotia, lightly skip into Manitoba and put both provinces to expense and technical trouble apprehending him. In the States I once was annoyed by a semi-demented blackmailer. When I sent for the sheriffwhose deputy, by the way, hid when summonedthe lunatic stepped across the state border, and it would have cost me two hundred dollars to have apprehended him. As the culprit was a men-ace more to the community than to me, I went on west on a trip to a remote part of Alberta. I had not been in Alberta twenty-four hours before the chief con-stable called to know if this blackmailer of whom he had read in the press, could be apprehended in Canada. The why of this vigilance on one side of the line and remissness on the other, I can no more explain than why American industrial progress is so amazingly swift and Canadian industrial progress is so amazingly slow.
There is very little wish-washy coddling of the criminal in Canada. While in the penitentiary he is cared for physically, mentally and spiritually. When released, he is helped to start life afresh; but if he keeps falling and falling, he is put where he will not propagate his species and hurt others in his back-sliding.
“I regret,” said a judge in a Winnipeg court, “to sentence such a youthful offender.” The prisoner was a young foreigner who attacked another man viciously in a drunken brawl. “But foreigners must learn that Canadian law can not be broken with impunity,” and he sent the young man to what was practically a life sentence.
“Hard on the poor devil,” said a court attendant.
“Yes,” retorted a westerner who lived in the for eign settlement, “but it’s an all fired good thing for Canada.”
The case of a judge in British Columbia is famous on the Pacific Coast. It was in the old days of murder and robbery on the trail to the gold diggings of Cari-boo. In the face of the plainest evidence the jury had refused to convict. The astounded judge turned amid tense silence in fury on the prisoner.
“The jury pronounces the prisoner not guilty,” he said, “and I strongly recommend him to go out and cut their throats.”
Reference has been made to an Imperial court official assassinated by an angry Hindu conspirator in a Vancouver court room. The assassin was sentenced to death nine days from the commission of the crime, and if any newspaper had attempted to make a headline affair out of it, or “to try the jury” for trying the prisoner, the editors and owners of that paper would have been sent to jail for contempt.
The gradual rise of the two political parties dates from the adoption of a high tariff by the Conservatives after confederation. Prior to 1837 Canadian parties consisted simply of the Outs and the Ins. The advanced Radicals, who formed themselves into a party to oust the Family Compact, called themselves Liberals. The entrenched oligarchy called themselves Conservatives. After confederation, by force of circumstances, namely the refusal of tariff concessions from the United States, the Conservatives, who were in power, became the high tariff party. The Liberals, when out of power, advocated tariff for revenue only. Also by force of circumstances until the transfer of the balance of power from Quebec to the New West, the party in office had a tendency to play for the French Catholic vote of Quebec ; the party out of office coquetted with the ultra Protestant vote of Ontario. This naturally worked toward the provincial governments being Liberal, when the federal government was Conservative; and vice versa. The Liberal in provincial politics was Liberal in federal politics, and the Conservative in federal politics was Conservative in provincial politics ; but the policy has always been for the Outs first to attack the Ins provinciallyto win the outposts before attacking the entrenched power of the federal government. Before Sir John Macdonald’s Conservative administration was defeated there was a long series of victories by the Liberals in the provinces, and before sir Wilfred Laurier’s Liberal government was defeated the Conservatives had captured the most of the provincial governments. With the Conservatives professing high tariff as economic salvation and the Liberals regarding high tariff as economic damnation, it seems almost heresy to set down that the line of demarkation between the two great parties in practice is really one of Outs and Ins. The only tariff reductions made by the Liberals were on British imports, and this did not lower the average on British imports to the level of the average duty on American imports ; when the high tariff Conservatives came back to power, the duties were not shoved to higher levels. This, too, has all been by force of circumstances. When both parties would have grasped eagerly at tariff reductions from the United States, those concessions could not be obtained. When the tariff concessions were offered, Canada had already built up such intrenched interests of her own in factory, mill and transportation that she was not in a position to accept the offer. Laurier did not see this, but many of his party did and refused to support him in reciprocity.
At time of writing, to an outsider, there is in practice no difference between the two parties ; but this can hardly remain a permanent condition. As long as the war lasts both parties will be a unit in support of Imperial defense. The day the war is over Canada may have to consider, not Imperial, but Dominion defense; and this is bound to split the parties up on entirely new lines. The French Nationalists are for standing aside from all European entanglements and resting secure under the Monroe Doctrine. The two million Americans in the West may be expected to advocate the same policy. The British and the Canadians of British descent in Canada may be expected to take an aggressive stand for active self-defense; for defense may be one of Canada’s next big problems.
Up to the present, Canadians have considered it a superiority that their constitution the British North America Actcould be so easily amended. As long as Canada is peopled by Canadians, it is an advantage to work under a constitution that may be modified to suit the growing need of a growing nation, but one is con-strained to ask what if Galicians and Germans ever acquired the balance of voting power in Canada? There are half as many German-born Germans in the United States as there are native-born Canadians in Canada.
What if such a tide of German immigration came to Canada? Would it be an advantage or a disadvantage that the country’s constitution could be so easily amended by the Imperial Parliament? Or more striking still, suppose the Hindu, a British subject, began peopling Western Canada by the million. Suppose the Hindu, a British subject, voted in Canada for a change in the constitution ! Can one conceive for one minute of the Imperial government refusing to amend the British North American Act? Canadians some-times refer to the American Constitution as too fixed and inelastic for modern conditions. They some-times wonder how certain famous constitutional lawyers could make a living without the American Constitution to interpret and argue before the Supreme Court, but Americans and Canadians are to-day working out from different angles a great world experiment in self-government. It remains to be seen which experiment will stand the stress of world-convulsing changes. We need not theorize. Time will arbitrate.