HOW GOVERNED
I
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
act--more 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
doctrinaire--with apologies to France--has 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
government--was 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
to-day standing a solid unit against annexation. We must not forget what
a high emissary from Rome once jocularly said of a religious quarrel in
Canada--Quebec 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
property--which 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, refused 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 Quebec--Lower Canada--and
the Lieutenant-Governor for Ontario--Upper Canada--were 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 American. 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 was a result born of necessity, and the main
principles of confederation embodied in the British North America Act had
been foreshadowed in Durham'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.
II
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 Northwest 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 Witenagemot--or 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, "Here--you 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 efficient--and it is thought the more experienced he is,
the more efficient he will be--he can hold office as long as he lives if
the people keep on electing him.
The Cabinet--or 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 for 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 defeat 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 Senate--to 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. Instead 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 judgeships 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 regime to judgeships; but the
point is, having been so advanced, they pass a chasm which they can never
retrace without impeachment--the chasm is party politics. They are
independent of popular favor. They can be impeached and displaced. They
are forever 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 more--they 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 of 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 judges--appointed by the Dominion
government--can 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 Dominion. 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.
III
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,
technicalities--the dotting of an i, the crossing of a t, the omission of
a comma--have 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
Englishman 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
sheriff--whose deputy, by the way, hid when summoned--the lunatic stepped
across the state border, and it would have cost me two hundred dollars to
have apprehended him. As the culprit was a menace 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 constable 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 foreign 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 Cariboo. 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 head-line 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.
IV
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 provincially--to 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 Act--could 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 constrained 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 sometimes
refer to the American Constitution as too fixed and inelastic for modern
conditions. They sometimes 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.