A six part interview with R. Rogers Smith examining the formation of Canada
The following is an excerpt from an interview by George Barr, KING’S Council, with R. Rogers Smith sometime in the mid 1940’s and on “Ligue pour l’Union Federale”, 822 Sherbrooke Est, Mtl. (Acquired from the Ka-Nee-Ka-Neet collection)
Question s by G. H. Barr, King’s Council
Answers by R. Rogers Smith
Mr. Barr: I understand, Mr. Smith that you have made a rather exhaustive study of our Constitutional position for some years past and have come to the conclusion that in the national interest the entire position should now be clarified?
Mr. Smith: I consider this indispensable.
Mr. Barr: I should like to ask you a few questions to get your viewpoint on various phases of the situation?
Mr. Smith: good—I am only too pleased to give you any information I have gathered from the facts of history and constitutional authorities. Also, if you desire my reasons for stating that a clarification of our constitutional position is indispensable.
q. What is the source, Mr. Smith, from which the authority of government in Canada originates?
1. In Nova Scotia, King James VI of Scotland granted a charter to Sir William Alexander (afterward Earl of Stirling) to the lands extending from Penchscot Maine to the St. Lawrence River, including what is now New Brunswick and Prince Edward Island. As well as a small acreage in the City of Edinburgh where Stirling Castle now stands. “This was declared Nova Scotia territory in the reign of Charles I, in order that Baronets of Nova Scotia might ‘take seizin’ of their lands without leaving Scotland, and is there a lawyer in Edinburgh who will deny the fact that in the eyes of his profession this bit of Scotland is really in Canada?” (In search of Scotland, 1933-by H. V. Morton). The grant was a lease with a clause for the payment of three Indian arrowheads per year. The present flag and Coat of Arms were granted in 1625 by Charles I, as King of Scotland. Nova Scotia never belonged to England then, or later. Prince Edward Island was separated from Nova Scotia and made an independent province in 1770. New Brunswick was detached from Nova Scotia and made an independent province August 16th., 1784. Thomas Carleton was the first Governor.
In the case of Quebec-a “Constitution” was granted to Governor James Murray November 21st., 1763, by the “Board of Trade and Plantations”, signed Yorke and Yorke (see Sessional Papers 18). The Lords of Trade and Plantations, afterwards known as the Board of Trade and Plantations, and, finally, as the Board of Trade, received their authority from the Crown in Chancery. In the reign of Queen Elizabeth “Members of Her Majesty’s most learned and honourable Privy Council (divers orders thereunto called) conceived and established the Crown in Chancery to administer affairs in connection with and exercise authority over the waste lands or commons of England”. Newly discovered or conquered lands were placed under this Department of Lands, whose offices are at Whitehall, London. When the Treaty of Union, 1707, uniting England and Scotland, was signed, the administration of affairs in connection with Scottish land was granted to this Department.
Nova Scotia, which was now a “British” possession also, was placed under the Crown in Chancery. It is a common assumption that the Monarch, or the House of Commons, or House of Lords, grant authority to a Governor General. Such is not the case. Governors General receive their authority only from the Crown in Chancery. It is not permitted that the King, or any member of the House of Commons or Lords even suggest that anyone be appointed. The affairs of the Crown in Chancery are administered by the Sec’y of State that he be appointed. The Sec’y of State alone is responsible for the retention of a colony as a British Possession. He must not be circumscribed in any way in the exercise of his powers.
(2) Sir George Fiddes, who was Under-Secretary from 1909-1916, explains the difference between a “Governor” and a “High Commissioner”.
“The Secretary of State, broadly speaking, has no executive authority within the territorial limits of a Colony or Protectorate. His authority is exercised through the Governor (or, in the case of some protectorates, the High Commissioner) with whom he alone corresponds and to whom alone he issues his instructions.”
After the Governor General is appointed by the Secretary of State “Letters Patent” are drafted and signed by Sir Claude Schuster, Clerk of the Crown in Chancery.
The Secretary of State for the Colonies in Britain corresponds to a Minister of Lands in Canada. He alone is responsible for the retention of a Colony as a possession of the British people. He therefore must not be interfered with in his appointment or removal of a Governor or High Commissioner.
After the “Letters Patent” are attested, the Governor now is introduced to His Majesty at the Court of St. James, where he receives a letter of directions from His Majesty called “Instructions”. If we add to the “Letters Patent” and “Instructions” the added powers granted to the Governor General in the British North America Act, we have the same sum of dictatorship on March 23rd., 1931 as were granted to Governor James Murray by the Board of Trade and Plantations November 21st., 1763.
You ask: “What is the source from which the authority of government originates?”
It originates in the title to land. When the King was absolute Monarch, in him alone existed the Sovereign power. He could-and did-sign grants or leases for “three acorns” a year to Dukes, Lords, Earls etc., many of which exist today. The Duke of Wellington paid his lease to His Majesty on July 6th., 1944. This was one little “silken Union flag”. These are called “entailed estates”. It is true that the lease granted by Queen Elizabeth to Sir Walter Raleigh was also ratified by Parliament, but it was not until Charles II ascended the Throne, that the Monarch was not the Sovereign Power. Today the King can sign a lease or enact a law “by and with the advice and consent of the Lords Temporal, Spiritual and Commons in Parliament Assembled and with the authority of the same as follows: (The King alone has no power.)
Today the People of Britain are Sovereign, not only over the British Isles but also all Colonies which they own.
The “Titles” to these lands are in the custody of the “Crown in Chancery”. This is the reason we call them “Crown Lands”.
The British people do not own Canada today.
None of the Provinces are required to pay rent. Since December 11th., 1931, the ownership to the land is held by each Province. The Legislature of each Province can make laws exclusively in connection with property and the title is held in the custody of the Department of Lands. All Provinces of Canada today are Sovereign States.
The Province does not divest itself of ownership when the Department of lands grants a title to a “homestead” in “fee simple” or “free and common socage”.
It is well understood by both the purchaser and the Province that the Legislature retains the right to “tax” the land. This “tax” is the rent the purchaser pays. If a person dies intestate or fails to pay his “tax”, the land reverts to the Province in the first case or is repossessed by the Province by way of a “tax” sale.
(3) The answer to your question would not be complete without the statement that: The Sovereign right to govern originates in, nor can it be divested from the ownership of land.
In order that “Sovereignty” be exercisable by a Central Government in Canada, it is indispensable that the Sovereign Provinces divest themselves of those powers which they collectively desire the Central Government to administer and to “cede” to the Central Government some land, such as the District of Columbia, U. S. A.; Mexico City, District Federal of Mexico; or District of Canberra in Australia. This is called the right of “Eminent Domain”.
It is admitted that England and Scotland signed a Treaty uniting them on January 14th., 1707. Article 1 of the Treaty states that “Her Majesty shall be requested to appoint ensigns armorial to conjoin the crosses of St. George and St. Andrew into one flag”. This flag, by the way, was first flown at the celebration to commemorate the union, held in St. Paul’s Cathedral, London, May 1st., 1707. Prior to this time, James Sixth of Scotland had granted a charter to Sir William Alexander-afterwards the Earl of Stirling-for New Scotland, as the King stated that “Old England” has “New” England and France has “New” France, I see no reason why Scotland should not have “New Scotland”, (and used the Latin term “Nova Scotia”) which extended at that time from Penchscot Maine to the St. Lawrence River, including Gaspe-what is now New Brunswick; also Prince Edward Island.
Charles I, upon coming to the throne, granted to Nova Scotia paid a lease for the lands of three Indian arrowheads per year.
It may be of interest to comment that Scotsmen were not permitted to go to an English Colony, nor were Englishmen permitted to go to a Scotch Colony. At this time there was a death penalty for a Frenchman to leave Canada to take up residence in the State of New York.
After the union of England and Scotland, the Colonies were under the Lords of Trade and Plantations. This was altered to the Board of Trade and plantations and finally to the Board of Trade.