A CANADIAN CONSTITUTION Part 2: 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

Would it be true then to say, Mr. Smith, that at the time of the granting of Letters Patent creating the Colony of Nova Scotia, the source or power granting those letters was the Sovereign of Scotland; where then did the Board of Trade get its authority?

Mr. Smith: At the union of England and Scotland, all Scottish lands were placed with English lands in the Crown in Chancery as possessions of the British people and all Colonies, that is to say, new England and New Scotland, were placed together under this same department. The Crown in Chancery delegated the administration of and the exercise of authority over the Colonies to the aforesaid Board of Trade and Plantations. At this time the profit from owning Colonies was attained through the Navigation Acts, which were that everything and anything-manufactured articles used in the Colonies, must be imported from Great Britain in British bottoms by British crews and anything raised in the Colonies must be transshipped to Britain in British bottoms and by British crews. To make this effective, it was provided that anything exported by the Colonies to any foreign country would be regarded as contraband. But it should be noted that “the Colonists had all the privileges of Englishmen and were governed by laws of their own making”. It was not until Burke’s Act was enacted in 1782-22 Geo. III Ch. 82, abolishing the authority of the Board of Trade and Plantations and the Governors of the Colonies were told to make their returns to a committee of His Majesty’s Privy Council, that the Colonial Office assumed the administration of affairs and the exercise of authority over all Colonies.

Comparing the sessional papers 18 which were granted by the Board of Trade to Murray in 1763 with the Letters Patent issued to Earl Bessborough March 23rd., 1931 with the instructions issued by His Majesty and also the British North America Act, we find this “mutantis mutandis” the same. Therefore I think we can agree with the statement of Judge W. H. P. Clement of the Supreme Court of British Columbia, on page 1 of his “Constitution of Canada,” Third Edition, issued in 1916, as follows; “It was no part of the scheme of Confederation to alter in any essential respect Colonial relationship or to weaken the Crown’s headship; and there is nothing in the (BNA) to indicate a surrender in any degree by the British Parliament of that cardinal principle of the Constitution, the supreme legislative authority of the British Parliament over and through the British Empire. Our colonial position suggests at once two lines of limitation upon Canada’s power of self-government, the first that she cannot legislate as to the Imperial Constitution; and secondly that she has no power to dictate the essential framework of her own as provided in the British North America Act unless indeed that power is conveyed to her by the Act itself”.

It may be said here, in passing, that Judge Clement wrote this fifteen years before the enactment of the Statute of Westminster, for the Statute of Westminster is the only enactment pertaining to Canada which has in any way altered our status since the Sessional papers 18 were granted to James Murray in 1763.

What was the nature of the papers so granted, in brief, and to what extent were the people themselves given the power to make the laws under which they were governed?

Mr: Smith: It is admitted that James Murray was a “corporation sole” in 1763. It is known by chapter 85 of the Revised Statutes of Canada, 1927, that the office of the governor general is a “corporation sole”.

Would it be true to say that the only charters granted for the government of Canada were these three documents, that is, the Letters Patent of Nova Scotia, the Sessional Papers 18 to Murray, and the Letters Patent granted to Paterson for the Island of St. John which subsequently became Prince Edward Island-that these were the only authority granted up to the British North America Act of 1867?

Mr. Smith: Yes! In explanation I would like to make it clear that no papers of any kind were ever issued to any governor to come to Canada, by the King, the House of Commons, or the House of Lords. The last papers issued to a governor to Canada were those granted at the time of the appointment of Earl Bessborough, march the 23rd., 1931. These papers were granted by the Crown in Chancery, or Department of Lands of Great Britain, giving him the full authority to govern Canada. After the Governor receives his appointment, he is introduced to the King at the Court of St. James, where he is granted a letter of instructions by His Majesty. But it is not true to state that any Governor of Canada ever was a Viceroy. It will be remembered that when Lord Willingdon finished his term of office as Governor General of Canada and returned to London, he was sent by George the Fifth as his Viceroy to India and shortly after his arrival he knighted three princes of India “Sir”.

Has any change taken place in the appointment of Governor General since the passing of the Statute of Westminster?

Mr. Smith: No governor general since the enactment of the Statute of Westminster has received any papers from the Crown in Chancery of Great Britain to act as Governor General in Canada.

I understand the successor to Bessborough was John Buchan, afterwards Lord Tweedsmuir. How was he appointed?

Mr. Smith: Lord Tweedsmuir has a commission, signed by R. B. Bennett, which was never Gazetted in the Canada Gazette. This is the only paper extant in connection with Lord Tweedsmuir’s appointment to Canada.

How was Mr. Bennett appointed?

Mr. Smith: It should be understood that Mr. Bennett was made a member of His Majesty’s Imperial Privy Council’ that acting in this capacity he could commission a governor general but he could not grant any papers to him to govern Canada.

Is it true that the present governor general of Canada is in exactly the same position in regard to the authority he purports to exercise as Lord Tweedsmuir was?

Mr. Smith: He is!

Who signed the commission for the earl of Athlone?

Mr. Smith: The minister of justice in a letter dated July 10th., 1940, states that his excellency the earl of Athlone came to Canada not in the capacity of Viceroy of His Majesty, except in the popular sense of the term, and—–he is not the agent or representative of His Majesty’s Government in Great Britain or any Department of that Government.

Under what authority does he purport to act? It is inconceivable to me that a man would purport to exercise the authority of Governor General unless he has some document or title or written authority from some person having the power to give him such authority to act in that capacity. What has the Earl of Athlone?

Mr. Smith: This is a prevalent assumption and one which should be definitely refuted. There is no record anywhere of the Earl of Athlone having received any authorization from the Crown in Chancery to act as Governor General of Canada. It might be opportune to request of the Earl of Athlone a copy of the credentials under which he purports to act before recognizing any Lieutenant Governor which he may appoint for this Province. Now I would like to explain further that since Canada is no longer under the Department of Lands of Great Britain since the enactment of the Statute of Westminster, that they are not in a position to grant any powers to anyone to act as the governor general of Canada.

Since that date, the British Government sent to Canada a British High Commissioner, the present incumbent (at time of writing –Ed), the Rt. Hon. Malcolm MacDonald.

Mr. Smith: In explanation I would say that before 1931 we had four British High Commissioners for the empire, one for Palestine, for Singapore, for the Islands of the Pacific and for Basutoland. There is no higher office within the competency of the Secretary of State of Great Britain to confer higher than that of High Commissioner. These men could order an attack by the British Army or the British Navy within the orbit of their authority (jurisdiction). High Commissioners are sent to Protectorates of the British Empire which are not Colonies. Their powers greatly exceed the powers of Governor General. It might be interesting, in passing, to comment that if no enactment or order in Council is valid without the assent of some representative of the British Government, the orders in Council passed since the Statute of Westminster should have been assented to by the British High Commissioner at Earnscliffe instead of being assented to by a purported Governor General at Rideau hall.

Going to the next phase of the discussion, let us enumerate the various individuals, groups, institutions, or officers under which the Government of Canada is carried on.

Prior to the enactment of the Statute of Westminster, the Government of Canada was composed of a Governor General and a Select Committee of His Majesty’s Imperial Privy Council. Three of this committee are resident in London and administer affairs in connection with foreign relationships. Two of this committee functioned in the House of Commons, two in the Senate; one headed the Supreme Court of Canada and two other, namely Sir William Thomas White and Dr. T. J. McNamara were available to act as Chairman of any Royal commission.

Next week G. H. Barr asks about the Canadian Privy Council and the Imperial Privy Council for Canada.

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