Evening star., 1938-07-03

Iiiho LOU FcIy ldITOW meaning at JQe
time Of confederation; that it meant local
jurisdiction over civil law and was men,
toned in the act of confederation because
OF the differences in the British and French
(Quebec) systems Of procedure.
In the II years since confederation, this
control over "civil and property rights" has
become the dominating clause in the Ca
madam constitution; it is the focal point of
the current controversy
With few exceptions, in cases involving
the question of the Dominion's constitu-
tional right to enact legislation, the Privy
Council has generally used this clause to
uphold the rights of the provinces and
strip the Dominion government of power.
For half century, officials in Ottawa will
tell you frankly, the Privy Council had
interpreted the British North America
Act to the detriment of the Dominion; they
will tell you the Privy Council had emas-
culated the Dominion's residual powers to
the point OF virtual impotency.
Opinions Are Advisory.
The tendency Of the Supreme Court of
Canada had been to uphold the power of
the Dominion government, but the opin-
ions Of the court-which. in Canada, are
purely advisory in nature-were, to & large
extent, ignored
The best evidence Of this is to be found
in the remarks of the late Lord Haldane
lord chancellor of the Privy Council. Lord
Haldane and his predecessor in the lord
he Jota
responsible more than all other persons
for the diminution of the Dominion's power,
in the opinion of most Ottawa officials.
Writing Of the interpretations of the
British North America Act made by Lord
Watson, Lord Haldane said He made the
business of laying down the new law that
was necessary his own. He completely
altered the tendency Of the decisions Of
the Supreme Court In a series of mas
terly judgments, he expounded and estab-
lished the real constitution Of Canada"
Drives Further Wedge.
Lord Haldane continued in the viewpoint
OF his predecessor-the decisions of the
Privy Council under his chancellorship
driving further the wedge between the
provinces and the Dominion
There are two schools of thought in
Canada as to the reason for this line of
Interpretation. Some persons believe it
was the deliberate policy of the Privy
Council, as the agency of the imperial
government, to keep the Dominion from be-
coming strong central government; that
it was best to play into the hands Of the
provinces, thereby following the old Roman
theory of divide and rule"
Others believe, however, that the gov
ernment. as such was in no way a party
to this line of Interpretation; but that the
judicial temperaments Of Watson and Hal
dane, imperialists Of the old school, alone
were responsible.
In 1882 Ottawa felt that perhaps the
trend of provincial power, on the part of
the Privy Council, has ceased. The
Dominion has passed legislation assuming
control over aeronautics and radio broad
casting; several provinces strongly OBJ
jected, contending these were local sub
jects within their Jurisdiction The Privy
Council, in this instance, held the Do
minion was within its power.
But this was only a respite. The biggest
blow Of all for Ottawa was yet to come.
Watch on Washington.
Faced with similar conditions In the
Dominion, as result of the worldwide
economic collapse, Canadian political
leaders watched closely the developments
in Washington after the accession Of the
Roosevelt New Deal to power.
r. B. Bennett multi millionaire leader
of the Conservative party. was prime min
ister, and his brother-in-law, William D.
Herridge. was Minister to Washington.
The party labels in Canada often are as
meaningless as they are in the States" 4"
Mr.. Herridge, Conservative party mem
Der, was known as liberal and followed
with sympathetic interest the unfolding of
the Roosevelt administrators program of
reform. Mr.. Bennett decided that the Do
minion government should attempt to
follow the same course.
In the spring Of 1885 the Canadian New
Deal program was introduced by Mr.. Ben
nett in Parliament It included legislation
for minimum wages and maximum hours,
for unemployment insurance and a broad
program of social security, and provided
aid to debt-ridden farmers.
Parliament Passes Program.
Coming from the Conservative party's
own prime minister man whose back
ground was that of counsel for some Of the
largest and most powerful corporations in
Canada-the Bennett program was con-
sidered revolutionary departure, particu-
larly by colleagues in his own party; but the
program was passed by the parliament.
However, it never was put into effect.
The Liberal party went into ofice in the
1885 fall elections and w. L. Mackenzie
King became prime minister. He at once
referred the bills to the Supreme Court for
. decision on their constitutionality. The
court, following the line Of Watson Haldane
interpretations, held the Bennett program
invalid and the Privy Council, in January,
1887, threw the bills into the discard, prin-
cipally on the ground that they invaded the
"civil and property rights of the provinces.
Out Of this constitutional imbroglio there
developed q virtual mo Mans Land" of
legislation.
Something had to be done, Ottawa BE-
lieved. and last August II, Parliament ap-
proved the proposal of Prime Minister King
g.