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Development in the Legal Status of the Canadian Military Forces, 1914–19, as Related to Dominion Status*

Published online by Cambridge University Press:  07 November 2014

Donald M. A. R. Vince
Donald M. A. R. Vince*
Affiliation:
Acadia University
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Extract

The political and administrative Control of the Canadian military forces by the Government of Canada during the First World War, 1914–19, presented several novel problems to the Canadian system of cabinet government. A detailed examination of the relations between the Government of the Dominion (a clean word in 1916), as represented by the Prime Minister and the Cabinet, and the military organization overseas, as represented by its chief staff officers, is useful to students of both cabinet government and public administration. This paper seeks to throw light on two facets of these political-military relations: first, the problem of making cabinet control effective over an army physically separated from Canada by geographical distance and relatively primitive communications; second, that of the extent to which effective political control over an army establishment beyond her borders enhanced the de facto meaning of dominion status.

In 1919 dominion status did not mean quite what it had come to mean in 1931. On the whole the control over high matters of war and peace lay beyond the powers of the Government of Canada. The British North America Act, 1867, had not foreseen the possibility that the advisors of the Governor General should assume control over the conduct of a great war. Even if it had been appropriate for Sir Robert Borden or his colleagues to direct policy in war, Parliament appeared to lack the power to legislate beyond the shores of Canada. When, after two years of war, Canada had placed a substantial army overseas, it became necessary to alter constitutional practice to fit the new facts produced by the war. This effort was considerably to modify the meaning of dominion status.

Type
Research Article
Information
Canadian Journal of Economics and Political Science/Revue canadienne de economiques et science politique , Volume 20 , Issue 3 , August 1954 , pp. 357 - 370
Copyright
Copyright © Canadian Political Science Association 1954

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Footnotes

*

This paper was delivered before the annual meeting of the Royal Society of Canada held in Quebec City, on June 4, 1952. It is based on documents, hitherto unpublished, held by the C.E.F. Section, Public Archives of Canada; the Diaries of Sir George Foster, in custody of the Librarian, University of Toronto; the Papers of Sir George Perley, now in the Public Archives of Canada; and on certain files still held in the Department of Justice. Some legal cases, not previously considered leading constitutional cases, have been quoted. I am greatly indebted to the following: E. P. Bosse, Esq., G. Bowen, Esq., W. Davidson, Esq., B. S. Keirstead, Esq., Mlle Isabelle Lefort, J. R. Mallory, Esq., Major G. Roy McWilliam, E.D., M.P., and R. A. Ohnstead, Esq., Q.C.

References

1 Privy Council Office, P.C. 107, Jan. 15, 1915.

2 Vince, D. M. A. R., “The Acting Overseas Sub-Militia Council and the Resignation of Sir Sam Hughes,” Canadian Historical Review, XXXI, no. 1, 03, 1950, 1–24.CrossRefGoogle Scholar

3 P.A.C., Duguid Papers.

4 P.A.C., Perley Papers, Sir George Perley to Sir Robert Borden, May 9, 1915. Letter marked “Private and Confidential.” Perley heartily disliked the title “Acting High Commissioner.” However, when Sir Robert Borden, taking his fulminations seriously, suggested Lord Grey, Sir Richard McBride, or Mr. McMaster as suitable replacements, Sir George rejected the offer. He explained that he had taken a country house 20 miles from London where he could sleep in good air.

5 Hopkins, J. C., Canadian Annual Review 1916 (Toronto, 1917), V, 260–1.Google Scholar “The Ypres Letter” was written by Sir Sam to Lord Kitchener and stated that the Ypres Salient was useless and should be abandoned. Dated March 24, 1916, it was published June 14, 1916, after Sir Sam had mentioned it during an interview with the Ottawa Journal. To a later age, Sir Sam's opinions seem more sound than Earl Haig's.

6 Borden, Henry, ed., Robert, Laird Borden: His Memoirs (Toronto, 1938), II, 567.Google Scholar

7 Department of Justice, File 638, Memorandum by Colonel H. Smith, Judge Advocate General, apparently prepared in November, 1908.

8 Ibid.

9 Canada, Parliament, Oficial Report of the Debates of the House of Commons, 01 26, 1916, I, 292.Google Scholar

10 Duguid, A. F., Official History of the Canadian Forces in the Great War, 1914–1919 (Ottawa, 1938), I, 24–5.Google Scholar

11 Ibid., I, 25.

12 Stacey, C. P., The Military Problems of Canada (Toronto, 1940), 68.Google Scholar

13 Duguid, , Official History, I, 22.Google Scholar “The force will be Imperial and have the status of British regular troops.”

14 Ibid., I, 25.

15 Department of Justice, File 638, Prime Minister to Minister of Justice, enclosing memorandum from Judge Advocate General, Jan. 28, 1915.

16 Ibid., memorandum by “J.P.B.” Feb. 10, 1915. It reads in part: ‘In conclusion, I am of the opinion that no additional order-in-council is necessary to Dring under the provisions of the Militia Act the men who have been or may be enrofied in the Canadian Over-Seas Expeditionary Force.”

17 Ibid., Deputy Minister of Justice to Prime Minister, March 25, 1915.

18 Anon., “The Canadian Army,” in the Round Table, XXIII, 06, 1916, 547–8.Google Scholar Cf. Keith, A. B., War Government of the British Dominions (Oxford, 1921), 78, n. 1.Google Scholar This footnote reads: “The troops were apparently enlisted at first under the Army Act of the United Kingdom, not under the Canadian Militia Act, though the officers were given commissions in the Militia; as late as April 1916 their legal status in Canada was questioned. The Round Table, vi. 547. Cf. Tournier v. Price, R.J.Q. 60, S.C. 489.” It will be noted that the volume and page reference are incorrectly cited—no doubt a printer's error.

19 Canada, House of Commons Debates, 04 8, 1915, p. 2199.Google Scholar

20 R.J.Q. 50, CS. 243.

21 5 Geo. V (1915).

22 Fournier v. Price et Wilson (1916), 50 Que. CS. 489, 492–3, 498–9; 26 C.C.C. 405; 32 D.L.R. 720, 731; Cdn. Abr. 21, 577–8.

23 2 Q.L.R. 255; 3 Q.L.R. 136.

24 33 L.C. Jur. 1.

25 28 Que. CS. 330; 7 Que. P.R. 186; 11 R.L.N.S. 527 applied.

26 Cf. In re George Edwin Grey, 57 S.C.R. 150.

27 P.A.C, Overseas Military Forces Ministry (O.M.F.) File 8, E. L. Newcombe to Sir R. L. Borden, confidential memorandum, Sept. 18, 1916.

28 Newcombe's exact words were: “Perhaps except for the fact that the theatre of war is so remote from Canada, and the delays or misunderstandings incident to the transmission of messages at such a distance so great, it would not be found necessary to devise any means other than those already established by law for the purpose of working out these constitutional principles in their application to the Canadian Force.”

29 He excepted corps and divisional commanders because of “the desirability of mutual reliance and confidence as between the general officers directing operations.”

30 Department of Justice, File 638, Newcombe to Meighen, Sept. 26, 1916.

31 Ibid.

32 Borden, , Memoirs, II, 568.Google Scholar

33 Montreal Gazette, Oct. 20, 1916.

34 University of Toronto library, Foster Diaries, Oct. 23–5, 1916.

35 Borden to Hughes, Nov. 9, 1916. The Montreal Gazette, Nov. 14, 1916, reprinted the correspondence.

36 Montreal Gazette, Nov. 14, 1916. The partial text of this speech reproduced in Hopkins, , Canadian Annual Review 1916, 266 Google Scholar, differs slightly from the Gazette version.

37 Deputy Judge Advocate General to Adjutant General, Sept. 9, 1918. O.M.F. File 10–13–25.

38 G. H. Harrington to War Office, March 15, 1918. O.M.F. File 10–13–25.

39 It seems hard, as so recently (May, 1952) exemplified by die Koje incident, that the long and complicated process of negotiation with the War Office in Whitehall which led to the recognition of Canadian military autonomy within the Commonwealth most now be repeated under less favourable circumstances and with less sympathetic listeners at the Pentagon in Washington.