738 PETITIONS TO LONDON BY PROVINCIAL GOVERNMENTS The recent appeal of Western Australia to London has attracted considerable attention. This State, aggrieved at its treatment as a member of the Commonwealth, petitioned for restoration "to its former status as a separate and self-governing colony in the British Empire". The question of secession had been put to a referendum in 1933 and two-thirds of the votes had been cast in its favour. The rest of Australia, indeed, took the agitation very coolly. It did not fail to notice that the people who voted for secession had, on the same day, turned out of office Sir James Mitchell, a strong advocate of secession, and put in the labour party which was at best only lukewarm. A delegation from, Western Australia came to London late in 1934 and presented its petition to Parliament . A Joint Select Committee was appointed "to report whether the same is proper to be received", and this Committee made its report on May 22, 19.35. Neither the merits o£ the case of Western Australia, nor the accuracy of the facts alleged in the petition, were considered. Solely on constitutional grounds the decision was that, by a well established convention, "recognized and enforced in the Statute of Westminster", the Parliament of the United Kingdom will act only in response to a voice which represents a Dominion as a whole. The State of Western Australia as such had "no locus standi in asking for legislation . in regard to the Constitution of the Commonwealth", and its petition was, therefore, "not proper to be received". The Secretary of State for Dominion Affairs, Mr. J. H. Thomas, reinforced the report by stating in the House of Commons that the Dominion office would not "be drawn into a purely Australian controversy."' The result is somewhat paradoxical . The Commonwealth Parliament does not possess the power to enable a State to secede, because the Australian Constituiton created ',,an indis soluble federal Commonwealth". Secession can be effected only by an Imperial act. Yet the Imperial Parliament will exercise its power only at the request of the Commonwealth. What, in such circumstances, a State can gain by a direct appeal to London is hardly discernable. 'Parliamentary Debates, 5th Series, Vol. 304, p. 1046. Nov. 19361 Petitions to London by Provincial Governments 739 Some of the Canadian provinces have, at various times since 1867, appealed to London by address or petition. A brief history of these appeals is sketched in the following pages. NOVA SCOTIA The efforts of Joseph Howe to keep Nova Scotia out of Confederation are well known. In 1866 his protest had been futile. But Howe hoped that success in the coming elections, federal and provincial, might turn the tide. The decision of the electorate was, of course, all that he could . have hoped, and to most anti-confederates victory seemed just around the corner. They advised a prompt delegation to London while the press and the public were mindful of the powerful demon- stration of opinion in Nova Scotia. At first Howe held off. The complete futility of the delegation a year earlier had left a deep impression on his mind and he had become convinced that the leading men in Great Britain were sublimely indifferent to the fate of Nova Scotia. 2 But another delegation was arranged and in February 1868, Howe sailed for London. In London Howe became more hopefixl . He secured atten- tion in the English press and he thought that some of the public men who had voted for the British North America Act because they wished to lighten the Imperial duties and-respon- sibilities of the British Parliament might be won over by holding out, as an alternative to Confederation, the old scheme of Maritime union. I But this was too obvious a makeshift and Howe could make no progress against the conviction of British statesmen that the quarrel between Nova Scotia and the ominion was no longer their affair-it was a domestic quarrel to be settled by the conciliatory efforts of the federal government. uckingham, the Colonial Secretary, stated that Imperial inter- vention was not to be expected and that Nova Scotia should look to Ottawa to "relax or modify any arrangements in those subjects which may prejudice the peculiar interests of Nova Scotia". '4 Thus this first appeal of a Canadian province was 2 In a speech at Halifax, January 13, 1868, Howe said : ". As I stood at the bar of the House of Lords a winter ago and saw the sublime indifference with which they bargained away the rights of 350,000 Nova Scotians, I was appalled not so much at the injustice of the act as by the indifference which was displayed." Speeches and Public Letters (J. A. Chisholm, editor), II, p. 530. 3 Howe Papers (Public Archives of Canada), No., 9, letter to J: 'w. Cudlip, April 25, 1868. 4 Despatch of June 4, 1868, to the Governor-General . Journals of the House of Assembly, Nova Scotia, 1868, Appendix 9, p. 4. 740 The Canadian Bar Review [No. 9 abortive. Howe's disillusionment was complete,, and in a few months he capitulated to Sir John A. Macdonald. BRITISH COLUMBIA In 1874 British Columbia appealed to London, not indeed for secession, but about an alleged breach in the terms of union. In 1870 the Dominion had promised, by clause 11 of the terms, that the Pacific railway would be started within two years and completed within ten. The promise was not taken literally by anyone. It meant only that the railway would be finished "as soon as possible". s But the misleading promise went into the act of union, passed by the Dominion Parliament and by the Legislature of British Columbia, and it was to illustrate the danger of putting in a statute words which did not express the real intentions of the parties concerned. 7 Trouble arose very soon after Alexander MacKenzie became Prime Minister. Already the promise to start construction . of the railway within two years had been broken, but the govern ment of British Columbia had not protested because it recognized the reasons for the delay and it had confidence in the intentions of Sir John A. Macdonald. About MacKenzie and the Liberals it had serious doubts, and these grew into positive antagonism when MacKenzie made it clear that he intended to seek modifi- cation of the terms of union. Of course everyone was aware that some modification had to be made, but Premier Walkem of British Columbia was not prepared to be reasonable. He repulsed the well-meant approaches of MacKenzie and declared that he would go to the Imperial Government for justice. $ s See Speeches and Public Letters, II, p. 545. Just when Howe seriously contemplated surrender can only be guessed . Tupper, invincibly optimistic about his powers of persuasion, believed as early as April 18, 1868, that he had won Howe over. Certainly his frequent meetings with Howe in London, and their games of shuffleboard and whist on the return voyage, were looked upon with suspicion by the other delegates . 6 See Scholefield and Hooray, British Columbia (Vancouver, 1914), Vol . II, p. 363. 7 This danger is the more serious because of the English practice which holds that the courts are not to seek for assistance from parliamentary debates in interpreting a statute . The obvious effect "is to bring the rules of legal inquiry into direct conflict with the methods of all rational investi- gation in the historical or scientific field. Sometimes it happens that the issues to be determined by the Courts are essentially historical in character, and decisions have been given in some of these cases which have made lawyers' history a term of derision among historians" . Smith, H. A., Interpretation in English and Continental Law, Journal of Comparative Legislation, 3rd Series, Vol. IX, Part IV, p. 156. 8 For a fuller account of the negotiations see Maxwell, J. A., Lord Dufferin and the Difficulties with British Columbia, 1874-77, Canadian Historic- al Review, December, 1931. Nov. 1936] Petitions to London by Provincial Governments 741 There can be no doubt that at this time (June 15, 1874) Walkem had been so unreasonable as to impair his case, and that his manoeuvres contained an element of bluff. But his bluff was unexpectedly strengthened when Carnarvon,-the Colonial Secretary, decided without consulting the Dominion govern- ment to offer himself as arbitrator in the dispute. MacKenzie at first refused to accede, but finally on duly 23, 1874, after pressure from the Governor-General, Lord Dufferin, he consented. Carnarvon saw Walkem, who had gone to London, and he made a report which, in the main, absolved the Dominion from blame. If the Pacific railway were completed by December 31, 1890 (within twenty years instead of ten), and if the so-called Island railway from Esquimault to Na.naimo were built, British Columbia should be satisfied. 9 It seemed that this appeal to London was to yield, good results. But misfortune lay ahead. The bill which MacKenzie introduced to provide for construction of the Island railway passed the House of Commons, but at the very end of the session it was rejected by the Senate. Immediately the mistrust of British Columbia for the Liberals flared -up, and it soon appeared that this was justified. Many Liberals, with Blake as their leader, disliked the steps taken by MacKenzie to pacify British Columbia. Blake, not then a member ,of the Cabinet, had denounced the Carnarvon arbitration and had voted against the bill for the Island railway. These breaches of party discipline had strengthened his position with a wing of his party, and MacKenzie was anxious to restore harmony by bringing Blake back into the Cabinet.