Then and Now

Much has been said and written in the last few years, both in Canada and in the United States, about the role of money in politics and also about the importance of electoral procedures in enfranchising ― or disenfranchising ― citizens. But this is not a new problem, as a description of the English electoral arrangements in the 18th century in E.M. Wrong’s book, History of England, 1688-1815, shows.

The role of money was perhaps most obvious in elections for county representatives, at which “the poll could be kept open for fifteen days if one voter an hour were produced, and the voters’ expenses to the county town and back was often high” (p. 71). As a result, elections were “ruinous” (71): “[i]n 1803 a contest between three candidates for the two Yorkshire seats cost nearly half a million pounds,” (71) which, in 2012 money amounts to the mind-blowing amount of more than 43.5 million pounds, according to the Bank of England’s inflation calculator. That is more than the total expenditures of all the political parties in the last general election in the UK (a sum that does not include, however, expenses by individual candidates). In consequence, though the franchise for these seats was relatively wide, “in most counties some family or alliance of families was too strong to be challenged, and these divided the representation between themselves” (71). Today, expanding voting options, for example by keeping polls open for longer (notably for early voting) is widely seen as enfranchising voters and thus making elections more democratic. In the 18th century, it wasn’t necessarily so.

In some elections the role of money was even more crude. Some boroughs were represented in Parliamenut but had very few voters ― one “had but six houses and at one time one elector” (72-73). Even in somewhat less extreme cases, the vote of every single voter in such “rotten” boroughs mattered a great deal. But contrary to what an optimist might be tempted to expect from the literature on political ignorance (which argues that voters are rationally ignorant because their individual decisions matter very little), the individual power of these voters did not necessarily motivate them to learn about the issues and choose the best candidate for the country. Rather, they chose to profit from their position: “at Stockbridge the 57 electors were known to have asked £60 each for their suffrages. As voting was open, the result of bribery could be ascertained” (73).

A more entertaining comparison concerns another much-discussed topic, the requirements that would-be voters must satisfy to prove their right to exercise the franchise. The issues in the 18th century were not ID or burqa-wearing voters, but rather the proof of one’s property qualification:

In a dozen [boroughs] any one, not receiving poor relief, who could prove himself possessed of a hearth by coaxing a kettle to boil—”pot-walloping”—had the vote. Before an election men could be seen repairing a doorway—for a door was evidence of householding—lighting a fire, spreading a table in public, to prove their electoral qualification. (72)

Invocations of history are often meant as lessons for the present, though such lessons more often then not go unlearned. But if there is a lesson here, I am not sure what it might be. Sometimes, I think, it enough to enjoy the similarities and the differences between the past and the present for their own sake, as curiosities.

The Ghost of Patriation

If the ghost of communism is, or ever was, haunting Europe, Canadian constitutional law is haunted by what Fabien Gélinas described as the Ghost of Patriation. This ghost has been seen abroad again this week, stirred by an historian’s claims that, while the Supreme Court was considering questions about the constitutionality of the federal government’s proposed plan to seek Patriation without support from the provinces, the Court’s Chief Justice, Bora Laskin, leaked inside information about the Court’s deliberations to the government. The historian, Frédéric Bastien, apparently claims that this was an egregious violation of the separation of powers and that it made Patriation tantamount to a coup d’État and the resulting constitution illegitimate. Québec’s separatist government has seized on the claims, and even the Supreme Court has launched an internal inquiry, as the Globe reports.

Cooler heads are trying to put the ghost to rest by pointing out that, even if true, Dr. Bastien’s allegations are not enough to make out his claims about a coup d’État and the illegitimacy of the constitution. So Yves Boisvert argues in La Presse that while a breach of the secret of the Supreme Court’s deliberations, had it become known, might have been a cause for the Chief Justice’s resignation, it was not “a ploy that changed the course of history” (my translation). He points out that Justice Laskin found himself dissenting on the crucial question in the Court’s decision, usually referred to as the Patriation Reference, whether constitutional conventions prevented the federal government from acting unilaterally to amend the constitution. Indeed, Mr. Boisvert observes that whatever information Chief Justice Laskin might have given the government may well have been erroneous. Mr. Boisvert’s colleague, André Pratte, makes similar points in his editorial.

Messrs. Boisvert and Pratte are right. The coup d’État theory simply ignores the fact that by stating, in the Patriation Reference, that the federal government’s project was unconstitutional, albeit “only” in a conventional rather than a strictly legal sense, the Supreme Court thwarted unilateral Patriation. The Court’s majority, led by Justice Jean Beetz, held that constitutional conventions required “substantial” provincial support for constitutional amendments, which forced the federal government to negotiate with the provinces. Nine provinces eventually agreed on a (revised) Patriation plan, and the Supreme Court unanimously confirmed, in the “Québec Veto Reference,” that this was enough. The process of Patriation was constitutional in both the legal and the conventional sense.

Indeed, in my view Messrs. Boisvert and Pratte are wrong to concede, as both do, that Chief Justice Laskin’s actions amounted, or at least can be regarded as amounting, to a violation of the separation of powers. Separation of powers is an elusive concept, even by the low standards of constitutional theory, but if it has a core, it is something like the idea that political decisions of different sorts ought to be made by different institutions, whether because dividing political power in this way limits potential for abuse and tyranny, or because different institutions have peculiar strengths and good government requires decisions to be made by that institution which is most apt to handle each specific question. A pithy summary of the idea of separated decision-making is James Madison’s well-known phrase, in The Federalist No. 51, that each branch of government “should have a will of its own.” The actions of Chief Justice Laskin, even if they were as Dr. Bastien alleges, simply did not undermine the separation between the executive and the judiciary so understood. Even if he passed some information about the Supreme Court’s deliberations to the government, he did not involve the executive in the Court’s decision-making. He neither asked the Prime Minister how to rule nor took orders from him, even for himself, let alone his colleagues who disagreed with him. The ruling on the Patriation Reference was always in the Court’s hands, and the Chief Justice’s indiscretions did not change anything to that. Indiscretions, breaches of judicial ethics they were, if the allegations are confirmed. But not every breach of judicial ethics, however regrettable, is a violation of fundamental constitutional principle.

Patriation is bound to remain a murky and controversial episode of our history. As the men involved in it die, the first-hand memory of events fades. Perhaps we will never know the exact truth about what happened. On the other hand, the fading of the first-hand memories of the bitter divisions of those days should be an opportunity to leave behind the passions that reigned then. In order to do that, we would do well to leave the ghost of Patriation alone. He has haunted us enough, and earned his peace.

Most Interesting, If I May Say So

Following up on posting about a recording of an interview with H.L.A. Hart, here’s another interview with a giant, Lord Denning. It is the Master of the Rolls’ appearance in 1980 on Desert Island Discs, a BBC talk show on which some interesting person is invited to talk about the 8 records (as well as a book and a luxury item) he or she would take along to a desert island, as well as life, the universe, and everything.

Lord Denning sounds every bit like you expect him to sound―the very model of an elderly, old-fashioned, perhaps a little cantankerous British gentleman. His musical choices are in character too, from “Greensleeves” to “Colonel Bogey” to “Land of Hope and Glory,” which he prefaces with a corny but, I am sure, sincere patriotic outburst about the “one country which we all love, which I love more than any,” and the assertion that “in all of my career I’ve always tried to stand up for the freedom of the individual against the executive or any great authority.”

In the meantime he talks about his life and career, serving in World War I, doing his law degree at Oxford in eight months, becoming a judge fairly quickly and rising to the House of Lords―and then going back to the Court of Appeal because there is more “fun” to be had there, but really, because there is more of a chance of ending up in the majority. In the House of Lords, he had “to be one of five, dissenting…  nobody takes notice of a dissenting judge.” And if Lords reversed one of his judgments in the Court of Appeal, well, “that doesn’t mean they’re right, you know!” Interestingly, in contrast to most of both American and Canadian judges who pronounce on the role of the judiciary, he is candid about his, and his court’s, role in changing the law, both “to keep the law in accordance with the needs of the time,” and as part of a”fight for what I think is just”―or both, sometimes, as in moving the law towards recognizing the equality of women (though “abandoned wives” doesn’t sound altogether egalitarian by today’s standards).

Although Lord Denning mentions a letter from a distraught law student to the Times asking him please not to change the law anymore until the exams are over, I am sure that he has helped many a first-year survive law school. Whatever their legal merits, his judgments are the highlight of any coursepack. He is probably what every law student would like to be―the defender of the widow and the orphan, of liberty and justice, the scourge of abuse of power and trickery, and a great raconteur to boot. If you are a little nostalgic for the good old days in his company, but don’t feel like getting out those contracts cases, just listen to this programme. It is, as he put it, “most interesting, if I may say so.”

Hart and Voice

As part of its commemoration of the 50th anniversary of H.L.A. Hart’s The Concept of Law, the Oxford University Press has put online the recordings of a substantive interview David Sugarman took with Hart, in 1988. (You have to scroll down to get to the audio links.) There’s a lot of interesting stuff there. Though much of what Hart tells there is covered in his biography by Nicola Lacey, The Nightmare and the Noble Dream, legal philosophy junkies will be happy to hear it, as the OUP’s title says, in his own voice.

A number of striking things come out of the interview, for example the fact that Hart became a successful barrister without having a law degree, an Oxford don without a single publication to his name, and Professor of Jurisprudence with about one. Times have changed, and I’m not sure it’s all for the better.

Another remarkable thing is this. Hart tells that his appointment as Professor of Jurisprudence was warmly welcomed by the Bar, because he had the practised law―unlike most of his predecessors and colleagues. Hart also tells of how he thought that jurisprudence, prior to his appointment, was not asking important, interesting questions. He wanted to change that. Well, he sure did change jurisprudence. Dan Priel credits Hart with “the Invention of Legal Philosophy” as it has been understood for the last 50 years. A course on legal philosophy,  in the Anglosphere, is likely to be little more than a study of Hart, people who developed his ideas (like Joseph Raz) and those who opposed them (like Ronald Dworkin).

Yet as prof. Priel writes in another essay, the sort of legal philosophy Hart pioneered has resulted in a “separation of law and jurisprudence.” As he points out,

legal philosophy is largely uninterested in legal practice. It is not uncommon to find a book in legal philosophy that does not cite a single case or statute and seems little interested in the actual attitudes of legal practitioners. Indeed, the feeling one sometimes gets from jurisprudential work is that referring to actual legal practice is something of a philosophical sellout. (1)

This, the result of the work of a former barrister, whose training in the law was entirely practical rather than academic! And prof. Priel highlights a further irony. This abstract legal philosophy is of no interest to anyone but the narrow circle of its practitioners―neither to the lawyers (or legal academics) who practices it purports to illuminate, nor to philosophers whose methods it purports to use. This, the result of the work of  a man who thought he would, at last, start asking interesting questions in the realm of jurisprudence!

It was, as Hart might have said, a noble dream. But the result turned out to be a nightmare. For all that, Hart was a giant, though a tragic one. Go listen to those recordings.

UPDATE: John Hart’s question in the comments made me go back to the original link and realize that the interviews are apparently not there anymore. Call it link-rot-lite, if you will. Anyway the interviews are (for) now available as a series of YouTube clips (audio only). Enjoy!

In an Unknown Language

It is not every day, or even every month, that courts get to quote and discuss a statute enacted in the reign of Edward III. But the BC Court of Appeal did just that in an interesting decision it issued last week, in the case of Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia, 2012 BCCA 282. The issue in the case was whether documents (prepared in the ordinary course of business) in French could be submitted as exhibits to an affidavit tendered in evidence in a civil lawsuit in British Columbia without being translated. In effect, the fight is largely about who has to pay to have the documents translated – the party submitting them, or the other side. At first instance, the judge ruled in favour of the BC government, which argued that untranslated documents in French could not be admitted.

The two main issues on the appeal were whether the British Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 was in force in BC and, if so, whether it prohibited the admission of documents in languages other than English.

The Court began by briefly reviewing the history of language use in English courts. As it explained,

[b]y the 13th century, and possibly earlier, oral proceedings in the King’s Court were conducted in French.  … [T]he variety of English dialects made the English language inappropriate for court proceedings.  Latin was the written language.

However, throughout the 14th century, use of the English language was on the rise, and the oral language of the courts became inaccessible to most people.  As a result, the Pleading in English Act, 1362 (U.K.), 36 Edw. III, c. 15 … was enacted (par. 19-20).

That Act, in a discussion that would fit right into modern Rule of Law literature, noted

great Mischiefs which have happened to divers of the Realm, because the Laws, Customs, and Statutes of this Realm be not commonly [holden and kept] in the same Realm, for that they be pleaded, shewed and judged in the French Tongue, which is much unknown in the said Realm; so that the People which do implead, or be impleaded, in the King’s Court, and in the Courts of other, have no Knowledge nor Understanding of that which is said for them or against them … ; and that reasonably the said Laws and Customs [the rather shall be perceived] and known, and better understood in the Tongue used in the said Realm, and by so much every Man of the said Realm may the better govern himself without offending of the Law, and the better keep, save, and defend his Heritage and Possessions; and in divers Regions and Countries, where the King, the Nobles, and other of the said Realm have been, good Governance and full Right is done to every Person, because that their Laws and Customs be learned and used in the Tongue of the Country.

It provided, accordingly, that “all Pleas which shall be pleaded in [any] Courts whatsoever … shall be pleaded, shewed, defended, answered, debated, and judged in the English Tongue,” though written records would be kept in Latin.

That situation persisted until the enactment of the the Proceedings in the Courts of Justice Act in 1731. That statute also took note of

many and great Mischiefs [which] do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their Lawyers and Attornies, who use a Character not legible to any but Persons practicing law

– and required that all written records also be kept in English rather than Latin, French, or any other language.

That statute was part of the law of England, which was received in British Columbia in 1858.

The Court of Appeal holds that it is still in force in the province. Parliament has made an exception to it insofar as criminal trials are concerned,  the accused now having the right to be tried in French. But, as regards civil procedure, it was neither repealed nor modified. The appellants’ argument that language rights must be interpreted generously is true so far as it goes, but  “the courts must not import language rights where they do not exist constitutionally or through statute, regardless of how desirable such importation may seem.” An argument of this sort is not enough to conclude that a statute has been repealed by implication.

The court further holds  that the 1731 Act applies to documentary evidence. The appellants claimed that its purpose, which is to increase access to justice, means that it should not be construed so as to prevent them from making their case. However, the court points out that though the statute’s “purpose was, generally speaking, to facilitate access to justice; more specifically … it was aimed at preventing the injustice that resulted from the conduct of litigation in a language most lay litigants could not understand” (par. 48). In a judicial understatement, Justice Bennett  observes that “[i]t is not clear to [her] how requiring a party to pay for the translation of evidence that the other party is obliged to tender would facilitate access to justice” (par. 51)

Rejecting some other arguments put forward by the appellants, the Court dismisses the appeal, and holds that the party tendering into evidence a document originally in French bears the burden of having it translated. That seems the right result to me. As Justice Bennett says, access  to justice is not served by letting people tender evidence which most citizens and most lawyers might not be able to understand. As a matter of policy, it would surely be better if a party were at least able to consent to French-language documents being admitted, but it is not for the courts to make this policy into law.

An Ancient Parliamentary Right

I learned something about constitutional and Parliamentary tradition yesterday, and decided I’d post about because I was probably not alone in my ignorance of this quirk. Apologies to those in the know already!

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Each session of the mother of parliaments, at Westminster, and her daughters throughout the Commonwealth, starts with a Speech from the Throne, which sets out the Crown’s – so, by convention, the cabinet’s – agenda for the session. Debate on the government’s agenda as outline in the Speech from the Throne is the first order of legislative business, and the vote on the Address in Reply – the formal response of each House of Parliament to the Speech from the Throne – is a vote of confidence. So far, so familiar.

But, it turns out, not exact. Actually, the first order of business, in the House of Lords and the House of Commons at Westminster, the Senate and the House of Commons of Canada, and the Ontario Legislative Assembly (and perhaps others – I haven’t researched other provinces) is not debating the Speech from the Throne, but the introduction and first reading of a bill that has nothing to do with the Speech from the Throne. In the U.K. House of Commons, it is the Outlawries Bill. In the House of Lords, it’s the Select Vestries Bill. In the Canadian House of Commons, it is Bill C-1, An Act respecting the administration of oaths of office. In the Senate, it is Bill S-1, An Act relating to railways. The British bills seems to have a substantive content relevant to their titles. Canadian ones do not have anything to do with oaths of office, or railways, or anything else. Their only section reads:

1. This bill asserts the right of the House of Commons [or Senate, in S-1] to give precedence to matters not addressed in the Speech from the Throne.

This wording is revealing. It is unusual, indeed strange, for an act of Parliament to “assert,” although this is not altogether unique in Canadian legislation: the National Horse of Canada Act, S.C. 2002 c. 11, “recognize[s] and declare[s].” More importantly, it probably is unique for an Act of Parliament – even for a bill – to refer to itself as a “bill” rather than as an “Act”.

The reason for this unique wording is that these are bills that are not meant to become Acts. The preamble to C-1 explains this tradition:

Whereas the introduction of a pro forma bill in the House of Commons before the consideration of the Speech from the Throne demonstrates the right of the elected representatives of the people to act without the leave of the Crown;

Whereas that custom, which can be traced to 1558 in the Parliament at Westminster, is practised in a number of jurisdictions having a parliamentary form of government;

And whereas it is desirable to explain and record the constitutional relationship represented by that custom …

That of S-1 is similar, though of course it makes no reference to “the elected representatives of the people.” It also does not specify the date on which the custom of the pro forma bills originated.

This is perhaps as well, since there seems to be some confusion on this point. The latest iteration of Ontario’s version of the pro forma bill, more transparently named An Act to Perpetuate an Ancient Parliamentary Right, also refers to 1558. But the earliest version available on the legislative assembly’s website, dating back to 1998, claims that

[t]his practice dates back to the reign of Elizabeth I, when on March 22, 1603, (just two days before her death), Parliament made this assertion of independence from the Crown for the purposes of legislation.

The British bills seem to actually have a traditional substantive wording, related to their titles. But their purpose is exactly the same as that of the Canadian pro forma bills, for which they have served as a model (though as you can see, we have somewhat innovated on it).

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This is all quite amusing, as are many other constitutional traditions originating in Westminster. But it in a way, it is also rather sad. Pro forma bills are bald assertions of power, not intended to lead to its exercise. Having won its independence from, and then control over, a once-powerful Crown, Parliament has become the servile instrument of the Cabinet. The executive is once again in control of the agenda, and whatever Parliament says at the beginning of each of its sessions, it does not give precedence, or indeed almost any consideration, to matters not put before it by the Cabinet. (Indeed, it is the Prime Minister who tables Bill C-1 in the House of Commons.) Legislative supremacy, or even autonomy, is not much more real now than under the Tudors and the Stuarts.

The Pursuit of Difference

I promised my post earlier today, to say more about the belief that the alleged national slogans of Canada and the United States – respectively “peace, order, and good government,” and “life, liberty and the pursuit of happiness” – tell us something about the two countries generally and their constitutions specifically. Here goes.

Those who hold this belief conveniently forget that the words “life, liberty and the pursuit of happiness” are found not in the U.S. Constitution, but in the Declaration of Independence, which has no legal effect, and does  not define the goals of American government. The Declaration was adopted to justify a revolution, and was animated by  a very different spirit than the Constitution, which was intended to establish an effective government. In his Lectures on the French Revolution (which I heartily recommend, both for the depth of the ideas and for the brilliance of the language), Lord Acton described the Declaration as the Americans’ “cutting,” and the Constitution as their “sewing.”

The Constitution Act, 1867 is the Canadian “sewing,” and it is, accordingly, not appropriate to compare it to the Declaration of Independence. The appropriate comparison is rather with the U.S. Constitution. The preamble of the latter describes its aims as “to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.” Well, common defence, domestic tranquility, and general welfare sound an awful lot like peace, order, and good government.

As is usually the case, we are just much less different from the United States than our romantic nationalists like to think. The pursuit of difference is an unprofitable, albeit occasionally entertaining, pastime. We would do well, methinks, not to try to be different from someone else, but to be more ourselves.