SIR ARTHUR CURRIE'S BURDEN The burden of libel

SIR ARTHUR CURRIE'S BURDEN

The Last Day, The Last Hour: The Currie Libel Trial
Robert J. Sharpe
with a new preface by the author
University of Toronto Press
328 pages paperback
ISBN: 9780802096197

The Osgoode Society has inspired the publication of several works of legal history whose interest might surprise the general reader. They have avoided the trivial cataloguing of local history and the factitious "interest" of popular history. The Last Day, the Last Hour: The Currie Libel Trial is the latest.

Sir Arthur Currie's 1927 libel action against the Port Hope Evening Guide led to the most famous civil trial in Canadian history.

The Guide accused Currie of wasting the lives of Canadian soldiers on the last day of the Great War in a vainglorious push to capture Mons before the Armistice.

Robert Sharpe has told the story well bringing to life the judge and eminent Toronto counsel, the small town lawyers, politicians and newspapermen, the retired officers and returned soldiers. Currie's correspondence, the extensive newspaper reports and the trial transcript have enabled him to give a full account.

Happily for his review of the trial, Sharpe has practiced law, but his chief occupation, before becoming executive officer of the Supreme Court of Canada in 1988, was as a law professor.

He must insinuate his knee jerk querying of the law.

He suggests American law putting an onus of proving the defendant knowingly published lies on the plaintiff would be better than our libel law.

He seems to think the rule against hearsay evidence should be set aside in a libel action to let in newspaper reports and rumour.

His story contradicts his arguments, which boil down to an alleged unfair burden on the defendants.

The action placed an enormous strain on Currie who collapsed on the news that his modest judgment for $500 would be appealed and never fully recovered, though the appeal was promptly dismissed as his counsel had said it would be.

Any competent counsel must advise clients contemplating a libel action that even the strongest case must be expensive and a strain. They might set their clients this book as required reading before starting an action.

The verdict was a disaster for the Guide and its publisher, Frederick W. Wilson, but not for the actual author of the intemperate attack on Currie, W. T. R. Preston, who had already been a plaintiff in two unsuccessful libel actions in 1915 and would bring another, also unsuccessful, in 1933. Preston defended himself and enjoyed it.

There was never any evidence to support the Guide's attack on Currie. Wilson knew that and could have saved himself with dignity by a prompt apology and a defence confined to a denial of damages. Currie would likely have dropped his action.

Wilson's downfall was to fall into the hands of a lawyer whose enthusiasm far outran his competence and diligence and who confused justice with his case of the moment.

Frank Regan blundered through the trial trying to broaden the issues to cover Currie's whole military career and calling much inadmissible evidence. He never decided what he wanted to prove or how he could properly prove it. Libel law's determination of the issues and the hearsay rule's insistence on first hand evidence would have been no burden if he had had a defence to advance.

He whinged, in front of the jury, about the limited resources of the defendants but his conduct of Wilson's defence spoke more of his inadequate preparation. He may have agreed to act for no fee and given Wilson what he would pay for.

He may have won some sympathy from the jury and the great latitude given him by the judge let much of what he wanted in before the jury, if only obliquely, but his performance seems more pathetic than sympathetic.

Currie's victory in court did little to lay the libel. The CBC with its unerring eye for striking a blow at national self-understanding revived the libel in its November 1988 film The Killing Ground dramatically purporting to present new evidence in the gravestones of three Canadian soldiers who died on November 11, 1918 without any research into the circumstances of their deaths.

The story is still quite groundless and a distraction from the full assessment of Currie's career and Canada's fighting in the Great War. But the story of the libel is a window on the life of Canada after the Great War and the awkward reality of a lawsuit.

CAESAR WRIGHT'S CASE: The Viciousness of Law Schools

CAESAR WRIGHT'S CASE
Legal Education in Ontario
November 1, 1988, The Idler

The Fiercest Debate
Cecil A. Wright, the Bencher, and Legal Education in Ontario 1923-1957
C. Ian Kyer and Jerome E. Bickenbach
The Osgoode Society
ISBN 0-8020-3986-3

The history of legal education in Ontario from the 1920's to the 1950's must seem a narrow and parochial topic, likely only to interest a few aging members of the Law Society of Upper Canada and academic specialists. Ian Kyer and Jerome Bickenbach have managed notwithstanding to make of it for most of their book an intriguing and occasionally dramatic narrative. They bring to life the civilised provincial world before Toronto Life. But though they strive to be fair, they miss in their uncritical acceptance of the apparent march of progress and the role of their hero, Cecil Augustus Wright, whose biography their book doubles as, much of the reason why their story should be of the widest possible interest.

Cecil Augustus "Caesar" Wright, born in 1904, was at the top of his classes coming out of high school, the University of Western Ontario and Osgoode Hall Law School, where he "achieved a standing of 94.5%." Such a consistent career of scholastic success is not often the beginning of a great life and it cannot aptly be called brilliant. But it was for Wright the foundation of his lifelong career and his historic role set out in this book. The immediate result was a year at Harvard Law School from 1926 to 1927 and a doctorate in "juridical science." He then returned to Osgoode Hall to teach law. Legal education in Canada has never recovered.

For a hundred years Harvard Law School has been the single most prestigious educational institution in the United States, the school of Wall Street lawyers and Supreme Court justices and senators and cabinet officers, and a president. The foundation of this prestige and influence lies in reforms made in the 1870's by the modestly named Dean Christopher Columbus Langdell and usually known as the Langdell case method. In theory this meant that, instead of simply setting out in lectures and textbooks a system of rules of law drawn from statutes and cases, a selection of reasons for judgment in cases decided in the higher courts was set before the students and by "Socratic" questioning the students were lead to find the rules in the cases.

The case method was perversely recommended by Langdell as "much the shortest and best" way of mastering the law. In fact it is absurdly inefficient. It is largely irrelevant to the larger and growing part of the law that is found in statutes and regulations. How to read a case, how to find the rules it expresses and how to distinguish it on or extend it to a new set of facts are learnt easily enough on reading one's first few cases.  At Osgoode Hall Law School in the 1970's this was left to disregarded teaching assistants in a couple of hours a week in first year together with such jurisprudence and legal history as the modern professors of law thought needful.

But the simple theory of the case "method" rather conceals Langdell's project and the "revolution" he began. Langdell saw law as a science (thus the absurdly named doctorate Wright earned in one academic year). Cases were the raw data of this science. He wanted to make of Harvard a national law school where the "science" could be studied without regard to the particular requirements of the various states; and he wanted to create a new sub-profession of law teachers, untainted by practice, the scientists as opposed to the mere technicians of the law, who would pursue their science in the "legal laboratory" of the law school. The legal professoriate would have authority in politics and social reform. As putative experts in justice they would deserve and achieve the authority of Plato's philosopher kings. Harvard achieved much of Langdell's ambitions and in its path other American law schools followed. On the courts and as critics of the courts and in government and politics and major law firms Harvard's faculty and graduates have exercised a powerful influence on American life. Cecil Augustus Wright returned to Osgoode Hall with similar ambitions and spent the rest of his life in a fight to achieve them.

In Ontario legal education had followed a very different course. It consisted of a mix of practical experience in law offices and lectures given largely by practising lawyers. Though circumstances differed from country to country and generation to generation it was basically legal education on the English model under which solicitors articled and barristers qualified by a mysterious process of eating dinners at the Inns of Court and devilling. There were always practical difficulties. Lectures given at Osgoode Hall, typically at the beginning and end of the day, meant all law students had to find articling positions in Toronto. Satisfactory positions where students actually learnt something, had something to do and were adequately paid were seldom available for everyone and lawyers were not always happy with students who came late and left early for lectures.

There was probably always a case for a major reform of legal education in Ontario and the Benchers of the Law Society played their hand poorly against Wright and his allies. What was needed was the adaptation of a system whose principles were sound to the practical difficulties of a large province with a rapidly growing and dispersed population and ever more complicated law and practice. Wright was not interested in pragmatic reform. His attack was on  the principle of office training mixed with instruction from practitioners. The volunteer self-government of a profession or other institution is an admirable thing but it only works when there is a traditional agreement on the goals and principles of the institution. Faced with an attack on principles benchers or other governors break down into reactionaries and appeasers. The reactionaries may not be wrong because they cannot make an effective argument for principles they never before questioned nor the appeasers right because they will not.

From his return to Osgoode Hall in 1927 Wright was arguing for the establishment of a full time, three year, post-graduate law school. It took him thirty years to achieve his goal. There were occasional outbursts of controversy in the 1930's and 1940's but no important changes took place. Wright remained one of only three or four full time teachers at Osgoode Hall and his students were his for no more than a couple of hours a day and had their minds principally on their offices and their careers.  To Wright's chagrin students could enter law straight out of high school and get called to the bar at the price of a couple of extra years working in a law office. Equally chagrinning were students who had studied law at W. P. M. Kennedy's academic Department of Law at the University of Toronto earning a B. A. that did not advance them towards their call to the bar but made them according to Wright "self-satisfied" and "difficult to teach."

In 1948 Wright became Dean of Osgoode Hall Law School. In January of 1949 after a lengthy study of legal education the Benchers voted to continue the longstanding system of concurrent lectures and articling. Wright, John Willis, Bora Laskin and Stanley Edwards, the entire full time faculty of the law school resigned. The newspapers, The Globe & Mail in the lead, made a sensation of the story and the resulting controversy well earned the epithet given it twenty years later by Bora Laskin: "the fiercest debate." There could be no turning back.  Osgoode set about rebuilding its faculty under the guidance of the 74 year old John Delattre Falconbridge, who had been Dean from 1924 to 1948. Kennedy was opportunely retiring at the University of Toronto and Sydney Smith, an old friend and ally of Wright and President since 1946, snapped up Wright for Dean of the now "School" of Law. Wright was free to devise the full time, three year, post-graduate LL.B. course he had his heart set on.  Smith only asked for and got two years' credit towards a call to the bar from the unnerved Law Society and the University of Toronto Law School was threatened with a slow death for lack of students.

Victory came as much because the growth of the profession took legal education beyond the physical capacity of Osgoode Hall and the financial capacity of the Law Society to provide. In 1957 the Law Society was forced to turn to the universities for help.  The University of Toronto Law School has now established a fair claim to be the leading law school in the country, much firmer than the claim of Osgoode Hall Law School, forced by overcrowding to move in 1968 to York University in Downsview, eleven miles from Osgoode Hall, to be the "best law school in the Commonwealth," although its standing has as much to do with urban geography as academic excellence.

Without such fierce debate and generally far in advance of Ontario, legal education in the other common law provinces has followed a similar course. It was Ontario's contribution to dramatise the conflicts between lawyers and law professors. But Kyer and Bickenbach fail to establish the importance of the change and the issues behind the "fiercest debate." The increasing impracticality of the concurrent system left the Law Society's old guard apparently defending the indefensible.  Wright's own intellectual confusion obscured the implications of his ambitions. Kyer and Bickenbach concede that Wright had no sure grasp of the issues in American jurisprudence that were alive at Harvard when he was there and made no contribution to legal theory in his chosen field of torts or elsewhere. They suppose, because he said it, and because he was theoretically effete, that his goal was a practical law school albeit on a new model. But his real ambition can be made out well enough from the concrete elements of the law school he campaigned for and finally built, his legal teaching, such as it was, and the development of law schools in Ontario since 1957 or in the United States.

The law school is the law professor's creature and servant. The law societies specify a number of basic subjects to be covered but these can be got through in less than half the three years of the LL.B. course and are no imposition. The professors are free to teach them as they please. The position of law as a post-graduate degree requiring at least two years of undergraduate work for admission protects the law schools from students whose commitment to the course or vocation is too weak to keep them steady and compliant or who might be rebellious. Their control of access to the perennially prestigious profession assures them of a steady demand for places and an oppressive authority over their students. The absurd length of the course, about twice as long as is needed to prepare for the practice of law, leaves plenty of time for the professors to pursue their own interests before a conscript audience.

Wright's use of the case method was typical of the followers of Langdell, though not apparent from the simple theory.  He was principally interested in criticizing the decisions, berating the judges as illogical, biased and incompetent. After all they had not been to Harvard. As a preparation  for the practice of law this was about as useful as a harangue against the iniquities of the Income Tax Act might be for filling out a return. Lawyers have to deal with the law as it is in advising clients how to comply with it or trying to persuade a court that their client's conduct comes within it where it arguably does. Yet what the law should be, rather than what it is, influencing its change rather than using it as it is, is what interests a law professor. Law schools now exist to appropriate the prestige of the law and the profession of law in support of the law professors' opinions on and influence over what the law should be. The case method serves an ideological purpose. It forces the idea that the law is made in decisions of courts of appeal and that the rights and wrongs of it can only be understood by lawyers and principally law professors.

Bad laws are made not because of bad legal reasoning but because of bad politics, economics and social theory. Law professors do not necessarily know anything more about these things than the average citizen. It is an irony of law schools that law professors priding themselves on the breadth of their learning can hold forth before classes in which on every score except the mere knowledge of the system of rules, which they despise, they could be outmatched by their students: in philosophy, politics, sociology, economics and experience of life. The law professor's leverage over his students' careers allows him to indulge his intellectual conceits.

Wright, from the start, simply held forth on a selection of cases generally damning Canadian and English decisions, which were after all the law of Canada, and praising American decisions. He was a dreadful teacher. The splendid J. Shirley Denison, a long time bencher and Treasurer of the Law Society in 1949, wrote in 1947, thinking of Wright, that successful teaching required "some humility and a sense of humour". These qualities Wright conspicuously lacked. His teaching expressed contempt for his students, whom he was uninterested in assisting to the successful practice of law.

The law schools, bringing prestige and a lucrative enrollment to their universities, have now had it largely accepted that there is a discipline quite as respectable as chemistry or history that they teach and command. They no longer call it a science as the early Harvard professors did. It is not however the despised black letter law, the common tools of a vulgar trade. Its professors command the workings of the law reform commissions keeping politicians' dirty hands off the work of legislation. They are thought fit to be judges, most famously in the case of Bora Laskin, unlike Wright a fondly remembered teacher and a considerable black letter law scholar, but a dreadful judge. From the bench they want to make law. From off the bench law professors' court reviews, written with student assistance in the plenty of time their part-time teaching at full time pay allows them, exercise an unwarranted influence on the law. They are received authorities on what the law should be in almost any field. The Globe & Mail, whose unctuous officiousness was already evident in its support of Wright in 1949, has a particular weakness for law professors and seldom allows more than a day to go by without printing some law professor's conceit on its op ed page.

The case method of teaching has meant that there are few satisfactory texts on Canadian law. What texts the law professors produce are peppered with their unsupported opinions on where the law is wrong. The ever more complicated law is often without satisfactory guides and corrupted by the law professors' pervasive Pyrrhonnism. The law's special function of giving order and predictability to our relations is increasingly ill-performed.

The Charter and subsequent constitution making have played greatly into the law professors' hands. They have encouraged a general justiciablisation (an ugly word for an ugly thing) of politics. More and more, public issues are not settled politically with all assumed fit to speak their mind. They are settled in court and only lawyers and particularly law professors are presumed to know their rights and wrongs. Practising lawyers' opinions are traditionally, rightly and still for the most part, for their clients and they are generally not free to practise political law. Law professors have the time and the audience to assert their authority on these issues. They are heard as experts, though in the final analysis their arguments have no more authority and rely on no more special knowledge than general discourse. By a kind of mystification the arguments are dislocated. Instead of saying something is good or bad it is said to be or not to be against the Charter.

This is the outcome of Langdell's and Wright's ambition. The law faculties have attained the authority of a mystificatory elite. The paradox is that to do it they have had to take over the training of lawyers while holding the practice of law and by extension training for that vulgar trade in contempt. Nowhere else is there such a conflict in the interests of teachers and the taught. Elsewhere in a university there may be a vast gap between the degrees of interest of a professor and a student. Many undergraduates are uninterested in their subjects and just going through the academic motions while "finding themselves" or enjoying "college days." But any interest they do have in a subject is shared with their professor who, however ineptly, will try to assist it.

In law schools, as Wright's teaching showed, the student's interest is in knowing what the law is and the professor's in holding forth on what it should be. Of course the professor may know a good deal about what it is and the more decent, as Laskin did, will try to impart this to the students. More importantly the students may be interested in what the law should be; but they are as likely to be able to teach their professors something about that.

There are two law subjects appropriate to a university and of little use to a practising lawyer. They are legal history and jurisprudence or philosophy of law. These subjects have characteristically prospered in English universities and they were prominent in W. P. M. Kennedy's Department of Law at the University of Toronto. They have almost no place in Canadian law schools. The study of history requires and teaches humility, not something to endear it to the modern law professor. They want only a superficial history of law, which by collapsing seven hundred years of the evolution of the common law makes it seem that the judges busied themselves continuously with making law rather than mainly deciding cases according to the law they found.

What is law? How does it get its authority? What part do or should judges play in the making of law? are questions to which a series of not entirely consistent answers are assumed in law schools, but the hard task of finding the justification for those answers or finding other answers, the province of jurisprudence, essentially a branch of philosophy, is scarcely touched. A serious study of jurisprudence would undermine law professors' claims to authority. It cannot be undertaken without some philosophy. What passes for jurisprudence is the law professors' ideology, chiefly expounded by the American charlatan Ronald Dworkin, Professor of Jurisprudence at Oxford and pillar of The New York Review of Books.

Wright was no scholar of legal history or jurisprudence. After one attempt to teach jurisprudence at Osgoode Hall he "killed it" (his phrase) in 1928 and never tried teaching it again. His chosen specialty, torts, was one in which the principles are peculiarly simple if vague but the social implications enormous. The contribution of Wright and law professors generally has been simply to scoff at any rule that restricted the cases in which a person could claim damages for personal injury or the kinds of damages that could be claimed. Those trying to solve the liability insurance crisis of the late 1980's, or indeed to determine whether it is real, will not find any help in Wright's bibliography.

Wright's was an odd life. Forty years spent lecturing to students he was not interested in on points they were not interested in, writing carping comments for law reviews and doggedly manœuvring for the creation of a law school where he could rule the roost. After he achieved his goal his career was an anti-climax. There were no innovations in curriculum or teaching methods at the University of Toronto Law School. His publications petered out. Law professors became a numerous band. He was, mercifully, passed over for Chief Justice of Ontario and a place on the Supreme Court of Canada.

The fierceness of the "fiercest debate" had not a little to do with Wright's character. Kyer and Bickenbach concede he was arrogant and widely disliked. He had distinguished friends and allies, like Sydney Smith, but it seems likely that needed reforms would have come earlier if the demand for change had not been closely associated with a man whose character and ambitions were so reasonably distasteful to many in the profession. Kyer and Bickenbach tell two stories about Wright in 1949 without relating them. Taking the train to the Canadian Bar Association annual meeting in Banff he was he wrote

"literally forced from car to car by certain members of the Association who seemed to treat me as some kind of moral leper and who were fairly vocal about it in my presence and in the presence of my son."

Those rude lawyers cannot have known the other story, but they may have known enough about him to know it was in character and to make their behaviour understandable. A few months before Wright had written every English law professor he knew urging them to pass the word that none of their colleagues should accept a position at Osgoode Hall.

Canada's identity and independence have been importantly and dramatically injured in the law, where it has independent traditions and institutions to support them but, chiefly through the law schools, has seen them undermined. The "nationalists" have ignored or even connived at the injury. Wright played a significant role in this. His ideals were American law schools and American law. He scorned the English legal tradition in Canada and its Canadian developments. Though confirmed by Kyer and Bickenbach as a maker of Canadian history in his field his attachment to Canada was no more than the Pennsylvanian's attachment to Pennsylvania. It is painful to read of the anxiety of his teachers over whether the top student at Osgoode Hall would be found fit to attend Harvard Law School. It was perhaps a pity for Wright and for Canada that he did not get a job at the University of Pennsylvania Law School that looked likely in 1929.

In 1988 twenty-eight of the forty-three full time faculty at what is now called the Faculty of Law at the University of Toronto have American degrees. The American influence in the law schools is the strongest force propelling our law ever closer to American law. American law and jurisprudence has been fundamentally affected by the Constitution and particularly the Bill of Rights. That fact made it particularly inapt as an influence in Canada. The Charter is both in some measure an effect of and a powerful stimulant to this influence.

Twenty years after Wright's death the Law Society has no spirit to resist the law schools. Law professors are called to the bar without articling or passing the Bar Admission Course, the Law Society's vestigial practical law term, now given in Ottawa and London as well as at Osgoode Hall. They are elected benchers because they are better known to their former students than most prominent practising lawyers.  The law schools control legal education. Their calendars are filled out with courses on "Gender Issues" or "Self-Determination and Liberation Movements" and a banquet of theoretical courses free of any particular theoretical discipline and taken only by handfuls of students desperate for something diverting to fill out their three years sentence without parole. Some schools perversely attempt to make up for their academic detachment from practice by offering expressly practical courses, typically in trial advocacy, but their ideas of what is involved in the practice of law are too select to be generally useful, even if law schools were the right places for practical teaching.

Kyer and Bickenbach end by referring to a 1983 report on legal research and education by the ubiquitous Harry Arthurs, former Dean of Osgoode Hall Law School, Bencher from 1979-1983 and now President of York University. Arthurs qualified for the bar in1961 in the ordinary way, after articling, but went straight into teaching. Though disdaining the practice of law he has made the profession a special interest and has been very free of advice on its development and naturally regularly quoted by The Globe & Mail. Arthurs is sensitive to the contradiction between the law schools' function as training schools for lawyers and their faculties' academic pretensions. Chaffing at the "eclectic curriculum" necessitated by the law schools' status as professional training schools he wants those pretensions bolstered by the recognition of "The scholarly enterprise of law....as a distinct and separate endeavour, with its own goals, standards and basis of legitimacy."

There is an admission in his arguments that for all their success in grabbing power and all the resources at their command the law professors have failed to establish securely an intellectually respectable discipline. But the goal, for all its vaguely high-minded presentation, is both unattainable and unwanted for two reasons. There is no academically defensible distinct and separate discipline of the law as Arthurs envisages it and the power of the law schools derives entirely from their control over entry to the profession. It is a sign only of the completeness of the law professors' triumph that they can contemplate being relieved even of the light burden of training lawyers and are chiefly anxious about their academic respectability.

A survey of recent graduates in the February issue of The Canadian Lawyer reported widespread dissatisfaction with Canadian law schools, most of which, including the University of Toronto, were given C grades. The common criticisms were that they were too academic, the three year course too long, and that law students should get more practical experience: all the arguments of Wright's opponents. The law schools are institutions more powerfully entrenched, more politically adept, with a greater vested interest in their status quo, and better access to the persuasive media than the Law Society of forty years ago. It will take a struggle longer than Wright's, champions more able and fiercer debates before their hold on legal education and their influence on the law are broken.

The folly of Meech Lake

BRIEF ON THE MEECH LAKE ACCORD
February 5, 1988, THE SELECT COMMITTEE ON CONSTITUTIONAL REFORM OF THE LEGISLATIVE ASSEMBLY OF ONTARIO

I shall review the amendments before you in their order in the Resolution and then comment on some general issues that arise from the review or have arisen in public discussion of the Meech Lake Accord.

Section 2

With Section 2 as with all the proposed amendments the Legislative Assembly must ask itself what the legal effect of the language wi1l be. It must intend some legal effect by the language and be satisfied that interpreted under the principles of statutory and constitutional interpretation applied by the courts it will have that effect.

The language of the proposed Section 2 is so general, evasive and unprecedented that we can only speculate what its legal effect may be over the long term. Passed into our fundamental law it amounts to a blank cheque to the courts to tell Parliament and the legislatures what they must and must not do beyond the specific language provisions of the Constitution Act about "the recognition that the existence of French-speaking Canadians, centred in Quebec but also present elsewhere in Canada, and English speaking Canadians, concentrated outside Quebec but also present in Quebec constitutes a fundamental characteristic of Canada; and the recognition that Quebec constitutes within Canada a distinct society."

Any effect of Section 2 on the Charter is only a small part of its importance. The Charter itself is so obscure that it would be wrong to worry that Section 2 will weaken it. Under Section 2 the whole field of relations between French and English Canada, the perennial theme of our history since the 16th century, is made subject to judicial review. Not only the errors but the omissions of Parliament and the legislatures under whatever theory of these matters may appeal to judges in generations to come will be subject to their orders.

The "affirmation" of the "roles" of Parliament and the legislatures in subsections (2) and (3) is vague and evasive. Role is not a legal term. Parliament and the legislatures have powers, rights, privileges and jurisdictions at law. The failure to specify which they have with respect to the "fundamental characteristic" and the "distinct society" leaves open the question of what if anything they are to do about them.

In informal discourse both "recognitions" may seem recognizing the obvious. But what is obvious today may not be obvious tomorrow. If English speaking Quebeckers choose to leave or to be assimilated in a largely officially unilingual province the presence of English speaking

2

Canadians in Quebec may no longer be a fundamental characteristic of Canada. What are Parliament and the legislatures to do about it? If, as is the case despite de facto or de jure official bilingualism in Ontario and the other provinces with a significant population of French speaking Canadians, French speaking Canadians continue to assimilate, what are Parliament and the legislatures to do about that? The "fundamental characteristic" is to be preserved but Quebec's distinctness is to be promoted. Quebec's role in preserving the "fundamental characteristic" already conflicts with its role in promoting its distinctness. The cross party consensus in Quebec is in favour of promoting its distinctness and preserving its Frenchness by unilingualism. Unilingualism must tend to reduce the English presence in Quebec and thus detract from this aspect of the "fundamental characteristic".

A constitution, particularly one as difficult to amend as Canada's now is and may soon be, is not made for the near term. The evolution of the French and English speaking communities in Quebec and the rest of Canada over the medium to long term is unpredictable and judgements on what should be done about it will evolve if anything more radically and more unpredictably. Whether the proposed section 2 is to be read as futilely insisting on the preservation of the exact status quo, the exact proportions of English speaking and French speaking Canadians across the country, or as only vaguely setting a direction, it will operate as the subjection of the Parliament and the legislatures to the general and indefinite supervision of the courts in place of the democratic resolution of such issues as may arise.

The legal effect of this section must be to pass power from Parliament and the legislatures to the courts. It assures no specific outcome and may lead to dangerous conflicts between the courts and our democratic institutions. The power to strike down democratically approved laws given to the courts by the Charter can be unsatisfactory. Whatever one thinks of the Morgantaler decision it cannot be satisfactory that it results in a legal vacuum until Parliament passes legislation consistent with it. It is a dangerous extension of the power of the courts to commission them to require Parliament or the legislatures to adopt laws in fulfillment of their "roles" under Section 2. Unless it is entirely meaningless that is what Section 2 does.

Section 25

A bicameral parliament works only where the upper house will only rarely reject or substantially amend measures passed in the lower house. The government with the confidence of the majority of the House of Commons must be able to pass any important legislation it considers advisable. This is fundamental to responsible government in the United Kingdom, Canada and the democratic Commonwealth.

If the devolving of the power to nominate senators to the provincial governments is to amount to anything more than sharing out patronage plums it will lead to senators attempting to interfere with the national government's legislative programme in the political interests of the provincial governments that nominated them. This will weaken the national government. which must be free to act within its jurisdiction under the Constitution Act without provincial interference. It dangerously increases the possibility of a deadlock between the House of Commons and the Senate. The limited power to overcome a deadlock by the appointment of extra senators under s.26 will be seriously diluted by provincial leverage through the power of nomination.

Quite apart from the injury provincial nominations will do to parliament the wording of the proposed Section 25 is objectionable. "Government of the province" is an informal political phrase. Executive power in the provinces is vested in the Lieutenant Governors and it is they who should make any nominations. Naturally they will do so on the advice of ministers responsible to the legislatures. Further it is the Governor General who appoints senators and it is to her that names should be submitted. There should be no reference to the Queen's Privy Council. How is it to signify who is acceptable? Will it meet and vote? The provision should simply say that the Governor General shall not appoint anyone to the Senate whose name has not been submitted by the Lieutenant Governor of the province. She will not have to appoint each person whose name has been submitted and in deciding whether to appoint a senator will, of course, act on the advice of ministers responsible to Parliament.

The requirement that senators only be appointed from persons whose names have been submitted by the provincial governments will lead to friction and impasses over appointments. In most cases no doubt appointments will be worked out to the rough satisfaction of the provincial end national governments. But that cannot always happen as governments with conflicting political wills play a game of chicken, with a provincial government threatening ever more unacceptable nominees and the national government a prolonged vacancy. Relations between the national and provincial governments will be poisoned and Senate appointments will become a form of low comedy. As the courts become more free spirited in the interpretation of the Constitution Act, encouraged by its open language, they may become dangerously involved in attempts to break impasses over appointments to the Senate.

Sections 95A-E

Nothing in the Constitution Act as it stands prevents Parliament from passing legislation to accommodate provincial wishes on immigration. The effect of the proposed Sections 95A-E is to entrench in the Constitution Act agreements between the national government and a provincial government on immigration. They enable the national government to bind future Parliaments indefinitely to an agreement with a provincial government on immigration by simple majority resolutions of the House of Commons and Senate. They will result in a damaging reduction of a basic power and responsibility of a national government. As admission to any province is admission to the whole of Canada immigration is essentially a national concern in which the national government has always had paramountcy since 1867. The provinces have historically played a role only in recruiting and settling immigrants, a role now largely obsolete.

Subsection 95B(2) may be sufficient to protect the national interest in immigration and at best may make the whole of Sections 95A-E meaningless. But again it is a blank cheque to the courts to prescribe the role of our national government in a basic field of national concern.

Section 95 should not refer to the "Government of Canada" and "the government of any province" as these are political and not legal phrases. What will be legally effective under these proposed sections are the resolutions of the Senate and House of Commons and the Legislative Assembly of the province and the Governor General’s proclamation. Legislation, and particularly constitutional legislation, should not refer the political preliminaries that lead to any legal action. It is unnecessary and can lead to unintended legal consequences.

Sections 101 A-E

The entrenchment of the Supreme Court of Canada will make the organization of final courts of appeal in Canada inflexible and subject to political constitutional negotiation. Already before the Constitution Act 1982 the Supreme Court of Canada was severely burdened. Section l0lA will make expansion or division of the court practically speaking impossible.

The requirement that appointments to the Supreme Court of Canada be made from nominees submitted by the government of Quebec for the three civil law seats or the other provincial governments for the rest implies that and is based on the presumption that the judges have represented and will represent the interests of the government that nominates them. This is a fundamental attack on the independence and freedom from bias of the judiciary. There have never been any grounds for this presumption. The entrenchment of provincial nominations to the Supreme Court of Canada gives constitutional sanction to the theory that its judges should serve the interests of the provincial governments and will damage the authority of the court. Friction and impasses over appointments, particularly from Quebec, are bound to occur and will acutely damage the court. As with Senate appointments it is possible that the Court will become involved in breaking impasses over appointments.

Again references to provincial governments rather than Lieutenant Governors, to the Minister of Justice and to the Queen's Privy Council for Canada are wrong, and show that the drafters do not understand our constitution.

Entrenchment together with the vastly increased constitutional responsibilities of the Court, practically all of whose time will likely be taken up in making final decisions on constitutional cases that have worked their way up to it or been directly referred to it, will result in the separation of the Court from the whole body of inferior courts whose work will remain a mix of "ordinary” cases at law on which they will generally have the last word and constitutional cases on which they will never have the last word. Its position as an almighty political court above the law will both corrupt it (vide Acton) and injure its authority.

The entrenchment of the Supreme Court of Canada in the constitution is a particularly pure case of the craven emulation of American constitutional arrangements. As we imitate the United States we should note that respect for their Supreme Court has been greatly injured in recent years and wi1l likely continue to decline.

Section 106A

It is already objectionable that Parliament is paying for national shared-cost programmes in areas of exclusive provincial jurisdiction under the Constitution Act. Where a national programme is desirable the provincial governments should give up jurisdiction and let taxing, spending and responsibility rest all together with the national government. If there are to be such programmes there is nothing to stop the national and some provincial governments agreeing on opting out and consequent financial arrangements. The proposed Section 106A will give the provincial governments an automatic no cost option of opting out and will require the courts to judge whether a province "carries on a program[sic] or initiative that is compatible with the “national objectives" and what "reasonable compensation" for the opting out province should be. The involvement of the courts in the detailed assessment of political programmes and financial trade offs between the levels of government is wholly unacceptable.

In this proposed section the use of the political phrase "the Government of Canada" is particularly inept. The Government of Canada has no money except what Parliament votes it. It is Parliament that will have to provide such "reasonable compensation" as the courts decide and this bad provision, if it must pass, should say so.

Section 148

The emergence of so called "First Ministers" conferences in the last 25 years as a major feature of national politics has already injured our political culture and institutions. They have confused political responsibility, distracted governments at both levels from their work and seriously undermined the authority of the national government in its own jurisdiction. Such meetings if not banned outright ought to be rare and informal. To entrench them in the constitution is grotesque. The Prime Minister and the provincial premiers are simply primus inter pares ministers running committees of ministers responsible to their respective Parliament and legislatures. Their place in the simple but strong and profoundly good constitutional institutions developed in Britain and the Commonwealth in the last three hundred years is entirely inconsistent with their appearance as great sovereign princes regularly meeting in solemn conclave to settle the nation's affairs. As has probably happened with the measures before you this corruption of our political culture and institutions has severely damaged the authority of Parliament and the legislatures by presenting them with what are effectively political fait accompli.

There should be nothing for the "First Ministers" to meet about. If the division of powers between a national and provincial governments can be justified each should be able to carry on within its jurisdiction undisturbed by the other with their civil servants occasionally in touch to see that wires do not get crossed at the edges of their respective jurisdictions.

Section 40

This proposed section will encourage no cost opting out by provinces from transfers of jurisdiction. Canada needs a stronger national government and easy transfer of powers from the inflated provincial jurisdictions to the national government. This provision will make transfers more difficult. Again the courts are to decide what "reasonable compensation" would be. This decision will be particularly difficult for the courts. In the case of compensation for national programmes opted out of under the proposed Section 106A some measure of financial compensation will be available in the level of national spending on the programme opted out of. With a transfer of jurisdiction compensation will depend on what is done with the jurisdiction. The national government may choose to do little, using the jurisdiction to keep the field free of regulation and interventionist spending. The opting out province may keep the jurisdiction to do just the reverse. The courts will be faced with making impossible and politically charged judgements.

Section 41

The requirement of unanimous agreement on amendment of any aspect of the constitution puts the country in a constitutional straitjacket. The addition of matters to this section with the already too onerous requirements for other amendments in Sections 38 and 42 will give the provincial governments an iron hold on the national government every time constitutional change is necessary. The history of Meech Lake and human politics means that this will lead to bargaining in which the already over mighty provincial governments make demands on the national government in exchange for their consent to amendments. With such a prospect it may be better to regard the constitution as unamendable.

Section 50

The requirement of annual constitutional conferences will perpetuate the constitutional distractions of the last twenty years of Canadian politics. I set out above how objectionable “First Ministers" conferences are. It should be remembered that the conferences in 1864 that lead to Confederation were not of "First Ministers" but of delegates of the respective legislatures. They met of course not to take power for themselves out of a constitutional impasse but to give up power to a new government and to build a nation, not to carve it up. The whole course of the debates leading to Confederation should put to shame those who have participated in the squalid proceedings leading to the measures before you and who vainly and arrogantly claim to be new Fathers of Confederation.

The holding of annual constitutional conferences in the face of the near impossibility of amending the constitution under the formulas in Sections 38, 41 and 42 is idiotic. It will invite an
endless parade of lobbies to push not for the democratic redress of their legitimate grievances but the further encumbering of the constitution with vague, inflexible formulas to be interpreted by overburdened. irresponsible and politicized courts. Every amendment achieved will have to be bought at the cost of further weakening the national government.

We need a moratorium on constitution making and time to get on with the real business of government and to let the full extent of the damage done in the last six years emerge.

Quebec

Meech Lake, we are told, was necessary to get Quebec to "join the constitution" or some equally meaningless phrase. There was no need to have Quebec "join the constitution". The Constitution Act has full and unchallenged legal effect without the support of a resolution of the National Assembly of Quebec.

All Meech Lake does is buy a smile, of no legal effect, from Quebec. The price paid for a bought
smile is alway too high as a smile paid for is worthless. And as always happens when Quebec makes demands, the other provinces cynically line up to take what they can get with no thought of the injury they do the nation.

It is all for nothing. Who can suppose that when Quebec nationalism resurges again in ten or twenty years time, as it has again and again since 1759, we shall simply say "Meech Lake" and all will be well? Who can suppose that when tomorrow's separatists are threatening they will be daunted by the thought the their demands are subject to the veto of Prince Edward Island?

Quebec can "join the constitution" and smile on us because it knows that whenever it calculates that Confederation or the threat of separation alone are no longer profitable it can go its own way, with a strong national government, already the strongest in Canada, and all the Constitution Acts in both official languages you could pass in a century if you gave your time to nothing else would not hold them up a minute.

The Courts

The Charter has greatly burdened the courts with difficult and dangerous political decisions. It can be argued that for the sake of fundamental rights and freedoms, whose history is tied in with the development of our law, this is satisfactory. It is another thing entirely to burden the courts further with the settlement of purely political issues: the supervision of relations between English and French Canada under Section 2, the possible settlement of disputes over Senate and Supreme Court appointments under Sections 25 and 10lB and C, the supervision of immigration policy under Sections 95A-E, the assessment of national programmes and objectives and compensation for opting out of them under Section 106A and the assessment of compensation for opting out of transfers of jurisdiction under Section 40. Courts are the wrong institutions for the settlement of such questions. Their involvement in them will politicize them. They cannot decide such questions efficiently. They are irresponsible. For their proper work that is as it should be. For political decisions it is unacceptable.

The "notwithstanding" provisions of Section 33 of the Constitution Act 1982 limit the irresponsibility of the courts for the larger part of the Charter provisions. Those provisions were thought necessary in 1982 to preserve parliamentary sovereignty, which is fundamental to our democratic government. They do not and cannot apply to the dangerous political powers given the courts by Meech Lake. With amendment of the constitution near impossible the irresponsibility of the courts is nearly perfect.

National and Provincial Governments

The provincial governments in Canada were established and continued as simple instruments of the public good easily adapted or put aside as circumstances required. Such was their history up to 1867. A hundred years of constitutional stability and the settling of political interests in the existing governments gave them a false appearance of permanence. The constitutional wrestling of the last 20 years has lead to the provincial governments becoming de facto sovereignties. They have consistently sought increased power without regard for the national interest from the politician's instinct to seek more power wherever he can most easily lay his hand on it.

We can either trust ourselves from sea unto sea to run our public affairs together or we cannot. If we can, our democratically elected national parliament should be free to govern the whole country without provincial or judicial interference. If we cannot, the answer to our mistrust will not be to tie down and make impotent our national parliament, but to accept that we must separate. I do not believe Canadians want either outcome but as our constitution is remade by bargaining between ten provincial governments and a solitary national government to speak for the national interest they will get an impotent national government and finally the logical sequel in separation.

All the provincial governments have gone into this latest bout of constitution making looking for greater power at the expense of the national government under the cloud of "national unity" and “bringing in Quebec" rhetoric. It is a sad but not surprising show of human nature that this should be so. But it need not be so. Each of us, whether in provincial government or private citizens must judge the provisions of our constitution by whether they serve the interests of Canada as a whole. Ontario should be pushing for a stronger national government, offering to give up jurisdiction to Parliament and leading the other provinces to do the same.

The resolution before you will gravely injure our country. I urge you to reject it. If you do not, the damage done may be irreversible and, in the long, run fatal.

ON MONARCHY

From THE RECIDIVIST Trent University December 1969

Thompson: Good morning Watson.

Watson: Good morning Thompson. What brings you to the Common Room? I don't normally expect to find company here at this hour.

Thompson: Nor I. I'm looking for an article on Prince Juan Carlos that I noticed in yesterday's paper. I didn't have time to read it before dinner last night and I hoped I might find it here this morning. That's not yesterday's paper you're sitting on, is it?

Watson: As it happens it is but the women's pages are missing, and it will be the women's pages you are wanting. Articles on royalty are always in the women's pages.

Thompson: Not in this instance. If I remember rightly the article I'm looking for was opposite the editorial page.

Watson: Here's the first section then. But I don't know why you bother to read such stuff. I looked at some of the commentary on Prince Charles' Investiture and found it extraordinarily unintelligent.

Thompson: So did I. It was very depressing. But I don't read newspapers for enlightenment.

Watson: What do you read them for then?

Thompson: I read them to keep track of current opinion. On monarchy current opinion is doubly depressing as it is both unintelligent and increasingly unfavourable. Such sympathetic commentary as there is is probably the more stupid.

Watson: I shouldn't like to have to judge. But how do you account for this unintelligence.

Thompson: I would say there are two reasons for it: in the first place, as you have suggested, reporting on monarchy is ordinarily confined to the women's pages and thus when something like the Investiture of Prince Charles receives broader coverage the reporters assigned to it are either uninformed or informed from a rather limited perspective. And secondly, though ostensibly a political institution neither political scientists nor sociologists for that matter devote much attention to monarchy, and though in the transfer from learned journal to popular press their ideas may suffer some decay the influence of these men on the quality of public debate is important.

Watson: I'm sure they will be happy to hear that. But isn't the fundamental explanation just that monarchy isn't very important? The newspapers have to cater to public interest so they publish articles on royalty from time to time, usually in the women's pages, but political scientists realize that monarchy is unimportant, and so they ignore it. Under the circumstances the lack of intelligence of the interested and the lack of interest of the intelligent may be allowed to stand.

Thompson: You're trying to carry the argument from a lack of intelligence to a lack of interest further back to a lack of importance and because of this lack of importance you are prepared to accept the current climate of opinion about monarchy which as we have seen is unfavourable.

Watson: I suppose so. Monarchy does no harm, but if trends are against it so be it.

Thompson: But I believe monarchy can do good and that its disappearance would be a loss.

Watson: Maybe, but I still don't see that it's very important.

Thompson: An institution which in some form or other provides the heads of state of about four hundred million people can't be quite so unimportant as you seem to think. It deserves at least some sort of intelligent assessment.

Watson: Four hundred million? I'd be interested to know how you arrived at that figure.

Thompson: Well, if you start with Japan that's a hundred million right away, then Britain makes a hundred and fifty million, Belgium and Holland at ten million each make a hundred and seventy million and Thailand and we're over two hundred.

Watson: Alright, I believe you. I suppose I never really thought about it. But, I think I hear Richardson and Fordyce arguing their way into the common room. They're sure to have something to say on this subject. Good morning Richardson. Good morning Fordyce.

Fordyce: Good morning.

Richardson: Good morning everyone. Don't let us interrupt you. Working on a world census were you.

Watson: No. Thompson was trying to show me how important monarchy is by adding up the number of people whose heads of state are monarchs. We had just reached two hundred million when you two came along.

Richardson: I don't see that that proves very much. Monarchy is unimportant because all monarchs are figureheads.

Fordyce: That's not true. Many of them are the effective rulers of their countries.

Richardson: Which ones?

Fordyce: You don't seem to be embarrassed by ignorance. The Shah of Iran., the Emperor of Ethiopia, the Kings of Afghanistan, Jordan, and Nepal. None of those are figureheads, and there are others.

Richardson: But you're not going to defend that bunch of reactionaries are you?

Fordyce: They're not very difficult to defend. They can hardly be compared unfavourably as a group with the governments of the other countries of the underdeveloped world.

Richardson: They're not very democratic though.

Fordyce: I thought it had been decided that liberal democracy was unsuited to underdeveloped countries. In any case, alongside the military coup or the rigged election heredity does not seem an extraordinarily irrational way of choosing a head of state.

Watson: This is all very interesting I'm sure, but the underdeveloped monarchies are a rather special case, as I think you'll agree. Thompson and I were working up to a discussion of constitutional monarchy in the advanced countries, I think.

Thompson: Yes, I quite agree, but what Fordyce has said is true and should not be forgotten. But Richardson, you must have something to say about the constitutional monarchies. Sit down and let us hear about them.

Richardson: Certainly. They are irrelevant anachronisms out of tune with the democratic and egalitarian spirit of our times.

Thompson: Now that's a nice précis of the sort of thing one reads in the newspapers. Don't you think?

Watson: Perhaps Richardson you will be so kind as to explain himself in a little more detail. What do you mean, for instance, by calling monarchy an anachronism?

Richardson: I shall be glad to explain. Monarchy is a medieval institution and most of the presently existing monarchies were founded in the middle ages. They have outlived their time. It's as simple as that.

Thompson: I don't think it's simple at all. Monarchy has changed radically over the centuries. Feudal monarchy was something very different from absolute monarchy and that again was something very different from constitutional monarchy. Constitutional monarchy is a phenomenon of the nineteenth century and it has itself developed considerably in the last hundred years. We might perhaps be wise to seek a new name to describe monarchy in its present form. All you have to say in fact is that monarchy is old and because your knowledge of and respect for history is slight you regard age as both an unpardonable sin and an incurable disease. If anything is shown by the great age of monarchy I should say it is the remarkable adaptability and vitality of the institution.

Richardson: But what about the twentieth century? I shouldn't want to have to count up the number of ancient thrones toppled since 1900. Are they a demonstration of the vitality and adaptability of monarchy?

Thompson: Of course not. I don't dispute the fact that things have been pretty bad for monarchy for the last fifty years or thereabouts, but, unlike you, I neither believe that all present trends are irreversible nor that they are good.

Watson: Come now. Attacking monarchy because it is old is just silly. It reminds me of those articles on the investiture of Prince Charles in which the reporters felt compelled to mention the wonderfully irrelevant fact that in the same month two Americans would set foot on the Moon. You must have something more to say Richardson. What about the democratic and egalitarian spirit of our times you mentioned.

Richardson: Of course I have something more to say. Monarchy stands in direct contradiction to the trends towards democracy and equality which have characterized our times. You're not going to condemn those trends now are you?

Thompson: That depends. Insofar as they run counter to monarchy, yes. There's no reason, however, why democracy and monarchy should be in conflict unless for you democracy is a dogmatically held faith whose mystic foundation is arithmetic. As for egalitarian objections, whether they come from the equal opportunity orthodoxy or a more puritan sect, I'm not inclined to take them very seriously. One exception can surely be made.

Fordyce: Richardson never bothers to consider the facts. The majority of the more successful democracies are monarchies including Sweden, which has always been held up as a model of social equality.

Watson: Yes, yes Fordyce. I'm sure that's true but have you nothing more subtle to offer in argument Richardson than a crude contempt for age and a naive democracy.

Thompson: I shouldn't think so. A republican's attack on monarchy is essentially negative as the republic he advocates can be many things. The attack is bound to be crude so long as he thinks the problem is not important enough to be worth careful consideration.

Richardson: One certainly doesn't feel inspired to develop very subtle arguments in face of the stupidity of the monarchists. It is in them that age and irrelevance are most likely to meet.

Watson: Now don't go away Fordyce. You will have to reply to that.

Fordyce: It's impossible to argue with Richardson. He has no appreciation of the value of tradition and sentiment.

Richardson: Tradition and sentiment: that's all the monarchist's have to offer.

Thompson: To put forward tradition as valuable in itself is as irrational as the attack on monarchy because of its age. As for sentiment, it's far too subjective to be used as an argument. But we haven't heard your views, Watson. Perhaps you'll be able to shed some light where the Young Liberal and the Old Tory have failed.

Watson: I'm afraid not as I haven't ever given the subject much thought. A few good things about monarchy occur to me, but I'm not sure they make much of a case for it and in any event they depend on a sort of afterglow from the days of monarchy's glory, which is fast fading away. Just going about their daily rounds, for instance, royalty are a tourist attraction. Opening their palaces to the public would not, I should think, compensate for the loss of interest that would result from their overthrow. In the same way royalty can attract support for charities and stimulate interest in trade fairs.

Thompson: Yes, but quite apart from whether royalty's effectiveness in these roles is diminishing they have a demeaning character which weakens monarchy in other areas. Much the same things could be claimed for film stars.

Watson: I suppose so. There are more worthy roles for royalty though that fall broadly within the same classification. They may work on conservation or take an interest in the arts for instance. Perhaps most obviously they may relieve the head of government of many ceremonial duties. These may be minor merits, but I think they are worth mentioning.

Thompson: Yes, I think they are. Members of royal families in which a tradition of service exists will always make themselves useful.

Richardson: As they have so little else to occupy their time it's not surprising they're such do-gooders.

Thompson: Maybe. In any case all the things Watson has mentioned are fundamentally by products. Except for the last one. In talking of the monarchy relieving the head of government of ceremonial duties Watson touched obliquely on the heart of the role of monarchy.

Richardson: Perhaps you'd like to explain this role then. You've been very critical of other people's opinions, but you haven't given us your own.

Thompson: I'll be glad to give you my opinion, but I'll have to ask you to be patient. At the beginning what I have to say may sound very abstract and even rather silly. As we proceed, however, I hope you will find it more sensible. The ceremonial duties Watson talked of are part of the role of a head of state as, opposed to a head of government. I hope you are familiar with the distinction between the state and the government. It is an important one. The state is the whole people looked on not as a sum of individuals, but as a unit. It is the people in right of those things which hold them together and are their common interests. The government is made up of individuals pledged to serve those interests, but individuals with their own ideas of how best they can be served They are individuals marked out from the people as a whole as forming the government. It is essential that the loyalty of the citizen be to the state and not to the government.

Watson: That certainly is rather abstract, but I think we understand. You were going to say something about the role of the head of state, I think.

Thompson: Yes. The role of the head of state is to speak and act for the state as opposed to the government. In ceremonies he personifies the state. He accepts the honour due to it from its citizens and honours its servants.

Richardson: A head of state then is an over-paid actor playing an abstraction in an elaborate political allegory.

Thompson: I asked you to be patient. I haven't finished yet. I think, though, you will at least agree that it is not a good thing to have the head of state and head of government united in one person as is the case with the president of the United States. There is a confusion in the roles for Americans who must cheer for him one moment because he is the president and curse him the next because he is that man in the White House. Presidents have often exploited their position as head of state for political advantage while politicians can be heard excusing their acquiescence to Presidential policy as if it were a matter of simple loyalty to the state. It is not, I think, entirely irrelevant that despite the constitutional checks and balances that surround him it has been felt necessary to limit the president to two terms.

Richardson: Well then, perhaps it would be better to abolish the position of head of state altogether. It's obviously useless and apparently dangerous.

Thompson: Only when it is confused with the role of head of government is it dangerous, and as every country in the world has a head of state it is not immediately obvious that the role is useless. Many republics elect so called figurehead presidents just to act as head of state.

Watson: As I suggested, these presidents can take on ceremonial duties that would be an unnecessary burden to the head of government, but I think you see a larger usefulness.

Thompson: Yes. To talk of relieving a head of government of ceremonial duties is misleading. The ceremonial duties concerned are not properly those of a head of government at all, though far from wishing to be relieved of them many heads of government are all too eager to assume such duties. They are of course publicity, and publicity of a special kind: publicity which tends to identify the government with the state. Heads of government have a natural tendency to assume parts of the role of a head of state, a tendency that can only be checked by the existence of a distinct office. Moreover, this tendency itself is a demonstration of the existence of a role, which must somehow be filled.

Watson: You don't think loyalty to the state can be centred on a flag or something similar and the head of state be done away with altogether?

Thompson: No. The government is always personified in its head. Ceremonies in which the public can participate both directly and indirectly play an important part in stimulating public consciousness of membership in the state and it is important that the principals in these ceremonies not be members of the government Even patriotic platitudes have their place but it is not in the mouths of politicians.

Richardson: You admit though that your head of state is going to have no power. No one will be interested in such a cypher.

Thompson: I don't know that your inference is correct but in any case I haven't admitted the premise. Here we touch on the second side of the head of state's role. On the one hand he represents to the public the supreme claims of the state over the government. On the other hand he is to represent those claims to the government from day to day. It is healthy that a head of government should be obliged to acknowledge his formal subservience to the head of state and thus be reminded of his obligations towards the state.

Watson: What does this mean in practical terms?

Thompson: It means in the first place that the head of state ought to be able to insist on carrying out his public role and keeping the head of government in his place. But more than that it means that the head of state should be able to insist on the rights to be consulted, to encourage and to warn described by Bagehot. Responsibility lies with the government and the head of state will have only as much influence as the strength of his ideas can give him, but his presence should be felt as a reminder of the claims of the state throughout the work of the government.

Watson: But do you leave any opening for the independent exercise of power by the head of state?

Thompson: Yes. I do. In a sense all power lies with the head of state. When a policy has been decided on by the government it is only by the authority of the head of state that it becomes an act of the state and has binding force. But the state has no policy bias. It does not exist that something in particular should be done to serve the common interests, but just that something should be done. Thus, whatever may be his personal view of the merit of a policy, as head of state he approves it because the state, the whole people, wish something to be done though as individuals they may be divided in their opinions as to exactly what should be done. But what you want to know, I presume, is whether there are times when the head of state may reject the policy of the government.

Watson: Yes.

Thompson: The answer follows clearly from what I have said. When the head of state decides that a government policy is conceived in opposition to the interests of the state then he must reject it, and in doing so unless the government changes its mind he rejects the government.

Watson: What do you mean by conceived in opposition to the interests of the state? It might just mean that the head of state didn't like it.

Thompson: Not at all. By a policy conceived in opposition to the interests of the state I mean not just an interest of the government as opposed to the state. There is always a danger that a government will use its power to exploit the state rather than to serve it, and it will not always be easy to determine whether this is the case but in extreme cases of corruption or unconstitutional action the head of state will know and should act.

Watson: One gets the feeling you are talking about parliamentary government on the British model.

Thompson: Very roughly, yes. There are two broad classifications of constitutions. In the one, of which the U. S. Constitution is the best example, an elaborate system of checks and balances is employed to guard against the abuse of power. The trouble with this type of constitution is that it is not very dynamic and is subject to paralysis. The British parliamentary system of government is capable of great dynamism and is more flexible but it requires a head of state (monarch or president) to serve as a sort of catalyst of government which, without involving itself in the reaction, sets things going, and as a safeguard against the abuse of power.

Richardson: Perhaps then a head of state is a good thing but, as you just indicated, he can be a president in a republic. What I assume you are defending is hereditary monarchy and if so you haven't yet touched the crucial issue.

Thompson: Of course not. But just a little while ago you were claiming that a head of state was useless. I had to show you the head of state has a role to play before I could justify the method of his selection.

Richardson: All right then. Now you have only to justify the hereditary principle.

Thompson: That will not be as difficult as you seem to think. From what I have said it will be seen that a head of state must be above politics and yet involved in affairs of state. A republic must choose for its president either an ex-politician or a non-politician. In the case of an ex-politician the break with politics can never be complete. There always remains an unhealthy identification with government for the public, for the government and for the head of state himself. He cannot with full effectiveness represent to the public the state above politics; he is compromised in his dealings with the government; and lastly he may be tempted to unwarranted interference in the work of the government.

Watson: And what about the non-politician?

Thompson: In the case of the non-politician, a scientist or man of letters is being introduced late in life to affairs of state. He may lack the necessary confidence in dealing with the government, and they in turn may be inclined to ignore him. Such men moreover are sometimes ill at ease and maladroit in public.

Richardson: Why not compromise on a minor politician?

Thompson: A minor politician is no solution. Certainly the more prominent the politician the, closer his identification with the government and thus a minor politician may escape some of this identification. But by the same token a minor politician will be less experienced in affairs of state and more apt to be regarded as the creature of the politicians who chose him.

Richardson: The only solution to the problem then is to have the president popularly elected.

Thompson: But the dangers of popular election are far greater than any possible advantages. To begin with the whole people is divided into individuals over the one office on which they should not be divided. Beyond that the popularly elected president may assume, on the strength of his mandate, the right to intervene in the work of the government.

Fordyce: How does hereditary monarchy avoid these problems then? You can't expect perfection.

Thompson: Perhaps not. But a monarch is barred from birth from involvement in politics and yet is trained from birth to fill the role of head of state. He does not depend for his position on the favour of politicians but on a natural and automatic succession. These are the key advantages resulting from the hereditary principle.

Richardson: The hereditary principle can't guarantee intelligence.

Thompson: You are speaking under the influence of your meritocratic prejudices. Perhaps you would like to have the head of state chosen by an aptitude test. In fact the job requires only average intelligence combined with a certain training and a certain relationship to politics that hereditary monarchy is best able to secure. In the case of idiocy or lunacy a regency may be declared.

Richardson: All right then, maybe the hereditary principle can work, but it confines the office to one family. Shouldn't every citizen be able to aspire to be the head of state?

Thompson: Certainly not. It would be most unhealthy for any citizen to aspire to be head of state.

We have seen that the head of state is to be the centre of much ceremony. His position is a very exalted one, carrying properly much prestige and yet little power to shape policy. The desire to serve the state in government is laudable The desire to head the state is not.

Fordyce: But shouldn't a citizen at least be able to identify with the head of state, and how can he identify with someone who has such an extraordinary life as a monarch.

Thompson: No. The citizen must not identify with the head of state. The state must be felt as other: as something which the citizen serves and which serves in turn the citizen. The citizen in one of his aspects is a member of the state, but he is not the state. Identification of the citizen with the state is the road to totalitarianism.

Watson: So you don't think a head of state should represent the average man.

Thompson: As I have said he doesn't need more than average talents, but if you mean common man the answer is no. To put a common man in the midst of the panoply of state is a little silly and a little dangerous. For as monarch, however, it is nothing. That is why it is only in a monarchy that the full panoply of state can be employed.

Watson: After you defence of the hereditary principle it begins to look rather sensible and not just quaint.

Thompson: Thank you. There is just one thing I think is worth adding. Monarchy provides a concrete continuity in the state which republics cannot achieve. The long reigns of some monarchs along with the continuity of their families contrast sharply with the fleeting five year terms usual with presidents.

Richardson: I'm still not sure I've been convinced. But Fordyce, I've noticed you've been silent through all this. I should say your arguments look a little weak beside Thompson's. Or do you have something to add.

Fordyce: It's your arguments that look weak now Richardson. But I don't think monarchy should be dissected like this. It should be left a sort of mystery. It works. All the monarchs are doing a good job. That's enough for me.

Richardson: Oh, I don't want to criticize any of the monarchs. I'm sure they are all very fine people. I just have my doubts about the institution.

Thompson: I should hope you don't want to criticize any monarchs. One ought to believe in art before one ventures to criticize artists. The same holds true for monarchy. On the other hand, once we have arrived at an understanding of it, it is important for monarchy's sake that emperors, kings, princes etc. receive intelligent criticism. Without this there is a danger of decay. I think that is a bit the case now.

Fordyce: But the monarch should be above criticism.

Thompson: Not at all. Monarchism contains no doctrine of infallibility. In the past monarchs were subject to much more rigorous criticism than at the present and monarchy was the healthier for it.

Watson: All the same monarchs receive quite a lot of unsolicited advice from commentators etc. as to how they should carry out their role.

Thompson: Yes, but almost all of it is very bad advice. It comes either from people who fundamentally don't approve of monarchy or from sentimentalists who don't see its real value and seek a shaky accommodation with its opponents. In both cases the advice tends to encourage departures from the essentials of monarchy.

Watson: What do you mean?

Thompson: Both the latent republicans and the sentimentalists encourage monarchy to be what they call democratic. As in itself monarchy is undemocratic this must lead to a malformation of monarchy. They encourage for instance a democratic education for princes by which they apparently mean the education of the ordinary citizen. This would be all right if it weren't for the fact that princes if they are of any value do not lead lives like ordinary citizens, and thus may need a different education.

Watson: The same people do sometimes want royalty to live like ordinary citizens.

Thompson: Yes. The motive behind this, it would seem, is that if royalty live like ordinary citizens (in Scandinavia this apparently involves kings riding bicycles) then everyone will be able to say they live like a king. It makes monarchy useless, but the monarch has to be maintained and kept in the public eye for it to be effective.

Watson: Your talking of keeping the monarch in the public eye reminds me of a slightly different tendency which I think is much worse. Some people do not want royalty to live ordinary lives but to live very public very glamorous lives like film stars. To the extent that they can't think of anything else for royalty to do, some people can't look at them any other way.

Thompson: I am afraid that's so. Because it caters only to such interests the film on the Royal Family, however well-intentioned, is unwise.

Watson: There's one last point I'd like to raise. You seem to think of monarchy as a sort of guaranty of liberal democracy. So you think monarchy's usefulness is limited to the liberal democracies.

Thompson: No. For instance one can imagine (though to you the idea may seem rather silly) a communist monarchy, in which the king symbolized the (continuing) revolution and went around pronouncing Marxist-Leninist platitudes of the sort that Communists find it so necessary to repeat. Indeed monarchy might have a strong appeal to Communists as a means of avoiding the sort of personality cult which in the cases of Stalin, Mao, and Khrushchev has tainted the revolutionary purity of their leaders.

Watson: I see. Well, on that bizarre note perhaps we had better end. If I am not mistaken lunch is being served and some of us have not had any breakfast. Though our discussion has not been conclusive it has nonetheless been valuable. Monarchy is less likely to disappear because of any glaring faults it might have than because no one thinks it worth studying enough to discover its use, if it has any.

Thompson: Yes. I think our discussion has been quite profitable. As I had breakfast I will stay here and read this article which is as thought on page 7. Perhaps we could take the subject up again some time when I may hear some better republican arguments and when in any case we shall be able to go into monarchy's role and prospects in more detail.