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As is well known, the Canadian system of government belongs to the British type of responsible parliamentary government in which there is the most intimate connection between the legislative and executive functions, and in which also the constitution is a flexible combination of laws and usages, many of the latter more binding, and in some cases even more unalterable than the laws. However, the Canadian system of government was not always of this character, and even yet it differs in many more or less essential features from the central type. In the first place, the line of historic arrival in Canada, while presenting certain interesting though unconscious parallels with the development of the mother of parliaments, yet differs materially from the long, slow and tentative process by which the British government and its constitutional mechanism were worked out. In the second place, the colony of Canada, after its conquest from France, was first of all a definite dependency of the mother country, to which constitutional privileges were granted from time to time, and later the Dominion of Canada was a combination of several practically independent provinces and territories in varying degrees of economic and political realization. This involved a written constitution apportioning and defining the divided sovereignty assigned to the Dominion and the provinces, leaving that element of sovereignty which pertains to the mother country indefinite and debatable, a tide of imperial influence which ebbs and flows from day to day, and is subject to the high and neap tides of imperial sentiment.
Governments seldom fall in a day or wars break out without some previous “laying of the mines.” When General Savoff, commander-in-chief of the Bulgarian army, was questioned in 1911 before the national assembly on the condition of the military forces, he replied: “Excellent. Ready for any emergency and capable of defeating the Turks.” The Sobranje was pleased, but a smile went around the European capitols. For over a quarter of a century Europe and Turkey lived on in almost complete indifference to the steady growth of the small Balkan states in resources, in economic powers, and in military strength, and with a total disregard of the vital interests of these lesser powers in the settlement of that most vexing of all problems—the Macedonian question. The remarkable development in Germany and Italy along commercial, industrial and political lines in recent times is well known; but the equally astonishing progress of these Balkan nations during the same period has been little noticed by the world at large. And, while Bulgaria, Servia and Greece, in spite of their own personal jealousies and ambitions, made stead and splendid progress in the work of national development and of preparation for the crisis that every year became more imminent, the Ottoman government procrastinated and evaded responsibility.
At the meeting of the Political Science Association last year, in the general discussion, on the subject of the recall, I was surprised and I must admit, a little shocked to hear our recall of judges compared to the English removal of judges on address of the houses of parliament.
If we must compare unlike things, rather than place the recall beside the theory or the practice of the joint address, I should even prefer to compare it to a bill of attainder.
In history, theory and practice the recall as we have it and the English removal by joint address have hardly anything in common, save the same general object.
Though I may not (as I do not) believe in the recall of judges, this paper concerns itself not at all with that opinion, but only with the history and nature of the tenure of English judges, particularly as affected by the possibility of removal on address. I believe a study of that history will show that any attempt to force the address into a close resemblance to the recall, whether for the purpose of furthering or of discrediting the latter, is utterly misleading.
In the history of the tenure of English judges the act of 12 and 13 William III, subsequently known as the Act of Settlement, is the greatest landmark. The history of the tenure naturally divides into two parts at the year 1711. In dealing with both parts, for the sake of brevity, I shall confine myself strictly to the judges who compose what since 1873 has been known as the supreme court of judicature.