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AMERICAN BAR ASSOCIATION.
In the opening address of President Kellogg of the American Bar Association at Montreal, the theme was on notable changes in the statute law. “The statute which has attracted the most attention, stimulated the widest discussion, and raised questions of the most far-reaching and momentous consequences to the nation and its relations with foreign powers is the Alien Land Law of California. This statute, which became a law on May 19th, 1913, permits aliens eligible to citizenship to possess, enjoy, transmit, and inherit real property in the same manner as citizens.
“The question raised is whether a state may in violation of a treaty between the United States and a foreign power regulate the ownership of real estate within its borders by citizens of a foreign country. If citizens of Japan have any right to own real estate in California, it is difficult to see how this law takes away such right because it provides in substance that such aliens may acquire, possess, enjoy and transfer real estate in the manner and to the extent and for the purposes prescribed by any treaty.
“But the question has been squarely raised by the declaration of the Legislature of California which was intended and understood by the public generally to mean that California claimed such right notwithstanding any treaty provisions with the Federal Government.
“The passage of this law by the Legislature of California and the public discussion which followed have raised a question which may disturb the amicable relations heretofore existing between the United States and Japan—a question of vital importance to our nation in its relation with foreign Governments.
CAN DEFINE BY TREATY.
“I am convinced that there can be no serious doubt that the Federal Government may, by treaty, define the status of a foreign citizen within the States, the places where he may travel, the business in which he may engage, the property he may own, both real and personal, and the devolution of such property upon his death; that such a treaty constitutes the supreme law of the land; and that a State law contravening such a treaty is void and will be so declared by the Court in a suitable action.” The above gives a gist of President Kellogg's very able address, and he supported his contention of the supremacy of the Federal Government by citing a number of well-known decisions. It is interesting to state, however, that one of the visiting delegates from California, during the course of the President's address, made the statement that there had been, as yet, no case in which these conditions covered by the Alien Land Laws had come up before the Supreme authorities for adjudication, and that when such an action arose the law was in danger of being upset. The vital importance of this subject both to the Federal and state authorities, cannot be over-estimated, especially when the varying attitude of the Japanese at home and in Washington is considered. No nation is quicker to estimate conditions than are the Japanese, and matters must be considered serious and fear felt that the Federal Government might hesitate to enforce what must be considered the law against California before an appeal was made to Washington.
Charles Gibson, the young man who was sentenced to be hanged for the murder of Joseph Rosenthal, has been reprieved. Every one will rejoice at the clemency shewn by the Department of Justice at Ottawa, as undoubtedly there must have been good cause why, at the eleventh hour, the decision which had been previously considered unalterable should be changed.
At the trial of this young man every care had been taken by his counsel, Mr. Aubrey A. Bond, in securing every tittle of evidence which would tell in favour of his client. The jury were twelve good men and true, who undoubtedly weighed the evidence adduced most carefully and after so doing had come to the conclusion that the young man was guilty of the crime for which he was being tried.
The learned Judge, the Honourable Sir William Mulock, gave every consideration to the argument subsequently brought forward as to the relevancy of certain evidence in an application for a new trial, and when everything possible had been done Gibson had been found guilty.
A stay of the execution for three months had been granted, which was apparently considered as preliminary to a reprieve, but until the last moment this had been refused, and whether it was due to the efficacy of the plea of Mr. T. Herbert Lennox, or to the weight of the fifty thousand names on the petition, or the possibility of new evidence being forthcoming, at the last moment Gibson was given a new lease of life with a possibility of a new trial in the near future.
The question arises, is justice sacrified to sentiment 2 Every one appreciates all that can be said in favour of the qualities of mercy, but with a fair trial by one of the ablest Judges on the Bench and the brilliant defence of counsel, for the carrying out of sentence to be delayed and the hopes of the accused to be buoyed up by the expectation of a reprieve appears to be altogether wrong.
Either trial by jury, the principle of which was struggled for for so many hundreds of years, is useless and of no avail and should be abolished, or the sentence imposed by the Court should be carried out and not all the sentiment of the public should have any weight to prevent this being done.
In venturing to read a paper upon points of special interest in the Federal Constitution of this Dominion, I feel the disadvantage of having to discuss the subject from a purely academic standpoint. I must crave the indulgence of any present who may be engaged in the actual working of the Constitution, or in active political life, and who have thereby acquired a practical knowledge to which I cannot aspire. Of the general interest of the Constitution of this Dominion it is impossible to speak in terms of exaggeration. Properly conceived, the founders of Confederation and framers of the British North America Act were, perhaps, undertaking as important a task as any set of men ever put their hands to. For consider what establishing a federal constitution for this country meant. It meant establishing the scheme and fixing the lines along which a people destined in the natural course of things to number tens of millions should conduct the fundamental business of their national life, in a country whose limits transcended those of the United States itself. It is quite true that the Constitution under which we live in Canada remains largely unwritten, but so far as the skeleton scheme of the Confederation is concerned, and the broad diversions which separate the legislative powers of the provinces from that of the Dominion, it is a written Constitution, and written in lines which are meant to be lasting. It was not for the framers of the British North America Act to regard themselves as establishing a federal Constitution for any limited period. When the founders of the United States Constitution took in hand the question what powers they should allow of amendment, they made the requirements so difficult of fulfilment, that it may be said without exaggeration to-day that nothing less than the force of revolution can secure the amendment of the Constitution of the United States in any essential or important particulars. True, in theory the power remains in the Imperial Parliament to amend the British North America Act at any time. But this is a power which would only, and could only, be exercised to carry out the wishes of this country as a whole. It was for the Fathers of Confederation to build, so far as in them lay, not for time, but rather for eternity.
*This paper was read before the Canadian Political Science Association at its opening meeting at Ottawa on September 5th, 1913,
I think, then, that the best way to discern the points of special interest in our Constitution is, in the first place, to conceive clearly in a broad way what was the real problem which the framers of the British North America Act had before them. It was no mere matter of combining parliamentary responsible government with a completely organized federal system, while maintaining intact the Imperial connection? Even so this was a thing never accomplished, nor attempted before. But their task was far more than this. It is true they set out, as they themselves state in the preamble of the Act, to federally unite the provinces into one Dominion with a constitution similar in principle to that of the United Kingdom,’ and in pursuance of that object they had, amongst other things, to embody in the federal constitution that parliamentary responsible government which had existed in the separate provinces for some twenty years already. But it was not sufficient to satisfy the Canadians of 1867. If things were never again to be put into the melting pot, if there was to be no further tearing up of foundations, it was necessary not only to embody in the Constitution the principles of British Government in their most advanced and developed form, but so to frame it that in the time to come Canadians might be free to develop those principles in their own way, to suit the changing needs of successive generations. Their task was, while firmly uniting the provinces into one Dominion, not to fetter her by too tight ligaments, but to give her a Constitution with which her sons might be satisfied ‘while the British name lasts.” One pre-eminent point of interest in the British North America Act, in my opinion, is its adaptability to the future.
The first matter, therefore, to which I would refer, is the way in which this elasticity and adaptability was secured. We notice, to begin with, that no attempt is made to crystallize by statutory enactments the flexible system of precedents and conventions which made up the customary law of the British Constitution. All that side of the constitu