Frederick Vaughan - Viscount Haldane: 'The Wicked Step-father of the Canadian Constitution'

Frederick Vaughan

Viscount Haldane: 'The Wicked Step-father of the Canadian Constitution'

Toronto: University of Toronto Press, for the Osgoode Society for Canadian Legal History, 2010

Pp. xix + 307. Cased. £42. ISBN 978-1-4426-4237-9.

Richard Burdon Haldane was a British barrister-politician who between 1911 and 1928 shaped the Canadian decisions of the Judicial Committee of the Privy Council, until 1949 the country's ultimate court of constitutional appeal. Haldane strengthened provincial powers, so earning him Eugene Forsey's sub-titled condemnation. Vaughan believes Haldane's judgements were shaped by his Hegelian philosophy. However, this does not imply a dialectical confrontation, in which Haldane postulated a federalist antithesis to Macdonaldian centralisation, even though Vaughan believes he would have welcomed the post-1982 constitutional synthesis of the Charter Court. Rather, Vaughan stresses Haldane's search for Sittlichkeit, the values system underlying the British North America Act. The problem here is that Hegel is usually seen as glorifying the Prussian State, while Haldane consistently ruled against Ottawa, but Hegel may also be read as rooting political authority in broader social institutions. Although not susceptible of proof, this material might have made a useful journal article. The structure of the book is not easy to grasp, not least because of Vaughan's zigzag chronology. He is weak on British politics, for instance misdating the 1886 Irish Home crisis, bizarrely linking Haldane's 1906 Army reforms to the purchase of officer commissions, a practice he soon notes had been abolished 35 years earlier, and largely missing the significance of Haldane's Liberal Imperialism. Vaughan likes "must have" argumentation. Thus, it would be "passing strange" (p. 144) if an earlier judge, the Scot Watson, had not been influenced by the Scottish home rule movement, a blip that hardly features in textbooks. Haldane "must have known" that Nova Scotia had resisted Confederation although there is "no evidence" that he ever consulted Bluenose tribune Joseph Howe (p. 144). Indeed: Howe died when Haldane was sixteen. Haldane's audience at the 1913 American Bar Association meeting in Montreal "must have" been puzzled by his address (p. 160): the New York Times praised its clarity and it still reads well. A plea for unity of Anglo-Saxon legal thought, Haldane called it "Higher Nationality", a title uncomprehendingly dismissed as "curious" (p. 153). The argument was based not on Hegel but on Rousseau's General Will. Challenged by journalists to defend Canadian appeals to London, Haldane cited its recent umpiring role in "the marriage question". Vaughan scoffs: "why would one expect that a marriage or divorce question could not be heard fairly in the home country ...[?]".(p. 156) It takes him twenty-seven pages to realise that Haldane was talking of a major reference case of 1912 when the Judicial Committee had determined that the Parliament of Canada could not use its section 91 power over marriage or divorce to override Section 92 provincial control of the solemnisation of marriage and so force Quebec to recognise the validity of non-Catholic ceremonies in other provinces. Most unhelpful of all is Vaughan's statement that it is "often forgotten ... that a majority of francophone members" of the Canadian legislature "voted against" Confederation in 1865. Often forgotten because incorrect: the francophone vote was 27-21 in favour.