Mr. GUTHRIE:

That raises the point

which I will come to next and that is the other point that was dealt with the other night by the ex-Prime Minister (Mr. Mackenzie King). As regards his first objection that no oath was taken. I think I have clearly established, to the satisfaction of anyone who has an open mind on the subject, that there is no legal, no statutory requirement, no regulation or order in council which prescribes that an oath should be taken even in the case of a minister being appointed as a member of the government with portfolio. In that case, however, custom does require an oath, and although I do not think it is necessary for me to read it, the form of the oath is as follows:

I, do solemnly and sincerely promise

and swear that I will duly and faithfully and to the best of my skill and knowledge execute the powers and trusts reposed in me as Minister of .

So help me God.

That oath is, I think, in every instance required by custom of a man who becomes a minister with a portfolio, but it is never required of an acting minister or a minister without portfolio.

Mr. MACKENZIE KING:

Has an acting minister any power or trust reposed in him?

Mr. GUTHRIE:

I answered that question as well as I could a moment or two ago.

Mr. MACKENZIE KING:

And In answering it he did not answer it yes or no.

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Mr. GUTHRIE:

I answered it a moment

or two ago as fully as I intend to answer it. There is another phase of this question and it brings up the order in council question also. In the situation which developed on Monday last on the resignation of the Prime Minister in a very hasty manner, I think I may say, it became absolutely necessary that His Majesty's representative in Canada should have a government. The old saying that "the King's government must go on" had full application last Monday if it ever had application in this country.

His Excellency decided to send for the present Prime Minister and to entrust him with the formation of a new administration. How was the present Prime Minister appointed? What order in council could be passed in his case? I ask the same question in regard to my right hon. friend, the late Prime Minister. I ask the same question in regard to the late Sir Wilfrid Laurier. How were they appointed? I have copies of these orders in council under my hand. In each instance they were appointed upon their own recommendations. As the ex-Prime Minister said last night they sat alone in their glory at that council table and themselves authorized their own appointments.

Mr. MACKENZIE KING:

Was that not

after they had been sworn?

Mr. GUTHRIE:

I will come to that. It

was after they were sworn in as privy councillors. Then they marched in and were sworn in as ministers. That is a custom in England, which is always followed. In the case of Sir Wilfrid Laurier, the situation is very plain. He was the only minister on the 11th July, 1896, and the order in council in that case reads:

The committee, on the recommendation of the Hon, Wilfrid Laurier, the Prime Minister, advise that a commission do issue appointing the Hon. Wilfrid Laurier a member of the Queen's Privy Council for Canada, to be President of the Privy Council.

The committee, on the same recommendation, fur-thur advise that, upon the said the Hon. Wilfrid Laurier, taking the prescribed oath or oaths of office, he do assume the functions of President of the Privy Council.

Subsequently the late Sir Wilfrid Laurier made his recommendation for his ministry.

Mr. MACKENZIE KING:

My hon. friend has just read an order in council which states that a commission do issue. May I ask whether he or any of the other ministers has had a commission issued to him by any order in council?

Mr. GUTHRIE:

I assume that in due

course some commission will issue.

Mr. MACKENZIE KING:

Does my hon.

friend think that commission can issue while parliament 'is in session and the minister not resign his seat?

Mr. GUTHRIE:

It is not the commission;

it is the order in council with the approval that counts in our case. But it is a grave question whether orders in council are necessary in any case. Certainly orders in council were passed; but all that is required by law in the formation of a ministry is the request and authority of the Prime Minister and the oath of a privy councillor. We do not need an order in council either as a matter of law or as a matter of custom. We would be fully entitled to assume the duties of our office if we were requested by the Prime Minister who has himself been duly called and sworn and appointed, and it would be quite within our rights to attend at his request and become members of his government, with the approval of His Excellency the Governor General.

This is the situation. There is in Canada a Privy Council, the King's Privy Council for Canada, and that Privy Council is com-stituted urfder section 10 of our constitutional act known as the British North American Act. Section 10 of that act provides:

There shall be a council to aid and advise in the government of Canada, to 'be styled the Queen's Privy Council for Canada; and the persons who are to be members of that council shall be from time to time chosen and summoned by the Governor General and sworn in as privy councillors, and members thereof may be from time to time removed by the Governor General.

That is the only council provided for in the British North America Act which is the constitutional authority over this body. It is the King's Privy Council for Canada. There is a very much involved but a very beautiful and ancient oath administered to every member who is summoned and sworn of the Privy Council. Bear in mind1 that there is a Privy Council and in our statutory charter nothing whatever is said about a cabinet. There is no statutory authority for such a thing as a cabinet, but there is statutory authority for a Privy Council. It so happens that in this case I and my hon. friends, with the exception of the -hon. member for Halifax (Mr. Black), were all members of the Privy Council, not of recent creation, but of some years ago. We had therefore the privilege of being summoned.

And in addition the hon. member for Halifax was summoned and was sworn of the Privy Council before any other proceedings were taken. He subscribed the roll, took the oath and) became one of the King's privy

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councillors for Canada. We were there as of right, members of the King's Privy Council attending the King's Privy Council, summoned by His Excellency upon the advice of the Prime Minister who had been accepted as the chief adviser of the crown at that time. There we sat in council; there we passed four orders in council, or it may be five. I do not know the number.

Mr. MACKENZIE KING:

My hon.

friend has read the statute with regard to the Privy Council enabling privy councillors to aid and advise the Governor General. We all admit that privy councillors may aid and advise the Governor General, but have privy councillors the power to perform any executive act where they are not sworn in as ministers?

Mr. GUTHRIE:

The term "aid and advise," under the wide interpretation given to it, includes almost everything because everything that is done by a minister in his public capacity is assumed1 to be in aid of the crown or in aid of some of the rights or interests of the crown. I grant that there has grown up, under the system in Great Britain and under the system in Canada, a committee of the Privy Council, which we know as the cabinet. It has no definite starting point, having been a matter of slow growth and of gradual constitutional development. There is not a single statutory enactment either in Great Britain or in Canada with reference to the cabinet. It is not recognized in our legislation but it exists nevertheless as a committee of the Privy Council.

Now there was no cabinet; there was no inner body at the time we met on Tuesday last. The cabinet had ceased to exist merely by the resignation of the Prime Minister, because the resignation of the prime minister carries with it the resignation of the ministry as a whole. The moment the prime minister resigns the government disappears. There was no cabinet at the time and therefore it was open to His Excellency, if he so desired- and the course he adopted was taken on the advice of his new prime minister-to summon his Privy Council for Canada " to aid and advise," according to the language of the act, or not to, as he saw fit. Those who were notified and summoned for that Privy Council meeting were all members of the Privy Council and of the House and were that day appointed acting ministers. What transpired at that meeting of council I am not at liberty to state. As the House knows,' privy councillors are bound by oath not to make known anything that transpired at a meeting of council, touching either what is said or what

is done. But under ordinary circumstances the results of the meeting may be disclosed, and the result of this meeting was the orders in council which have already been submitted to the House and under which we claim to have been duly and properly appointed acting ministers, without portfolio-bear that in mind- without salary and without emolument in any form.

Mr. MACKENZIE KING:

And without any right to sit where you are.

Mr. GUTHRIE:

That of course challenges all that I have said, and my right hon. friend will have ample opportunity to reply. I do not want to bring about a partisan discussion. I desire simply to make my statement as clear and definite as possible and if I am wrong hon. gentlemen opposite will correct me. Such however is the right we claim, and such is the case we prefer to the House. We have been appointed regularly and constitutionally in accordance with custom observed from time immemorial, one might say, but at all events custom which has existed in this country for thirty-five years. We have followed the forms and practices of our predecessors. The moment we undertake to become ministers of departments or, as is sometimes said, full-fledged ministers, then in keeping with the established custom we shall be obliged to take the oath which I have read. Until that 3 p.m. time, however, we are required to take only one single oath, the oath of a Privy Councillor of Canada.

I refer to the case of my hon. friend for Antigonish-Guysborough (Mr. Macdonald) as a case in point. The Right Hon. George P. Graham was Minister of National Defence, and he resigned that portfolio to become Minister of Railways. In April of the same year my hon. friend from Antigonish-Guysborough was appointed minister without portfolio and Acting Minister of National Defence. He was called and sworn of the Privy Council, not as minister with a portfolio but as acting minister. The record shows no oath as having been administered to him, other than the oath of Privy Councillor. He acted as minister of the department of National Defence until the month of August following when he was sworn as minister and he took the oath as minister which I have quoted to the House. In the interval he received no salary, no emolument, no fee of any kind. Will it be said that while he sat in this House in those intervening months he did so without right? Can it be said that he forfeited his seat on becoming acting minister of that department? Can it be said that Mr. McGiverin forfeited his seat?

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Can it be said that a dozen other acting ministers without portfolio, whom we could name if we so desired, forfeited their seats? There has been no exception which I have been able to find in all the orders in council I have read, or regarding which I have inquired.

The ex-Minister of Justice (Mr. Lapointe) says that recently his attention has been called to the fact that there should be in the order in council an express declaration that no emolument shall be paid. If any office other than that of acting minister were involved there might be some force in what the hon. gentleman says.

Mr. DENIS (Joliette):

In the case of the hon. member for Antigonish-Guysborough, is it not a fact that he was appointed Acting Minister of National Defence at a time when there was in office a government with a quorum of at least four members who had been sworn?

Mr. GUTHRIE:

I am not referring to that point; I am discussing the subject with relation to the necessity for taking the oath. The record shows that the hon. gentleman was not sworn. That is a matter on which I think we are all agreed; we do not need to argue it. The facts are incontrovertible.

Mr. WOODSWORTH:

Do I understand

from the hon. member's argument that he *contends there is nothing in the constitution which would prevent privy councillors from *continuing indefinitely in a position of that character?

Mr. GUTHRIE:

Privy councillors are appointed for life.

Mr. WOODSWORTH:

That is not what I mean. Is there nothing to prevent privy councillors, called by His Excellency, from continuing indefinitely in an executive position?