4 Unintended Consequences: William Lyon Mackenzie King and the 1926 Constitutional Crisis

“At the present time, there is no government. I am not Prime Minister; I cannot speak as Prime Minister. I can speak only as one member of this House, and it is as a humble member of this House that I submit that insomuch as His Excellency is without an adviser, I do not think it would be proper for the House to proceed to discuss anything.”^[1]

Introduction

The constitutional crisis of 1926 had a profound and lasting impact on Canada, but since the mid-1960s, it has become a historical footnote. Nowadays, people only mention it when a Prime Minister makes a controversial request to the Governor-General or when opposition parties in a minority government consider forming a coalition to oust the current government. In the four decades following this crisis, numerous scholars have written about what happened, how it happened, and who they believed was right. Constitutional scholar, Eugene Forsey,^[2] attempted to settle the latter argument by examining the constitutional question in depth in his The Royal Power of Dissolution in the British Commonwealth^[3]. Almost all articles and books on the crisis predate the publication of W.L. Mackenzie King’s diaries, and as such, many scholars inferred King’s intentions from his political behaviour later in life. These scholars suggested that King engineered the crisis to evade the political fallout of a scandal with his minister in the Department of Custom and Excise, eliminate his arch-rival Arthur Meighen, and secure a majority government for his party. They also believed King willingly sacrificed his friendship with Governor-General Byng to protect his political career.

While this is what happened, a different story emerges when we view the crisis through King’s diaries. King believed Byng had no right to refuse his request for dissolution, and his actions, at least immediately following King’s resignation, were born out of anger and not part of any strategic plan. That is not to say however, that King’s plight was not of his own making. King violated convention by refusing to request that Byng call on Meighen to lead the country after the Conservative Party won a greater number of seats than the Liberal Party in the 1925 election,^[4] which led to the King Government’s complete dependence upon the support of the Progressive Party to retain power.^[5] His attempt to conceal corruption within the Customs and Excise department before the fall election backfired, leading to a customs scandal during the 15th Parliament that eroded support for his government among the Progressives. The scandal was exposed because the Commercial Protective Association (CPA) became outraged by King’s inaction on the evidence they had given him a year earlier. As a result, they provided their findings to the Conservative Party sometime after the 1925 election. The Conservatives, who were also displeased with King over his political manoeuvres after the election which robbed them of their right to form the government, were eager to use the CPA’s evidence to destroy King.^[6]

The revelations from the CPA and a subsequent investigation by members of the House of Commons combined to lead to a vote of censure in the House of Commons against the King government at the end of June. If it had passed, it would have also acted as a vote of want of confidence for his regime. To avoid such a likely outcome, King advised Byng to dissolve Parliament. Byng interpreted King’s tactics as a naked attempt to dodge the consequences of his actions and felt it was his moral duty as Canada’s Governor-General to reject it. Byng’s decision, while constitutionally within his prerogative, quickly led to a constitutional crisis. During the 1926 election, King’s control of the narrative created consequences Byng had not intended and it had a tremendous impact on the political careers of several leading politicians and Canada’s relationships within the British Empire.

An Undignified Request – Byng & King

            On Saturday morning, 26 June 1926, King met with his Privy Council [Cabinet] to discuss possible options. Consultation was King’s standard way of dealing with any significant decision, and, in this particular situation, he wanted a consensus from his Council before acting. His cabinet ministers did not disappoint and agreed that dissolution was their only way forward.^[7] They considered parliamentary precedents, wrestled with how to legally run the government without proroguing Parliament, and planned counter-arguments for Byng’s potential responses to the request for dissolution.^[8]

King met with Byng that afternoon; they discussed the voting defeats on Friday and how the King Government was now a majority of one, which King “considered too small to carry on.”^[9] King’s meeting with his Council influenced the opening spiel, and he started countering Byng’s likely responses before he had even made them.^[10] King stated his belief that no one in Parliament was in a position to carry on and that the Governor-General could not refuse him a dissolution and then grant it to someone else. Doing so, King stated, would become a factor in the subsequent general election that could do “irreparable harm”^[11] to Byng both “personally and as the representative of the Crown.”^[12] He added that such an action would favour one party over the other and “would be unconstitutional.”^[13] King concluded his argument by stating that he was not asking for a dissolution but might do so soon.^[14] Overall, his request came across more like a demand than advice.

Byng stated that he would not grant King a dissolution if he asked for three reasons. His first point was that Conservative leader, Arthur Meighen was entitled to govern after the 1925 election, but King had robbed him of the opportunity. Byng’s second point was that after the election, they had agreed to let the House decide who should lead, and the House had now decided it was not King. The third reason was that Byng thought the country had turned against King,^[15] a point that Byng had given King the previous November when he urged the Prime Minister to resign.^[16] The public fallout of the customs scandal had only reinforced Byng’s belief. King strongly disagreed with Byng’s statement that the House had decided he could not govern. The House had decided in January that the Liberal government had its support.^[17] His Excellency countered that the latest votes in the House “meant a defeat”^[18] and that King had admitted his government could not carry on. King corrected this, noting that he had said no one could carry on, not just him. He also argued that Meighen had already had his chance, the same one as he had when the House first sat and had failed to win its support.^[19]

Byng urged King to do the dignified thing and asked him to call Meighen to form the government as Byng had advised after the last election.^[20] King countered that he “did not think it was for the Sovereign to choose between the parties; that [Byng] had to accept the advice of the Prime Minister or take the consequences; that [Byng] was not an umpire.”^[21] Byng responded that dissolution “like all the other prerogatives of the Crown was exercised as a discretionary right on the advice of the Ministry.”^[22] King reiterated his stance that the Governor-General should not be deciding who should govern and that the public should do so “in the constitutional way; that any other attitude would mean allowing the Crown – rather than the duly authorised people’s representatives – to say what the policies of the country were to be.”^[23]

Byng agreed that “it was true that a request for dissolution had not been refused for 100 years” and that “dissolution had not been refused a Prime Minister since Confederation,” but countered that “the situation was different to anything that had arisen” before.^[24] Byng continued, he would rather have his head chopped off than take a course of action that went against his principles.^[25] King stated that he would resign if Byng refused his constitutional right and threatened that the resulting chaos would make it impossible for Meighen to govern.^[26] In desperation, King continued his threats of consequences if the Governor-General refused to follow his dissolution advice and urged His Excellency to send a “cable to England to the Secretary of State for the Dominions and ask for his advice.”^[27] Adding that Leo Amery was “not likely to favour me in any way, he would like to see me out of Office and out of the country altogether.”^[28] Byng countered that King had frequently said that “it was not for England to advise.”^[29] King restated his threat as plainly as he could, that “were [Byng] to refuse [him] dissolution and give it to a political opponent it would become an issue in a campaign which might work no end of injury to the British connection, not only as between Canada and Britain but between all parts of the Empire.”^[30] If Byng had asked Amery before making his decision, it’s unlikely that anything would have changed. Amery supported Byng’s decision and expressed his agreement in a telegram sent on 1 July 1926.^[31] In that same telegram, he also commended Byng for keeping the home office uninvolved, as they had no right to decide on an internal Canadian matter.^[32] It is perhaps ironic that King would go on to denounce the British government for interfering in Canadian politics through their “Crown Colony Government.”^[33]

King posed a hypothetical question to Byng, asking if he would impose the same restriction on Meighen’s government as he had on his, namely, that Byng would not grant Meighen a dissolution if the House determined Meighen’s government lacked its confidence. Byng replied, “I cannot say to you what I would or would not do, but I think you can trust me to see that what you have in mind is something of which I would have to take account.”^[34] King took Byng’s answer to this hypothetical to mean that Byng would reject Meighen’s request for a dissolution, and King would be returned to power and granted his election. This false impression, supported in a letter from Byng two days later,^[35] would be the reason King’s immediate strategy after resigning was to secure the failure of the Meighen Government.

It is unclear why King was pushing so hard for dissolution. The phrases he used in his diary around these discussions suggested he did not think he would be Prime Minister again. “I felt much relieved as [the] prospect of freedom from office draws nigh,”^[36] he wrote after he met with Byng on the 26th. The next day, after an equally unsuccessful meeting with Byng, he noted his visit to Kingsmere was his “last drive there in [a] Government car as Prime Minister.”^[37] King was in a life-and-death political struggle with his party. They blamed their poor showing in the fall election on his leadership, with his critics claiming that he was “politically naive and inept.”^[38] He had declared that he would bear full responsibility for the election’s outcome in the event of a loss^[39] and had disregarded all requests to postpone it.^[40] Even before he advised dissolution, dissent within his party was growing, and many wanted him replaced with Charles A. Dunning, the Liberal Party’s new rising star from Saskatchewan.^[41] In his book The Politics of John W. Dafoe and the Free Press, Ramsay Cook noted that Dafoe and other critics of King believed that he was incapable of keeping the West, which required uniting the Liberal and the Progressive parties^[42] – something they thought only Dunning could accomplish.^[43] Ironically, Byng’s refusal to grant King a dissolution saved King’s political career.

An Offer Meighen Could Not Refuse – Byng & Meighen

On 28 June 1926, King presented Byng with an order-in-council requesting a dissolution that Byng refused to sign. King immediately tendered his government’s resignation, leaving Canada without a government and triggering one of the roughest transitions of power in Canadian history.^[44] After resigning, King wrote that Byng said: “He supposed he should send for Mr. Meighen.”^[45] King replied that he could no longer “advise him what to do; that he would have to take whatever course he thought best.”^[46]

King then announced what he had done to a stunned audience in the House of Commons.^[47] “Meighen was clearly taken by surprise and dumbfounded,” King would record in his diary. “Indeed, the whole House was taken completely unawares.”^[48] A few hours later, Byng called upon Meighen, as leader of the Official Opposition, to become Prime Minister, which Meighen did not immediately accept and asked for time to consider. Byng agreed that this would be wise but suggested that Meighen also “consider [Byng’s] position.”^[49] Meighen would later write that he had felt “that a refusal on my part would have been proclaimed at once as a rebuke to Lord Byng.”^[50] After a lengthy meeting with former Prime Minister Robert Borden, Meighen returned to Byng just before midnight and accepted his offer.^[51] In retrospect, refusing the offer and facing an election with the Liberals on the defensive would likely have resulted in a Conservative majority.^[52] However, Meighen was in a difficult position and could not have rejected the offer for three reasons. Firstly, he and Borden agreed with Byng’s decision to refuse King’s advice and did not want to suggest His Excellency had been wrong to do so. Secondly, Meighen had announced his readiness for months to form the government, and changing course would have hurt his chances of winning a majority in the next election.^[53] The final reason, and likely the most immediate concern, was that his party would have “been in the mood to hang, draw and quarter him”^[54] if he refused.

Meighen’s path to victory in any election was never certain. His “Ready, aye ready”^[55] speech from the Chanak Affair in 1923 and his close association with conscription during the Great War haunted the Conservatives in Quebec elections. Following the 1925 election, the Liberal candidate for Bagot, Quebec passed away, necessitating a by-election. Meighen delivered a speech in Hamilton aimed at boosting his party’s prospects of winning the by-election; this speech was later called the “Heresy at Hamilton”^[56] by his party. In it, Meighen stated his government would hold a referendum before deploying any troops overseas to assist the Empire in a future war.^[57] His reversal from “Ready, aye, Ready” failed to persuade Quebec voters to support the Conservative Party and instead provoked anger within his party.^[58] Influential members began to express their dissent and pushed for R. B. Bennett to replace Meighen.^[59] During the six months of the 15th Parliament, Bennett became as actively involved in debates as Meighen and it seemed Bennett was already preparing for a leadership race.^[60] Had Meighen declined the opportunity to form an administration, the outcome would have been career-ending.

Parliamentary rules of the day made it necessary for a minister to stand in a by-election when they decided to accept the role of Minister of the Crown and take the Sovereign’s pay. At this point, ministers standing for re-election normally faced no opposition from the other parties, making it a mere formality.^[61] However, Meighen had a thin majority in the House, and appointing official Ministers who would then have to leave the House would make it impossible to maintain the House’s confidence, likely resulting in Meighen’s government losing a confidence vote. To avoid such a possibility, Meighen appointed several acting Ministers without portfolios, who were not accepting the Sovereign’s pay, and thus did not need to step down. Meighen believed he had to resign to become Prime Minister, but his other Ministers could wait until the end of the session to do likewise. Consequently, Meighen was forced to watch helplessly from the Gallery as his government disintegrated.

Blame for the Customs Scandal – King & Bureau

King blamed Jacques Bureau, the former Minister of Customs, for the situation he found himself in. R. Percy Sparks, the chair of the CPA, had approached King about the corruption in the Customs and Excise department in early 1925 because Bureau had refused Spark’s demand to fire Joseph Bisaillon, the Chief Preventive Officer for Montreal.^[62] Bisaillon had been living like a king in Montreal on the proceeds of his alleged illegal activities,^[63] and he had just meddled in the seizure of a barge smuggling liquor into the port of Montreal.^[64] When Sparks approached Bureau, Bisaillon was facing conspiracy charges and the Crown accused him of striking a deal with the smugglers to help them evade custom patrols.^[65] Although the case was eventually dismissed “for want of evidence,”^[66] the business community had already lost confidence in him and wanted him removed.^[67]

King met several times with Sparks and agreed that Bisaillon had to go, but failed to fire him until after the 1925 election because “[h]is dismissal may lead to exposure that will seriously affect some of our party friends and the party as well.”^[68] While King blamed Bureau for the ensuing scandal, King’s decision to delay firing Bisaillon was why the CPA passed their evidence to the Conservatives. Additionally, King was aware of Bureau’s inability to manage his department due to Bureau’s alcoholism, and King had appointed Bureau to the Senate just before the 1925 election so he could replace him.^[69] However, King knew “an investigation would have to come sooner or later.”^[70]

The eventual investigation would be chaired by Harry Stevens, a long-time Conservative then representing Vancouver Centre, who convinced the House to authorize a committee to investigate allegations of corruption in King’s government. Shortly after this committee began its work, King wrote that his “shielding of Bureau will cost [him] and the party something,”^[71] but he was happy his “Quebec friends [in the House] had to face it alone.”^[72] King held his Quebec ministers responsible for obstructing his efforts to take action against Bureau and believed they would learn a lesson from having to handle the consequences.^[73] In the only instance of pointing some of the blame at himself, King wrote that he “should have taken a firmer stand with Bureau and instituted an inquiry or insisted on his resignation.”^[74] He also admitted he had shielded Bureau because of his “illness.”^[75] When King discovered customs officers had been passing along “samples” of seized cargo to higher-ups, including Bureau, he wrote, “[i]t is [a] shocking thing to think that a Minister could allow himself to be so compromised by his staff.”^[76] In short, King blamed everyone for the scandal except himself. On the first day of the Meighen Government, King noted that “it looked as though if Progressives could be secured [and] we would be [the] Government again.”^[77] King believed that Bureau’s resignation from the Senate might satisfy the Progressives and allow his party to survive the night without censure, so he summoned Bureau and requested he resign his Senate seat.^[78]

Bureau did not respond well and asked if King “wished him to commit suicide,”^[79] adding that “he could not go back to his wife and children if he took this step.”^[80] He further claimed that he was “innocent of charges against himself.”^[81] King was worried about Bureau’s mental state and asked Bureau’s friend Arthur Cardin to stay with him. Meanwhile, Sir Allen Aylesworth, a Liberal senator and the former Minister of Justice under Sir Wilfrid Laurier, talked with King.^[82] Sir Allen “bitterly resented Bureau being asked to resign and… [how] he had been left without counsel in the inquiry before [Stevens’] Committee.”^[83] He correctly believed that “an effort was being made to heap everything on Bureau and he indicated that he had lost confidence in [King] because of that.”^[84] This conversation convinced King not to compel Bureau to resign his Senate seat. King explained to Bureau why he asked him to quit and left the decision on the proper action to him, but Bureau elected not to resign.^[85] As a result, the Progressives remained united behind the Conservatives, resulting in the censure of the former Liberal government.^[86]

The Death of the Meighen Government

King took a different approach when the issue of Supply arose in the House, and he challenged the legality of Meighen’s ministers. It is possible that the idea came from King’s conversation with Robert Forke, who had resigned as leader of the Progressive Party on the same day he was asked by Byng to support the Conservatives.^[87] During the meeting between King and Forke, Forke expressed doubts about his party’s ability to remain united in support of the Meighen Government.^[88] The Liberals and Progressives had parted ways over allegations of corruption within the Liberal administration and it seemed King suspected that the Progressives would abandon the Conservatives if faced with a similar ethical quandary. King seemed to believe that the situation created by his government’s resignation was rare enough that few officials would be aware of the constitutionality at play to make an informed decision, thereby accepting his claim that Meighen had illegally appointed his ministers.^[89] The result of the accusation was a resounding success as the Progressive Party fractured over the issue of legality, which impaired its ability to support the Meighen Government.

Although Eugene Forsey later concluded that Meighen’s government was perfectly legal,^[90] on its third day in power, the Meighen Government ended in a dramatic late-night vote where it was defeated on the motion regarding its legitimacy by one vote. The Liberal victory, however, relied almost exclusively on luck. In Parliament at the time, members were allowed to participate in pairing. This practice allowed one member to vote on behalf of another member if they were absent from the chamber or abstaining from a vote. On that particular vote, a few Members of Parliament forgot to update or cancel their pairings when allegiances shifted due to the chaos King had sown.^[91] In nearly all of those cases, however, their votes cancelled each other out, except in the case of the Progressive Thomas Bird. Bird and Donald Kennedy, a Conservative-Progressive, had agreed to pair their votes earlier in the session; however, the Speaker called the confidence vote when Kennedy was absent and Bird was unaware that he was voting for both of them.^[92] The mistake was discovered only after the motion had passed, making it too late to correct.^[93] Viewing that one mistake as the difference between the government standing or falling is only valid if Kennedy had been present in the House to vote or had changed his pairing to a Conservative member. In the event of a tie, the Speaker, who was a Liberal, would have voted. Regardless, the Conservatives had lost a vote of want of confidence, and King believed he was about to be returned to power and granted his dissolution.^[94] Instead, Byng granted a dissolution to Meighen, which King also viewed as another constitutional issue. Byng reasoned that the censure against King’s administration indicated he had lost the confidence of the House and could not be called upon to form the government again.^[95] King was disappointed with Byng’s decision and wrote his diary entry under the heading “Bills Payable, August,”^[96] noting in the margin “they will come due then or in September!”^[97] In the court of public opinion, King argued his case against the injustice he believed Byng had subjected him to.

Unintended Consequences

The Conservatives did not gain any benefit from their brief tenure as the government, but more than that, the Liberals used it to create their narrative for the 1926 election. The main thrust of the Conservative campaign was that the Liberals were corrupt and that King “tried to run away from the just condemnation of himself and his Government by Parliament, but he was not permitted to do so; he thereupon hatched a constitutional issue to act as a smoke screen.”^[98]

In Terry Goodkind’s The Wizard’s First Rule, he wrote that people are stupid and would believe a lie because they wished it or feared it to be true.^[99] If anyone ever needed proof of that idea, they might look to the 1926 election. The Liberals offered no evidence of their claims of constitutional wrongdoing; instead, they used the narrative of wrongdoing and appealed to the emotions of an electorate unfamiliar with constitutional law. Later scholars would argue that the Governor-General and Meighen had done nothing illegal or wrong; however, truth does not always matter in an election. The Liberals wrapped themselves in nationalistic words like “sovereignty” and “autonomy.”^[100] They tapped into an existing undercurrent of anger towards Great Britain that welled from a feeling of betrayal after the Great War. The Liberal campaign also accused Meighen of being an autocratic dictator since he was the only “legal” Minister of the Crown during the election.^[101] The Liberals were not alone in making these charges – the Progressive Party launched similar attacks. In his blistering indictment of Meighen, Progressive^[102] E. J. Garland was reported saying that Meighen’s actions “constitute[d] not only a breach of faith to the people of Canada but a disgusting insult to the people’s representatives.”^[103] He added that Meighen had “made His Excellency the Governor-General of Canada a party to this deliberate theft of the people’s legislation.”^[104]

It is hardly surprising that King’s Liberals returned with one-hundred-and-sixteen seats to Meighen’s ninety-one. The Progressive Party had not weathered the year well, and the stress fractures caused by the 1925 election and the customs scandal broke them. By the 1926 election, they had separated into three factions. The Manitoban Progressives under Forke became the Liberal-Progressives.^[105] The second group, which consisted of most of the Progressives from Alberta, joined the United Farmers of Alberta.^[106] The last faction was the conservative-leaning members, who continued to function as the Progressive Party until their end less than a decade later.^[107] Two weeks after the election, on 25 September 1926, Forke’s Liberal-Progressives joined the Liberal Party when Forke accepted a position in King’s new Cabinet.^[108] This merger gave the Liberals their first strong majority in the House since the Great War.

While the election was a complete vindication for King, it was a disaster for Meighen – he had lost the election, his seat, and his party. Following their disastrous showing, the Conservatives held a leadership convention in Winnipeg where Meighen announced that he would not be seeking re-nomination.^[109] It was, however, clear that he would not have managed to secure his former position had he tried.^[110] Despite not running, his party attacked him for his “Heresy at Hamilton” and for losing the election. Bennett secured the leadership on only the second ballot.^[111]

An Imperial Conference followed on the heels of the election, and more unintended consequences of the Canadian constitutional crisis played out there. Prime Minister James Herzog of South Africa and King used the Canadian issue to demand changes from the British Crown. In a summary report on the conference, Great Britain made clear its relationship with the Dominions: “They are autonomous communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations.”^[112] In short, the Empire granted its Dominions control of their foreign policy, something they had been fighting for since the end of The Great War – even if Great Britain did not formalise this until the Statute of Westminster in 1931.

Additionally, concerning the Governor-General, the conference agreed that “the Governor-General of the Dominion is the representative of the Crown… [and] is not the representative or agent of His Majesty’s Government in Great Britain or of any Department of that Government.”^[113] It later added that “it would not be in accordance with constitutional practice for advice to be tendered to His Majesty by His Majesty’s Government in Great Britain in any matter appertaining to the affairs of a Dominion against the views of the government of that Dominion.”^[114] In other words, the Dominions now had the right to advise the Crown on who they would like the Crown’s representative in their country to be.

Conclusion

King’s diary makes it clear that he had not asked for dissolution to accomplish any of what historians later concluded; he was merely trying to avoid facing an election under a cloud of defeat. His diary entries around the period when he asked Byng about dissolution demonstrated that King feared he was committing political suicide and would be replaced as leader of the Liberals if he lost the election. King’s records of his arguments with Byng make it apparent he thought Byng could not refuse his request for dissolution, and King maintained that belief to the grave. For forty years after the crisis, and before King’s diaries were published, the accounts of his actions in the crisis, and the 1926 election, were given a Machiavellian ruthlessness. Historians and political scientists credited King with trapping Meighen in a no-win scenario, vanquishing all threats to his leadership and gaining the majority the Liberal Party desired in just two months. However, King did not enter the crisis with a brilliant political strategy. He took advantage of the hand he had been dealt and used the election to argue his case against Byng. King felt wronged, and his righteous anger towards Byng resonated with voters’ fear of never obtaining autonomy from Great Britain and their outrage over having been denied independence after their sacrifices in the Great War. One person’s misinterpretation of constitutional law and another’s decision to do what was right were pivotal to Canada gaining its sovereignty.