THE RESULTS OF THE CONFERENCE
The constitution which the founders of the Dominion devised was the
first of its kind on a great scale within the Empire. No English
precedents therefore existed. Yet their chief aim was to preserve the
connection with Great Britain, and to perpetuate in North America the
institutions and principles which the mother of parliaments, during her
splendid history, had bequeathed to the world. The Fathers could look
to Switzerland, to New Zealand, to the American Republic, and to those
experiments and proposals in ancient or modern times which seemed to
present features to imitate or examples to avoid.[1] But they were
guided, perforce, by the special conditions with which they had to
deal. If they had been free to make a perfect contribution to the
science of government, the constitution might have been {66} different.
It is, of course, true of all existing federations that they were
determined largely by the relations and circumstances of the combining
states. This is illustrated by comparing the Canadian constitution
with those of the two most notable unions which followed. Unlike
Canada, Australia preferred to leave the residue of powers to the
individual states, while South Africa adopted a legislative instead of
a federal union. For Canada, a legislative union was impracticable.
This was due partly to the racial solidarity of the French, but even
more largely to the fully developed individualism of each province. It
is to the glory of the Fathers of Confederation that the constitution,
mainly constructed by themselves as the product of their own experience
and reflection, has lasted without substantial change for nearly half a
century. They were forced to deal with conditions which they had not
created, yet could not ignore--conditions which had long perplexed both
Imperial and colonial statesmen, and had rendered government
ineffective if not impossible. They found the remedy; and the result
is seen in the powerful and thriving nationality which their labours
evolved.
To set up a strong central government was {67} the desire of many of
the delegates. Macdonald, as has been recorded already, had contended
for this in 1861. He argued to the same effect at the conference. The
Civil War in the United States, just concluded, had revealed in
startling fashion the dangers arising from an exaggerated state
sovereignty. 'We must,' he said, 'reverse this process by
strengthening the general government and conferring on the provincial
bodies only such powers as may be required for local purposes.' When
Chandler of New Brunswick perceived with acuteness that in effect this
would mean legislative union, Macdonald, as we gather from the
fragmentary notes of his speech, made an impassioned appeal for a
carefully defined central authority.
I think [he declared] the whole affair would fail and the system be a
failure if we adopted Mr Chandler's views. We should concentrate the
power in the federal government and not adopt the decentralization of
the United States. Mr Chandler would give sovereign power to the local
legislatures, just where the United States failed. Canada would be
infinitely stronger as she is than under such a system {68} as proposed
by Mr Chandler. It is said that the tariff is one of the causes of
difficulty in the United States. So it would be with us. Looking at
the agricultural interests of Upper Canada, manufacturing of Lower
Canada, and maritime interests of the lower provinces, in respect to a
tariff, a federal government would be a mediator. No general feeling
of patriotism exists in the United States. In occasions of difficulty
each man sticks to his individual state. Mr Stephens, the present
vice-president [of the Confederacy], was a strong union man, yet, when
the time came, he went with his state. Similarly we should stick to
our province and not be British Americans. It would be introducing a
source of radical weakness. It would ruin us in the eyes of the
civilized world. All writers point out the errors of the United
States. All the feelings prognosticated by Tocqueville are shown to be
fulfilled.
These and other arguments prevailed. Several of the most influential
delegates were in theory in favour of legislative union, and these were
anxious to create, as the best alternative, a general parliament
wielding {69} paramount authority. This object was attained by means
of three important clauses in the new constitution: one enumerating the
powers of the federal and provincial bodies respectively and assigning
the undefined residue to the federal parliament; another conferring
upon the federal ministry the right to dismiss for cause the
lieutenant-governors; and another declaring that any provincial law
might, within one year, be disallowed by the central body. Instead of
a loosely knit federation, therefore, which might have fallen to pieces
at the first serious strain, it was resolved to bring the central
legislature into close contact at many points with the individual
citizen, and thus raise the new state to the dignity of a nation.
How the designs of the Fathers have been modified by the course of
events is well known. The federal power has been restrained from undue
encroachment on provincial rights by the decisions, on various issues,
of the highest court, the judicial committee of the Imperial Privy
Council. The power to dismiss lieutenant-governors was found to be
fraught with danger and has been rarely exercised. The dismissal of
Letellier, a strong Liberal, from the lieutenant-governorship of Quebec
by the {70} Conservative ministry at Ottawa in 1879, gave rise to some
uneasiness and criticism. The reason assigned was that his 'usefulness
was gone,' since both houses of parliament had passed resolutions
calling for his removal. He was accused of partisanship towards his
ministers. The federal prime minister, Sir John Macdonald, assented
reluctantly, it is said, to the dismissal. But some of the facts are
still obscure. The status of the office and the causes that would
warrant removal were thus given by Macdonald at Quebec, according to
the imperfect report which has come down to us:
The office must necessarily be during pleasure. The person may break
down, misbehave, etc.... The lieutenant-governor will be a very high
officer. He should be independent of the federal government, except as
to removal for cause, and it is necessary that he should not be
removable by any new political party. It would destroy his
independence. He should only be removable upon an address from the
legislature.
The power of disallowance, the third expedient for curbing the
provinces, was exercised with {71} some freedom down to 1888. In that
year a Quebec measure, the Jesuits' Estates Act, with a highly
controversial preamble calculated to provoke a war of creeds, was not
disallowed, although protests were carried past parliament to the
governor-general personally. The incident directed attention to the
previous practice at Ottawa under both parties and a new era of
non-intervention was inaugurated. Disallowance is now rare, except
where Imperial interests are affected, and never occurs on the ground
of the policy or impolicy of the measure. The provinces, as a matter
of practice, are free within their limits to legislate as they please.
But the Dominion as a self-governing state has long passed the stage
where the clashing of provincial and federal jurisdictions could shake
the constitution.
When the conference, however, considered provincial powers it went to
the root of a federal system. The maritime delegates as a whole
displayed magnanimity and statesmanship. Brown, as the champion of
Upper Canada, was concerned to see that the interests of his own
province were amply secured. He held radical views. When he spoke,
the calm surface of the conference, where a moderate and essentially
conservative {72} constitutionalism sat entrenched, may have been
ruffled. The following is from the summary which has been preserved of
one of his speeches:[2]
As to local governments, we desire in Upper Canada that they should not
be expensive, and should not take up political matters. We ought not
to have two electoral bodies. Only one body, members to be elected
once in every three years. Should have whole legislative
power--subject to lieutenant-governor. I would have
lieutenant-governors appointed by general government. It would thus
bring these bodies into harmony with the general government. In Upper
Canada executive officers would be attorney-general, treasurer,
secretary, commissioner of crown lands and commissioner of public
works. These would form the council of the lieutenant-governor. I
would give lieutenant-governors veto without advice, but under certain
vote he should be obliged to assent. During recess lieutenant-governor
could have power to suspend executive officers. They might be elected
for three years or {73} otherwise. You might safely allow county
councils to appoint other officers than those they do now. One
legislative chamber for three years, no power of dissolution, elected
on one day in each third year. Departmental officers to be elected
during pleasure or for three years. To be allowed to speak but not to
vote.
A more suggestive extract than this cannot be found in the discussion.
From the astonished Cartier the ejaculation came, 'I entirely differ
with Mr Brown. It introduces in our local bodies republican
institutions.' From the brevity of the report we cannot gather the
whole of Brown's meaning. Apparently his aim was a strictly
businesslike administration of provincial affairs, under complete
popular control, but with the executive functions as far removed from
party domination as erring human nature would permit. There may be
seen here points of resemblance to an American state constitution, but
Brown was no more a republican than was Napoleon. He was, like
Macdonald, an Imperialist who favoured the widest national expansion
for Canada. The idea of a republic, either in the abstract or the
concrete, had no friends in the {74} conference. Galt believed
independence the proper aim for a young state, but we find him stating
later: 'We were and are willing to spend our last men and our last
shilling for our mother country.'[3] Many years after Confederation
Sir Oliver Mowat declared independence the remote goal to keep in view.
These opinions were plainly speculative. Neither statesman took any
step towards carrying them out, but benevolently left them as a legacy,
unencumbered by conditions, to a distant posterity.
At the conference Mowat was active to strengthen the central authority,
as also was Brown. But there was general agreement, despite Brown's
plea for a change, that the local governments should take the form
preferred by themselves and that ministerial responsibility on the
British model should prevail throughout. Upon the question of
assigning the same subjects, such as agriculture, to both federal and
provincial legislatures, Mowat said:
The items of agriculture and immigration should be vested in both
federal and local governments. Danger often arises where there is
exclusive jurisdiction and not so {75} often in cases of concurrent
jurisdiction. In municipal matters the county and township council
often have concurrent jurisdiction.
In the famous contests for provincial rights which he was afterwards to
wage before the courts, and always successfully, Mowat was not
necessarily forgetful that he himself moved for the power of
disallowance over provincial laws to be given to the federal authority.
With the caution and clearness of mind that governed his political
course, he naturally made sure of his ground before fighting, and could
thus safely break a lance with the federal government. The provincial
constitutions were, therefore, left to be determined by the provinces
themselves, and this freedom to modify them continues, 'except as
regards the office of lieutenant-governor.' No province has yet
proposed any constitutional change which could be regarded as an
infringement of the inviolacy of that office, and no circumstances have
arisen to throw light upon the kind of measure which would be so
regarded.[4]
One more point, touching upon provincial autonomy, deserves to be
noticed. In the {76} resolutions of the conference, as well as in the
British North America Act, the laws passed by the local legislatures
are reviewable for one year by the _governor-general_, not by the
_governor-general in council_. The colonial secretary drew attention
in 1876 to this distinction in the expressions used, and suggested that
it was intended to place the responsibility of deciding the validity of
provincial laws upon the governor-general personally. The able and
convincing memoranda in reply were composed by Edward Blake, the
Canadian minister of Justice. He contended that under the letter and
spirit of the constitution ministers must be responsible for the
governor's action. His view prevailed, and thus within ten years after
Confederation the principle that the crown's representative must act
only through his advisers on all Canadian matters was maintained.
There was nothing in the available records in 1876 to explain why the
term 'governor-general' instead of 'governor-general in council' was
employed.[5] It is, {77} however, an unassailable principle that the
control of the crown over the Canadian provinces can be exercised only
through the federal authorities.
When the conference had accepted the outline of the federal and
provincial constitutions the danger points might reasonably have been
considered past. But there remained to be discussed the representation
in the federal parliament and the financial terms. These were the
rocks on which the ship nearly split. Representation by population in
the proposed House of Commons had been agreed upon at Charlottetown;
but when the Prince Edward Island delegates saw that, with sixty-five
members for Lower Canada as a fixed number, the proportion assigned to
the Island would be five members only, they objected. They were
dismayed by the prospect, and when the financial proposals also proved
unsatisfactory, their discontent foreshadowed the ultimate withdrawal
of the province from the scheme. The other provinces accepted without
demur the basis of representation in the new House of Commons.
The composition of the Senate, however, brought on a crisis. 'We were
very near broken up,' wrote Brown in a private letter on {78} October
17, 'on the question of the distribution of members in the upper
chamber of the federal legislature, but fortunately we have this
morning got the matter amicably compromised, after a loss of three days
in discussing it.' The difficulty seems to have been to select the
members of the first Senate with due regard to party complexion, so as
not to operate in Upper Canada, as Brown felt, unfairly against the
Liberals. Finally, an agreement was arranged on the basis that the
senators should be drawn from both parties; and this was ultimately
carried out.
A far more important point, whether the second chamber should be
nominated or elected, caused less debate. Macdonald opened the
discussion with his usual diplomacy:
With respect to the mode of appointments to the Upper House, some of us
are in favour of the elective principle. More are in favour of
appointment by the crown. I will keep my own mind open on that point
as if it were a new question to me altogether. At present I am in
favour of appointment by the crown. While I do not admit that the
elective principle has been a failure in Canada, I think we had {79}
better return to the original principle, and in the words of Governor
Simcoe endeavour to make ours 'an image and transcript of the British
constitution.'
Differing on other issues, Brown and Macdonald were at one on this.
They were opposed to a second set of general elections, partly because
it would draw too heavily on the organizations and funds of the
parties. As an instance of the stability of Brown's views, it should
be remembered that he never, at any period, approved of an elective
second chamber. The other Liberal ministers from Upper Canada, Mowat
and McDougall, stood by the elective system, but the conference voted
it down. The Quebec correspondence of the _Globe_ at this time throws
some light on the reasons for the decision: 'Judging from the tone of
conversation few delegates are in favour of election. The expense of
contesting a division is enormous and yearly increases. The
consequence is there is great difficulty in getting fit candidates, and
the tendency is to seek corrupt aid from the administration of the day.
There is also fear of a collision between two houses equally
representing the people. It is less important to us than to the {80}
French. Why should we not then let Lower Canada, which desires to
place a barrier against aggression by the west, decide the question and
make her defensive powers as strong as she likes? It would be no great
stretch of liberality on our part to accord it to her.' During the
debates on Confederation in the Canadian Assembly, in the following
year, Macdonald derided the notion that a government would ever
'overrule the independent opinion of the Upper House by filling it with
a number of its partisans and political supporters.' This, however, is
precisely what has taken place. The Senate is one of the few
unsatisfactory creations of the Fathers of Confederation.[6]
[Illustration: Sir John A. Macdonald. From the painting by A. Dickson
Patterson.]
The question of the financial terms was surrounded with difficulties.
The Maritime Provinces, unlike Upper Canada, were without the municipal
organization which provides for local needs by direct taxation. With
them {81} the provincial government was a nursing mother and paid for
everything. Out of the general revenue came the money for bridges,
roads, schools, wharves, piers, and other improvements, in addition to
the cost of maintaining the fiscal, postal, and other charges of the
province. The revenue was raised by customs duties, sales of crown
lands, royalties, or export duties. The devotion to indirect taxation,
which is not absent from provinces with municipal bodies, was to them
an all-absorbing passion. The Canadian delegates were unsympathetic.
John Hamilton Gray describes the scene:
Agreement seemed hopeless, and on or about the tenth morning, after the
convention met, the conviction was general that it must break up
without coming to any conclusion. The terms of mutual concession and
demand had been drawn to their extremest tension and silence was all
around. At last a proposition was made that the convention should
adjourn for the day, and that in the meantime the finance ministers of
the several provinces should meet, discuss the matter amongst
themselves, and see if they could not agree upon something.[7]
{82} On this committee were Brown and Galt acting for Canada, while the
others were Tupper, Tilley, Archibald, Pope, and Shea. The scheme set
forth in the resolutions was the result. It need not be detailed, but
the sixty-fourth resolution, on which was centred the keenest
criticism, reads as follows:
In consideration of the transfer to the general parliament of the
powers of taxation, an annual grant in aid of each province shall be
made, equal to 80 cents per head of the population as established by
the census of 1861, the population of Newfoundland being estimated at
130,000. Such aid shall be in full settlement of all future demands
upon the general government for local purposes and shall be paid
half-yearly in advance to each province.
The system of provincial subsidies has often been denounced. The
delegates may have thought that they had shut the door to further
claims, but the finality of the arrangement was soon tested, and in
1869 Nova Scotia received better terms. There were increases in the
subsidies to the provinces on several subsequent occasions, and no one
believes the end has yet been reached. The growing needs of the {83}
provinces and the general aversion from direct taxation furnish strong
temptations to make demands upon the federal treasury.
The conference, after adopting the seventy-two resolutions embodying
the basis of the union, agreed that the several governments should
submit them to the respective legislatures at the ensuing session.
They were to be carried _en bloc_, lest any change should entail a
fresh conference. The delegates made a tour of Canada, visiting
Montreal, Ottawa, and Toronto, where receptions and congratulations
awaited them. Their work had been done quickly. It had now to run the
gauntlet of parliamentary discussion.
[1] D'Arcy McGee published a treatise in 1865 entitled _Notes on
Federal Government Past and Present_, presenting a useful summary of
the various constitutions.
[2] The quotations in this chapter are taken from Pope's _Confederation
Documents_.
[3] At Cornwall, March 2, 1866.
[4] It is worth noting that almost any change of importance would
affect the office of the lieutenant-governor and thus challenge federal
interference.
[5] We know now from Sir Joseph Pope's _Confederation Documents_ (p.
140) that it was proposed in the first draft of the union bill to have
interpretation clauses, and one of these declared that where the
governor-general was required to do any act it was to be assumed that
he performed it by the advice and consent of his executive council.
[6] In the copy of the Confederation debates possessed by the writer
there appears on the margin of the page, in William McDougall's
handwriting and initialled by himself, these words: 'In the Quebec
Conference I moved and Mr Mowat seconded a motion for the elective
principle. About one-third of the delegates voted for the proposition,
Brown arguing and voting against it. At this date (1887) under Sir
John's policy and action the Senate contains only 14 Liberals; all his
appointments being made from his own party.'
[7] Gray's _Confederation_, p. 62.
{84}