THE FRAMING OF THE BILL
When the British American delegates met in London to frame the bill
they found themselves in an atmosphere tending to chill their
enthusiasm. Lord Palmerston had died the year before, and with him had
disappeared an adventurous foreign policy and the militant view of
empire. The strictly utilitarian school of thought was dominant.
Canada was unpleasantly associated in the minds of British statesmen
with the hostile attitude of the United States which seemed to threaten
a most unwelcome war. John Bright approved of ceding Canada to the
Republic as the price of peace. Gladstone also wrote to Goldwin Smith
suggesting this course. The delegates were confronted by the same
ideas which had distressed George Brown two years earlier. The
colonies were not to be forcibly cast off, but even in official circles
the opinion prevailed that ultimate separation was the inevitable end.
The reply {120} of Sir Edward Thornton, the British minister at
Washington, to a proposal that Canada should be ceded to the United
States was merely that Great Britain could not thus dispose of a colony
'against the wishes of the inhabitants.' These lukewarm views made no
appeal to the delegates and the young communities they represented. It
was their aim to propound a method of continuing the connection.
Theirs was not the vision of a military sway intended to overawe other
nations and to revive in the modern world the empires of history. To
them Imperialism meant to extend and preserve the principles of
justice, liberty, and peace, which they believed were inherent in
British institutions and more nearly attainable under monarchical than
under republican forms.
Minds influential in the Colonial Office and elsewhere saw in this only
a flamboyant patriotism. The Duke of Newcastle, when colonial
secretary, had not shared the desire for separation, and he found it
hard to believe that any one charged with colonial administration
wished it. He had written to Palmerston in 1861:
You speak of some supposed theoretical gentlemen in the colonial office
who wish {121} to get rid of all colonies as soon as possible. I can
only say that if there are such they have never ventured to open their
opinion to me. If they did so on grounds of peaceful separation, I
should differ from them so long as colonies can be retained by bonds of
mutual sympathy and mutual obligation; but I would meet their views
with indignation if they could suggest disruption by the act of any
other, and that a hostile, Power.
The duke was not intimate with his official subordinates, or he would
have known that Palmerston's description exactly fitted the permanent
under-secretary at the Colonial Office. Sir Frederic Rogers (who later
became Lord Blachford) filled that post from 1860 to 1871. He was
therefore in office during the Confederation period. He left on record
his ideas of the future of the Empire:
I had always believed--and the belief has so confirmed and consolidated
itself that I can hardly realize the possibility of any one seriously
thinking the contrary--that the destiny of our colonies is
independence; and that in this view, the function of the Colonial
Office is to secure that {122} our connexion, while it lasts, shall be
as profitable to both parties, and our separation, when it comes, as
amicable as possible. This opinion is founded first on the general
principle that a spirited nation (and a colony becomes a nation) will
not submit to be governed in its internal affairs by a distant
government, and that nations geographically remote have no such common
interests as will bind them permanently together in foreign policy with
all its details and mutations.
In other words, Sir Frederic was a painstaking honourable official
without a shred of imagination. He typifies the sort of influence
which the delegates had to encounter.
The conference consisted of sixteen members, six from Canada and ten
from the Maritime Provinces. The Canadians were Macdonald, Cartier,
Galt, McDougall, Howland, and Langevin. From Nova Scotia came Tupper,
Henry, Ritchie, McCully, and Archibald; while New Brunswick was
represented by Tilley, Johnston, Mitchell, Fisher, and Wilmot. They
selected John A. Macdonald as chairman. The resignation of Brown had
left Macdonald the leader of the movement, and the nominal {123}
Canadian prime minister, Sir Narcisse Belleau, was not even a delegate.
The impression Macdonald made in London is thus recorded by Sir
Frederic Rogers in language which gives us an insight into the working
of the conference:
They held many meetings, at which I was always present. Lord Carnarvon
[the colonial secretary] was in the chair, and I was rather
disappointed in his power of presidency. Macdonald was the ruling
genius and spokesman, and I was very greatly struck by his power of
management and adroitness. The French delegates were keenly on the
watch for anything which weakened their securities; on the contrary,
the Nova Scotia and New Brunswick delegates were very jealous of
concessions to the _arrieree_ province; while one main stipulation in
favour of the French was open to constitutional objections on the part
of the Home Government. Macdonald had to argue the question with the
Home Government on a point on which the slightest divergence from the
narrow line already agreed upon in Canada was watched for--here by the
French and {124} there by the English--as eager dogs watch a rat hole;
a snap on one side might have provoked a snap on the other and put an
end to the concord. He stated and argued the case with cool ready
fluency, while at the same time you saw that every word was measured,
and that while he was making for a point ahead, he was never for a
moment unconscious of any of the rocks among which he had to steer.
The preliminaries had all been settled before the meetings with the
colonial secretary. The gathering was smaller in numbers than the
Quebec Conference, and the experience of two years had not been lost.
We hear no more of deadlocks or of the danger of breaking up. There
was frank discussion on any point that required reconsideration, but
the delegates decided to adhere to the Quebec resolutions as far as
possible. For the Liberal ministers from Upper Canada, Howland and
McDougall, this was the safest course to pursue, because they knew that
George Brown had put his hand and seal upon the basis adopted at Quebec
and would bitterly resent any substantial departure from it. This was
also the view of the representatives of Lower Canada. The {125}
maritime delegates wanted better financial terms if such could be
secured, but beyond this were content with the accepted outline of the
constitution.
The delegates were careful to make plain their belief that the union
was to cement and not to weaken the Imperial tie. At Quebec they had
agreed upon a motion in these terms:
That in framing a constitution for the general government, the
conference, with a view to the perpetuation of our connection with the
Mother Country and to the promotion of the best interests of the people
of these provinces, desire to follow the model of the British
constitution, so far as our circumstances will permit.
The saving clause at the close was a frank admission that a federal
system could not be an exact copy of the British model with its one
sovereign parliament charged with the whole power of the nation. But
the delegates were determined to express the idea in some form; and
this led to the words in the preamble of the British North America Act
declaring 'a constitution similar in principle to that of the United
Kingdom.' To this writers {126} of note have objected. Professor
Dicey has complained of the 'official mendacity' involved in the
statement. 'If preambles were intended to express the truth,' he said,
'for the word _Kingdom _ought to have been substituted _States_, since
it is clear that the constitution of the Dominion is modelled on that
of the United States.' It is, however, equally clear what the framers
of the Act intended to convey. If they offended against the precise
canons of constitutional theory, they effected a political object of
greater consequence. The Canadian constitution, in their opinion, was
British in principle for at least three reasons: because it provided
for responsible government in both the general and local legislatures;
because, unlike the system in the United States, the executive and
legislative functions were not divorced; and because this enabled
Canada to incorporate the traditions and conventions of the British
constitution which bring the executive immediately under control of the
popular wish as expressed through parliament. Furthermore, the
principle of defining the jurisdictions of the provinces, while the
residue of power was left to the federal parliament, marked another
wide distinction between Canada and the Republic. A {127} federation
it had to be, but a federation designed in the narrowest sense. In
theory Canada is a dependent and subordinate country, since its
constitution was conferred by an Act of the Imperial parliament, but in
practice it is a self-governing state in the fullest degree. This
anomaly, so fortunate in its results, is no greater than the
maintenance in theory of royal prerogatives which are never exercised.
It was intended that the name of the new state should be left to the
selection of the Queen, and this was provided for in the first draft of
the bill. But the proposal was soon dropped. It revived the memory of
the regrettable incident of 1858 when the Queen had, by request,
selected Ottawa as the Canadian capital and her decision had been
condemned by a vote of the legislature. The press had discussed a
suitable name long before the London delegates assembled. Some
favoured New Britain, while others preferred Laurentia or Britannia.
If the maritime union had been effected, the name of that division
would probably have been Acadia, and this name was suggested for the
larger union. Other ideas were merely fantastic, such as Cabotia,
Columbia, Canadia, and Ursalia. The decision that Canada should give
up its name {128} to the new Confederation and that Upper and Lower
Canada should find new names for themselves was undoubtedly a happy
conclusion to the discussion. It was desired to call the Confederation
the Kingdom of Canada, and thus fix the monarchical basis of the
constitution. The French were especially attached to this idea. The
word Kingdom appeared in an early draft of the bill as it came from the
conference. But it was vetoed by the foreign secretary, Lord
Stanley,[1] who thought that the republican sensibilities of the United
States would be wounded. This preposterous notion serves to indicate
the inability of the controlling minds of the period to grasp the true
nature of the change. Finally, the word 'Dominion' was decided upon.
Why a term was selected which is so difficult to render in the French
language (_La Puissance_ is the translation employed) is not easy of
comprehension. There is a story, probably invented, that when
'Dominion' was under consideration, a member of the conference, well
versed in the Scriptures, found a verse which, as a piece of
descriptive prophecy, at once clinched the matter: 'And his dominion
shall be from {129} sea even to sea, and from the river even to the
ends of the earth.'[2]
The knotty question of the second chamber, supposed to have been solved
at Quebec, came up again. The notes of the discussion[3] are as
interesting as the surviving notes of the Quebec Conference. Some of
the difficulties since experienced were foreseen. But no one appears
to have realized that the Senate would become the citadel of a defeated
party, until sufficient vacancies by death should occur to transform it
into the obedient instrument of the government of the day. No one
foresaw, in truth, that the Senate would consider measures chiefly on
party grounds, and would fail to demonstrate the usefulness of a second
chamber by industry and capacity in revising hasty legislation. The
delegates actually believed that equality of representation between the
three divisions, Upper Canada, Lower Canada, and the Maritime
Provinces, would make the Senate a bulwark of protection to individual
provinces. In this character it has never shone.[4] Its chief value
has been as {130} a reservoir of party patronage. The opinions of
several of the delegates are prophetical:
HENRY (Nova Scotia)--I oppose the limitation of number. We want a
complete work. Do you wish to stereotype an upper branch irresponsible
both to the crown and the people? A third body interposed
unaccountable to the other two. The crown unable to add to their
number. The people unable to remove them. Suppose a general election
results in the election of a large majority in the Lower House
favourable to a measure, but the legislative council prevents it from
becoming law. The crown should possess some power of enlargement.
FISHER (New Brunswick)--The prerogative of the crown has been only
occasionally used and always for good. This new fangled thing now
introduced, seventy-two oligarchs, will introduce trouble. I advocate
the principle of the power of the crown to appoint additional members
in case of emergency.
HOWLAND (Upper Canada)--My remedy would be to limit the period of
service and vest the appointment in the local legislatures. Now, it is
an anomaly. It won't work and cannot be continued. You cannot give
the crown an unlimited power to appoint.
One result of the views exchanged is found in the twenty-sixth section
of the Act. This gives the sovereign, acting of course on the advice
of his ministers and at the request of the Canadian government, the
right to add {131} three or six members to the Senate, selected equally
from the three divisions mentioned above. These additional members are
not to be a permanent increase of the Senate, because vacancies
occurring thereafter are not to be filled until the normal number is
restored. Once only has it been sought to invoke the power of this
section. In 1873, when the first Liberal ministry after Confederation
was formed, the prime minister, Alexander Mackenzie, finding himself
faced by a hostile majority in the Senate, asked the Queen to add six
members to the Senate 'in the public interests.' The request was
refused. The colonial secretary, Lord Kimberley, held that the power
was intended solely to bring the two Houses into accord when an actual
collision of opinion took place of so serious and permanent a kind that
the government could not be carried on without the intervention of the
sovereign as prescribed in this section. The Conservative majority in
the Senate highly approved of this decision, and expressed its
appreciation in a series of resolutions which are a fine display of
unconscious humour.
Not the least important of the changes in the scheme adopted at London
was that relating to the educational privileges of {132} minorities.
This is embodied in the famous ninety-third section of the Act, and
originated in a desire to protect the Protestant minority in Lower
Canada. Its champion was Galt. An understanding existed that the
Canadian parliament would enact the necessary guarantees before Canada
entered the union. But the proposal, when brought before the House in
1866, was so expressed as to apply to the schools of both the
Protestant minority in Lower Canada and the Catholic minority in Upper
Canada. This led to disturbing debates and was withdrawn. No
substitute being offered, Galt, deeming himself pledged to his
co-religionists, at once resigned his place in the Cabinet and stated
his reasons temperately in parliament. Although no longer a minister,
he was selected as one of the London delegates, partly because of the
prominent part taken by him in the cause of Confederation and partly in
order that the anxieties of the Lower Canada minority might be allayed.
Galt's conduct throughout was entirely worthy of him. That he was an
enlightened man the memoranda of the London proceedings prove, for
there is a provision in his handwriting showing his desire to extend to
all minorities the protection he claimed for the Lower {133} Canada
Protestants. The clause drawn by him differs in its phraseology from
the wording in the Act and is as follows:
And in any province where a system of separation or dissentient schools
by law obtains, or where the local legislature may adopt a system of
separate or dissentient schools, an appeal shall lie to the governor in
council of the general government from the acts and decisions of the
local authorities which may affect the rights or privileges of the
Protestant or Catholic minority in the matter of education. And the
general parliament shall have power in the last resort to legislate on
the subject.[5]
The bill passed through parliament without encountering any serious
opposition. Lord Carnarvon's introductory speech in the House of Lords
was an adequate, although not an eloquent, presentation of the subject.
His closing words were impressive:
We are laying the foundation of a great State--perhaps one which at a
future day {134} may even overshadow this country. But, come what may,
we shall rejoice that we have shown neither indifference to their
wishes nor jealousy of their aspirations, but that we honestly and
sincerely, to the utmost of our power and knowledge, fostered their
growth, recognizing in it the conditions of our own greatness. We are
in this measure setting the crown to the free institutions which more
than a quarter of a century ago we gave them, and therein we remove, as
I firmly believe, all possibilities of future jealousy or
misunderstanding.
No grave objections were raised in either the Lords or the Commons. In
fact, the criticisms were of a mild character. No division was taken
at any stage. In the House of Commons, Mr Adderley, the
under-secretary for the Colonies, who was in charge of the measure,
found a cordial supporter, instead of a critic, in Mr Cardwell, the
former colonial secretary, so that the bill was carried through with
ease and celerity. John Bright's speech reflected the anti-Imperial
spirit of the time. 'I want the population of these provinces,' he
said, 'to do that which they believe to be the {135} best for their own
interests--remain with this country if they like, in the most friendly
manner, or become independent states if they like. It they should
prefer to unite themselves with the United States, I should not
complain even of that.'
The strenuous protests made by Joseph Howe and the Nova Scotian
opponents of Confederation were not unnoticed. It was claimed by one
or two speakers that the electors of that province should be allowed to
pronounce upon the measure, but this evoked no support, and the wishes
of all the provinces were considered to have been sufficiently
consulted. The argument for further delay failed to enlist any active
sympathy; and the wish of the delegates that no material alteration be
made in the bill, as it was a compromise based upon a carefully
arranged agreement, was respected. The constitution was thus the
creation of the colonial statesmen themselves, and not of the Imperial
government or parliament.
That so important a step in the colonial policy of the Empire should
have been received at London in a passive and indifferent spirit has
often been the subject of complaint. When the Australian Commonwealth
came into existence, the event was marked by more {136} ceremony and
signalized by greater impressiveness. But another phase of the
question should be kept in mind. The British North America Act
contained the promise of the vast Dominion which exists to-day, but not
the reality. The measure dealt with the union of the four provinces
only. The Confederation, as we have it, was still incomplete. When
the royal proclamation was issued on the 10th of May bringing the new
Dominion into being on July 1, 1867, much remained to be done. The
constitution must be put to the test of practical experience; and the
task of extending the Dominion across the continent must be undertaken.
Upon the first government of Canada, in truth, would rest a duty as
arduous as ever fell to the lot of statesmen. They had in their hands
a half-finished structure, and might, conceivably, fail in completing
it.
[1] He became Lord Derby in 1869 and bore this title in 1889 when Sir
John Macdonald related the incident.
[2] Zechariah ix 10.
[3] Sir Joseph Pope's _Confederation Documents_.
[4] The recent increase in the number of western senators modifies this
feature.
[5] _Confederation Documents_, p. 112. Mr Justice Day of Montreal, an
English Protestant enjoying the confidence of the French, is believed
to have had a hand in framing the Galt policy on this subject.
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