The Fathers of Confederation: A Chronicle of the Birth of the Dominion

by A. H. U. Colquhoun

CHAPTER VII

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 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 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 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 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 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 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 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 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 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 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 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, 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 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 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 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]]

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 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]]

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 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.