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

by A. H. U. Colquhoun

CHAPTER VIII

THE DEBATES OF 1865

In the province of Canada no time was lost in placing the new constitution before parliament. A dilatory course would have been unwise. The omens were favourable. Such opposition as had developed was confined to Lower Canada. The Houses met in January 1865, and the governor-general used this language in his opening speech:

With the public men of British North America it now rests to decide whether the vast tract of country which they inhabit shall be consolidated into a State, combining within its area all the elements of national greatness, providing for the security of its component parts and contributing to the strength and stability of the Empire; or whether the several Provinces of which it is constituted shall remain in their present fragmentary and isolated condition, comparatively powerless for mutual aid, and incapable of undertaking their proper share of Imperial responsibility.

The procedure adopted was the moving in each House of an address to the Queen praying that a measure might be submitted to the Imperial parliament based upon the Quebec resolutions. The debate began in the Legislative Council on the 3rd of February and in the Assembly three days later. The debate in the popular branch lasted until the 13th of March; in the smaller chamber it was concluded by the 23rd of February.

These debates, subsequently published in a volume of 1032 pages, are a mirror which reflects for us the political life of the time and the events of the issue under discussion. They set forth the hopes and intentions of the Fathers with reference to their own work; and if later developments have presented some surprises, some situations which they did not foresee, as was indeed inevitable, their prescience is nowhere shown to have been seriously at fault. Some of the speeches are commonplace; a few are wearisome; but many of them are examples of parliamentary eloquence at its best, and the general level is high.

The profound sincerity of the leaders of the coalition, whether in or out of office, is not to be questioned. The supporters of the union bore down all opposition. Macdonald's wonderful tact, Brown's passionate earnestness, and Galt's mastery of the financial problem, were never displayed to better advantage; while the redoubtable Cartier marshalled his French compatriots before their timidity had a chance to assert itself. Particularly interesting is the attitude which Brown assumed towards the French. He had been identified with a vicious crusade against their race and creed. Its cruel intolerance cannot be justified, and every admirer of Brown deplores it. He met them now with a frank friendliness which evoked at once the magnanimity and readiness to forgive that has always marked this people and is one of their most engaging qualities. Said Brown:

The scene presented by this chamber at this moment, I venture to affirm, has few parallels in history. One hundred years have passed away since these provinces became by conquest part of the British Empire. I speak in no boastful spirit. I desire not for a moment to excite a painful thought. What was then the fortune of war of the brave French nation might have been ours on that well-fought field. I recall those olden times merely to mark the fact that here sit to-day the descendants of the victors and the vanquished in the fight of 1759, with all the differences of language, religion, civil law and social habit nearly as distinctly marked as they were a century ago. Here we sit to-day seeking amicably to find a remedy for constitutional evils and injustice complained of. By the vanquished? No, sir, but complained of by the conquerors! [French-Canadian cheers.]

Here sit the representatives of the British population claiming justice—only justice; and here sit the representatives of the French population, discussing in the French tongue whether we shall have it. One hundred years have passed away since the conquest of Quebec, but here sit the children of the victor and the vanquished, all avowing hearty attachment to the British Crown, all earnestly deliberating how we shall best extend the blessings of British institutions, how a great people may be established on this continent in close and hearty connection with Great Britain.

In thus proclaiming the aim and intent of the advocates of Confederation in respect to the Imperial link, Brown expressed the views of all. It was not a cheap appeal for applause, because the question could not be avoided. It came up at every turn. What was the purpose, the critics of the measure asked, of this new constitution? Did it portend separation? Would it not inevitably lead to independence? and if not, why was the term 'a new nationality' so freely used? In the opening speech of the debate Macdonald met the issue squarely with the statesmanlike gravity that befitted the occasion:

No one can look into futurity and say what will be the destiny of this country. Changes come over peoples and nations in the course of ages. But so far as we can legislate, we provide that for all time to come the sovereign of Great Britain shall be the sovereign of British North America.

And he went on to predict that the measure would not tend towards independence, but that the country, as it grew in wealth and population, would grow also in attachment to the crown and seek to preserve it. This prophecy, as we know, has proved true.

The fear of annexation to the United States figured likewise in the debate, but the condition of the Republic, so recently in the throes of civil war, was not such as to give rise to serious apprehension on that score. The national sentiment, however, which would naturally arise when the new state was constituted, was a proper subject for consideration, since it might easily result in a complete, if peaceful, revolution.

There were other uncertain factors in the situation which gave the opponents of Confederation an opportunity for destructive criticism. The measure was subjected to the closest scrutiny by critics who were well qualified to rouse any hostile feeling in the country if such existed. Weighty attacks came from dissentient Liberals like Dorion, Holton, and Sandfield Macdonald. A formidable opponent, too, was Christopher Dunkin, an independent Conservative, inspired, it may be supposed, by the distrust of constitutional change entertained by his immediate fellow-countrymen, the English minority in Lower Canada.

Brown bore the brunt of the attack from erstwhile allies and faced it in this fashion:

No constitution ever framed was without defect; no act of human wisdom was ever free from imperfection.... To assert then that our scheme is without fault, would be folly. It was necessarily the work of concession; not one of the thirty-three framers but had on some points to yield his opinions; and, for myself, I freely admit that I struggled earnestly, for days together, to have portions of the scheme amended.

This was reasonable ground to take and drew some of the sting from the criticism.

But all the criticism was not futile. Some of the defects pointed out bore fruit in the years that followed. As already stated, the financial terms were far from final, and a demand for larger subsidies had soon to be met. Friction between the federal and provincial powers arose in due course, but not precisely for the reasons given. The administration of the national business has cost more than was expected, and has not been free, to employ the ugly words used in these debates, from jobbery and corruption. The cost of a progressive railway policy has proved infinitely greater than the highest estimates put forth by the Fathers. The duty of forming a ministry so as to give adequate representation to all the provinces has been quite as difficult as Dunkin said it would be. To parcel out the ministerial offices on this basis is one of the unwritten conventions of the constitution, and has taxed the resources of successive prime ministers to the utmost. With all his skill, as we shall see later, Sir John Macdonald nearly gave up in despair his first attempt to form a ministry after Confederation. Yet it must be said, surveying the whole field, that the critics of the resolutions failed to make out a case.

Both in the Legislative Council and in the Assembly the resolution for a nominated second chamber caused much debate. But the elective principle was not defended with marked enthusiasm. By the Act of 1840 which united the Canadas the Council had been a nominated body solely. Its members received no indemnity; and, as some of them were averse from the political strife which raged with special fury until 1850, a quorum could not always be obtained. Sir Etienne Taché drew an affecting picture of the speaker frequently taking the chair at the appointed time, waiting in stiff and solemn silence for one hour by the clock, and at last retiring discomfited, since members enough did not appear to form a quorum. To remedy the situation the Imperial parliament had passed an Act providing for the election of a portion of the members. Fresh difficulties had then arisen. The electoral divisions had been largely formed by grouping portions of counties together; the candidates had found that physical endurance and a long purse were as needful to gain a seat in the Council as a patriotic interest in public affairs; and it had become difficult to secure candidates. This unsatisfactory experience of an elective upper chamber made it comparatively easy to carry the resolution providing for a nominated Senate in the new constitution.

The agreement that the resolutions must be accepted or rejected as a whole led Dorion to complain that the power of parliament to amend legislation was curtailed. What value had the debate, if the resolutions were in the nature of a treaty and could not be moulded to suit the wishes of the people's representatives? The grievance was not so substantial as it appeared. The Imperial parliament, which was finally to pass the measure, could be prompted later on to make any alterations strongly desired by Canadian public opinion.

Why were not the terms of Confederation submitted to the Canadian people for ratification? The most strenuous fight was made in parliament on this point, and in after years, too, constitutional writers, gifted with the wisdom which comes after the event, have declared the omission a serious error. Goldwin Smith observed that Canadians might conceivably in the future discard their institutions as lacking popular sanction when they were adopted, seeing that in reality they were imposed on the country by a group of politicians and a distant parliament. In dealing with such objections the reasons given at the time must be considered. The question was discussed at the Quebec Conference, doubtless informally.[[1]] The constitutional right of the legislatures to deal with the matter was unquestioned by the Canadian members. Shortly after the conference adjourned, Galt in a speech at Sherbrooke[[2]] declared that, if during the discussion of the scheme in parliament any serious doubt arose respecting the public feeling on the subject, the people would be called upon to decide for themselves. The Globe, which voiced the opinion of Brown, said:

If on the assembling of Parliament the majority in that body in favour of Confederation shall be found so large as to make it manifest that any reference to the country would simply be a matter of form, Ministers will not, we take it, feel warranted in putting the country to great trouble and expense for the sake of that unessential formality.

When challenged in parliament the government gave its reasons. The question of Confederation had, in one form or another, been before the country for years. During 1864 there had been elections in eleven ridings for the Assembly and in fourteen for the Legislative Council. The area of country embraced by these contests included forty counties. Of the candidates in these elections but four opposed federation and only two of them were elected. Brown stated impetuously that not five members of parliament in Upper Canada dare go before the people against the scheme. No petitions against it were presented, and its opponents had not ventured to hold meetings, knowing that an enormous majority of the people favoured it. This evidence, in Upper Canada, was accepted as conclusive. In Lower Canada appearances were not quite so convincing. The ministry representing that section was not a coalition, and the Liberal leaders, both French and English, organized an agitation. But afterwards, in the campaign of 1867, Cartier swept all before him. It was also argued that parliament was fresh from the people as recently as 1864, and that though the mandate to legislate was not specific, it was sufficient. The method of ascertaining the popular verdict by means of a referendum was proposed, but rejected as unknown to the constitution and at variance with British practice.

Parliament finally adopted the resolutions by a vote of ninety-one to thirty-three in the Assembly and of forty-five to fifteen in the Legislative Council. Hillyard Cameron, politically a lineal descendant of the old Family Compact, supported by Matthew Crooks Cameron, a Conservative of the highest integrity and afterwards chief justice, then moved for a reference to the people by a dissolution of parliament. But after an animated debate the motion was defeated, and no further efforts in this direction were attempted. That an eagerness to invoke the judgment of democracy was not seen at its best, when displayed by two Tories of the old school, may justify the belief that parliamentary tactics, rather than the pressure of public opinion, inspired the move.

Fortune had smiled upon the statesmen of the Canadian coalition. In a few months they had accomplished wonders. They had secured the aid of the Maritime Provinces in drafting a scheme of union. They had made tours in the east and the west to prepare public opinion for the great stroke of state. They and their co-delegates had formulated and adopted the Quebec resolutions, on which a chorus of congratulation had drowned, for the time, the voices of warning and expostulation. And, finally, the ministers had met parliament and had secured the adoption of their scheme by overwhelming majorities.

But all was not so fair in the provinces by the sea. Before the Canadian legislature prorogued, the Tilley government had been hurled from power in New Brunswick, Joseph Howe was heading a formidable agitation in Nova Scotia, and in the other two provinces the cause was lost. It seemed as if a storm had burst that would overwhelm the union and that the hands of the clock would be put back.

[[1]] See the remark of McCully of Nova Scotia that the delegates should take the matter into their own hands and not wait to educate the people up to it—Pope's Confederation Documents, p. 60.

[[2]] November 23, 1864.