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

by A. H. U. Colquhoun

CHAPTER XI

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 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 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 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 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 arriérée 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 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 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 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 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 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 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 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 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 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 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 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 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 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.