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.