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

by A. H. U. Colquhoun

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.