A history of Canada, 1763-1812

by Sir Charles Prestwood Lucas

THE TWO CANADAS
under Constitutional Act of 1791
and
THE MARITIME PROVINCES

From a map of 1823, in the Colonial Office Library

B. V. Barbishire, Oxford, 1908.

Democracy in America was coeval with its colonization.

It has been attempted to show in a previous chapter that the spirit of independence in the American colonies, which in the end was embodied in political severance from Great Britain, was as old as their origin, and drew its strength from the fact that they had always been practically independent. This was the starting-point of the Chief Justice’s argument. ‘All America,’ in his words, ‘was, at the very outset of the plantations, abandoned to democracy’, and the separate colonies which at the time when he wrote, had been federated into the United States, were ‘little Republics’. Those little Republics, according to the ordinary colonial contention, the mother country had neglected in the weakness of their infancy, while she had tried to oppress them when they became prosperous and valuable. Chief Justice Smith read history differently. According to his view they were quiet until they had grown to strength, and then they discovered that the ultimate power of government rested with themselves and not with the mother country. The remedy, he thought, should have been It should have been controlled from within, not from without. found not so much by giving greater power to the Imperial Government as by establishing in America itself an authority controlling the separate Assemblies of the separate states, which body would have been a ‘Partner in the legislation of the Empire’.

It was no new conception that the states should have been in some sense federated while still under the British flag. Various governors, and men like Franklin, had proposed or contemplated some such measure, in order to correct the weakness of the separate provinces as against the common foe in Canada, while Canada belonged to France, and in order to minimize the difficulties which the Imperial Government found in dealing with a number of separate legislatures at least as jealous of each other as they were of the Home Government. But the Chief Justice’s retrospect was based on somewhat different The grounds on which Chief Justice Smith advocated a General Legislature for British North America. grounds. He would have had a federal legislature in order to control the provincial legislatures. He would have corrected democracy in America by, in a sense, carrying democracy further. He would have nothing of the maxim divide et impera; but, as democracy was born on American soil, on American soil he would have constituted a popular authority wider, wiser, and stronger than the bodies which represented the single provinces. It was a very statesmanlike view. He saw that one leading cause of the rupture between Great Britain and her colonies had been the pettiness of the American democracies, the narrowness of provincial politics, the intensity of democratic feeling cooped up in the small area of a single colony as in a single Greek city, the personal bitterness thereby produced in local politicians, and the obvious semblance of oppression when a great country like England was dealing with one small state and another, not with a larger federated whole. A federal legislature would have exercised home-grown American control over the American Assemblies; it would have given a wider and fuller scope to American democracy, enlarging the views, making the individual leaders greater and wider in mind; it would have been the body with which England would have dealt; and the dealings would have been those of ‘Partners in the legislation of the Empire’. This was in his mind when he earnestly recommended that the grant of constitutional privileges to the Canadian provinces should be from the first accompanied by the creation of a general government for British North America, including the maritime provinces as well as Upper and Lower Canada.

The General Legislature contemplated by Chief Justice Smith would have been a subordinate Legislature.

But, if this general government was to be a partner in the legislation of the Empire, it was clearly to be, in the view of the Chief Justice, a subordinate partner. The last of his proposed additions to the Bill began in the following terms: ‘Be it further enacted ... that nothing in this Act contained shall be interpreted to derogate from the rights and prerogatives of the Crown for the due exercise of the Royal and Executive authority over all or any of the said provinces, or to derogate from the Legislative sovereignty and supremacy of the Crown and Parliament of Great Britain.’ In other words he re-affirmed the principle, which the old colonies had rejected, that they were subordinated to the Parliament of the mother country as well as to the Crown; and he showed clearly in the clause empowering the Crown to appoint Executive Councils apart from the Legislature, that the Executive power was to rest not in British North America but in Great Britain. The general government of British North America was to be a partner in the legislation of the Empire, but not in the Executive, and even in the legislative sphere it was to take a second place. Theoretically, and to some small extent practically also, the Dominion Parliament is still a subordinate partner in legislation, so far as The Chief Justice did not contemplate colonial self-government in its fullest form. Imperial questions are concerned; but, since the days of Lord Durham, colonial self-government has included control of the Executive in the colony. Chief Justice Smith had therefore not contemplated or foreshadowed the colonial self-government of the future.

But that he had not done so was not due to want of statesmanship. He was rather still intent on seeking after a solution of the problem which later thinkers and statesmen held to be insoluble. The grant of responsible government in after times was not so much an act of constructive wisdom as a wise recognition of what was at the time impossible. To give to the colonial legislatures the control of the Executive was to remove them practically from the control of the mother country, and thereby to concede to these communities the full right of self-government. The first corrective of this grant was on similar lines to those which Chief Justice Smith prescribed, viz., to federate the self-governing communities in a given area, to place their separate legislatures under a general legislature, and, as the legislatures controlled the Executive, to limit the provincial executive authorities by a general executive authority, the control being exercised from within not from without, and small democracies being rectified by creating from among themselves a larger and a stronger democratic body. It still remains for the wisdom of the coming time to carry the constructive work further; if human ingenuity can devise a practical scheme, again to extend the principle of democratic representation and control; and to constitute a body which, with the Crown, shall, alike in legislation and in the sphere of the Executive, make the great self-governing provinces in the fullest sense partners in the Empire. In short, the point which it is here wished to emphasize is that whereas self-government was conceded not as a solution of the problem but as a final recognition that the problem was insoluble, men have come to realize that after all what was intended to be final was only a necessary preliminary to the possible attainment of an object, which had been relegated to the land of dreams and speculations.

The Act of 1791.