That the conference decided wisely admits of no doubt. The provincial secretaries of the several provinces were appointed joint secretaries, and Hewitt Bernard, chief clerk of the department of the attorney-general for Upper Canada, was named executive secretary. In his longhand notes, found among the papers of Sir John Macdonald, and made public thirty years later by Sir Joseph Pope, we have the only official record of the resolutions and debates of the conference. Posterity has reason to be grateful for even this limited revelation of the proceedings from day to day. It enables us to form an idea of the difficulties overcome and of the currents of opinion which combined to give the measure its final shape. No student of Canadian constitutional history will leave unread a single note thus fortunately preserved. The various draft motions, we are told by Sir Joseph Pope, are nearly all in the handwriting of those who moved them, and it was evidently the intention to prepare a complete record. The conference was, however, much hurried at the close. When it began, Sir Etienne Taché, prime minister of Canada, wasunanimously elected chairman.[3] Each province was given one vote, except that Canada, as consisting of two divisions, was allowed two votes. After the vote on any motion was put, the delegates of a province might retire for consultation among themselves. The conference sat as if in committee of the whole, so as to permit of free discussion and suggestion. The resolutions, having been passed in committee of the whole, were to be reconsidered and carried as if parliament were sitting with the speaker in the chair.
The first motion, which was offered by Macdonald and seconded by Tilley, read:That thebest interests and present and future prosperity of British North America will be promoted by a federal union under the crown of Great Britain, provided such union can be effected on principles just to the several provinces. This motion, general in its terms, asserted the principle which the conference had met to decide. It passed unanimously amid much enthusiasm. To support it, one may think, involved no serious responsibility, since any province could at a later stage raise objections to any methods proposed in carrying out the principle. But to secure the hearty and unanimous acceptance of a federal union, as the basis on which the provinces were ready to coalesce, was really to submit the whole issue to the crucial test.Macdonald's motion reflects, in its careful and comprehensive phrasing, the skill in parliamentary tactics of which he had, during many years, displayed so complete a mastery. To commit the conference at the outset to endorsement of the general principle was to render subsequent objection on some detail, however important, extremely difficult for earnest and broad-minded patriots. The two small provinces might withdraw from the scheme, as they subsequently did, but the larger provinces, led by men of the calibre of Tupper and Tilley, would feel that any subsequent obstacle must be of gigantic proportions if it could not be overcome by statesmanship. After cheerfully taking this momentous step, which irresistibly drove them on to the next, the conference proceeded to discuss Brown's motion proposing the form the federation was to assume. There was to be a general government dealing with matters common to all, and in each province a local government having control of local matters. The second motion was likewise unanimously concurred in. Having, as it were, planted two feet firmly on the ground, the conference was now in a good position to stand firmly against divergences of view, provincial rivalries, and extreme demands.
[1] Pope'sConfederation Documents.
[2] There were two delegates named John Hamilton Gray, one whose views are quoted here, the other the prime minister of Prince Edward Island. Only one volume of Gray's work on Confederation ever appeared, the second volume, it is said, being unfinished when the author died in British Columbia.
[3] A list of the delegates, who are now styled the Fathers of Confederation, follows:
From Canada, twelve delegates—SIR ETIENNE P. TACHÉ, receiver-general and minister of Militia; JOHN A. MACDONALD, attorney-general for Upper Canada; GEORGE E. CARTIER, attorney-general for Lower Canada; GEORGE BROWN, president of the Executive Council; OLIVER MOWAT, postmaster-general; ALEXANDER T. GALT, minister of Finance; WILLIAM McDOUGALL, provincial secretary; T. D'ARCY McGEE, minister of Agriculture; ALEXANDER CAMPBELL, commissioner of Crown Lands; J. C. CHAPAIS, commissioner of Public Works; HECTOR L. LANGEVIN, solicitor-general for Lower Canada; JAMES COCKBURN, solicitor-general for Upper Canada.
From Nova Scotia, five delegates—CHARLES TUPPER, provincial secretary; WILLIAM A. HENRY, attorney-general; R. B. DICKEY, member of the Legislative Council; JONATHAN McCULLY, member of the Legislative Council; ADAMS G. ARCHIBALD, member of the Legislative Assembly.
From New Brunswick, seven delegates—SAMUEL LEONARD TILLEY, provincial secretary; WILLIAM H. STEEVES, minister without portfolio; J. M. JOHNSTON, attorney-general; PETER MITCHELL, minister without portfolio; E. B. CHANDLER, member of the Legislative Council; JOHN HAMILTON GRAY, member of the Legislative Assembly; CHARLES FISHER, member of the Legislative Assembly.
From Prince Edward Island, seven delegates—COLONEL JOHN HAMILTON GRAY, president of the Council; EDWARD PALMER, attorney-general; WILLIAM H. POPE, colonial secretary; A. A. MACDONALD, member of the Legislative Council; GEORGE COLES, member of the Legislative Assembly; T. HEATH HAVILAND, member of the Legislative Assembly; EDWARD WHELAN, member of the Legislative Assembly.
From Newfoundland, two delegates—F. B. T. CARTER, speaker of the Legislative Assembly; AMBROSE SHEA.
The constitution which the founders of the Dominion devised was the first of its kind on a great scale within the Empire. No English precedents therefore existed. Yet their chief aim was to preserve the connection with Great Britain, and to perpetuate in North America the institutions and principles which the mother of parliaments, during her splendid history, had bequeathed to the world. The Fathers could look to Switzerland, to New Zealand, to the American Republic, and to those experiments and proposals in ancient or modern times which seemed to present features to imitate or examples to avoid.[1] But they were guided, perforce, by the special conditions with which they had to deal. If they had been free to make a perfect contribution to the science of government, the constitution might have beendifferent. It is, of course, true of all existing federations that they were determined largely by the relations and circumstances of the combining states. This is illustrated by comparing the Canadian constitution with those of the two most notable unions which followed. Unlike Canada, Australia preferred to leave the residue of powers to the individual states, while South Africa adopted a legislative instead of a federal union. For Canada, a legislative union was impracticable. This was due partly to the racial solidarity of the French, but even more largely to the fully developed individualism of each province. It is to the glory of the Fathers of Confederation that the constitution, mainly constructed by themselves as the product of their own experience and reflection, has lasted without substantial change for nearly half a century. They were forced to deal with conditions which they had not created, yet could not ignore—conditions which had long perplexed both Imperial and colonial statesmen, and had rendered government ineffective if not impossible. They found the remedy; and the result is seen in the powerful and thriving nationality which their labours evolved.
To set up a strong central government wasthe desire of many of the delegates. Macdonald, as has been recorded already, had contended for this in 1861. He argued to the same effect at the conference. The Civil War in the United States, just concluded, had revealed in startling fashion the dangers arising from an exaggerated state sovereignty. 'We must,' he said, 'reverse this process by strengthening the general government and conferring on the provincial bodies only such powers as may be required for local purposes.' When Chandler of New Brunswick perceived with acuteness that in effect this would mean legislative union, Macdonald, as we gather from the fragmentary notes of his speech, made an impassioned appeal for a carefully defined central authority.
I think [he declared] the whole affair would fail and the system be a failure if we adopted Mr Chandler's views. We should concentrate the power in the federal government and not adopt the decentralization of the United States. Mr Chandler would give sovereign power to the local legislatures, just where the United States failed. Canada would be infinitely stronger as she is than under such a systemas proposed by Mr Chandler. It is said that the tariff is one of the causes of difficulty in the United States. So it would be with us. Looking at the agricultural interests of Upper Canada, manufacturing of Lower Canada, and maritime interests of the lower provinces, in respect to a tariff, a federal government would be a mediator. No general feeling of patriotism exists in the United States. In occasions of difficulty each man sticks to his individual state. Mr Stephens, the present vice-president [of the Confederacy], was a strong union man, yet, when the time came, he went with his state. Similarly we should stick to our province and not be British Americans. It would be introducing a source of radical weakness. It would ruin us in the eyes of the civilized world. All writers point out the errors of the United States. All the feelings prognosticated by Tocqueville are shown to be fulfilled.
These and other arguments prevailed. Several of the most influential delegates were in theory in favour of legislative union, and these were anxious to create, as the best alternative, a general parliament wieldingparamount authority. This object was attained by means of three important clauses in the new constitution: one enumerating the powers of the federal and provincial bodies respectively and assigning the undefined residue to the federal parliament; another conferring upon the federal ministry the right to dismiss for cause the lieutenant-governors; and another declaring that any provincial law might, within one year, be disallowed by the central body. Instead of a loosely knit federation, therefore, which might have fallen to pieces at the first serious strain, it was resolved to bring the central legislature into close contact at many points with the individual citizen, and thus raise the new state to the dignity of a nation.
How the designs of the Fathers have been modified by the course of events is well known. The federal power has been restrained from undue encroachment on provincial rights by the decisions, on various issues, of the highest court, the judicial committee of the Imperial Privy Council. The power to dismiss lieutenant-governors was found to be fraught with danger and has been rarely exercised. The dismissal of Letellier, a strong Liberal, from the lieutenant-governorship of Quebec by theConservative ministry at Ottawa in 1879, gave rise to some uneasiness and criticism. The reason assigned was that his 'usefulness was gone,' since both houses of parliament had passed resolutions calling for his removal. He was accused of partisanship towards his ministers. The federal prime minister, Sir John Macdonald, assented reluctantly, it is said, to the dismissal. But some of the facts are still obscure. The status of the office and the causes that would warrant removal were thus given by Macdonald at Quebec, according to the imperfect report which has come down to us:
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 withsome 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 conservativeconstitutionalism 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 orotherwise. 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 theconference. 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 sooften 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 theresolutions 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 thegovernor-general, not by thegovernor-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.
The composition of the Senate, however, brought on a crisis. 'We were very near broken up,' wrote Brown in a private letter onOctober 17, 'on the question of the distribution of members in the upper chamber of the federal legislature, but fortunately we have this morning got the matter amicably compromised, after a loss of three days in discussing it.' The difficulty seems to have been to select the members of the first Senate with due regard to party complexion, so as not to operate in Upper Canada, as Brown felt, unfairly against the Liberals. Finally, an agreement was arranged on the basis that the senators should be drawn from both parties; and this was ultimately carried out.
A far more important point, whether the second chamber should be nominated or elected, caused less debate. Macdonald opened the discussion with his usual diplomacy:
With respect to the mode of appointments to the Upper House, some of us are in favour of the elective principle. More are in favour of appointment by the crown. I will keep my own mind open on that point as if it were a new question to me altogether. At present I am in favour of appointment by the crown. While I do not admit that the elective principle has been a failure in Canada, I think we hadbetter return to the original principle, and in the words of Governor Simcoe endeavour to make ours 'an image and transcript of the British constitution.'
Differing on other issues, Brown and Macdonald were at one on this. They were opposed to a second set of general elections, partly because it would draw too heavily on the organizations and funds of the parties. As an instance of the stability of Brown's views, it should be remembered that he never, at any period, approved of an elective second chamber. The other Liberal ministers from Upper Canada, Mowat and McDougall, stood by the elective system, but the conference voted it down. The Quebec correspondence of theGlobeat this time throws some light on the reasons for the decision: 'Judging from the tone of conversation few delegates are in favour of election. The expense of contesting a division is enormous and yearly increases. The consequence is there is great difficulty in getting fit candidates, and the tendency is to seek corrupt aid from the administration of the day. There is also fear of a collision between two houses equally representing the people. It is less important to us than to theFrench. Why should we not then let Lower Canada, which desires to place a barrier against aggression by the west, decide the question and make her defensive powers as strong as she likes? It would be no great stretch of liberality on our part to accord it to her.' During the debates on Confederation in the Canadian Assembly, in the following year, Macdonald derided the notion that a government would ever 'overrule the independent opinion of the Upper House by filling it with a number of its partisans and political supporters.' This, however, is precisely what has taken place. The Senate is one of the few unsatisfactory creations of the Fathers of Confederation.[6]
Sir John A. Macdonald. From the painting by A. Dickson Patterson.Sir John A. Macdonald.From the painting by A. Dickson Patterson.
Sir John A. Macdonald. From the painting by A. Dickson Patterson.Sir John A. Macdonald.From the painting by A. Dickson Patterson.
The question of the financial terms was surrounded with difficulties. The Maritime Provinces, unlike Upper Canada, were without the municipal organization which provides for local needs by direct taxation. With themthe provincial government was a nursing mother and paid for everything. Out of the general revenue came the money for bridges, roads, schools, wharves, piers, and other improvements, in addition to the cost of maintaining the fiscal, postal, and other charges of the province. The revenue was raised by customs duties, sales of crown lands, royalties, or export duties. The devotion to indirect taxation, which is not absent from provinces with municipal bodies, was to them an all-absorbing passion. The Canadian delegates were unsympathetic. John Hamilton Gray describes the scene:
Agreement seemed hopeless, and on or about the tenth morning, after the convention met, the conviction was general that it must break up without coming to any conclusion. The terms of mutual concession and demand had been drawn to their extremest tension and silence was all around. At last a proposition was made that the convention should adjourn for the day, and that in the meantime the finance ministers of the several provinces should meet, discuss the matter amongst themselves, and see if they could not agree upon something.[7]
On this committee were Brown and Galt acting for Canada, while the others were Tupper, Tilley, Archibald, Pope, and Shea. The scheme set forth in the resolutions was the result. It need not be detailed, but the sixty-fourth resolution, on which was centred the keenest criticism, reads as follows:
In consideration of the transfer to the general parliament of the powers of taxation, an annual grant in aid of each province shall be made, equal to 80 cents per head of the population as established by the census of 1861, the population of Newfoundland being estimated at 130,000. Such aid shall be in full settlement of all future demands upon the general government for local purposes and shall be paid half-yearly in advance to each province.
The system of provincial subsidies has often been denounced. The delegates may have thought that they had shut the door to further claims, but the finality of the arrangement was soon tested, and in 1869 Nova Scotia received better terms. There were increases in the subsidies to the provinces on several subsequent occasions, and no one believes the end has yet been reached. The growing needs of theprovinces and the general aversion from direct taxation furnish strong temptations to make demands upon the federal treasury.
The conference, after adopting the seventy-two resolutions embodying the basis of the union, agreed that the several governments should submit them to the respective legislatures at the ensuing session. They were to be carrieden bloc, lest any change should entail a fresh conference. The delegates made a tour of Canada, visiting Montreal, Ottawa, and Toronto, where receptions and congratulations awaited them. Their work had been done quickly. It had now to run the gauntlet of parliamentary discussion.
[1] D'Arcy McGee published a treatise in 1865 entitledNotes on Federal Government Past and Present, presenting a useful summary of the various constitutions.
[2] The quotations in this chapter are taken from Pope'sConfederation Documents.
[3] At Cornwall, March 2, 1866.
[4] It is worth noting that almost any change of importance would affect the office of the lieutenant-governor and thus challenge federal interference.
[5] We know now from Sir Joseph Pope'sConfederation Documents(p. 140) that it was proposed in the first draft of the union bill to have interpretation clauses, and one of these declared that where the governor-general was required to do any act it was to be assumed that he performed it by the advice and consent of his executive council.
[6] In the copy of the Confederation debates possessed by the writer there appears on the margin of the page, in William McDougall's handwriting and initialled by himself, these words: 'In the Quebec Conference I moved and Mr Mowat seconded a motion for the elective principle. About one-third of the delegates voted for the proposition, Brown arguing and voting against it. At this date (1887) under Sir John's policy and action the Senate contains only 14 Liberals; all his appointments being made from his own party.'
[7] Gray'sConfederation, p. 62.
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 mutualaid, 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 thecoalition, 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 ofwar 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 everfree 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 representationto 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 aquorum. 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 Confederationsubmitted 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. TheGlobe, which voiced the opinion of Brown, said: