1864-68]

THE TWO CANADAS

357

CHAPTER XIX

COLONIAL AND FOREIGN POLICY. THE DOMINION OF CANADA

TH

character

federalism

HE Constitution of the Dominion of Canada is, in one re- Unique spect, unique among those of the federal type. It represents of Cana the result of forces in part centripetal, but in part also centrifugal. dian It satisfied the aspirations of the British Colonies in North America —or of most of them-for closer union, and at the same time the separatist tendencies which had long been manifest in the two Canadas themselves. The two movements, the one disintegrating, the other federal, came to a head with curious simultaneity in 1864.

Canadas

Long before that time, however, it had become apparent that The two neither the Union Act of 1840 nor the attainment of responsible Government was destined to register the final stage in the constitutional evolution of British North America. For this lack of finality there were several reasons, among which two were of preeminent validity. On the one hand, there was obviously much in common between the disunited British Colonies: Newfoundland, Nova Scotia, Prince Edward Island, and, more particularly, New Brunswick and Upper Canada; on the other hand, there were many elements of disunion between the united Colonies of Upper and Lower Canada. The latter were, as a candid historian puts it, obviously ill-matched yoke-fellows". Lord Durham had perceived the fact twenty years earlier. But he found it an argument not for Federation but for Union. "The French," wrote Lord Durham," remain an old and stationary society in a new and progressive world. In all essentials they are still French; but French in every respect dissimilar to those of France in the present day. They resemble rather the French of the Provinces under the old

66

Greswell, Canada, p. 194.

The Maritime Provinces

régime." But while Quebec was rigidly Conservative, not to say reactionary, Ontario was, both in a political and economic sense, eminently progressive. Ontario was anxious to attract population; the French Canadians, though themselves prolific, were fearful of losing their identity, and discouraged immigration. Consequently the balance of population between the two Provinces rapidly shifted. Quebec in 1841 numbered 691,000 people, Ontario could claim only 465,000; by 1861 the latter had increased to 1,396,000, the former only to 1,111,000. Race, religion, and tradition all combined to keep apart two peoples who had never really united.

Among the Maritime Provinces there was, on the contrary, a strong movement towards closer union, and in 1864 the Legislatures of Nova Scotia, Prince Edward Island, and New Brunswick agreed to hold a Convention for the purpose of discussing the project. Meanwhile in Canada a constitutional deadlock had been solved only by the formation in June, 1864, of a Coalition Ministry, pledged to address themselves in the most earnest manner to the negotiation for a federation of all the British North American Provinces. In pursuance of this pledge the Canadian Government sought and obtained permission to send delegates to the Convention called by the Maritime Provinces. It met at Charlottetown on September 1st. The project of the larger federation rapidly took shape, and in October a second Convention assembled at Quebec. Before the month was out the Delegates had agreed upon seventy-two resolutions, which formed the basis of the subsequent Act of Federation.3 Alexander Galt, George Brown, and George Étienne Cartier must share with John A. Macdonald the credit of this remarkable achievement; but to Macdonald it belongs in pre-eminent degree. He himself would have preferred to go even farther, believing that "if we could agree to have one Government and one Parliament, legislating for the whole of these peoples, it would be the best, the cheapest, the most vigorous, and the strongest system of Government we could adopt". But he realized that his own ideal was unattainable. Neither Lower Canada nor the Maritime Provinces were willing to surrender their individuality; they were prepared for Union, but not for Unity; and Macdonald expressed his belief that

1 Durham, Report, vol. ii. p. 31 (ed. 1912, Clarendon Press).

2 Greswell, op. cit. p. 194.

3 Cf. Egerton, Federations and Unions in the British Empire, pp. 27 et seq.

1868]

CANADIAN FEDERALISM

359

in the resolutions they had "hit upon the happy medium," and had devised a scheme which would give them "the strength of a Legislative Union, and the sectional freedom of a Federal Union, with protection to local interests".

Many difficulties were encountered, many jealousies had to be appeased, but the scheme was eventually approved by the two Canadas, Nova Scotia, New Brunswick; and in December, 1866, delegates from these Colonies met under the Presidency of Lord Carnarvon-then Colonial Secretary-in London. A Bill embodying the details agreed upon in this Conference was submitted to the Imperial Parliament, and on March 29th, 1867, the British North America Act received the Royal assent. It came into operation on July 1st of the same year.

of Cana

The Canadian Dominion represents the first Federation, in Features world history, under the ægis of a Constitutional Monarchy. The dian preamble of the Act lays it down that the Dominion Constitution federalism was to be "similar in principle to that of the United Kingdom". In other words, the Constitutional Conventions, attained after long centuries of evolution in the unwritten constitution of the motherland, were presupposed in the statutory Instrument devised for the daughter-land.

ecutive

The executive power was "to continue and be vested in the The ExQueen, and in the heirs and successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland". On this point Macdonald laid great stress. "With the universal approval of the people of this country we have provided that for all time to come, so far as we can legislate for the future, we shall have, as head of the executive power, the Sovereign of Great Britain." His hope was in this way to avoid "one defect inherent in the Constitution of the United States. By the election of the President by a majority and for a short period, he never is the Sovereign and chief of the nation. . . . He is at best but the successful leader of a party. . . . I believe that it is of the utmost importance to have that principle recognized, so that we shall have a Sovereign who is placed above the region of party; to whom all parties look up; who is not elevated by the action of one party, nor depressed by the action of another; who is the common head and Sovereign of all."

The Sovereign of Great Britain was to be represented in the

The Legislature

Dominion by a Governor-General, who was to have the ordinary powers of a "Constitutional" Sovereign in the English sense; the command in chief of the armed forces of the Crown; and the right to appoint and, if necessary, to remove the Lieutenant-Governors of the Provinces of the Dominion. He was to be aided and advised by the Queen's Privy Council of Canada. It was clearly understood that this body was to be a Parliamentary Cabinet on the English model; homogeneous in composition, mutually responsible, politically dependent upon the parliamentary majority, and acting in subordination to an acknowledged leader. But though this was understood, and indeed implied by the terms of the preamble, it was not specifically set forth in the Constitution. There was not even a provision, such as that in the Australian Commonwealth Act, that the members of the Privy Council should be members of the Legislature. The number of this Cabinet has varied with the growth of new administrative departments, and now (1912) consists of fifteen members: a Premier-President of the Cabinet; a Secretary of State (virtually Minister for Foreign Affairs); a Postmaster-General, and twelve ministerial heads of public departments such as Trade and Commerce, Justice, Finance, Railways and Canals, Labour, Militia, and Defence.

Legislative Power was vested in a Parliament for Canada, consisting of the Queen, an Upper House or Senate, and a House of Commons. The Governor-General was authorized to assent in the Queen's name to Bills presented to him in the two Houses, or to withhold the Queen's assent, or to reserve the Bill for the signification of the Queen's pleasure. Bills to which the GovernorGeneral had assented might be disallowed by the Queen, by Order in Council, at any time within two years after the receipt of an "authentic copy of the Act" by the Secretary of State. Bills reserved for the Queen's pleasure were not to come into force unless and until, within two years from the day on which it was presented to the Governor-General for the Queen's assent, the Governor-General signified, by speech or message to each of the Houses of the Parliament or by proclamation, that it had received the assent of the Queen in Council.1 That such reservation was no mere form is clear from the fact that between

'British North America Act (1867), iv. 56, 57.

1868]

THE SENATE

361 1867 and 1877 no less than twenty-one Bills were actually reserved.1

Senate

The Federal Parliament, like the Union Parliament erected in The 1840, was to consist of two chambers. Under the Union Act the Second Chamber of Legislative Council was to consist of not fewer than twenty persons nominated by the Crown for life. But the nominated Second Chamber was not a success, and in deference to an agitation, more or less persistent, it was decided, in 1856, to abandon the nominee system. The existing members of the Council were to be left undisturbed, but vacancies as they occurred were to be filled by election. The experiment of 1856 was not more successful than the nominee system which it superseded.2

The Federal Act of 1867 reverted to the principle of nomination. The Senate, as then constituted, was to consist of seventytwo members, and was, like that of the United States, to embody and emphasize the federal idea. Quebec, Ontario, and the Maritime Provinces (Nova Scotia and New Brunswick) were to be equally represented in the Senate, twenty-four members being nominated from each. But in subsequent amendments this principle has not been maintained. An Act of the Imperial Legislature, in 1871, authorized the Dominion Parliament to provide for the due representation in the Senate of any Provinces subsequently admitted to the Federation. Under these powers four Senators each have been assigned to Manitoba, Alberta, and Saskatchewan, and three to British Columbia. The Act of 1867 provided (§ 147) that Prince Edward Island, if it elected to join the Federation, should have four Senators, but in this event the senatorial representation of the other Maritime Provinces, Nova Scotia and New Brunswick, was to be automatically reduced to ten each. The contemplated event having since occurred, the Senate now consists of eighty-seven members apportioned to the several provinces in accordance with the Acts enumerated above.

Subject to this apportionment, Senators were to be nominated for life by the Governor-General-in practice on the advice of his responsible Ministers. A Senator was to be (a) of the full age of

1 Cf. Egerton, op. cit. p. 137. After 1877 the practice was altered. For reasons, see Can. Sess. Papers, 1877, No. 13 (cited by Egerton).

Cf. J. A. R. Marriott, Second Chambers, pp. 137 seq., from which this and the succeeding paragraphs are largely borrowed.