Canadian Founding: John Locke and Parliament 9780773575936

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T HE C A N A D I A N F O U ND I NG

McGill-Queen’s Studies in the History of Ideas Series Editor: Philip J. Cercone 1 Problems of Cartesianism Edited by Thomas M. Lennon, John M. Nicholas, and John W. Davis 2 The Development of the Idea of History in Antiquity Gerald A. Press 3 Claude Buffier and Thomas Reid: Two Common-Sense Philosophers Louise Marcil-Lacoste 4 Schiller, Hegel, and Marx: State, Society, and the Aesthetic Ideal of Ancient Greece Philip J. Kain 5 John Case and Aristotelianism in Renaissance England Charles B. Schmitt 6 Beyond Liberty and Property: The Process of SelfRecognition in EighteenthCentury Political Thought J.A.W. Gunn 7 John Toland: His Methods, Manners, and Mind Stephen H. Daniel 8 Coleridge and the Inspired Word Anthony John Harding

9 The Jena System, 1804–5: Logic and Metaphysics G.W.F. Hegel Translation edited by John W. Burbidge and George di Giovanni Introduction and notes by H.S. Harris 10 Consent, Coercion, and Limit: The Medieval Origins of Parliamentary Democracy Arthur P. Monahan 11 Scottish Common Sense in Germany, 1768–1800: A Contribution to the History of Critical Philosophy Manfred Kuehn 12 Paine and Cobbett: The Transatlantic Connection David A. Wilson 13 Descartes and the Enlightenment Peter A. Schouls 14 Greek Scepticism: Anti-Realist Trends in Ancient Thought Leo Groarke 15 The Irony of Theology and the Nature of Religious Thought Donald Wiebe

16 Form and Transformation: A Study in the Philosophy of Plotinus Frederic M. Schroeder 17 From Personal Duties towards Personal Rights: Late Medieval and Early Modern Political Thought, c.1300-c.1650 Arthur P. Monahan 18 The Main Philosophical Writings and the Novel Allwill Friedrich Heinrich Jacobi Translated and edited by George di Giovanni 19 Kierkegaard as Humanist: Discovering My Self Arnold B. Come 20 Durkheim, Morals and Modernity W. Watts Miller 21 The Career of Toleration: John Locke, Jonas Proast, and After Richard Vernon 22 Dialectic of Love: Platonism in Schiller’s Aesthetics David Pugh 23 History and Memory in Ancient Greece Gordon Shrimpton 24 Kierkegaard as Theologian: Recovering My Self Arnold B. Come

25 Enlightenment and Conservatism in Victorian Scotland: The Career of Sir Archibald Alison Michael Michie 26 The Road to Egdon Heath: The Aesthetics of the Great in Nature Richard Bevis 27 Jena Romanticism and Its Appropriation of Jakob Böhme: Theosophy – Hagiography – Literature Paolo Mayer 28 Enlightenment and Community: Lessing, Abbt, Herder, and the Quest for a German Public Benjamin W. Redekop 29 Jacob Burckhardt and the Crisis of Modernity John R. Hinde 30 The Distant Relation: Time and Identity in SpanishAmerican Fiction Eoin S. Thomson 31 Mr Simson’s Knotty Case: Divinity, Politics, and Due Process in Early EighteenthCentury Scotland Anne Skoczylas

32 Orthodoxy and Enlightenment: George Campbell in the Eighteenth Century Jeffrey M. Suderman 33 Contemplation and Incarnation: The Theology of MarieDominique Chenu Christophe F. Potworowski 34 Democratic Legitimacy: Plural Values and Political Power F.M. Barnard 35 Herder on Nationality, Humanity, and History F.M. Barnard 36 Labeling People: French Scholars on Society, Race, and Empire, 1815–1848 Martin S. Staum 37 The Subaltern Appeal to Experience: Self-Identity, Late Modernity, and the Politics of Immediacy Craig Ireland 38 The Invention of Journalism Ethics: The Path to Objectivity and Beyond Stephen J.A. Ward

39 The Recovery of Wonder The New Freedom and the Asceticism of Power Kenneth L. Schmitz 40 Reason and Self-Enactment in History and Politics Themes and Voices of Modernity F.M. Barnard 41 The More Moderate Side of Joseph de Maistre Views on Political Liberty and Political Economy Cara Camcastle 42 Democratic Society and Human Needs Jeff Noonan 43 The Circle of Rights Expands Modern Political Thought after the Reformation, 1521 (Luther) to 1762 (Rousseau) Arthur P. Monahan 44 The Canadian Founding John Locke and Parliament Janet Ajzenstat

THE CANADIAN FOUNDING John Locke and Parliament

Janet Ajzenstat

McGill-Queen’s University Press Montreal & Kingston • London • Ithaca

© McGill-Queen’s University Press 2007 isbn 978-0-7735–3152-9 (cloth) isbn 978-0-7735–3224-3 (paper) Legal deposit second quarter 2007 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free. This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Aid to Scholarly Publications Programme, using funds provided by the Social Sciences and Humanities Research Council of Canada. McGill-Queen’s University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (bpidp) for our publishing activities.

Library and Archives Canada Cataloguing in Publication Ajzenstat, Janet, 1936– The Canadian founding: John Locke and parliament / Janet Ajzenstat. (McGill-Queen's studies in the history of ideas; 44) Includes bibliographical references and index. isbn 978-0-7735–3152-9 (bnd) isbn 978-0-7735–3224-3 (pbk) 1. Representative government and representation – Canada – History. 2. Locke, John, 1632–1704 – Influence. 3. Canada – Politics and government. 4. Canada – History – Confederation, 1867. I. Title. II. Series. jl65.a39 2007

320.471

c2007–900364-8

This book was typeset by Interscript in 10/12 Baskerville.

For Sam, Sandor, Toba, Oz, and Eila

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Contents

Preface xi

pa r t o n e : c o n f e d e r at i o n 1 Making Parliament

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2 Popular Sovereignty in the Confederation Debates 22 3 Human Rights in 1867 49 4 Civic Identity

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5 The Political Nationality

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pa r t t w o : w h a t w e n t b e f o r e ? what is happening now? 6 Celebrating 1791: Two Hundred Years of Representative Government 113 7 Canada’s First Constitution: Pierre Bédard on Tolerance and Dissent 124 8 Modern Mixed Government: A Liberal Defence of Inequality 145 9

Collectivity and Individual Rights in “Mainstream Liberalism”: John Arthur Roebuck and the Patriotes 163 10 Parliament and Today’s Discontent Index

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Preface

“what is a country for?” Charles Taylor asks the question and as a Canadian gives two answers. First: Canada is about “equality, nondiscrimination, the rule of law, [and] the mores of representative government.” These are our political values, according to Taylor. Second, Canada is about “collective provision” and about “tolerance of rules and restrictions that are justified by the need for order.” These are our social values. They are distinctive; they define us. Americans, says Taylor, are less likely to embrace “collective provision” and less willing to tolerate rules and restrictions.1 The description is familiar. Most Canadians, although not all, see their country in just these terms. Let me change the question. What did Canada’s founders think a country is “for”? What did the Fathers of Confederation say? On the subject of political values, they see eye to eye with Taylor. A country should be about equality, nondiscrimination, the rule of law, and the mores of representative government. But they refused to define the new nation in terms of social values. British North America was home to people from different countries, with different backgrounds; there was no consensus on social values. The Fathers concluded that the attempt to write social values into the Constitution would offend some individuals, groups, and regions. It would breach the nondiscrimination principle. Consider the value that Taylor calls “collective provision.” Some Canadians today favour big government and the welfare state; some 1 Charles Taylor, “Shared and Divergent Values” (1991), in Guy Laforest, ed., Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, 155–86 (Montreal and Kingston: McGill-Queen’s University Press, 1993), 156, 158–9. In these pages Taylor addresses the distinction between social and political values only indirectly. His primary concern is to show that whether they are from Quebec or from Canada outside Quebec, Canadians agree on much.

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do not. In a free country there will be a number of opinions. People sometimes change their minds; they switch from the big-government party to the small-government party (and vice versa). Consider the value that he calls “tolerance of rules and restrictions that are justified by the need for order.” Some Canadians are more ready to see the government crack down on crime and terrorism; others worry that a tough-on-crime attitude threatens hard-won civil liberties. To repeat: in a free society there are differences of opinion. The Fathers believed that issues like these – big government versus small government, public safety versus the rights of the accused – were matters for deliberation in the public arena and in the Legislature. To define the country in terms of social values would bias debates and call into question the inclusiveness of our national institutions. We have lost the Fathers’ insight. At some point in our history, perhaps in the 1960s, we began to cast around for ways to make the definition of Canada richer, “thicker” if you like. We did not give up the idea that Canada’s form of government should be egalitarian and nondiscriminatory. But we wanted – or some of us wanted – more emphasis on society and history, more emphasis on social values. Scholars rewrote Canadian history and the story of Confederation, ascribing to the Fathers a preference for collective provision and the regulatory state. And in the process of rewriting, we forgot the original argument that to incorporate particular values in a country’s definition detracts from its nondiscriminatory character. Canadians fell into a contradiction of thought that remains unresolved to this day. Even Taylor, perhaps our foremost political thinker, is entangled. In The Once and Future Canadian Democracy I tell the story of our twentieth-century search for a social identity.2 In the present volume, I concentrate on the older view: the Fathers’ idea of “what a country is for.” The essays in part 1 describe the process of constitution making at Confederation, including the process of making the Canadian Parliament. These chapters are the product of my research as a member of the Canada’s Founding Debates Project, and this is the place to acknowledge the contributions of my co-researchers and co-editors: Paul Romney, Ian Gentles, and William D. Gairdner.3 From the beginning the project was conceived as a conversation among the researchers about Confederation, and I have profited greatly from this conversation. Needless to say, 2 Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal and Kingston: McGill-Queen’s University Press, 2003). 3 See Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: Stoddart, 1999; reprint, Toronto: University of Toronto Press, 2003).

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the conclusions that I draw in this book are mine alone; my dear friends from the project may wish to differ; indeed, I hope they do. May our conversation continue! Chapters 1 and 2 explore the idea that Canada’s parliamentary institutions and practices are informed by John Locke’s understanding of egalitarianism and nondiscrimination. I focus on the debates in the colonial legislatures about means to secure the consent of “the people” to the proposed federation. It is sometimes said that Locke’s doctrine of popular sovereignty characterizes the American Constitution but not the Canadian. But popular sovereignty is a seventeenth-century concept, and the British Constitution as much as the American rests on it. The Fathers of Confederation were familiar with it, as were the anti-Confederates whom they faced in the colonial legislatures. All believed that the new Constitution should be appealed to the people. All argued that there is no legitimate government without the people’s consent. They disagreed only about the means to obtain this consent. Underpinning the argument for popular sovereignty is the seventeenth-century belief in human freedom and human equality: “Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another without his own Consent.”4 In chapter 3 I turn to the Canadian founders on rights. The doctrine of equal consent entitles everyone to equality under the law and equal benefit of law, including the right to life and liberty, “peace, order, and good government,” and the equal right to speak one’s mind on political issues. It is often suggested that the Fathers ignored the subject of rights. I cannot understand how this false idea arose. The word “rights” comes bursting out of the debates in every colony. Chapter 4 discusses popular sovereignty and nondiscrimination as the basis of national identity (“what the country is for”). The question is whether the political values alone will support a sense of nationhood. Does the barebones constitution (nondiscrimination, the rule of law, the mores of representative government) inspire loyalty and affection? Chapter 5 carries the issue of political identity further by discussing the Father’s approach to social diversity. Can we maintain social diversity in a regime dedicated to the political values? The first four chapters in part 2 treat the pre-Confederation period, emphasizing the overthrow of the colonial oligarchies and the making of the colonial parliaments. These chapters were written and published 4 John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 95.

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before the Founding Debates Project. They describe episodes that were familiar to the Canadian Fathers and the ratifying legislators at Confederation and further contribute to the idea that in the Canadian founding, Locke is dominant and Parliament crucial. Chapter 6 describes the debates of 1791 in the British House of Commons on the grant of representative government to the Province of Quebec. The question was whether the French Canadians, accustomed only to autocratic rule (first French and then British), could govern themselves. Were they ready for parliamentary institutions? Invoking the Lockean principle of nondiscrimination, Edmund Burke and Charles James Fox argued in the affirmative. Chapter 7 explores the tribulations – and the triumph – of Pierre Bédard, first leader of the French party in the Legislature of Lower Canada. Informed by his reading of the British constitutionalists, including Locke, Burke, and Fox, Bédard resolutely opposed the English party’s assumption that being English gave one a “natural” advantage in politics and government. Bédard was the first British North American to describe and recommend the constitutional principle that we now call “responsible government,” the distinguishing feature of the parliamentary system. Chapter 8 treats Lord Durham’s exposition of responsible government in his famous Report on the Affairs of British North America. Durham and Bédard have much in common; both are dedicated to the rule of law, representative government, equality and nondiscrimination, and both are indebted to Locke. In Chapter 9 I turn again to the question of preserving social values and social diversity. My protagonists are Louis-Joseph Papineau, leader of the Parti patriote (the party of the 1837 Rebellion in Lower Canada), and his political agent in the British House of Commons, John Arthur Roebuck. There are many references to Lord Durham in the debates on Confederation and not a few to Papineau. Bédard’s story is told. (When I was writing my doctoral thesis on Lord Durham’s Report, I did not know about the ratification debates in the colonial parliaments, and none of the many books and articles that I read at the time alerted me to Durham’s presence in them. His influence on Confederation remains terra incognito. I invite future researchers to take up the challenge.) Readers can think of the chapters in part 2 as fat endnotes to the material in part 1. They do not tell the whole story of constitutionalism in the preconfederation period, far from it. They do not tell the whole story of constitutionalism in Britain. They describe the views of some pre-Confederation politicians and thinkers on the Lockean principles of nondiscrimination and equal consent, principles that proved crucial in making Canada’s Parliament.

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Chapter 10, the final chapter in part 2, leaps ahead to the discontents of the twenty-first century. I entertain the idea that our presentday quarrels about national identity and our ignorance of Locke’s role in Confederation are factors contributing to the erosion of Canadian democracy. Why revisit Confederation? Let me sum up. In the first place, we are still living with the institutions described in the Constitution Act of 1867 (formerly called the British North America Act). It is true that many things have changed in this country since that date, including the extension of the franchise, the development of new political parties and extraparliamentary organizations in all parties, the proliferation of political interest groups, staggering advances in material wealth, and – perhaps most significant – the advent of the welfare and regulatory state. The Constitution Act has been amended from time to time on minor matters and in 1982 we created a supplementary document, enshrining a constitutional bill of rights (the Canadian Charter of Rights and Freedoms) and a new amending process. In chapter 10, I argue that the amendments and political developments since1867 have indeed modified the Fathers’ formula. Nevertheless it remains a fact that we are still subject to the 1867 Act. The principal features of the original “deal” still define Canadian politics and shape Canadian hopes for the future. The second point of note is that today few people study Confederation. We do not read the Constitution Act (1867). Even the courts, which are formally charged with the responsibility of constitutional interpretation, seldom examine the Act as a whole; they read the clauses pertinent to the particular case before them and review previous judicial interpretations of those clauses. Political scientists do not read the ratifying debates. Nor do they study the colonial legislatures. In chapters to follow I argue at greater length for the examination of original documents. Here I wish to make the point that in the absence of such study fanciful and misleading ideas about Confederation abound. Histories of Confederation today typically present the Fathers as defenders of a particular elite, a particular political ideology and particular way of life. Canada is described as a Tory invention. The participation of the Liberal parties and Independents is overlooked. In brief, the prevailing view in academe regards the Constitution Act (1867) as a formula for oligarchy, that is, government by the “few” for the “few.” Some scholars suggest that it worked well enough in practice. Many argue that it mellowed over the years: democratic elements crept in and further reforms can be anticipated. Many cling to the idea that preference for a particular way of life is a necessary and precious aspect of nationhood. Others, not a few, advise us to put our impossibly

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oligarchic origins behind us; to enjoy the bold new future of the twenty-first century Canadians must reject Confederation in toto. As you begin this book I ask you to entertain, if only provisionally, the idea that Canada’s founders did not prescribe oligarchy or anything resembling it. They were John Locke’s disciples, students of modernity’s most ardent opponent of elitism and oligarchy, and they left us a constitution that embraces liberty and equality for all. The author thanks Sam Ajzenstat, George Breckenridge, Barbara Carroll, Rainer Knopff, Robert Leone, Robert S. Lewis, and Filippo Sabetti for helpful criticism, innovative deliberations on the subject of liberal democracy, editorial assistance, and kind words. She is grateful to the Canadian Study of Parliament Group, the Canadian Political Science Association, and the Journal of Canadian Studies for permission to reprint the articles that appear in part 2: “Celebrating 1791: Two Hundred Years of Representative Government” was published in Canadian Parliamentary Review 14, no. 1 (Spring 1991): 26–30; “Canada’s First Constitution: Pierre Bédard on Tolerance and Dissent” was published in the Canadian Journal of Political Science 33, no. 1 (March 1990): 39–57; “Modern Mixed Government: A Liberal Defence of Inequality” was published in the Canadian Journal of Political Science 18, no. 1 (March 1985): 119–34; and “Collectivity and Individual Right in ‘Mainstream’ Liberalism: John Arthur Roebuck and the Patriotes” appeared in the Journal of Canadian Studies 19, no. 3 (Fall 1984): 99–111.

pa r t o n e Confederation

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1

Making Parliament

scholars agree that john locke influenced Canadian Confederation. But they say surprisingly little to support the contention. The obvious questions are never asked. Did the Fathers read him? Were they familiar with writers and jurists in the Lockean tradition? Can we find Locke in the British North America Act? It is often suggested that the Fathers of Confederation had no “capacity for philosophy.” “Strikingly absent in British America were such figures as Hamilton, Jefferson, Madison, Franklin, Jay, Adams, and others like them who combined a genius for hard practical politics with a capacity for philosophy and a habit of looking for the wider and deeper general implications of particular problems.”1 1 F.H. Underhill, The Image of Confederation (Toronto: Canadian Broadcasting Publications, 1964), 3. Underhill continues: The “lack of a philosophical mind to give guidance to the thinking of ordinary citizens has been a great weakness of our Canadian national experience throughout our history” (3). And consider Peter Waite’s conclusion in The Life and Times of Confederation, 1864–1867: Politics, Newspapers and the Union of America British North (Toronto: University of Toronto Press, 1963), 325: The “fundamentally empirical character of Confederation was dictated largely by the temper of the men who shaped it and by the immediate circumstances that gave rise to it.” See also Donald Smiley, Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson, 1980), 285: “Unlike Americans in the eighteenth century … Canadians never experienced the kind of decisive break with their political past which would have impelled them to debate and resolve fundamental political questions”; E.R. Black, Divided Loyalties (Montreal and Kingston: McGill-Queen’s University Press, 1974), 4: “Confederation was born in pragmatism without the attendance of a readily definable philosophic rational”; Philip Resnick, Parliament vs People (Vancouver: New Star, 1984), 16: “It is hard to get excited about the handiwork of railway buccaneers and their kept lawyers”; and Ramsay Cook, “Canada 2000: Towards a Post-Nationalist Canada,” Cité Libre (Fall 2000): 81–8

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A major impediment to the study of Locke in Confederation lies in the interpretation of Canada’s origins favoured by today’s students of the Canadian political identity, which argues that the social thought of the pre-Confederation era was crucially influenced by an anti-Lockean philosophy.2 The suggestion is that the Fathers, for reasons we do not completely understand, were moved to dilute Locke’s philosophy of popular sovereignty and individual rights with conservative ideas about the common good, drawn from Edmund Burke or from the American Tories (the United Empire Loyalists). Few scholars go so far as to say that the anti-Lockean thrust was overriding. They suggest, nevertheless, that it has a peculiar interest because it gave this country its original at 82: “It is well known that the Fathers of Confederation were pragmatic lawyers for the most part, more given to fine tuning the details of a constitutional act than to waxing philosophical about human rights or national goals.” Ged Martin, in Britain and the Origins of Canadian Confederation, 1837–67 (Vancouver: University of British Columbia Press, 1995), takes positive delight in portraying the Fathers and their peers as a brainless lot. A crude tone of self-satisfied superiority is the rule; we in the twentieth century know what the Fathers in their benighted era could not. 2 Among the scholars of this persuasion is Gad Horowitz, “Conservatism, Liberalism, and Socialism in Canada: An Interpretation,” Canadian Journal of Economics and Political Science 32, no. 2 (1966): 143–71. And see Louis Hartz, The Liberal Tradition in America (New York: Harcourt, Brace and World, 1955). The books and articles on the Hartz-Horowitz interpretation of Canadian history and nationality are too numerous to list. According to H.D. Forbes, “Hartz-Horowitz at Twenty: Nationalism, Toryism and Socialism in Canada and the United States,” Canadian Journal of Political Science 20, no. 2 (1987): 287–315 at 287: “Any overview of Canadian political thought or political culture must reckon with Horowitz’s adaptation of Hartz, for it is one of the few things in the field that everyone has read and remembers.” Forbes’s article has an excellent bibliography. And see the bibliography in Janet Ajzenstat and Peter J. Smith, eds, Canada’s Origins, Liberal, Tory, or Republican? (Ottawa: Carleton University Press, 1995), 283–8. A helpful guide to many of these readings is Katherine Fierlbeck, Political Thought in Canada: An Intellectual History (Peterborough, on: Broadview, 2006). Horowitz has not given up his famous thesis. In 2003 he discussed it with Arthur and Marilouise Kroker on the electronic journal CTheory, http://www.ctheory.net/text-file?pick=397. Another important figure in the identity literature is Seymour Martin Lipset, The First New Nation: The United States in Historical and Comparative Perspective (New York: Basic Books, 1963). See also Lipset’s “Revolution and Counterrevolution: Canada and the United States,” in Thomas Ford, ed., The Revolutionary Theme in Contemporary America, 21–64 (Lexington, ky: University of Kentucky Press, 1965); and his Continental Divide (New York: Routledge, 1990). See also Edgar Z. Friedenberg,

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identity.3 Locke may have given us our political values, but the crucial and distinctive social values, the ones that distinguish us from Americans, originated in conservatism. Discussions of nineteenth-century conservatism dominate the textbooks and in the course of exposition, Locke slips away. The language is typically abstract; it is said that Canadians were – and perhaps still are today – less “individualistic” than Americans.4 We are less Deference to Authority: The Case of Canada (White Plains, ny: M.E. Sharpe, 1980). (I am grateful to Martin Masse for reminding me of this book, once familiar but for many years forgotten.) There are dissenting voices, chief among them Kenneth McRae, “The Structure of Canadian History,” in Louis Hartz et al., The Founding of New Societies: Studies in the History of the United States, Latin America, South Africa, Canada, and Australia, 219–74 (New York: Harcourt, Brace and World, 1964). Paul M. Sniderman, Joseph F. Fletcher, Peter H. Russell, and Philip E. Tetlock accept the Horowitz thesis as the authoritative account of Canada’s origin, although their own data does not support it; see Sniderman et al., The Clash of Rights: Liberty, Equality and Legitimacy in Pluralist Democracy (New Haven, ct, and London, uk: Yale University Press, 1996). See also Neil Nevitte and Roger Gibbins, New Elites in Old States: Ideologies in the Anglo-American Democracies (Toronto: Oxford University Press, 1990), another volume that challenges the prevailing view. Peter J. Smith and I question the soundness of the Hartz-Horowitz thesis in a number of publications. See especially our “Liberal-Republicanism: The Revisionist Picture of Canada’s Founding,” in Ajzenstat and Smith, eds, Canada’s Origins: Liberal, Tory, or Republican? 1–18 (Ottawa: Carleton University Press, 1995). Edward Grab, Douglas Baer, and James Curtis quarrel with Lipset’s methods and conclusions; see, for example, their “The Origins of American Individualism: Reconsidering the Historical Evidence,” Canadian Journal of Sociology 24, no. 4 (1999): 509–31. 3 See David Taras and Beverly Rasporich, eds, A Passion for Identity: An Inroduction to Canadian Studies, 3rd ed. (Toronto: Nelson, 1997); and Ian Angus, Nationality, Cultural Plurality, and Wilderness (Montreal and Kingston: McGill-Queen’s University Press, 1997). 4 It is often suggested that John A. Macdonald’s National Policy (a program to protect eastern industries from American imports while promoting migration to the western territories) shows the Tories’ ability to think in terms of a large and “collective” vision. But on the subject of the National Policy, see William Watson’s exhaustive comparison of Canadian and American economies during Macdonald’s era: Globalisation and the Meaning of Canadian Life (Toronto: University of Toronto Press, 1998). Watson shows convincingly that there is nothing distinctively Canadian about Macdonald’s program. It was borrowed lock, stock, and barrel from earlier legislation in the United States. Watson’s challenge to conventional wisdom has had no impact on the Canadian academic mind.

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wedded to the idea of “egalitarianism.” Of course, no one at Confederation used terms like these; they derive from the political thought of twentieth-century sociologists and political theorists and come into Canadian accounts of Confederation only in the 1960s. Nevertheless, one would like to know whether there were indeed arguments for individual rights and for political equality at Confederation. One would like to know how such arguments were couched. What were the words? And did the words, if there were words, echo Locke? We are told that Locke was “present;” he is always mentioned. But, to repeat, there is no exposition of his ideas in the context of statements and documents from the Confederation period. Hence this book: when I began it, I intended to give a full exposition of Locke’s classical liberalism, revisiting the history of British thought in the eighteenth and nineteenth centuries. I proposed to reopen the debate on the United Empire Loyalists and to discuss Burke’s status. Is he, indeed, an anti-Lockean? I proposed to inquire into the Canadian Fathers’ background and education. I proposed, let me admit, to write a book on the Canadian founding that would imitate, in suitably Canadian fashion, Thomas Pangle’s treatise on the American founding.5 What spurred me on and persuaded me that I might have some success was the discovery of what I call Canada’s “ratification debates,” the debates on Confederation in the parliaments and assemblies of the British North American colonies. Scholars have ignored them. Historians knew about them but did not regard them as significant. Political scientists did not know of them. They are a goldmine; they show us political men of the Confederation period drawing on Locke, Burke, and other sources in the history of philosophy to support, challenge, and illustrate concrete political prescriptions.6 5 Thomas L. Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke (Chicago: The University of Chicago Press, 1988). 6 Janet Ajzenstat et al., eds, Canada’s Founding Debates, 2nd ed. (Toronto: University of Toronto Press, 2003) (hereafter cfd). The volume contains excerpts from the legislative debates in British Columbia, the Red River settlement, the old Province of Canada, and the Atlantic provinces, including Newfoundland, from 1864 to 1873. It is the first collection to include material from all colonial legislatures of the period. The phrase “Confederation debates” has often been taken to mean exclusively the debates in the Parliament of the Province of Canada; certainly, the Canadian debates have always been the easiest to obtain. Canada’s Founding Debates was first published by Stoddart in 1999; the book jacket from that edition reads: “With the publication of Canada’s Founding Debates Canadians are being given back their historical birthright.”

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But in the course of writing, my argument ran off in an unexpected direction. The book that I intended – the general exposition of philosophies and ideologies in Confederation – remains unwritten. What I offer is a book about the making of the Canadian Parliament. The Locke whom I discovered in the ratification debates is the “parliamentary” Locke – the John Locke who describes and defends the English parliamentary form of government. I have come to the conclusion that this idea of parliamentary government lies at the heart of Confederation and at the heart of the Canadian political identity. We must distinguish between the thirty-three or so men who attended the Charlottetown and Quebec Conferences of 1864 and the legislators in the provincial parliaments. The famous thirty-three are the Fathers; they were the Constitution’s drafters. The legislators in the provincial parliaments were ratifiers. They could not change a word of the bill before them, the motion to join other colonies in a federal union, or in the case of the late-joining provinces, the motion to join the Dominion of Canada. They could not change the Quebec Conference “deal” or the provisions of the British North America Act. But without their “yea” vote, a province could not enter Confederation.7 I use the term “founders” to describe both drafters and ratifiers. The debates run from 1864, when delegates to the Charlottetown and Quebec Conferences were chosen, to 1873, when the Parliament of Prince Edward Island made its decision. As we shall see, the founders referred directly to Locke only occasionally. But their speeches were peppered with references to his heirs, the American founders, and to Burke, Blackstone, and other authorities in the tradition of British constitutionalism. They cited John Stuart Mill, especially Mill’s Representative Government, then recently published (1861). They read European constitutions; they compared federal systems. They cited clauses in the American Constitution, the Constitution of the secessionist South, and the constitutions of the individual American states. They were knowledgeable about British parliamentary traditions; they routinely read the British parliamentary debates. They sometimes appealed to ancient history and to the Bible. Some of them had been directly involved in the struggle to establish in the colonies the central principle of parliamentary government, the principle or practice that we call “responsible government.” All remembered the overthrow of the colonial oligarchies (the Family Compacts, 7 That approval of the province’s parliamentary representatives was the necessary condition of admission to the union is acknowledged in the Constitution Act (1867), section 146.

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the Chateau Cliques, the “official” parties). They understood from personal knowledge the difference between autocracy and liberty. All were acquainted with local history and with the history of British North America from 1791 and before. Most were experienced parliamentarians. It is true that they did not speak or write in the manner of political philosophers. They did not write treatises. But they were indeed familiar with the philosophical principles underlying classical liberalism. They were familiar with arguments criticizing those principles. And they brought this knowledge of principles and arguments to bear in the debates on the federation of the colonies and in the creation of a new “general government” for the union. There is an obvious sense in which the making of the federation and the making of Parliament are linked. By definition, a federation has two levels of government, provincial and national; to give effect to the federal union of the British North American provinces, the Fathers had to design national institutions, including a national legislature. But I shall argue that the Fathers and legislators regarded Parliament as more than an institution necessary to union, more than a mechanical device, as it were, to bring the provinces together. They thought that Parliament would define the nation. The national Legislature would give the people of British North America, who had formerly identified themselves as citizens or subjects of the individual provinces, a sense of belonging to both province and the larger country; that is, it would give them what we now call an “identity.” And at the risk of sounding hopelessly unCanadian, let me say that they intended for this identity to reflect Locke’s teaching on human rights and equality. They believed that Parliament would secure what Charles Taylor calls the political values: equality, nondiscrimination, the rule of law, and the mores of representative government.8 Everyone in the union would be equally subject to Parliament’s laws; every individual would be equally entitled to the benefits of “peace, order and good government.” Locke was the model. I am not suggesting that Locke writes about culture and “identity.” At any rate, he does not use these terms. Indeed, the founders did not use “identity” exactly as we do today.9 I argue, rather, that Locke’s teaching on popular consent (popular sovereignty) was 8 Charles Taylor, “Shared and Divergent Values,” in Guy Laforest, ed., Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, 155–86 (Montreal and Kingston: McGill-Queen’s University Press, 1993), 158–61. 9 Thus George-Etienne Cartier spoke of Canada’s “political nationality”; Canadian Legislative Assembly, 7 February 1865, in cfd, 230. John A. Macdonald used the term “individuality”: there was “as great a disinclination on the part of

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central in Canada’s founding debates – it was known to the Fathers and to the legislators – and that the teaching on popular sovereignty entails an argument about “identity,” as we understand identity today, and an argument about human equality and human rights.10 If the new regime was to be legitimate, it had to rest on the people’s consent: “The Liberty of Man, in Society is to be under no other Legislative Power, but that established by consent.”11 The Fathers and the legislators argued that the population of the colonies would “identify” with the new country because they had given their consent to union and to the institutions, like Parliament, that enabled union. They would see Confederation as their own. In the debates on the union proposal in the Legislative Assembly of the old Province of Canada, J.H. Cameron argued: “We are arranging to adopt an entirely new state of governmental existence and are proposing to embrace a large area of country under this new form of government. We are claiming for it, and desire that it shall have its best and surest foundation in the hearts of the people.”12 Cameron was proposing that the Legislature be dissolved and the people of the province be consulted on the union issue in a general election. His was one of many arguments for popular consultation. The lively debate on means to give the people of each

the various Maritime provinces to lose their individuality, as separate political organizations, as we observed in the case of Lower Canada herself”; Canadian Legislative Assembly, 6 February 1865, in cfd, 280. John Mercer Johnson’s usage was closer to ours today: “Every effort should be made to make us forget our provincial identity, so we would be one people from Sarnia to Newfoundland. [If] we go into it we must not talk of Canada as a foreign country, but be one people under one government”; New Brunswick House of Assembly, 2 July 1866, in cfd, 246. 10 On the connection between popular sovereignty and human rights, see Michael P. Zuckert, The Natural Rights Republic: Studies in the Foundation of the American Political Tradition (Notre Dame, in: University of Notre Dame Press, 1996), 25: “The rightful power to make and unmake government is the strongest and most persistent token of the inalienability of rights.” Zuckert is discussing the Declaration of Independence and Jefferson’s debt to Locke. The entire chapter is helpful, reiterating and amplifying arguments familiar from Pangle. I am grateful to George Breckenridge for drawing my attention to Zuckert’s books. 11 John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 22. The argument continues: “Freedom of Men under Government, is, to have a standing Rule to live by, common to every one of that Society, and made by the Legislative Power erected in it.” 12 J.H. Cameron, Canadian Legislative Assembly, 13 March 1865, in cfd, 455–6.

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province a chance to say “yea” or “nay” to Confederation is described in the next chapter. When Cameron said that Confederation should have its foundation in people’s hearts, he was not saying – or he was not saying merely – that a popular vote was required because people should have an opportunity to express their (perhaps already formed) sentiments and opinions. He was arguing that the fact of the vote, the very act of ratifying the regime by a process that acknowledges popular sovereignty, would give rise to the sentiments – that is, to the sense of nationhood. Popular consultation, popular participation, would lay the “foundation in the heart.” In the New Brunswick Legislature, John Mercer Johnson invoked Locke with these words: “In the formation of society we have to give up some of our natural rights, and if they were not given up, society could not be formed.”13 Locke’s formulation reads: “The … power, viz. of doing whatsoever he thought fit for the preservation of himself, and the rest of mankind, he gives up to be regulated by Laws made by the Society, so far forth as the preservation of himself, and the rest of that Society shall require.”14 The suggestion is that British North Americans contemplating the union of the provinces faced this original choice, famously described by the seventeenth-century philosophers, of whether to form a “social contract”; they were saying “yea” or “nay” to the new Constitution and at the same time renewing their original vows, so to speak, renewing consent to the very idea of government. It is Locke’s contention that each and every individual must participate in the act of political founding. Each and every person has to be consulted.15 The teaching on popular sovereignty expresses what all regard as the central tenet of his philosophy: the proposition that in some fundamental and compelling sense all humans are equal.16 Of course, in 13 John Mercer Johnson, New Brunswick House of Assembly, 2 July 1866, in cfd, 180. 14 Locke, “Second Treatise,” paragraphs 128 and 129. 15 Ibid., paragraph 94: with the establishment of civil society, “every single person became subject, equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative, had established.” See also paragraph 96, where Locke uses the phrase “every individual.” 16 As Jeremy Waldron, God, Locke and Equality (Cambridge: Cambridge University Press, 2002), puts it: “humans are all one another’s equals – created equal, perhaps, or (whether created or not) just equal, in some fundamental and compelling sense” (1, original emphasis). And consider Iris Murdoch’s response to T.S. Eliot’s contention that the ordinary person dislikes fascism because he dislikes authority: “To argue in this way is to belittle that naked respect for the human person as such which one may connect with Locke and with Kant, and which one hopes has become a part of the English political tradition. Can this be set

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practical terms, consultation of each and every last individual is difficult to envisage. How would one do it? Would one send around scouts to knock on every door – the mansions, the farms, the shacks? You would have to peep under every hedge, scour the woods. Nevertheless, as we shall see, the Fathers and ratifying legislators indeed associated the idea of popular consultation with legal equality. It is a major part of my argument that they thought of Parliament as the institution that embodies the sense of nationhood because it represents equally everyone in the country and because, as they supposed, parliamentary deliberation gives everyone an equal voice in national affairs. I hardly need to say that the founders’ thoughts on Parliament appear strange to present-day readers. Although it is always clear that they were talking about the Westminster system of government, they appear to have made extravagant claims on its behalf! To repeat: they argued that Parliament represents all subject to the law. And, even more foreign to our present-day way of thinking, they argued that Parliament secures the rights of all. Nevertheless, if I am successful in the following chapters, we will recapture their “rosy” picture of parliaments – not merely the rules of parliamentary procedure, but the essential structure: popular sovereignty, parliamentary sovereignty, and the rule of law. We will then be in a position to assess the contention that the Canadian Parliament is supremely an institution that represents and speaks for each and every person.17

pa r l i a m e n t a n d n at i o n a l i d e n t i t y When today’s scholars discuss Canada’s identity, they usually suggest that terrain, the economy, social history, patterns of immigration, and so on are the formative influences. It was not the process of making the Constitution that defined us in the nineteenth century; it is not the Constitution

aside as a romantic over-valuation of the individual? It is at least perilous to neglect the remnants of that liberal moral absolutism which, without dogma, holds that there are certain things which cannot be done to human persons.” Iris Murdoch, “T.S. Eliot as Moralist,” in Peter Conradi, ed., Existentialists and Mystics: Writings on Philosophy and Literature, 161–70 (New York: Penguin, 1997), 168. Murdoch is reviewing T.S. Eliot’s Strange Gods (1934). 17 Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999) 32: “What would it be like to develop a rosy picture of legislatures and their structures and processes?” How much I am indebted to Waldron and to this volume in particular will become evident.

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and Parliament that give us our sense of nationhood today. Our preference for “collective provision,” our location on the North American continent, our attitudes to the United States: these are the factors that shape us as a nation and attach us to Canada as homeland. “Identity” lives in sentiment and feeling, memory, and landscape. As he casts about for indications that Canadians love their country, David Taras arrives at the following statement: the “vast majority of Canadians, including most Quebeckers, have deep emotional ties to the country. The lavish and majestic physical beauty of the Canadian landscape, the tolerant spirit of most Canadians, the talent for innovation that has put Canada at the forefront of new technologies, and a sense that Canada remains a country of hope and of the future are deeply engrained.”18 Note that Taras says nothing about the factors that Canada’s founders would have cited. He says nothing about Parliament and the rule of law, nothing about security for individual and political rights. He does not entertain the idea that these institutions once acted as a focus of identity, and he does not suppose that they might do so still. One way to understand the difference between scholars like Taras and the Fathers of Confederation is to say that the scholars think in terms of social or “cultural” identity (think of Taylor’s social values), whereas the Fathers (and most of the ratifying legislators) were recommending at the national level a “civic” identity (think of Taylor’s political values).19 The distinction between civic identity and cultural identity is an old one in political science, and I suggest that it is worth revisiting because Canadians today face a dilemma. We long for a cultural identity; we feel that a civic identity offers an inadequate sense of belonging. We want something more. But we cannot agree about the character of this something more. The problem has been exacerbated by our penchant for constitutional reform. From the 1960s to the 1990s, Canadians were engaged in an ambitious attempt to redesign their founding institutions. No other settled liberal democracy has debated constitutional reform at the foundational level for so long and with such passion. It might be argued that we felt free to experiment with constitutional reform because we believed that our national civic identity was underpinned by our shared sense of history and cultural identity. But the long debate on constitutional reform – our constitutional odyssey, to use Peter Russell’s excellent term – uncovered 18 Taras and Rasporich, eds, A Passion for Identity, 4. 19 An important recent book on the distinction between political identity and cultural identity is Samuel P. Huntington, Who Are We? The Challenges to America’s National Identity (New York: Simon and Schuster, 2004).

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an uncomfortable fact: Canadians have no shared sense of history; there is no consensus about cultural identity.20 We have no one definition of “collectivity.” We have no one opinion about the impact of our history, and we have no one idea about what it means to live in the northern part of the North American continent.21 When we try to define ourselves in terms of cultural identity and social values, we do not find sufficient ground to call ourselves one people, a nation. Poll data do not help, for polls do not reveal the nation but merely show changing patterns of majority opinion on issues of the day.22 The scholars who write about our lack of agreement sometimes fall back on the idea that Canadians are still searching for their cultural identity. Indeed, they often speak of threats to the Canadian identity.23 Taras regrets that Canadians today have no program of national education with the same curriculum from coast to coast. We have no common set of myths and heroes, he says; we have no history of extraordinary sacrifices. (Apparently, Canada’s participation in the two World Wars does not figure.)24 Although their academic approach calls on them to think of national cultural identity as something firmly rooted in a people’s history and sense of shared experiences, the Canadian-identity scholars often write about it 20 Peter H. Russell, Constitutional Odyssey: Can Canadians Be a Sovereign People? 3rd. ed. (Toronto: University of Toronto Press, 2004). 21 See Jeremy Webber’s account of the search for a general statement of Canadian goals during the constitutional debate on the Charlottetown Accord: Reimagining Canada: Language, Culture, Community and the Canadian Constitution (Montreal and Kingston: McGill-Queen’s University Press, 1994) chs 4 and 5. “Looking back … it sometimes seems that in the very act of reaching for a new Canadian identity, we watched it slip away” (176). 22 Michael Adams offers just such a picture of changing majority opinion; see Michael Adams, with Amy Langstaff and David Jamieson, Fire and Ice: The United States, Canada and the Myth of Converging Values (Toronto: Penguin, 2003). Adams owes much to Canadian-identity scholars. In his Introduction, he acknowledges the influence of George Grant and Seymour Martin Lipset. 23 See Reg Whitaker, “Canadian Politics at the End of the Millenium: Old Dreams, New Nightmares,” in Taras and Rasporich, eds, A Passion for Identity, 119–37 at 123: “the grand narratives have been breaking down.” Taras himself argues that “the old basis for nationhood has been seriously jeopardized” (3). Compare part 3 of Samuel Huntington, Who Are We?, where he suggests that America’s national identity is being eroded by the problem of assimilating Hispanic immigrants, the philosophy of multiculturalism, the devaluation of citizenship, and the “denationalization” of American elites. 24 Taras and Rasporich, eds, A Passion for Identity, 4.

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as though it were a fragile creation, a “superstructure,” easily fractured and easily lost. Philip Resnick notes: “The Canadian enigma … is caught up with what, at the level of the imagination, one might call a contested form of national identity. By this I mean a persistent sense of doubt about whether Canada – a thinly populated continent-sized triumph of history over geography – will endure; about its relationship to its powerful North American neighbour; about whether Canadians have a distinct set of values that help to define exactly who they are.”25

li b e ra ls a n d l aur e nt i a n s In the early twentieth century, it was the standard teaching that the crucial event of the pre-Confederation years, the event that shaped political attitudes and set the stage for the union of 1867, was the overthrow of the colonial oligarchies. Robin Winks calls the historians and political scientists who subscribed to this view “liberals.”26 Today, we would call them classical liberals, or Lockean liberals. In my opinion, they offer a picture of our history that is consonant with the views of the Canadian founders. Like the founders, they were arguing for a civic identity based on the “political values.” Winks distinguishes these “liberals” from a school of historical interpretation that he calls “laurentian” and that was just beginning to command attention at the time that he was writing. Chief among the laurentians are Harold Innis and Donald Creighton; they initiated the approach to Canadian history now associated with the Canadian-identity scholars (scholars like Taras), arguing that political institutions are less important than the economy and history in shaping a country’s values.27 Today, few historians and political scientists bother to tell the story of the 25 Philip Resnick, The European Roots of Canadian Identity (Peterborough, on: Broadview, 2005), 11. 26 Robin W. Winks, “Canada,” in Robin W. Winks, ed., The Historiography of the British Empire-Commonwealth: Trends, Interpretations and Resources, 76–83 (Durham, nc: Duke University Press, 1966). 27 Christopher Moore, “The John A. Mythos” (a review of Creighton’s biography John A. Macdonald, first issued in 1952), Books in Canada (Summer 1998): 25–6 at 26: “Creighton saw his nation-builders as pragmatists and doers, wedded to the Empire that provided markets and capital, valuing order and control. To establish the values of these Tory nation-builders at the centre of Canadian history, Creighton had to dismiss debates about rights and liberties and parliamentary representation as distracting theoretical palaver. He marginalized the indigenous tradition of reform-minded political theory on which many of his precursors had been raised.” For an invaluable account of Confederation, see also Christopher Moore, 1867: How the Fathers Made a Deal (Toronto: McClelland and Stewart, 1997).

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fall of the oligarchs and the “struggle for responsible government.” Even fewer suppose that the creation of Parliament was the central event in Confederation. The laurentians have triumphed. The union began with four provinces: Ontario and Quebec (carved from the old Province of Canada), New Brunswick, and Nova Scotia. By 1873 it included British Columbia, Manitoba (the old Red River settlement), and Prince Edward Island. The Dominion stretched from sea to sea. It is this coming together of the original four colonies and the later expansion that interested the laurentian school, and it is, of course, a grand story. But it remains a fact that in telling it, the scholars said almost nothing about Parliament’s role; they did not describe the debates of the Confederation years on making the national Legislature, and they did not take note of, let alone study, the clauses in the British North America Act that define Parliament.28 They talked about the development of Canadians’ sense of nationhood at Confederation and in the decades afterward, but they did not associate Canadian nationhood with the Canadian Parliament. When laurentians wrote about the Constitution Act (1867), they focused on the clauses that describe the division of legislative powers between the general government and the local governments; that is, they described the federation formula. Did the Fathers favour the federal level over the provinces? Did interpretation of the division of powers in the early courts confirm or betray the Fathers’ intentions?29 When they 28 The British North America Act (1867) was renamed in 1982; it is now known as the Constitution Act (1867). The national Legislature is described in parts III and IV, and the division of legislative powers in part VI. Scholars usually suggest that the constitutional principle that we call “responsible government” is not explicitly described in the 1867 Act but rests on an unwritten “convention.” Thus Peter Russell, Constitutional Odyssey, 26, argues that “The constitution drafters saw no need to spell out the vital democratic principle that government be directed by ministers who have the confidence of the elected branch of the legislature … The principle of responsible government would continue to depend on unwritten constitutional convention.” Not so, as I contend in chapter 3. See the interesting comment on the salutary independence of the political executive in parliamentary systems in Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: Norton, 2004), 252. 29 Oceans of ink have been spilled on this topic. I cannot begin to list the books and articles. One of the best guides is still Alan C. Cairns, “The Judicial Committee and Its Critics,” in Constitution, Government, and Society in Canada, ed. Douglas E. Williams, 43–85 (Toronto: McClelland and Stewart, 1988). See also Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, 1999); and John T. Saywell, The Lawmakers: Judicial Power and the Shaping of Canadian Federalism (Toronto: University of Toronto Press and Osgoode Society for Canadian Legal History, 2002).

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wrote about the process of constitution making, they asked about causes and reasons. Did the idea for a federal union originate with the colonists or with the British? Did the idea of union originate as a means to protect British North Americans from an American invasion? Was it meant to promote business interests? Was it designed primarily to foster Quebec’s agenda? Was Confederation, when all is said and done, merely the product of local ambition, expressing the desire of petty legislators for a larger arena of operations?30 Let me repeat: Canada’s founders believed that making Parliament was more than a necessary condition of federation. It was intended to make of the new union a country among the countries of the world and to express Canadian nationhood. Parliament was to be the arena that represented not merely the national level of government and not merely the state, but the nation. It would represent and speak for all Canadians; the new country would have what political scientists now call a civic identity. Although the parliamentarians of that period were male and elected on a limited franchise, they were charged with the task of representing everyone within the country’s boundaries, regardless of gender, class, minority nationality, and similar distinctions. This was the understanding in constitutional law at the time: Parliament represents and speaks for everyone who is compelled to obey its measures; it does not represent only the party winning a plurality of seats in the lower chamber, or only the electorate, or indeed, only men. In the constitutional law of Britain and in the Confederation debates, the principle of representation was sometimes expressed in this fashion: a member of Parliament is elected to represent both a particular territorial constituency and the country as a whole.31 That representatives have this dual responsibility enables them to take their constituents’ particular concerns into national debates with the hope of securing a hearing. And I 30 See G.P. Browne, “Introduction,” in Browne, ed., Documents on the Confederation of British North America: A Compilation Based on Sir Joseph Pope’s Confederation Documents Supplemented by Other Official Material, xi-xxxiii (Toronto: McClelland and Stewart and the Carleton Library, 1969), esp. xvi-xxvi. 31 Edmund S. Morgan discusses the dilemma of representation in Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), ch. 2. As Edmund Burke says in “Speech to the Electors of Bristol, 3 November 1774,” in B.W. Hill, ed., Edmund Burke on Government, Poltics and Society, 156–8 (New York: International Publications Service, 1976): “You choose a member indeed; but when you have chosen him, he is not a member of Bristol, but he is a Member of Parliament” (158, original emphasis). I discuss the Canadian legislators on this principle in the next chapter.

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contend that the founders believed that such an institution is a good and sufficient guarantee of national identity in the “civic” sense because – as they supposed – it excludes no one. There is no admission ticket, so to speak. No one is required to show proof of agreement with the majority on the interpretation of Canadian history, the importance of economics, Canada-America relations, or the proper role of Canadians on the world stage. For that matter, no one is required to agree with the majority on particular political measures coming before the Legislature. Being subject to Parliament’s edicts suffices to make one a fully fledged Canadian, equally subordinate to the law and equally entitled to the law’s benefits. And, I must add, equally entitled to voice one’s opinions. I am speaking of principles and of how things should be, or to be precise, of how the Fathers of Canadian Confederation and the ratifying legislators believed that things should be. I am presenting what Jeremy Waldron calls the “rosy picture” of Parliament. I admit that Canadian practices have often fallen short. But if we have no understanding of the founders’ hopes, we will lose our bearings altogether and will be unable to see what might be. The Fathers of Canadian Confederation and the legislators in the colonial parliaments and assemblies knew as well as we do or better that in the Westminster system, the majority party and government leaders dominate the legislative process. They knew that the party with the largest number of seats in the lower chamber usually wins the day. They were experienced parliamentarians and intimately familiar with this aspect of parliamentary procedure. But they did not believe that this feature is incompatible with the contention that parliamentary debate is inclusive. Parliamentary deliberation is open to all shades of opinion, and when the vote on a particular measure is taken, every vote has the same weight.32 Even more important is that in the Westminster process decisions are not final. The hurly-burley of politics can generate considerable ill feeling, and if we are to live in peace, decisions must be reached, and these decisions must have the force of law. Nevertheless, in the liberal democracies there is no requirement that decisions have effect once and for all time. Laws can be repealed or modified. Defeated issues, arguments, clauses, approaches can spring to life in the next parliamentary session or after the next election. Debate continues in the extra-parliamentary arena. Majorities erode; new majorities form; minorities join coalitions – or swell to majority proportions. The process will often seem imperfect; it will never satisfy the impatient. Yet

32 Waldron, God, Locke and Equality, 128–31.

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it is difficult to imagine one that conforms better to the equality principle. It is difficult to imagine one that is more inclusive.

founding and founders: canadian and american According to Gertrude Himmelfarb, the “[American] Founders never doubted that they were not only creating but ‘founding’ a republic, not for their generation alone but for an untold number of future generations.”33 Such bold assertions come readily to American scholars. Canadian scholars typically use the term “founding” to describe the American union but not the Canadian. They argue that the Americans initiated a revolution that erased the old loyalties and institutions and created in their place a new and lasting regime; these are features of “political founding.” We tell ourselves that we Canadians had no such experience; we did not make a revolutionary break with Britain; we did not create new institutions; we merely consolidated and amalgamated old ones. Thus Confederation was not a founding, and the term “founding” is not appropriate. There were no founders. There was no “moral vision.”34 There are many assertions in the debates on Canadian Confederation to suggest that the ratifying legislators thought of themselves as true “founders.” In the Legislative Council of British Columbia, Henry Crease argued, “I am deeply impressed with the momentous character of the discussion into which we are about to enter, the grave importance of a decision by which the fate of this our adopted country of British Columbia must be influenced, for better, for worse, for all time to come.”35 British Columbians were making a decision “for all time to come.” In Nova Scotia, Stewart Campbell used the same phrase: Confederation was a “matter which concerns [the people’s] interests for all time to come.” At present, he said, “If we have a ministry that is not agreeable to our wishes and that does not promote the interests of the country, we may bear with it for a while, knowing that the time will come when the people will assert their rights and substitute better men, but in reference to this measure only pass it now and it will be passed forever – the 33 Gertrude Himmelfarb, The Roads to Modernity: The British, French, and American Enlightenments (New York: Knopf, 2004), 198. 34 Recall the title of Pangle’s book on the American founding: The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of Locke. 35 Henry Crease, British Columbia Legislative Council, 9 March 1870, in cfd, 13.

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doom of Nova Scotia will then be sealed.”36 Henry Crease favoured Confederation; Stewart Campbell was an anti-Confederate. But both saw the fundamental issue in the same light. They were being called on to ratify lasting institutions; they were being called on to act as founders. Himmelfarb’s observations draw our attention to the idea that there is something problematic, something that might be called unjust, about the act of founding exactly because it is “for all time to come.” In a political founding, one generation makes decisions that will bind the generations of the future. The founding generation is empowered; the succeeding generations are subordinated. Locke’s equality proviso is violated. Himmelfarb cites Thomas Paine: “Every age and generation must be as free to act for itself, in all cases, as the ages and generations which preceded it. The vanity and presumption of governing beyond the grave is the most ridiculous and insolent of all tyrannies.”37 Thomas Jefferson concurred, famously entertaining the idea of a continuing revolution: just as the ordinary laws of the nation must be renewed regularly, so the Constitution itself, the “founding” principles, should be renewed. “No society can make a perpetual constitution or even a perpetual law. The earth belongs always to the living generation.”38 The comparable debate in British North America is suggested in the quotations from Crease and Campbell, and I will spell it out in chapters to come. Crease accepted the responsibility of founding with all its difficulties. Campbell rejected it; in his view, the founder was necessarily a tyrant. Canadian scholars have their ideas about what was going on at Confederation; they have their accustomed ways of talking about it, and they assume that their understanding is sufficient. There are sterling exceptions. S.F. Wise provides an exemplary exposition of Conservative arguments in the pre-Confederation period.39 Peter J. Smith combs the documents of the United Empire Loyalists and the pre-Confederation radicals to reveal the collectivist ideology that is referred to as “civic republicanism.”40 But there is not enough work of this quality. And there 36 Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866, in cfd, 375. 37 Thomas Paine, The Rights of Man, 1st ed. (New York: Dolphin, 1961), 227– 78, original emphasis, cited in Himmelfarb, The Roads to Modernity, 197. 38 Himmelfarb, The Roads to Modernity, 195. 39 S.F. Wise, God’s Peculiar Peoples: Essays on Political Culture in NineteenthCentury Canada, ed. A.B. McKillop and Paul Romney (Ottawa: Carleton University Press, 1993). 40 Peter J. Smith, “The Ideological Origins of Canadian Confederation,” Canadian Journal of Political Science 20, no. 1 (1987): 3–29. This groundbreaking essay can be found in Ajzenstat and Smith, eds, Canada’s Origins, 47–78.

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is, I must insist, almost nothing on classical liberalism. In standard accounts of Confederation, liberalism makes its appearance as one of a succession of political ideologies, preceded by conservatism and succeeded by socialism; it is depicted as a political posture, one point of view among others. Nothing is said about liberalism’s claim to describe the framework that legitimates debate among the ideologies. Nothing is said about its necessary connection to parliamentary government. Locke remains a shadowy figure. Even Burke is obscure. According to Himmelfarb, American scholars and the American public are constantly engaged in the study of origins. “In America today, the Enlightenment is alive and well. Biographies – by reputable historians, not hagiographers – of the Founders (‘Founding Fathers’ as they were once known) have become a virtual industry, flooding the bookstores and appearing regularly on the best-seller lists. The Federalist, available in several editions, is assigned as a textbook in political science courses, and cited regularly and more frequently as time goes on, in legal debates and decisions, by liberals and conservatives alike.”41 How very different is the situation in this country! Some of the documents pertaining to Confederation have never been published; many that were once available are out of print. Canadians are relentlessly futureoriented. The idea of turning to the past for instruction strikes us as futile – absurd. In his book on the difficulty of preserving individual rights in an age of terrorism, Michael Ignatieff argues: “What we need is a reinvigoration of the institutions of freedom – government by checks and balances, by open forms of adversarial justification in courts, legislatures, and the press. Reinvigoration means simply that our institutions need to do the job that they were designed to do. We need to understand what they are there for, trust in them, and make them work.”42 Is Ignatieff hopeful about prospects for reinvigoration? It seems to me that we no longer know what our institutions were designed to do. We have not lost the Confederation blueprint. But we can no longer read it in all its details. Canada today is still governed by the institutions of 1867; there 41 Himmelfarb, The Roads to Modernity, 227. But perhaps Himmelfarb’s view of American scholarship is too sunny. See Wilfred M. McClay, “The Founding of Nations,” First Things, no. 161 (March 2006): 33–9 at 33: “Much of the intellectual culture of our time stands resolutely opposed to the idea of a founding as a unique moment in secular time that has a certain magisterial authority over what comes after it.” 42 Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Toronto: Penguin Group, 2004), 155.

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have been amendments to the Constitution Act (1867) but not many amendments. In 1982 we created an additional constitutional document, containing among other things an amending formula and a constitutional bill of rights (the Canadian Charter of Rights and Freedoms). But essentially, we have today the Constitution that the Fathers of Confederation gave us, the Constitution that the legislators in the federating provinces ratified. We are still a federation governed by parliamentary institutions and principles. The trouble is that we no longer consult the institutional prescription. We hunt around, in vain, for a cultural foundation. We do not trust and we do not know how things work.43

43 Jane Jacobs, Dark Age Ahead (Toronto: Random House, 2004), ch. 1, argues that there is a “culture” of instruction for many aspects of our public and political life. It is a culture that derives from experience and apprenticeships, from learning by example, from living the life. No mere textbook teaches all. Her point is that this culture of instruction can be lost, and indeed, it is Jacobs’s opinion that we in Canada are losing it in crucial areas.

2

Popular Sovereignty in the Confederation Debates “For no Government can have a right to obedience from a people who have not freely consented to it.” Locke, Second Treatise, paragraph 192

what is wanted “is a process that not only hears all voices but takes all experiences and aspirations into account.”1 In the debates leading to the national referendum of 1992, many academics and lobbyists made pronouncements like this one. The idea that a decision-making arena should hear all and take all into account derives from the principle of popular sovereignty. Legitimate government rests on the consent of “the people” – the entire population, all who are subject to the law and all who stand to benefit from it, every last woman and man without exception.2 Consider Locke on the social contract: the story asks us to image an original gathering of individuals, families, and tribes who agree, each 1 Donna Greschner, “Commentary,” in David E. Smith, Peter Mackinnon, and John C. Courtney, eds, After Meech Lake: Lessons for the Future, 223–5 (Saskatoon, sk: Fifth House, 1991), 224. 2 John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 22: “The liberty of man in society is to be under no other Legislative Power, but that established by consent.” Did Locke indeed mean to include women? Scholars are divided, as one might suppose. After studying the many passages in the “Second Treatise” on women and family – in classes assisted by the objections and arguments of outspoken feminists – I have come to the conclusion that Locke counts the women in. He is, after all, the greatest opponent of patriarchical government. He would not be surprised to learn that in parliamentary democracies today, women vote, sit in the Legislature, and serve as ministers of the Crown. (He might ask us why legislatures do not have more women.)

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individual and all together, to live under a political regime with one government – a monarch, governing council, or parliament. Each person consents; all consent. Those who do not are not bound by the rules of the new regime and do not receive the benefits. “Men being, as has been said, by Nature, all free, equal and independent, no one can be put out of this Estate, and subjected to the Political Power of another, without his own Consent.”3 Thus, in the ordinary course of events, the regime’s sovereign, or sovereign parliament, speaks for all. As Jeremy Waldron argues: in the liberal democracies, the representative assembly “is a body in which we can discern the manifest footprints of our own original consent.”4 In Canada we are free to disagree with particular acts of Parliament; we are free to express our disapproval of particular parliamentary representatives. But in day-to-day politics we do not withdraw our approval of Parliament per se, Parliament as the arena that represents all. As I argued in the last chapter, that one can vigorously oppose the governing party while asserting confidence in the Constitution, the regime, is the boast of the free countries. It is the practice, or one might say the principle, that enables dissent, protects political minorities, and supports a climate of freedom. Popular sovereignty has a more radical dimension: “The people” can withdraw their “original consent”; they can reject Parliament as their representative; they can reject the very idea of government. Locke famously acknowledges the right of revolution. It is true that he would allow recourse to revolution only after – in the well-known phrase – “a long train of Abuses.”5 But he does not deny the right. All legitimate 3 Locke, “Second Treatise,” paragraph 95. 4 Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 309; see also the entire section, 302–12. And see Locke, “Second Treatise,” paragraph 101. We have no records of societies’ “original,” says Locke – that is, no records of beginnings because records and the art of writing developed only long after. But if we do not have “plain instances” of an “original,” we have “at least manifest footsteps of it.” Waldron acknowledges Thomas Pangle’s discussion of this passage in Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founder and the Philosophy of Locke (Chicago: University of Chicago Press, 1988), 249. In Pangle’s opinion the chief purpose of the passage is to reinforce the idea that “civil society can only come into being through the unanimous and equally weighted consent or compact of all the members” (254). But what are the “footsteps”? Pangle suggests that Locke may have in mind “regular solemn pledges of allegiance.” It is Waldron who boldly makes the claim for Parliament. We see in Parliament’s inclusiveness, the “footprints” of our “original consent.” 5 Locke, “Second Treatise,” paragraph 225.

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government rests on the consent of the people. When the people no longer consent, the government is no longer legitimate.6 It is said that the Fathers of Canadian Confederation were unfamiliar with the notion of popular sovereignty or deliberately ignored it. Just as they were not inclined to philosophy, so they did not ponder questions of “original consent,” let alone the “right of revolution.”7 Thus Peter Russell argues that the Fathers regarded popular sovereignty as “heresy”: “The idea that a constitution to be legitimate must be derived from the people [was] a dreadful heresy.”8 He continues: “at Canada’s founding its people were not sovereign, and there was not even a sense that a constituent sovereign people would have to be invented.”9 But consider these statements from the debates on Confederation in the colonial legislatures, the “ratification” debates: “[T]he people [are] the only rightful source of all political power” (James O’Halloran in the Canadian Legislative Assembly);10 “The principle which lies at the foundation 6 As I write, I am looking at an item from this morning’s paper on celebrations marking the anniversary of the peaceful uprising in Georgia that overthrew the regime of Eduard Shevardnadze. A huge picture of a jubilant crowd dominates the page. The “popular revolt was sparked by falsified poll results after Shevardnadze’s corrupt and ineffective party refused to recognize electoral defeat. Shevardnadze deployed riot police … but after three weeks of protest, he was forced to capitulate when protesters overran parliament”; Julius Strauss, “Orange is the New Red,” National Post, 24 November 2004, AL12. Strauss reminds readers of the overthrow of the Czech Communists in 1989 and the overthrow of Serbia’s Slobodan Milosevic in 2000, stating that “The people is the only rightful source of power.” 7 The idea that Canada, in contrast with the United States, is not a revolutionary country is central in the work of Seymour Martin Lipset; see his The First New Nation: The United States in Historical and Comparative Perspective (New York: Basic Books, 1963); and especially his “Revolution and Counterrevolution: Canada and the United States,” in Thomas Ford, ed., The Revolutionary Theme in Contemporary America, 21–64 (Lexington, ky: University of Kentucky Press, 1965). 8 Peter Russell, Constitutional Odyssey, 3rd ed. (Toronto: University of Toronto Press, 2004), 5. That popular sovereignty grounds the American Constitution, everyone recognizes. For American views on popular sovereignty today, see Keith Whittington, Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence, ks: University Press of Kansas, 1999), 288ff. 9 Russell, Constitutional Odyssey, 33. 10 James O’Halloran, Canadian Legislative Assembly, 8 March 1865, in Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003) (hereafter cfd), 451. O’Halloran’s statement perfectly echoes Locke, “Second Treatise,” paragraph 141: “The Power of the Legislative being

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of our constitution is that which declares the people to be the source of political power” (William Lawrence in the Nova Scotia House of Assembly);11 “[The] only way in which the constitution of a free, intelligent, and independent people can be changed at all is by revolution or the consent of the people” (William Gilbert in the New Brunswick Assembly).12 Note Gilbert’s reference to “revolution.” All the legislators see themselves as revolutionaries of a sort. They are considering whether to break with the old regime and institute a new one. As ratifiers of the new, they are being asked to say “yea” or “nay” to the old. Joseph Cauchon puts the matter this way: “That which is going on at the present moment before our eyes is neither more nor less than a revolution, a bloodless one if you will, but as complete a revolution in ideas and things as if we had reached it by the spilling of blood.”13 In Prince Edward Island, Alexander Laird argued that the population of the Red River colony had “every right” to rebel against being “literally sold” to the Dominion of Canada.14 Red River was annexed by Canada in 1870, entering Confederation as the province of Manitoba. The transfer of a people from one government to another without its consent is perhaps the archetypal offence against popular sovereignty.15 Not all the legislators in the Confederation debates spoke in the fiery accents of O’Halloran, Lawrence, and Gilbert, but all, I shall argue, subscribed to the doctrine of popular sovereignty. Conservative or Liberal, derived from the People by a positive voluntary Grant and Institution, can be no other, than what that positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making Laws, and place it in other hands.” 11 William Lawrence, Nova Scotia House of Assembly, 17 April 1866, in cfd, 385. 12 William Gilbert, New Brunswick House of Assembly, 26 March 1866, in cfd, 408. 13 Joseph Cauchon, Union of the Provinces of British North America (Quebec: Hunter, Rose, 1865), 1. 14 Alexander Laird, Prince Edward Island House of Assembly, 8 March 1870, in cfd, 405. 15 See E.G. Alston, British Columbia’s Legislative Council, 11 March 1870, in cfd, 251: “I am not disposed to regret the occurrence of the difficulty in Red River, for it will teach the Canadian government, and all governments, that though you may buy and sell territories, you cannot transfer the human beings therein, like so many serfs and chattels, to a fresh allegiance with impunity; that the consent of the people must be first obtained; and that though the soil may be sold, the soul is free.”

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frontbencher or backbencher, centralist or decentralist, Confederate or anti-Confederate – all took up the issue of popular consultation. Some of them were thinking of Locke’s formulation. Others refer to the American founders. In the Canadian Legislative Council, David Christie said, there are “some points of variance [between the British Constitution and the American] but the same great principle is the basis of both – that life, liberty and the pursuit of happiness are the unalienable rights of man, and that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed. This is the secret of the strength of the British Constitution, and without a free and full recognition of it no government can be strong or permanent.”16 According to Edmund Morgan, the English House of Commons “invented” popular sovereignty to challenge the legitimacy of the doctrine of the divine right of kings and in this way to justify the sovereignty of Parliament. “The English House of Commons … invented a sovereign people to overcome a sovereign king.”17 When? Perhaps as early as the 1640s; certainly the idea was known to English legislators years before Locke’s Second Treatise. Canada’s founders were well read: they knew modern history, some were trained in legal theory, and all had at least a passing acquaintance with the political writings of the American founders. Does it strain the imagination to suppose that they wished to see the British North American union legitimated by the consent of the people? Popular sovereignty encapsulates the most compelling political idea of modern times: the belief in human equality. It teaches that there are no natural kings and no natural slaves. Kings may rule but only with the sovereign people’s consent. One person may serve another but does not relinquish – indeed, cannot relinquish – the right to walk away from servitude. Freedom and equality are the human inheritance, our natural right. I do not need to say that the real world of politics falls short: tyrants flourish, slavery continues. But against the overwhelming evidence of the gulags, genocide, tortures, heedless slaughter and human misery, we continue to believe that political absolutism and slavery run counter to the right order of things – counter to human nature and God’s intent. If there is one teaching to which all in the West and beyond subscribe today, this is it. Even tyrants, to their eternal shame, use the 16 David Christie, Canadian Legislative Council, 15 February 1865, in cfd, 191. 17 Edmund S. Morgan, Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988), 267.

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language of popular sovereignty and human rights. In the liberal democracies, we strive to recognize equal citizenship and the equal right to life and liberty. The doctrine of popular sovereignty lies at the heart of all free governments; it underpins all codes and bills of rights; it virtually defines the modern idea of political justice. And – as Locke taught – it grounds parliamentary government.

t h e tw o “ c a m p s ” To repeat: without exception the Fathers of Canadian Confederation and the legislators in the colonial parliaments and assemblies subscribed to the doctrine of popular sovereignty. The issue before the provincial legislatures was not whether to consult the people but how to consult them. How were the people to voice their “yea” or “nay” on colonial union? To be more precise, the question is whether a resolution in a provincial parliament suffices as expression of the popular will. We may speak of two schools of thought, two “camps.” The first camp argues that a legislative resolution does not suffice. The people should be consulted directly in a referendum. The fiery orators whom I cite above belonged to this camp. The second camp maintains that a legislative resolution does suffice. Parliament is the voice of the people. Parliament hears all and speaks for all; it is the institution that best reflects our “original consent.” New Brunswick’s John Mercer Johnson spoke for this second camp: “The legislature when they meet are the people, and they have … the power to deal with all questions that may occur during their existence. They are the people … and they have the power to change the constitution.”18 Both camps – indeed, almost everyone participating in the Confederation debates, although there were a few exceptions, like A.A. Dorion – are of the opinion that the provincial parliaments represent “the people” for the purpose of ratifying statute law and public policy. In other words, both camps agree that in day-to-day politics, Parliament speaks for “the people.” The question is whether Parliament represents the people for the purpose of ratifying constitutional law. Would a vote in the provincial parliament suffice to legitimate the union? The Confederation legislators were not populist democrats. They supported representative democracy and the parliamentary institutions that Charles Taylor refers to in the phrase “mores of representative government.” They kept strictly in mind the distinction between constitutional 18 John Mercer Johnson, New Brunswick House of Assembly, 2 July 1866, in cfd, 411, emphasis added.

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law and the day-to-day laws that emanate from legislatures. Only some of them recommended direct appeal to the people and then only in the making of constitutional law. Consider this plea by James O’Halloran: “You sir, and I were sent here to make laws, not legislatures.”19 O’Halloran was a dyed-in-the-wool member of the referendum camp. We see him here arguing that the making of legislatures – that is, the making of constitutional law as distinct from statute law – requires an appeal to the popular sovereign. But note that he was also defending parliamentary sovereignty and acknowledging Parliament’s sovereign right to ratify statute law: “You sir, and I were sent here to make laws.” It is difficult to say which camp has the better argument. And it is difficult to say which argument does more to illuminate principles of parliamentary government. The special circumstances of constitution making prompted the Confederation legislators to think deeply about the nature of the parliamentary regime. But before we explore their arguments further, we must see why the issue came up in the form that it did. Why was the burning question whether legislative resolutions would suffice? We need the historical background.

th e l et te r o f 1858 To support his contention that the British North Americans believed popular sovereignty to be heresy, Peter Russell cites a letter of 25 October 1858 from George-Etienne Cartier, Alexander Galt, and John Ross, members of the Conservative government of the Province of Canada, to the British colonial secretary. It reads in part: “It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people, but would be the Constitution provided by the Imperial Parliament.”20 Russell calls this statement, “perhaps the most 19 James O’Halloran, Canadian Legislative Assembly, 8 March 1865, in cfd, 449. 20 Russell, Constitutional Odyssey, 3. Russell found the letter in O.D. Skelton’s biography of Alexander Galt. The better source is G.P. Browne, ed., Documents on the Confederation of British North America: A Compilation Based on Sir Joseph Pope’s Confederation Documents Supplemented by Other Official Material (Toronto: McClelland and Stewart and the Carleton Library, 1969); see especially “Documents – Section A: The Reaction of the Colonial Office to the Canadian Initiative of 1858,” 1–29. The letter from which Russell cites is Document 11; see also Document 10, written at the same time by the three Canadians and meant to introduce Document 11.

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haunting … in Canadian history.”21 He was writing in 1992, the year in which Canadians were debating measures to legitimate the Charlottetown Accord on the Constitution. Many observers at the time supposed that the procedure prescribed by the Constitution Act (1982) would suffice – that is, it would be enough to approve the accord in Parliament and the provincial legislatures. Others disagreed, Russell among them. The “mega-constitutional” change contemplated by the Charlottetown Accord required a direct appeal to “the people.” It seemed to Russell that Canadians had learned nothing from history; we had failed to acknowledge popular sovereignty at Confederation, and in 1992 we were still failing. In Russell’s opinion the Fathers had proposed to rely on the legitimating authority of the British Parliament. “For the mid-Victorian Canadian constitutionalists, legitimacy derives from the sovereign Parliament of the empire.”22 It is certainly true that the new Dominion did not sever its tie with empire. And it is true that Canada’s founding constitutional document, the British North America Act – now called the Constitution Act (1867) – is a statute of the British Parliament. All in all, Russell’s interpretation of the famous letter is far from implausible on first reading. The crucial passage reads: “the basis of Confederation … would be the Constitution provided by the Imperial Parliament.” But consider how it continues: “[It] … would be the Constitution provided by the Imperial Parliament; thus affording the means of remedying any defect, which is now practically impossible under the American Constitution.” The letter writers may have been saying that a formal amending process like that enshrined in the American Constitution is too inflexible. Parliamentary systems are preferable because they allow remedy of constitutional defects. But I think that they were addressing, or were also addressing, a somewhat different issue in confronting a peculiar difficulty of constitution making related to the one raised by Paine, Jefferson, and Madison. The question for the American founders was whether 21 Russell, Constitutional Odyssey, 3. 22 Ibid., 4. Paul Romney observes that imperial respect for popular opinion in the colonies predates the introduction of responsible government; see his note in cfd, 240: “When Montreal commercial interests persuaded the British government in 1822 to introduce a bill to unite Upper and Lower Canada, the attempt was opposed in both colonies as illegal and unconstitutional, and the protests prompted the government to drop the bill. Even in 1839–40 the imperial authorities felt obliged to gain the assent of the Upper Canadian legislature to union.” (In Lower Canada, as he adds, parliamentary government had been suspended after the 1837 Rebellion.)

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one generation could make binding decisions for succeeding generations without offending the principle of popular sovereignty. The question for the Conservative ministers from the Province of Canada was whether a party can speak authoritatively on constitutional issues for the larger populace. The letter of 1858 is part of what historians call the “Canadian initiative,” meaning that it originated in the old Province of Canada. The entire correspondence, occurring from August to December, includes letters, parliamentary committee reports, and formal instructions from the Colonial Office to the several colonial governments. It describes procedures for drafting a report on colonial union and, which is very important, procedures for ratifying the report – that is, for giving it the legitimacy necessary to a constitutional founding. In the letter that Russell singles out, Cartier, Galt, and Ross were asking the Colonial Secretary to take the first step, which was to instruct the provincial governors to select men to represent their province on the drafting committee. I suggest that they believed that the appeal to the Colonial Office was necessary because unilateral action by the Canadians would have offended Maritime sensibilities. It is a fact that the Canadians wanted Confederation more than did the Maritimers. The reasons are well known, and I will not rehearse them here. More important for the argument of this chapter is that unilateral action by the Canadians would have offended the principle of popular sovereignty. In my opinion, Cartier, Galt, and Ross were not decrying the doctrine of popular sovereignty per se; they were attempting to avoid the suggestion that they could speak for “the people” in the other provinces of British North America. The Canadian leaders had every reason to consult the people of the Province of Canada. Indeed, by 1858 they had already consulted them after a fashion and had concluded that most people in the Canadas favoured federation.23 But they could not use the fact that they had consulted the people in the Canadas to legitimate a program of constitution making for the Atlantic region. Hence their letter to the Colonial Office; the imperial government was a body impartially concerned with the welfare and good government of the people of every colony. In the ratification debates, speakers argued repeatedly that a regime founded on the consent of all must not entrench party or party ideology 23 The issue is muddled because the Canadians were considering more than one kind of union. There was the suggestion that Canada East and Canada West (Lower Canada and Upper Canada, as they were still called by most people) would formally separate and then join in a federation of two provinces. And there was the proposal for the separation of the Canadas and federation with the Maritime provinces. When legislators spoke of having consulted their constituents, it is not always clear about which form of union they were speaking.

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(the views of a part of the populace). In the Prince Edward Island Assembly, J.H. Gray said that Confederation “is a matter calculated to affect the interests and welfare of every subject in British America irrespective of party, race, or faith.”24 He was arguing that a constitution must not favour one party, one race, or one faith. A fortiori, the process of constitution making, especially a federal constitution, should not favour one region or be open to the interpretation that it favours a region. All involved in the 1858 correspondence agreed that the immediate task was to arrange the meeting of provincial leaders, and all argued – this is the important point from our perspective – that the resulting report should be laid before the provincial parliaments with “as little delay as possible.”25 The assumption was the familiar one: Parliament is “the people.”26 If the report recommended union as the Canadian ministers hoped, it would then be up to each provincial parliament to accept or reject it. A province that did not pass the requisite resolution would not be included in the federation. “The people” should not be compelled by British fiat or by a cabal of ambitious provincial elites. The case of Newfoundland illustrates this point. In the election of 1869 the party favouring Confederation was defeated, and as a result the union resolution was not put to the provincial Parliament. The people had made their will known.27 Newfoundland would not “come in” for another eighty years. 24 J.H. Gray, Prince Edward Island House of Assembly, 1 March 1865, in cfd, 398. 25 Browne, ed., Documents, Document 2. This report emanated from the Canadian Executive Council and is dated 9 September 1858. Our letter writers, ministers in the Canadian government, were surely involved. The document reads, in part: “That the report of such delegates should be addressed to the Secretary of State for the colonies, and that a copy of it … should be placed in the hands of the Governor and Lieutenant Governor of each colony, in order that he may lay the same before the Provincial Parliaments with as little delay as possible.” 26 See ibid., especially Documents 3, 4, 5, 10, 11, and 12. Note that the 1858 letter, the document containing the clause in dispute, is marked “private and confidential.” It has this designation, I suggest, because it sketches a division of legislative powers for the proposed union. The document has interested historians and political scientists exactly because it contains this early draft of material that was taken up at the Quebec Conference. But the Canadian Tories knew very well that they should not be caught drafting constitutional provisions for the other provinces. Hence the call for confidentiality. 27 See James Hiller, “Confederation Defeated: The Newfoundland Election of 1869,” in James Hiller and Peter Neary, eds, Newfoundland in the Nineteenth and Twentieth Centuries, 67–94 (Toronto: University of Toronto Press, 1980).

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Because our founding document, the British North America Act, is a statute of the imperial Parliament, Canadians have sometimes thought of Confederation as something that the British did for us or to us. There is no such assumption in the documents of 1858 and no such assumption in the Confederation debates. Confederation was to be something that the people did. The British would play their part, of course: they would advise, and they would add the final touch of constitutional legitimacy required by the imperial connection. Most of the participants in the legislative debates (although not all) – as well as, I believe, most of their constituents – were proud to think that the new federation would remain in the empire. The Confederation story is often told in terms of the three conferences. The provincial leaders met at Charlottetown in the fall of 1864. Having agreed on Confederation in principle, they moved to Québec City, where the union agreement was drafted.28 And then in the winter of 1866–67, the Fathers met British officials in London to cast their work in the formal language of constitutions. But to tell the story in this fashion encourages the idea that Confederation was a deal brokered by elites. It ignores “the people.” It ignores the ratification process. It is a scandalous fact that scholars have ignored the ratification debates. The debates in the Province of Canada were printed in 1865 and reissued by the Dominion in 1951. P.B. Waite made a sterling selection for the Carleton Library in 1963.29 But in other provinces, they languished in old archives. Scholars knew about them but were not interested. Indeed, they 28 The Quebec Resolutions can be found in Browne, ed., Documents, 154–65; and in cfd, 465–72. 29 P.B. Waite, ed., The Confederation Debates in the Province of Canada (Toronto: McClelland and Stewart and the Carleton Library, 1963). In one form or another the debates in the Canadian Legislature are relatively easy to obtain. But John Rohr had difficulties, as stated in his “Current Canadian Constitutionalism and the 1865 Confederation Debates,” The American Review of Canadian Studies (Winter 1998): 413–44 at 413: “Having read all 1,032 pages of these [Province of Canada] debates, I harbour the suspicion that I belong to a very exclusive club of North American academic eccentrics, and as an American, I expect that mine is a very small subset of this club.” Of the existence of similar debates in the other British North American colonies, Rohr appears to be completely in the dark. How strange it must seem to an American scholar that the ratification debates in British North America have been more or less ignored. Americans read their founders constantly; they return to them for instruction; they quarrel with them on a footing of equality, so to speak. And they publish and republish them. William Gairdner likes to point out that Canadians today have no trouble purchasing the works of the American Fathers. But ask for comparable Canadian material in the bookstores, and you will meet with blank stares.

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seldom consulted even the Province of Canada debates. As I argued in the last chapter, the historians and political scientists who originally shaped our view of Confederation emphasized the story of nation building and judicial interpretation of the division of legislative powers and paid little attention to statements about political founding and principles of government. G.P. Browne, editor of the Carleton Library collection of material from the Canadian initiative and the conferences, found the speeches in the legislatures “obscurantist.” “The public speeches of the Fathers [are] still more obscurantist than their speeches in the legislatures.”30 And then at some point in the 1960s, many scholars lost interest in constitutions and constitutional history, as Jack Granatstein reminds us.31 By the time of the London Conference, three legislatures had passed the necessary measure. In Newfoundland and Prince Edward Island, the debate continued. In British Columbia and the Red River settlement, debate commenced. Consider J.S. Helmcken in the British Columbia Legislative Council: “It remains … for the people to organize, so as to be ready at the proper time to give their verdict, for the responsibilities will ultimately rest with the people, and it is for them to say whether they will have Confederation or not.”32 He was speaking in the spring of 1870. Confederation did not happen in a day! (Indeed, it is still going on.)

th e dan g er s o f po pu l ar s ove re i g n ty Recall William Gilbert’s statement in the New Brunswick House of Assembly: “[The] only way in which the constitution of a free, intelligent, and independent people can be changed at all is by revolution or the consent of the people.”33 Gilbert was acknowledging the Lockean right of revolution.34 It is sometimes said – despite Locke – that there is no 30 Browne, ed., Documents, xii. 31 Jack Granatstein, Who Killed Canadian History? (Toronto: HarperCollins, 1998). 32 J.S. Helmcken, British Columbia Legislative Council, 9 March 1870, in cfd, 411. 33 William Gilbert, New Brunswick House of Assembly, 26 March 1866, in cfd, 408. 34 Consider this formulation in Locke’s “Second Treatise,” paragraph 222: “For since it can never be supposed to be the Will of the Society, that the Legislative should have a Power to destroy that, which every one designs to secure, by entering into Society, and for which the People submitted themselves to the Legislators of their own making; whenever the Legislators endeavour to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power,

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right of revolution in British tradition. The Americans have it but not the British; supposedly, Burke and other sober thinkers dominate British political thought. Or it is suggested that if there is a British right of revolution originating in Locke, the constitutional lawyers who came after him were circumspect about describing it because the right of revolution is a dangerous principle, not one to publicize and praise. In my opinion, this second statement is closer to the truth. And one can understand and sympathize. To acknowledge the right of revolution may encourage demagoguery, civil disorder, riots, failed coups, and outright revolutionary war. As Edmund Morgan points out, shortly after its “invention,” popular sovereignty took on a nightmarish form; it legitimated or appeared to legitimate a new, “democratic” form of autocracy. The men controlling England’s Long Parliament were popular despots, claiming absolute power to speak in the people’s name even while ignoring or exploiting them, and the experience induced in the public mind a “squeamishness [about popular sovereignty that] lingered into the eighteenth century.”35 Nevertheless, when the monarchy was restored and when, in the Glorious Revolution of 1688 the sovereignty of Parliament was reasserted, the change of regime was depicted as an expression of the will of the sovereign people.36 It is an important theme for Morgan that the Americans have always been more comfortable with the idea of popular sovereignty than the English. But we deceive ourselves if we do not acknowledge that the Westminster form of government, as much as the American presidential system, requires it. There remains a dilemma: the doctrine of popular sovereignty that underpins our modern rights doctrines rests on – is derived from, necessarily entails – the right of revolution. Locke says that “no Government can have a right to obedience from a people who have not freely consented to it.”37 Tyrannies are illegitimate, and against them we may, we they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men Against Force and Violence.” The people have a right to resume their original liberty, and “by the Establishment of a new Legislative (such as they shall think fit) provide for their own Safety and Security, which is the end for which they are in Society.” 35 Morgan, Inventing the People, 144; see also 94–121. 36 See H.T. Dickson, Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Methuen, 1977), 128–9. I am grateful to George Breckenridge for directing my attention to this volume many years ago. 37 Locke, “Second Treatise,” paragraph 192.

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should, revolt. Yet revolutions destroy many things, including whatever ground remains for civil order and thus surety for civil rights. To preach the right of revolution – especially to preach it in a peaceable regime – may be imprudent to say the least. Locke himself understood the need for prudence. But in the opinion of some scholars, especially constitutional lawyers like A.V. Dicey, he gave prudence too little weight. Dicey hedges, hems, and haws. He acknowledges the sovereignty of the people, but in many passages appears to mean by “the people” only the electorate.38 Thus he would allow “the people” to remove the government of the day but not to overthrow the regime. Parliament is the “legal sovereign,” he says, whereas “the electors are the [political] sovereign.”39 There is no right of revolution in this formula. But then he goes on to argue that the “sovereignty of Parliament is limited on every side by the possibility of resistance,” and in such passages he is no longer speaking only of the electorate.40 He allows himself to speak of the “will of the nation.”41 And so the argument winds on. He refers to popular disobedience. He produces a list of outrageous things that Parliament will never do – because these are inherently offensive to the temper of the times and offensive to “the people.” He is cagey, but in the end he leaves the reader with the impression that a parliament that does not respect the rights of the populace is not a parliament in the proper sense. He verges on saying that an abusive parliament would have no legitimacy. Much of the time, he is assuring readers that when things are going well, there will be no conflict between the legal sovereign and the political sovereign. I note, however, that his historical examples illustrate the continuing fact of conflict. In short, although Dicey does not overtly recognize the right of revolution, I suggest that he knows as well as Locke that the doctrine of popular sovereignty entails it. Dicey admired the American Constitution; he admired the American Bill of Rights; he allowed himself to contemplate the introduction of a constitutional bill of rights in Britain. Burke – famously sober Burke – admired the American Revolution! And as I suggest in chapter 6, on the Constitutional Act of 1791, Burke was himself a sort of founder – that is, a sort of revolutionary – when he participated in the debates on the 38 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (London: Macmillan, 1959), ch. 1 at 73. And see the entire discussion in the concluding pages, 70–85, of chapter 1. The Law of the Constitution was first published in 1886. 39 Ibid., 76. 40 Ibid., 79. 41 Ibid., 83.

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grant of constitutional government to the Province of Quebec. I think we can conclude that both Burke and Dicey understood the fundamental character of the right of revolution, although they saw as well the necessity for prudence. Dicey’s Introduction to the Study of the Law of the Constitution had not been published at the time of the Confederation debates. It remains that he is a good guide to terms and distinctions used by the Confederation legislators. If they had had not read him, they had read his sources; his way of thinking was familiar to them. The Confederation debates perfectly illustrate the right-of-revolution dilemma. The fiery orators whom I cited above – the speakers in the referendum camp – threw caution to the winds. They insisted that the act of political founding was in and of itself revolutionary. The British North Americans were making a revolution. Recall Joseph Cauchon: “That which is going on at the present moment before our eyes is neither more nor less than a revolution.”42 In the parliamentary camp are the masters of prudence. They hem and haw like Dicey. But everyone, I suggest, understands Cauchon’s point. Everyone understands that popular sovereignty entails the right of revolt.

constitution making as revolution: th e re f e r en du m ca m p I said that the referendum camp does not regard a vote in the Legislature as sufficient evidence of the people’s consent to the union. The parliamentary camp in contrast maintains that a legislative vote is sufficient. There was a third “camp,” a sort of middle-of-the-road school, which recommended dissolving the Legislature and putting the union resolution to a “fresh” parliament. In the end, this apparently sensible way of thinking was adopted in most provinces. But to understand the outlines of the dilemma – and to see the advantages and, indeed, the disadvantages of the third camp – we must first consider the extreme arguments. The argument of the referendum camp is as follows: the principal benefit of a parliamentary regime is to secure the people’s rights. Confederation would destroy the parliaments in each province; it would dismantle the legislatures and thus endanger rights. Where rights are in jeopardy, the people must be consulted directly. The contention is perfectly in keeping with Locke. Remember David Christie on the “unalienable rights of man.” To “secure these rights,” he said, “governments are

42 Cauchon, Union of the Provinces, 1.

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instituted … deriving their just powers from the consent of the governed. This is the secret of the strength of the British Constitution.”43 In the Canadian Upper House, James Currie argued that his colleagues should pause before “we vote away our local constitutions – before we vote away in fact our whole constitution.”44 In New Brunswick, Andrew Wetmore complained that the Quebec delegates went “to Canada at great expense to the people of this country and there [matured] a scheme to destroy and sacrifice the country in which they live.”45 In Prince Edward Island, George Sinclair asked: “What authority had the delegates [to the Quebec Conference] to go to Canada and thus sign away our rights?”46 In Prince Edward Island again, William McNeill, facing a general election, maintained that, “this island would never return men to the legislature who would destroy our parliament.”47 In Nova Scotia, William Annand contended: “It was a matter of very serious import to the people of this province when they learned from such an authority [Provincial Secretary Charles Tupper] that their rights and privileges were to be swept away without their being consulted.”48 William Lawrence agreed: “We have no right to surrender the liberties and privileges which we were appointed to guard.”49 And consider Peter Tessier in Newfoundland: “Here was a wholesale extinction of the rights and privileges we have enjoyed since the settlement of the colony!”50 As I have already suggested, historians and political scientists argue that there was no marked change of regime at Confederation: the British North Americans enjoyed parliamentary government before union and 43 David Christie, Canadian Legislative Council, 15 February 1865, in cfd, 191. 44 James Currie, Canadian Legislative Council, 17 February 1865, in cfd, 439. 45 Andrew Wetmore, New Brunswick House of Assembly, 3 June 1865, in cfd, 408. 46 George Sinclair, Prince Edward Island House of Assembly, 29 March 1865, in cfd, 401. 47 William McNeill, Prince Edward Island House of Assembly, 8 March 1870, in cfd, 404–5. 48 William Annand, Nova Scotia House of Assembly, 7 March 1866, in cfd, 358. 49 William Lawrence, Nova Scotia House of Assembly, 17 April 1866, in cfd, 384. 50 Peter Tessier, Newfoundland Legislative Council, 14 February 1865, in cfd, 218. Tessier was arguing for continuation of the connection with Britain; he regarded the imperial tie as surety for rights.

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continued to enjoy it afterward; there was no war, no violent break with England. The American founding required a revolution; the Canadian union did not. So goes the standard argument. The Confederation legislators thought otherwise. They regarded the union proposal as an attack on the local constitutions. It would be irrevocable or nearly so, as revolutions are irrevocable. It would be “for all time.” In the Canadian Upper House, Benjamin Seymour argued: “Here you propose to change the constitution – to change the whole fabric of society – in fact to revolutionize society, without asking the consent of the people, and without the possibility – at any rate, the reasonable possibility – of this important change ever being reconsidered.”51 In the New Brunswick Assembly, William Gilbert said: “This Confederation strikes at the whole constitution of the country, strikes at the constitution of this house, and if carried no subsequent house could alter or repeal what we might do. No subsequent house could retrace the steps which we had taken.”52 It was the irrevocable character of Confederation that this first school believed crucial. In Nova Scotia, Stewart Campbell put it this way: Confederation is a “matter which concerns [the people’s] interests for all time to come.” At present, he said, “If we have a ministry that is not agreeable to our wishes and that does not promote the interests of the country, we may bear with it for a while, knowing that the time will come when the people will assert their rights and substitute better men, but in reference to this measure only pass it now and it will be passed forever – the doom of Nova Scotia will then be sealed.”53 In the same debate, Archibald McLelan contended: “You are proposing to pass a resolution upon which no man voting for it will go back to the people for the ratification of his act.”54 A year later, he repeated the point: “Our system of government implies that you have either had the sanction of the people or intend to return to them for ratification. This bill does not contemplate that you should do that, for the very act destroys the constitution, and is contrary to the term – responsible government.”55 In New Brunswick, Andrew Wetmore made a similar 51 Benjamin Seymour, Canadian Legislative Council, 17 February 1865, in cfd, 431. 52 William Gilbert, New Brunswick House of Assembly, 26 March 1866, in cfd, 409. 53 Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866, in cfd, 374–5. 54 Archibald McLelan, Nova Scotia House of Assembly, 17 April 1866, in cfd, 382. 55 Archibald McLelan, Nova Scotia House of Assembly, 19 March 1867, in cfd, 392.

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case: the delegates to the Charlottetown Conference had violated the principle of “responsible government”; it was their “duty to attend to what the people sent them to look after, and consideration was not given that should have been given to the voice of the people of this province.”56 McLelan and Wetmore described the irrevocable character of Confederation as a violation of responsible government. It can also be said that it violated the principle of parliamentary sovereignty. Parliamentary sovereignty enables the repeal or revision of statutes and policies as the will of the electorate changes. It ensures Canadians the freedoms of a liberal democracy. In the familiar formulation, one parliament cannot bind subsequent parliaments. Statute law is not “for all time to come.” Parliamentary sovereignty very obviously ensures the rights of majorities. But as I have been arguing, it also promotes the rights of minorities. Dissenting opinions are given at least token respect: they are allowed; they are formally welcomed, if privately disparaged; their purveyors are not jailed or dropped down an oubliette because minority opinion may revive when times change and because the political opposition may at some point become the government. This is the heart of the case for consulting the people directly. Parliamentary resolutions would not suffice because the resolution called for the destruction of the parliaments. And with the destruction of the parliaments, security for rights would be endangered. Would rights be as well secured under the new constitution? Possibly. Probably. It remained that on such an issue, the people had to speak directly. We might ask whether the legislators who promulgated this argument were moved by a sincere desire to explore philosophies of representation and constitution making or were merely trying to defeat Confederation by any means at hand. One could certainly make a case that in Nova Scotia most, if not all, adherents of this first school were anti-Confederates. But in the united Province of Canada, as I have already noted, most speakers favoured Confederation and were convinced that their constituents did, too. Nevertheless, not a few argued for the direct appeal to the people. In the Canadian Assembly, M.C. Cameron argued: in “this enlightened day, when the people interfere and have a right to interfere in the management of their own affairs, no such change as [Confederation] should take place without their having a voice in it.”57 In arguing for a referendum, Cameron opposed his party leaders, Macdonald and Cartier, who 56 Andrew Wetmore, New Brunswick House of Assembly, 3 June 1865, in cfd, 408. 57 M.C. Cameron, Canadian Legislative Assembly, 13 March 1965, in cfd, 457.

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stood for constitution making by parliamentary resolution. Although Cameron was a Conservative and a Confederate, he can be accused of having tried to discredit the Confederation bill. It was the principle of the thing that moved him. For the purpose of making a new constitution, a vote in the Legislature would not suffice. The people had to be consulted directly. As I have presented it, the argument of the first school was premised on the idea that provinces would not be able to secede from Confederation. Once in the union, a province was in “forever.” Let us, just for the interest of the thing, suppose that provinces are able to withdraw. Do we then escape the difficulties that I have just outlined? It would seem not. The act of seceding would necessitate creation of a new provincial constitution (not to mention creation of a new, truncated federal one). Admittedly, the new provincial constitution might not be strikingly novel in form and appearance. It might recreate in all its details the old provincial constitution from before Confederation. Nevertheless, it would be a re-creation – that is, a creation. And like all acts of regime creation, its making would put rights in jeopardy and thus require an appeal to the people. Can a parliament destroy itself? Can it recreate itself? The convolutions of the problem are reflected in James O’Halloran’s complaint to the Canadian Assembly: “You sir, and I were sent here to make laws, not legislatures.”58

th e pa r l i a m e n t th at re pr es en t s al l a nd he a rs a ll We now turn to the second school, the legislators who think that for the purpose of constitution making, a parliamentary resolution does suffice. Just as the colonial parliaments had the authority to approve or veto statute law, so they had the authority to approve or veto a new constitution. There was no need for a referendum or for dissolution and general election. We are required to consider the idea that Parliament is the people. Recall John Mercer Johnson in the New Brunswick House of Assembly: “The legislature when they meet are the people.”59 And consider this assertion by Joseph Cauchon in the Canadian Assembly: “Each representative, although elected by one particular county, represents the whole 58 James O’Halloran, Canadian Legislative Assembly, 8 March 1865, in cfd, 449. 59 John Mercer Johnson, New Brunswick House of Assembly, 2 July 1866, in cfd, 411.

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country, and his legislative responsibility extends to the whole of it.”60 Parliament represents the entire population, not merely the majority party and not merely the electorate, but every last child, woman, and man – that is, everyone who stands to be affected by Parliament’s laws and policies.61 As Waldron would have it, Parliament is the manifest footprint of our original consent.62 How unfortunate it is that Canadians have so often allowed themselves to think in terms of a simple opposition between popular sovereignty and parliamentary sovereignty. We have relinquished our grasp of a vital feature of parliamentary government – the feature that Cauchon described so succinctly: representatives speak for both “county” and “country.” But although Parliament represents all, its decisions, as we know, usually take the form of a majority vote. We are entitled to ask why we should prefer a majority decision by “the people” in Parliament to a majority decision by “the people” in a referendum. Why should we prefer the people as represented in Parliament to the people “out of doors?” The argument of this second school is, in brief, that a parliamentary decision is preferable because parliaments are deliberative arenas that do more than referendums to include and to respect the arguments and interests of minorities. The contention is that “the people” is more truly represented in Parliament. In the debate between the two schools, different understandings of “the people” are operating. The legislators in the referendum camp think of the people, or come close to thinking of the people, as a homogeneous entity, a sort of single-minded giant who will announce its “yea” or “nay” with one strong voice. Adherents of the parliamentary camp regard “the people” as a heterogeneous mass of irreconcilable interests. Where political freedom prevails, disagreement, complaint, and opposition are the norm. Dissent will prevail in the arena of constitution making just as it prevails in the arena of statute making. Thus John A. Macdonald spoke of “interests, classes and communities” among the people: “Sir, I believe in my conscience that this house … represents 60 Joseph Cauchon, Canadian Legislative Assembly, 6 March 1865, in cfd, 448. See also the journal of political opinion edited by Pierre Bédard, Le Canadien 1, no. 15 (28 February 1807): 60, for a clear statement on the point that members properly represent the entire province, not merely the particular constituency that elected them. Bédard derived this understanding from his study of Blackstone. 61 Morgan, Inventing the People, 48, 59ff, traces the development of this view of representation in England and the United States. 62 Waldron, Law and Disagreement, 309.

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truly and faithfully the people of Canada. If the members of this house do not represent the country – all its interests, classes, and communities – it has never been represented.”63 Tyrants expect and require consensus, says the parliamentary camp. Insofar as constitution making by referendum expects consensus, insofar as the referendum camp encourages it, the process that they endorse is akin to tyranny. In Macdonald’s words: “a reference to the people – a direct reference to the people – of a question of this kind may be the means by which a despot, an absolute monarch, may get that popular confirmation and approval which he desires for the laws to support a continuation of his usurpation … but in every free country, where there is a constitution at all, the vote must be taken by … the representatives of the people, and not become a mere form and cover to tyranny.”64 The usual view of Confederation presents Macdonald as a highhanded party advocate and oligarch. But in the Confederation debates, he speaks as a proponent of popular sovereignty, an equalitarian, and a defender of parliamentary free speech. Here he is in his first address on Confederation to the Canadian Legislative Assembly, describing the proposed general government of the new federation, the institution that would become the Canadian Parliament: “We will enjoy here that which is the great test of constitutional freedom – we will have the rights of the minority respected. In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regarded.”65 By the “minority,” or “minorities,” Macdonald did not mean – or did not mean exclusively – ethnic or religious minorities. He was referring to the political minority – that is, to the opposition party, parties, or groups in the Assembly, in the Upper House, and in the populace at large. The advantage of parliamentary democracy is that it protects the political opposition. The majority cannot ruthlessly ignore dissent. It cannot act in tyrannical fashion. Richard Cartwright seconded this position: “I think that every true reformer, every real friend of liberty, will agree with me in saying that if we must erect safeguards, they should be rather for the security of the individual than of the mass, and that our chiefest care 63 John A. Macdonald, Canadian Legislative Assembly, 13 March 1865, in cfd, 462. 64 Ibid., in cfd, 459. See also Charles Tupper, Nova Scotia House of Assembly, 10 April 1866, in cfd, 362. 65 John A. Macdonald, Canadian Legislative Assembly, 6 February 1865, in cfd, 206.

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must be to train the majority to respect the rights of the minority, to prevent the claims of the few from being trampled under foot by the caprice or passion of the many.”66 Recall Cauchon’s contention that parliamentary representatives speak for both “county” and “country.” Members of Parliament deliberate in the national interest (they represent the country), but they cannot forget their particular responsibilities (their county, their constituency). The tension between county and country can seldom be resolved, but the attempt to resolve it keeps dissent alive while fostering inclusive deliberation.67 To sum up: a majority vote in Parliament is (or should be) the fruit of structured deliberation in light of the legislator’s obligation to both country and riding constituents. Thus Macdonald contended: “Why, sir, for what do we come to this house, if it is not because we are supposed to be convinced by argument, if it is not that we are to sit down together and compare notes and discuss the questions that may come before us, and to be convinced according to the force of the reasons that may be advanced for or against them.”68 This is the heart of the case for constitution making by parliamentary resolution. In law and tradition, Parliament is understood to represent the whole population in all its diversity. It represents equally all individuals subject to the law. I am not arguing that Parliament always lives up to this “rosy picture.” But no other constitutional body can convincingly make such a claim.69 Parliament represents all and hears all and has necessarily developed a process of political deliberation that respects political minorities. A parliamentary majority, a deliberative majority, is more inclusive than the raw majority of a referendum, and because more inclusive, it has more legitimacy.

66 Richard Cartwright, Canadian Legislative Assembly, 9 March 1865, in cfd, 19. 67 Joseph Cauchon, Canadian Legislative Assembly, 6 March 1865, in cfd, 448, echoes Edmund Burke on instruction of representatives by constituents: “members do not and cannot receive an imperative order from their electors.” E.D. Shea, Newfoundland House of Assembly, 6 February 1865, in cfd, 395–6, makes a similar point. Shea quotes Burke at length. 68 Macdonald, Canadian Legislative Assembly, 13 March 1865, in cfd, 461. 69 It is true that the governor general represents the entire populace just as the monarch of Britain does. But the Constitution does not allow the governor general and British monarch a direct role in policy making.

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the impossibility of constitution making The first school, the referendum camp, is less sensitive to political diversity. Those of this camp see the forest but not the trees. The second school, the parliamentary camp, is surely superior insofar as it acknowledges political diversity. But does it see the forest? If we listen only to the parliamentary school, we may agree that a referendum too easily overrides minority rights. There is something tyrannical, something profoundly inconsistent with Lockean principles, in the idea of making a new constitution on the basis of a majority vote among the population at large. All must consent to a new constitution, a founding, a new regime. There can be no legitimate regime without the consent of each and all who are to be subject to it, and a parliamentary vote is our best means to realize this notion of “each and all.” But what about the powerful idea promulgated by the referendum camp that Confederation would destroy the existing provincial constitutions? What about the awkward fact that the Parliament in which the Constitution was made would be undone in the process? The parliamentary camp was relying on the notion that the parliamentary form of government endures, whereas parties and particular governments come and go. In the ordinary course of events, politics and interests change, but the Constitution, the superior law, remains. That the Constitution shelters many political views and allows each and all equal opportunity to participate is what grounds the claim that Parliament is more inclusive than the one-time referendum. But in the ratification debates, the legislators were being asked to “destroy the whole constitution.” They were being asked to put the local legislatures on a new footing, with reduced powers, and to approve the creation of a new national legislature. This was the point to which the proponents of referendum constantly returned: “You Sir, and I were sent here to make laws, not legislatures.” The dissolution of the local parliaments would return people to the state of nature, so to speak. Whereas the old parliamentary regime had made promises and had professed surety for rights, this old regime would be gone and all its guarantees with it. The two schools seek to protect rights and equality under the law – both endorse popular sovereignty – but both are open to the charge that the procedures that they propose for determining and affirming the people’s consent in fact threaten the people’s rights. The referendum camp would rely on a majority to make a constitution for all – a clear violation of popular sovereignty. The parliamentary camp goes a long way toward persuading us that Parliament is the inclusive body; we may be ready to believe that a legislative vote meets the popular-sovereignty stricture. But

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there is perhaps a fatal glitch: the contention that constitutional law can be made in Parliament in the same fashion as statute law blurs the distinction between constitutions and politics, the very distinction on which rests Parliament’s claim to inclusiveness. It may be that there is no satisfactory formula for constitution making. As Canadians discovered in the 1980s and 1990s, the constitutional process is confrontational exactly because the decisions appear to be irrevocable. Constitution making by whatever means exacerbates political differences and encourages immoderate demands. As Machiavelli says in the Discourses, unhappy is the country that is required to amend its Constitution. Nevertheless, at Confederation we muddled through.70 The debate was heated, passionate, but in the end the deed was done, and most of the legislators were proud of it.71 They brought us safely through the fires of philosophy.

t h e t h i r d w ay : dissolution and general election In the Canadian Legislative Assembly, J.H. Cameron argued for dissolution of the provincial Parliament and a general election; the union proposal would then be put to the new Parliament. In Cameron’s view, this 70 They “muddled through,” not a dishonourable course of action given their high aspirations. As argued by Erhard Eppler, “A Program Beyond Utopia,” in Peter Russell, ed., The Future of Social Democracy: Views of Leaders from around the World, 31–8 (Toronto: University of Toronto Press, 1999), 38: “Politics takes place and policies are developed somewhere between utopia and muddling through. Those, in the twenty-first century, who will be looking for utopia will fail, whether they find it or not. But those who smugly confine themselves to muddling through, or are even proud of doing so, will abolish politics and, in the end, ruin democracy.” 71 As argued by Roger Gibbins, Conflict and Unity: An Introduction to Canadian Political Life, 3rd ed. (Scarborough, on: Nelson, 1994), 37: “To an extent that the problems of the 1860s are still with us one might be tempted to conclude that Confederation was a failure, but such a conclusion would be too harsh. One must remember that the 1867 agreement created a political community that has experienced quite remarkable stability, domestic peace, and material prosperity. Moreover the problems that Canadians confronted in the 1860s can never be eliminated; at best they can be moderated and contained, their burden on the community lightened, but not removed … The fact that we are still here as a country to grapple with the same problems that faced the architects of Confederation pays no small compliment to their work.”

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was the procedure that would best meet the requirement for popular consultation. “We are arranging to adopt an entirely new state of governmental existence … We are claiming for it, and desire that it shall have its best and safest foundation in the hearts of the people … In proposing that it shall have the sanction of the people I do not contemplate the absurdity, unknown to our form of government, of asking them for a direct yea or nay upon it. No such thing as that has ever been entertained in my mind.”72 I said above that the third-way proposal appears eminently sensible. The people would discuss Confederation and vote for the party or individual members that best represented their approval or disapproval. Parliament would then ratify their decision. Yet a moment’s thought discloses trouble; none of the problems have been avoided. Parliamentary deliberation – the glory of the parliamentary regime in the eyes of men like Macdonald – would be curtailed. The election would have the character of a referendum, with all the disadvantages. And why should it be supposed that a vote in a “fresh” parliament has more legitimacy than a vote in a stale one (a parliament nearing the end of its term)? Parliamentary sovereignty and the rule of law do not run out over time like the sands in an hourglass. Statutes passed near the end of a government’s term have the same force in law as statutes passed at the beginning. Those who take J.H. Cameron’s position seem to be arguing that Parliament has a constituent power – that is, the power to make constitutions – but only for the short period following a general election. The proposition may make sense from the political perspective; it makes no sense from the perspective of constitutional law. Cameron’s plea was not successful. When he made it, the Legislature had already approved Confederation! Nevertheless, other provinces adopted a procedure like the one that J.H. Cameron sketched out, and in each case the argument was that “the people” had spoken. No province held a referendum. Dissolution and appeal to the people in an election was the procedure followed in British Columbia (which entered Confederation in 1871), New Brunswick (1867), and Prince Edward Island (1873). Newfoundland also fell into this category. The Province of Canada, Nova Scotia, and the tiny colony of Red River were the exceptions. In Canada and Nova Scotia no elections were held, and although Confederation was ratified by the legislatures, the legislatures were stale when the vote was taken. In Canada, as I have suggested, legislators testified that their constituents 72 J.H. Cameron, Canadian Legislative Assembly, 13 March 1865, in cfd, 455–6.

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overwhelmingly favoured union. The situation in Nova Scotia is not as clear. There was considerable popular opposition.73 Red River remains a blot on Canada’s escutcheon. The important point is that the founding legislators from every province, and from every party, Confederates and anti-Confederates, frontbenchers and backbenchers, the first school and the second, acknowledged popular sovereignty. Their very differences about the means reveal agreement about the objective: some wanted an election, some wanted a referendum, and some thought that a legislative resolution would suffice. But all agreed that “the people” must decide. No doubt, the Constitution Act (1867) has its imperfections. No doubt, the drafting and ratifying processes fell short. But all human undertakings are imperfect. We are entitled to conclude that Canada, like the other parliamentary democracies, like presidential systems, rests on popular sovereignty.

th e e nl i g h te nm e n t co n s t i t ut i o n Peter Russell is correct to suppose that Canadian attitudes toward constitution making are still today informed by our understanding of what happened at Confederation. But Russell believes that the original making was deficient because it did not acknowledge popular sovereignty. Thus in his view we must strive for a more inclusive and democratic system; our regime is still flawed. But if I am right and the Constitution Act (1867) is compatible with popular sovereignty and the understanding of liberal democracy and political equality that the doctrine encapsulates, we should think twice about demanding mega-constitutional change. The Canadian Constitution is not a second-rate thing of its kind. It is – or so I would argue – an excellent example of an Enlightenment constitution. The question is whether we wish to move beyond the Enlightenment. And this is not a small matter. Enlightenment constitutions are durable. Their record in protecting the equal right to life and liberty is unexcelled. It may be objected that the record is not perfect. I would agree that it is not. But there is none better. And as we surely learned in the twentieth century, striving for the perfect political regime carries its own dangers.74 73 Phillip A. Buckner, “The Maritimes and Confederation: A Reassessment,” Canadian Historical Review 71, no. 1 (1990): 1–30, argues that historians have exaggerated Maritime opposition to Confederation. 74 Canadians might consider nonconstitutional reforms to the political and parliamentary process; useful suggestions were made during the election of 2004.

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That our interpretation of what happened at Confederation shapes our view of public policy and Canadian political culture, I have already suggested. Thus some political scientists – Charles Taylor is one – believe that a disposition to collectivism (“collective provision”) was established in 1867: the argument is that the Fathers subscribed to a conservative ideology that privileged the communal good (as defined by entrenched elites) over the rights of individuals; supposedly, this notion of community was tempered decades later by emerging notions of liberal equality, yielding socialism, and the positive and regulatory state. Many Canadians accept this interpretation of our origins; we are said to be a more caring society because in the making of the 1867 regime, a Tory vision was dominant. But if Canada is founded on popular sovereignty, the principle that requires equality of all under the law, no disposition to Tory collectivism was entrenched. Nor was a disposition to reject Toryism. No policy preference is built into a constitution founded on popular sovereignty. All political measures have to be justified in the public arena by the process of deliberation about the common good. As Macdonald argued: “[We] are supposed to be convinced by argument … we are to sit down together and compare notes and discuss the questions that may come before us, and to be convinced according to the force of the reasons that may be advanced for or against them.”75

75 John A. Macdonald, Canadian Legislative Assembly, 13 March 1865, in cfd, 461.

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Human Rights in 1867 The people “could never be safe nor at rest, nor think themselves in Civil Society, till the Legislature was placed in collective Bodies of Men, call them Senate, Parliament, or what you please. By which means every single person became subject equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established.” Locke, Second Treatise, paragraph 94

in a speech to mark the twentieth anniversary of the Canadian Charter of Rights and Freedoms, Irwin Cotler, then Canada’s justice minister, argued that the 1982 bill had initiated a “revolution of law” in this country as grand in its way as Pasteur’s revolution in health care. Before the Charter, he said: “Canada had a history of state-sanctioned institutionalised discrimination.” “The judicial emphasis was with the powers of government, rather than the limitations of the exercise of power. There was a preoccupation with legal federalism. Although there was an implied bill of rights, there was no constitutional protection of law.”1 I have said that many Canadian scholars – Charles Taylor, Gad Horowitz, William Christian, David Taras, and others (the “laurentians,” as I call them in chapter 1) – praise the British North America Act exactly because, as they suppose, the Fathers emphasized collective interests rather than individual rights. Cotler deplores the supposed bent toward collectivism; the laurentians applaud it. But the point of note is that, deplore it or love it, the idea that the Fathers favoured collectivism encourages Canadians to believe that before 1982 rights were sometimes, perhaps often, ignored. Both interpretations – Cotler’s and the laurentians’ – lend support to the idea that parliamentary government offers little or no “constitutional protection of law” for individual rights. 1 Irwin Cotler, quoted in Rick Kardonne, “Before Charter of Rights, Canada Had History of Discrimination: Cotler,” The Jewish Tribune, 21 April 2005, 9.

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It is true that the Canadian Fathers did not draw up a bill of rights in the manner of the American founders. But we have seen enough of the Confederation debates to know that most or all believed that security for the individual – the right to life, liberty, and property, to use Locke’s phrase – is Parliament’s original and primary purpose. Listen to F.B.T. Carter in the Newfoundland Assembly; the date was 1869, and he was describing the Constitution of the Dominion of Canada, the British North America Act: “Every possible precaution for the preservation of their lives, their properties, and their liberties had been taken. Every principle of the British Constitution, which tends towards the preservation of these [principles], was to be found in their new constitution.”2 The Confederation legislators congratulated themselves on their rights as subjects of the British Crown. They praised the rights records of the individual provinces. And as we shall see, they framed a constitution for the federation on the same lines. The word “rights” comes bursting out of their speeches. Here is Stewart Campbell in the Nova Scotia Assembly: “I am a free man. I claim the rights and attributes of a free man, speaking in the presence of a British free assembly. I have the right to criticize the judgement they have formed and an equal right to give expression to my own.”3 Nova Scotia’s William Lawrence boasted: “We are a free people, prosperous beyond doubt, advancing cautiously in wealth … Under the British Constitution we have far more freedom than any other people on the face of the earth.”4 In Newfoundland, George Hogsett said: “We have here a constitution for which the people nobly fought, and which was reluctantly wrung from the British government. We had the right of taxing ourselves, or legislating for ourselves.”5 He went on: “were we then … to give up all the rights we possess, rights which, if properly worked and administered, would secure us all the advantages and prosperity a people can want or require?” In Prince Edward Island, John Longworth said: “I conceive it to be our duty to return to the people intact the rights and 2 F.B.T. Carter, Newfoundland House of Assembly, 23 February 1869, in Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003) (hereafter cfd), 60. 3 Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866, in cfd, 371. 4 William Lawrence, Nova Scotia House of Assembly, 17 April 1866, in cfd, 384. In the same vein, Thomas Coffin, Nova Scotia House of Assembly, 17 April 1866, in cfd, 385, spoke of the “dearest rights of Nova Scotians as free men.” 5 George Hogsett, Newfoundland House of Assembly, 23 February 23, 1869, in cfd, 98.

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the constitution with which we were entrusted, and which we were bound to uphold when we were elected to this house.”6 Whatever their party allegiance, whatever their position on union, the legislators argued that there is no legitimate government without the people’s equal consent. The Lockean assumption of human equality was ever present. Recall M.C. Cameron’s plea for popular consultation: In “this enlightened day, when the people interfere and have a right to interfere in the management of their own affairs, no such change as [Confederation] should take place without their having a voice in it.”7 Cameron’s broadsheet for the Canadian election of 1864 reads: “My Principles are the same as when last I solicited your suffrages – a Conservative, I have been and will continue to be the advocate of fair and equal justice to all classes of the people, without reference to party, color, race or religion.”8 Equal justice requires equal consent; equal consent expresses and underpins the idea of equal justice. The Fathers and ratifying legislators did not often speak of “human rights” in the abstract. They referred to British rights, the rights secured by the American Constitution, the rights of Englishmen, the “dearest rights of Nova Scotians,” and so on.9 The scrupulous scholar may feel qualms about equating “the rights of Englishmen” with “human rights.” But the founders’ very good reason for speaking of rights in connection with sovereign jurisdictions (whether national or provincial) was that in the tradition of the common law, as A.V. Dicey famously teaches, rights require remedies.10 Without a system of law backed by the state’s monopoly of coercive power (the rule of law),

6 John Longworth, Prince Edward Island House of Assembly, 1 March 1865, in cfd, 398. 7 M.C. Cameron, Canadian Legislative Assembly, 13 March 1865, in cfd, 457. 8 The broadsheet is illustrated in cfd, 305. 9 One speaker who used the term “human rights” was T.H. Haviland, Prince Edward Island House of Assembly, 8 March 1866, in cfd, 326: in a speech regretting the untidy differences of law in the several colonies, he referred to “a multiplicity of laws, each having a distinct local application upon almost every question of human rights.” 10 A.V. Dicey, An Introduction to the Study of the Law of the Constitution, 10th ed. (London: MacMillan, 1959), ch. 4. The term “human rights” came into common usage in 1948 with the United Nations Declaration of Human Rights because the establishment of the United Nations held out the promise of rights enforcement through international cooperation.

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without courts, without legislatures, “rights” may amount to little more than pious assertions about the way people should behave.11 Dicey was writing in the settled conditions of nineteenth-century Britain. I have already said that a certain sense of prudence constrains his argument. And we can sympathize with this prudence. But cast your thoughts back two centuries before Dicey. As Thomas Pangle argues, the “idea of rights – meaning to say, human rights, natural rights, ‘the rights of man,’ rights understood to belong to all human beings as individuals, and understood to constitute the moral foundation of legitimate political authority – becomes a clear theme only in the mid-seventeenth century in northern Europe, and especially in England.”12 The seventeenth-century philosophers – men like John Locke – were well aware that throughout history men and women have been deprived, abused, and enslaved. But they continued to insist on the universality of rights. And their insistence – their pious assertion, if you like – transformed modern politics. We can indeed say that the Canadian founders were thinking of human rights. They avoided the term; in this respect, they followed the custom of Dicey and other legal scholars in the British tradition. But they were themselves not members of a settled society; they were not in Dicey’s comfortable position; they were living in revolutionary times. They were founders, just as Locke was a founder. They were talking not solely about rights secured by custom and longstanding law, but also about the rights that one can lay claim to in the absence of custom and law. They were engaged in dismantling – “destroying” – political institutions in preparation for rebuilding on a new foundation. They had to contemplate the naturalness of rights, the inalienability of rights. Recall John Mercer Johnson: “In the formation of society we have to give up some of our natural rights, and if they were not given up, society could not be formed.”13 He was speaking the 11 I do not mean to suggest that this important teaching has been entirely ignored. Michael Ignatieff and Walter Tarnopolsky advance arguments like Dicey’s and are undoubtedly indebted to him and to the tradition of British common law; see Ignatieff, Human Rights as Politics and Idolatry (Princeton: Princeton University Press, 2001); and Tarnopolsky, “Equality Rights in the Canadian Charter of Rights and Freedoms,” in Neil Finkelstein, ed., Laskin’s Canadian Constitutional Law, 5th ed., vol. 2, 1258–75 (Toronto: Carswell, 1986). 12 Thomas Pangle, The Ennobling of Democracy: The Challenge of the Postmodern Age (Baltimore, md: Johns Hopkins University Press, 1992), 93, original emphasis. 13 John Mercer Johnson, New Brunswick Legislative Assembly, 2 July 1866, in cfd, 180, emphasis added. See also Hugh Hoyles, Newfoundland House of Assembly, 14 February 1865, in cfd, 332: “Every savage entering society gave up a portion of his independence, but did he lose by the changes?”

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language of the seventeenth century; he knew that what was being asked of him was his consent to a new social contract. The factor that today does most to hamper recognition of the rights guarantees in Confederation is that the Fathers proposed to rely on legislatures as well as on the criminal justice system and courts. In Prince Edward Island, J.H. Gray argued that the “object of all others to be desired by every freeman should be the having [of] a strong government at his back to secure him justice whenever demanded.”14 Canada’s founders believed that it is the primary and overriding purpose of parliamentary government to uphold liberties. That Canadians today do not see parliamentary governments in this light, I hardly need to say. We suppose that legislatures necessarily favour majorities, thus sometimes or often jeopardizing minority groups and individuals, and we look to judicial interpretation of codified rights to provide the correction. We argue that liberty is more secure where Parliament’s powers are limited, and we congratulate ourselves on moving from parliamentary sovereignty to constitutional sovereignty. In his speech marking the Charter’s twentieth anniversary, Cotler contended that “The actual text moved from parliamentary democracy to constitutional democracy.”15 The result of this way of talking about our constitutional history is that we come to imagine a necessary opposition between Parliament’s interests and security for individual rights. We suppose that insofar as Parliament is sovereign, rights are imperfectly secured, and that insofar as rights are secure, Parliament is not sovereign. Even the wording of section 33 of the Charter, the famous “notwithstanding clause,” which is usually taken by political and legal scholars to encapsulate something of the old idea of legislative sovereignty, contributes to this idea of opposition between rights surety and legislatures. Section 33 (1) reads: “Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”16 Section 33 says, in effect, that Parliament’s idea of the common good should sometimes prevail. But in making this contention, it powerfully inculcates the idea that we have to choose between Parliament and rights guarantees. When Parliament prevails, rights are 14 J.H. Gray, Prince Edward Island House of Assembly, 25 March 1865, in cfd, 222. 15 Irwin Cotler, quoted in Kardonne, “Before Charter of Rights,” 9. 16 A declaration under this clause must be renewed every five years, giving the electorate a chance to express its approval or disapproval.

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endangered. Parliamentary sovereignty or rights: that is how Canadians have come to see matters; legislatures threaten rights. We are a world away from the founders’ perspective. They believed that parliamentary sovereignty secures rights; if Parliament’s sovereignty is breached in any degree, rights are in jeopardy. We believe that parliamentary sovereignty must be constrained; to improve security for rights, we must clip Parliament’s powers. How did we get into this tangle?

donald smiley a n d le g i s l at i v e ri gh t s guar a nt e es Smiley’s discussion of rights in the British North America Act begins with the guarantees extended to linguistic and religious groups.17 Section 93 secures the privileges of separate Roman Catholic and Protestant schools existing by law either at the time of union or subsequently.18 Section 133 protects use of the French language in Parliament and in the Quebec Legislature and requires publication of the bills promulgated by Parliament and the Quebec Legislature in both French and English. “Beyond these explicit recognitions of minority rights,” says Smiley, “the British North America Act was based on the principle of parliamentary supremacy qualified by a constitutional division of legislative power.” He then asserts, as though the contention were familiar to all: “The protection of human rights was to rest on the traditional safeguards of the civil and common law systems as these safeguards were from time to time modified by enactments of Parliament and the provincial legislatures.”19 If only he had elaborated! Just how is it that the civil and common law systems secure rights? We want to know more about the mechanism. How do the enactments of Parliament, how do legislatures, protect our freedoms? Let me return 17 Donald Smiley, Canada in Question: Federalism in the Eighties, 3rd ed. (Toronto: McGraw-Hill Ryerson, 1980), 42. 18 Denominational schools in Newfoundland and Quebec are no longer protected by this section. 19 Smiley, Canada in Question, 42. Peter Hogg, Constitutional Law of Canada, 3rd ed. (Scarborough, on: Carswell, 1992), 767, makes the same point: “Democracy is without doubt the most important safeguard of civil liberties.” See also Janet Ajzenstat, The Once and Future Canadian Democracy: An Essay in Political Thought (Montreal and Kingston: McGill-Queen’s University Press, 2003), 173– 5; and “Reconciling Parliament and Rights: A.V. Dicey Reads the Canadian Charter of Rights and Freedoms,” Canadian Journal of Political Science 30, no. 4 (1997): 645–62.

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again to the quotation at the head of this chapter. The people “could never be safe nor at rest, nor think themselves in Civil Society, till the Legislature was placed in collective Bodies of Men, call them Senate, Parliament, or what you please. By which means every single person became subject equally with other the meanest Men, to those Laws, which he himself, as part of the Legislative had established.” Locke is saying in this passage, as he says throughout the Second Treatise, that we are better off in civil society. We are better off in a regime of law because it is safer and because our natural rights, our human rights, are more secure. We leave the state of nature when we establish a “Legislature.” If there is no law-making power, we are still in the wild and our rights are still in jeopardy. The legislative power may consist of one person or one “Senate.” But, of course, Locke does not recommend the single ruler or a single governing body. He leaps ahead to a description of the legislative power that he believes most likely to secure the consent of each and all and most likely to act in defence of rights. Such a legislature is a “collective body,” and as Locke develops his argument, we see that the collective body that most appeals to him resembles the English Parliament as it developed in the seventeenth century. And as I shall argue, this seventeenth-century Parliament resembles the Parliament described in the Constitution Act (1867) and the Canadian Parliament as it still is today. We have two questions before us. How does the English Parliament secure rights? And is the formula sufficient? Suppose we agree with Locke that laws protect us against society’s criminal elements, the thieves and bullies. How do we know that Parliament’s enactments will not prove just as threatening? How can we be sure that Parliament is not just another gang of bullies?

th e c on s ti t u ti on ac t ( 1867) : p r ea m bl e, e x ec u ti v e a n d le g i s l at i v e pow er s After setting out reasons for uniting the provinces of Canada, Nova Scotia, and New Brunswick (the provinces have expressed their desire to be federally united; the union will conduce to the welfare of the provinces and promote imperial interests), the Constitution Act (1867) continues: “it is [therefore] expedient, not only that the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared.” Note that legislative power is distinguished from executive power. And note that the legislative power is mentioned first. The formula derives from Locke; the act of political founding is identical with the act of creating the legislative authority. After this preamble come parts I and II, which are entitled

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“Preliminary” and “Union,” and then without ado we are into the parts of the Act that describe the legislative and executive powers. The order of the powers is now reversed. Part III describes the “Executive Power,” and part IV the “Legislative Power.” Whereas the preamble follows the order required by philosophy and reason, putting the legislative power first, the body of the Constitution Act follows the order of convention – that is, the order of dignity – and puts the executive first. Thus in part III, “Executive Power,” we learn that the executive government is vested in the queen and that the governor general of Canada acts for the queen on the advice of a body entitled the Queen’s Privy Council for Canada. In part IV, “Legislative Power,” we read: “There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.” We are barely into the Act, and we have already been introduced to the difficult idea that in parliamentary systems the executive power exercises what Locke calls a “double trust.” The “supreame Executor [has] a double trust put in him, both to have a part in the Legislative, and the supreme Execution of the Law.”20 The idea is difficult but also familiar. From 1848 or thereabouts, Canadians have lived with the fact that members of the Executive Council sit and vote in the Legislature. It is sometimes suggested that there is no formula in the Constitution Act (1867) for the constitutional principle that we call “responsible government.” But here, in the provision for the “double trust,” we see at least the outline. The description of responsible government is fleshed out in the last sections of part IV. Part IV has three subheadings: “The Senate,” “The House of Commons,” and “Money Votes; Royal Assent.” It is fair to say that Locke favoured a system with two legislative chambers.21 Of course, he never fails to note that the people determine the form of government; if the people prefer a system with a single chamber, Locke cannot object. But in general he finds the seventeenth-century English formula, with its two chambers, good. See his description of the English Constitution in chapter 19 of the Second Treatise, especially paragraph 213. His larger topic in chapter 19, which is entitled “Of the Dissolution of 20 John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 222. 21 For a fuller account of the Canadian founders on the Upper Chamber, see Janet Ajzenstat, “Bicameralism and Canada’s Founders: The Origins of the Canadian Senate,” in Serge Joyal, ed., Protecting Canadian Democracy: The Senate You Never Knew, 3–30 (Montreal and Kingston: McGill-Queen’s University Press, 2003).

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Government,” is exactly the one that I broach above: how is it that laws and legislatures secure rights? What prevents the misuse of governmental power? The argument is that misuse of power is less likely where the exercise of executive power is constitutionally distinguished from the exercise of legislative power and where the legislative power itself is made up of three branches: the executive power, as a branch of the legislative, and two representative chambers. The objective is to avoid concentration of power in a single body and by this means, says Locke, to promote “Freedom of debating.”22 Where the legislative power is placed in “the Concurrence of three distinct Persons,” dissenting arguments are more likely to get a hearing, less likely to be trampled or outlawed.23 Turning now to the description of the elective chamber in the Constitution Act (1867), under the heading “The House of Commons,” we read in section 38: “The Governor General shall from Time to Time … summon and call together the House of Commons.” We should not pass over this characteristic of parliamentary systems too quickly. The Commons is “not always in being.” (The phrase is Locke’s.)24 It is summoned “from time to time.” In this feature of the English Constitution, Locke suggests that we should see an additional safeguard against misuse of power: “in well-order’d Commonwealths, where the good of the whole is so considered, as it ought to be, the Legislative Power is put into the hands of divers Persons who duly Assembled, have by themselves, or jointly with others, a Power to make Laws, which when they have done, being separated again, they are themselves subject to the Laws they have made; which is a new and near tie upon them, to take care, that they

22 Locke, “Second Treatise,” paragraph 215. The Canadian Senate is appointive; at the time that Locke was writing, the British Upper House was hereditary. We can imagine Locke arguing that a hereditary house would be more independent than an appointive one and therefore more likely to contribute to “Freedom of debating.” But of course, the Fathers were not free to choose a hereditary house. They could have abolished the Upper Chamber entirely. The question for Canadians today is whether an elective Upper House will foster Locke’s objective: freedom of political deliberation. 23 Ibid., paragraph 213. And see paragraph 223, where Locke uses the phrase “King, Lords, and Commons” to describe this concurrence. As we have seen, the phrase “King, Lords, and Commons” was still used at Confederation to refer to the three branches of the legislative power in parliamentary systems. 24 Ibid., paragraph 151.

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make them for the publick good.”25 The lawmakers are subject to laws that they themselves have made.26 Why it is that the executive power summons the Legislature? Locke explains: laws need “a perpetual Execution, or an attendance thereunto: Therefore ‘tis necessary there should be a Power always in being, which should see to the Execution of the Laws that are made, and remain in force.”27 The power “always in being” is the power in a position to act when the Commons is not sitting. The argument continues: “And thus the Legislative and Executive Power come often to be separated.”28 The separation of legislative and executive powers supremely militates against abuse of power. As Locke has already explained in paragraph 143: “it may be too great a temptation to humane frailty apt to grasp at Power, for the same persons who have the Power of making Laws, to have also in their hands the power to execute them, whereby they may exempt themselves from Obedience to the Laws they make, and suit the Law, both in its making and execution, their own private advantage.”29 Parliament is supreme vis-à-vis the executive power proper. We do not want to make a mistake on this point. In the Constitution Act (1867), the legislative power (the queen and the legislative houses) is supreme, and in this supremacy we must see the guarantee of our rights and liberties. Rights are secure because Parliament is supreme and only when Parliament is supreme. (Rights are secure because Parliament is sovereign and only because Parliament is sovereign.) As Locke says – to cite one passage among many – we have no obligation to obey an edict that is not sanctioned by the Legislature, “which the publick has chosen and appointed.”30 The idea is sometimes expressed by saying that we obey the rule of law, not the rule of men. We obey the body of men whose title to rule has our consent. Locke continues: we obey only “promulgated standing laws.” We are not obliged to obey a bureaucrat’s whims, the edicts of international tribunals, 25 Ibid., paragraph 143. 26 Ibid., paragraph 156, suggests that Locke was not adamantly set against the idea that parliamentary elections be held at fixed intervals. The important thing is to avoid the permanent legislature with lawmakers who are hived off from the general populace and do not have to live with the laws that they have made. 27 Prisoners are not released from jail, nor do grants and subsidies cease, when the House of Commons and Senate rise from session. 28 Locke, “Second Treatise,” paragraph 144. 29 Ibid., paragraph 143. 30 Ibid., paragraph 134.

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our parents, priests, or the local frighteners. We obey only “Authoris’d Judges.” We are not obligated by “extemporary, Arbitrary Decrees.”31 Locke argues that Parliament cannot delegate its powers: “The Legislative cannot transfer the Power of Making Laws to any other hands.”32 Where the legislative power can pass off ratification of laws to autonomous bodies, the subjects’ rights are in jeopardy. In brief, what breaches or diminishes the principle of parliamentary supremacy makes us less secure. We come now to the third subheading in part IV, “Money Votes; Royal Assent.” That the sections of the Constitution Act on money bills are given a separate heading indicates the importance of the topic. Recall that the three headings are: “The Senate,” “The House of Commons,” and now “Money Votes; Royal Assent.” Section 53 under this last heading reads: “Bills for appropriating any part of the Public Revenue, or for imposing any Tax or Impost, shall originate in the House of Commons.” In other words, the House of Commons must vote taxing measures. This is the clause that guarantees to Canadians the famous principle of “no taxation without representation.” In Locke’s eyes, the superlatively heinous rights violation to which governments are prone is to take our money over our objections. He argues: “The Supream Power [the Legislature] cannot take from any Man any part of his Property without his own consent.”33 Do not suppose that when Locke talks of property, he has in mind only the vast acreages of the wealthy.34 He is the apostle of equality! Legislatures “are to govern by promulgated establish’d Laws, not to be varied in particular cases, but to have one Rule for Rich and Poor, for the Favourite at Court, and the Country Man at Plough.”35 “Tis true,” says Locke, “Governments cannot be supported without great Charge, and ‘tis fit every one who enjoys his share of the Protection, should pay out of his Estate his proportion for the maintenance of it. But still it must be with his own Consent, i.e., the Consent of the Majority, giving it either by themselves, or their Representatives chosen by them.”36 In brief, section 53 of the Constitution Act (1867) guarantees 31 Locke, “Second Treatise,” paragraph 136. 32 Ibid., paragraph 141. 33 Ibid., paragraph 138. 34 See ibid., paragraph 139: “but yet we see that … the Serjeant, that could command a Soldier to march up to the mouth of a Cannon, or stand in a Breach, where he is almost sure to perish [cannot] command that Soldier to give him one penny of his Money.” 35 Ibid., paragraph 142. 36 Ibid., paragraph 140.

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property rights. How often it has been argued that the Canadian Constitution has no clause securing our property – and should have one. Those who advance this notion perhaps suppose that property will be secure only if the appropriate words are enshrined in a formal bill of rights, like the Canadian Charter. But if Locke were reading the 1867 Act, he would surely argue that the description of legislative powers under the heading “Money Votes; Royal Assent” goes a long way toward the objective and perhaps suffices. Continuing under this heading (“Money Votes; Royal Assent”), section 54 reads: “It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any part of the Public Revenue, or of any Tax or Impost, to any Purpose that has not been first recommended to that House by Message of the Governor General.” The House of Commons, the Senate, and the individual members in these houses cannot propose taxing measures. The government (the governor general in council, the Cabinet) alone proposes taxes (but cannot by itself pass them). Take sections 53 and 54 in conjunction with the provision in parliamentary systems for the “double trust” (that the legislative power includes ministers of the Crown as well as members of the two chambers). Do we now have a sufficient description of the constitutional principle that we call “responsible government?”37 Add the requirement, mandated by sections 36 and 49 of the Constitution Act, for decision making by majority vote in the Senate and Commons, and the job is complete. The Constitution Act (1867) contains a formula for responsible government.

th e c o ns ti tu t i on ac t ( 1867) a n d t he s epar at i o n o f pow e rs Canadian texts often suggest that parliamentary systems are characterized by a “fusion of powers.” The legislative and executive powers are “fused.” But in light of our reading of the Constitution Act (1867) and 37 Lord Durham, Lord Durham’s Report (1839), abridged by Gerald Craig (Montreal and Kingston: McGill-Queen’s University Press, 2007) (hereafter Craig, ldr), is famous for recommending that the colonial legislatures vote taxes and imposts. Durham also stated emphatically that taxing measures were to originate in the Executive Council. The lack of the principle now enshrined in section 54 pitted legislators against each other in an unseemly scramble for local appropriations. As I have said, legislators in every colony were familiar with Durham’s views. The report is perhaps the most often-quoted British North American document in the Confederation debates.

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our understanding of Locke on the English Constitution, let us do some thinking. We will compare the political executive – commonly called Cabinet (the executive power as one component of the legislative power) – and Parliament, the body that includes Cabinet and the two legislative chambers. Members of Cabinet retain their executive powers even when Parliament is not in session. Members of Parliament, in contrast, lose the power to legislate when Parliament rises; even Cabinet members lose their legislative powers (while retaining executive ones). Because the executive power is always “in being,” it is the task of Cabinet, in practice the prime minister, to summon Parliament. Parliament waits to be summoned. Cabinet drafts and presents to the Legislature taxing and spending measures. But Parliament (Cabinet and the two houses) must give its assent. It is the glory of the House of Commons, the democratic branch of Parliament, that the members’ vote on taxing measures is constitutionally required. Cabinet includes only members of the party victorious at the polls; it represents a party, a part of the country. The governing party in office is not and must never pretend to be the country entire: its term in office is temporary; it wields the powers of state only as long as it maintains the support of the majority in the democratic house. (Moreover, it must consult the people in a general election “frequently,” as the old arguments used to say.) In contrast, Parliament represents all constituencies, all of the territory, all parties, all interests, all citizens, all inhabitants, all trespassers. Of course, the Canadian Parliament’s powers are circumscribed by the division of legislative powers between the federal and provincial levels of government, as described in the Constitution Act. But that said, we may argue that Parliament is the country entire. That Parliament is the country, is the people in this sense, was assumed by all parties in the Confederation debates. It was supremely the contention of the “parliamentary camp.” The one body that can claim the right to “outrank” Parliament, if I can use the term, is certainly not Cabinet and not “government.” It is, of course, “the people.” All parties acknowledged popular sovereignty, and it was the central and compelling idea in the arguments of the “referendum camp.” Cabinet must strive for ideological integrity; dissenting voices weaken Cabinet’s effectiveness, and dissenters are encouraged to speak up only under cover of Cabinet secrecy. Parliament in contrast always includes dissenters and boasts of the fact. Parliament is more effective insofar as it includes a variety of ideologies and speaks for many interests. Ideally, as I have said, it includes all ideologies, all interests. In any event, it is

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supremely an arena of diverse and contentious debate. Secrecy is forbidden. Parliament’s doings are recorded and today printed, circulated, preserved, distributed to the media, and televised. It is true that members of Cabinet sit in Parliament, but their status as ministers of the Crown is distinguished in the law of the Constitution. When we ignore the constitutional distinctions, when we speak of “fusion” of legislative and executive in the Canadian Constitution, we lose sight of the supremely important feature of the English Constitution, still present in our own, which Locke considered the crucial guarantee of our individual rights. In tyrannies rulers wield both legislative and executive powers, making and carrying out laws as they please to benefit themselves, their party, and their cronies. In a free country, matters are organized otherwise; the separation of powers is our surety.

th e ri gh t o f r evo lu t i o n I suggest that Locke goes a long way toward convincing us that the parliamentary system offers sufficient guarantees against parliamentary transgression of rights.38 He summarizes his case: “These are the Bounds which the trust that is put in them by the Society, and the Law of God and Nature, have set to the Legislative Power of every Commonwealth, in all Form of Government.” The Legislature is to govern by “promulgated established laws, not to be varied in particular cases.” The laws ought to be designed for no other end ultimately but the good of the people. The Legislature must not raise taxes on the property of the people without their consent. And “The Legislative neither must nor can transfer the Power of making Laws to any Body else, or place it any where but where the People have.”39 Are we satisfied? As we have seen, Dicey suggests that legislators will not pass abusive laws because they share with their constituents the preferences and moral convictions of the times. But in this notion of shared preferences, there is no sure prescription for protection of minorities. It could easily supply an excuse for majority tyranny; the oppressive majority would appear to be acting as the agent of fate, or history, or the national character and identity. Dicey does better when he argues that laws infringing rights will be met 38 I include the American congressional system in the parliamentary category. All liberal democratic systems, all free governments, are variations on the original theme: the English Constitution, which Locke so marvellously describes. Americans sometimes argue that their variation is superior. And they may be right. 39 Locke, “Second Treatise,” paragraph 142.

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with resistance. But he does not give a clear picture of this resistance. He places considerable confidence in parliamentary checks and balances, especially the checks that support the opposition parties in the two legislative chambers. This is ground he shares with Locke. The fact is that Dicey cannot bring himself to embrace outright Locke’s trump card: the response to severe oppression is revolt. In the history of modern thought, Locke is the greatest opponent of absolutism, autocracy, patriarchy, and despotism in all its guises, including oppression by legislative majority, and for these ills he has the sovereign remedy: revolution. The power of government is “but the joynt power of every Member of Society, given up to that Person, or Assembly, which is Legislator, it can be no more than those persons had in a State of Nature before they enter’d into Society and gave up to the community.”40 When laws and legislatures abuse us, when there is a “long train of abuses” in the famous phrase, we can unmake the abusing power. We are entitled to take up arms against it. Of course, it is a matter of importance – it is a matter of considerable curiosity – that in countries that are heir to Locke’s parliamentary formula, revolution is almost unknown. Where popular sovereignty obtains, where the right of revolution obtains, there are no revolutions! Locke’s milder measures suffice. It is the fashion to regard the Rebellions of 1837 and 1838 in the Canadian provinces as comparatively trivial affairs. But everyone taking part in the Confederation debates knew about them. Everyone had an opinion. Maritimers sometimes said how proud they were to have remained loyal to the government even in the face of injustice. Joseph Howe took this position! And among the Canadians in the Confederation debates – by reputation a disloyal lot – it has to be said that some had fought on the government side, or their fathers had. Many of the legislators at Confederation were too young to have borne arms themselves. It remains a fact, however, that some very sober and senior political figures had sympathized with the rebels! George-Etienne Cartier was one; Sir Étienne-Paschal Taché was another. Everyone knew that there was a point when rebellion might be justified, although they disagreed about what constituted this “point.” Everyone knew from their own colonial history, from family experience, from parliamentary experience, from the political culture, and from their legal training that Locke’s right of revolution was part of their heritage. Some chose to drag the idea into the light of parliamentary argument despite the counsels of prudence; some chose to hold their tongues. But all knew. 40 Ibid., paragraph 135.

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rights as entitlements, rights as immunities Let me return to the idea that we have lost our understanding of the Canadian rights tradition. Over the years our definition of equality has changed radically; indeed, the definition of rights has changed. Consider that the United Nations recommends that countries guarantee (among other things) the right of individuals to education and employment and to a certain level of material comfort. Canada’s founding legislators describe good schools, high levels of employment, and material prosperity not as rights but as desirable political goals. The founders sought to secure the individual against the arbitrary and self-interested acts of autocratic rulers, bullies, and demagogues. They were very clear about the fact that governments and majorities can be oppressive; as I have said, they were all familiar with the history of the British North American oligarchies (the “Family Compacts”). They were ready to challenge the privilege of the few, the corruption of administrators, misuse of public funds, cronyism. There were party differences, of course: the Liberals expected Tory corruption; the Conservatives feared the rise of arrogant populists. The hope of parliamentary government is that in the contestation of parties, the watchfulness of representatives from both parties, or from the several parties, will protect us all equally against official incursions into the realm of our liberty. Today we are even more prone than the Fathers and the ratifying legislators to suspect parties and governments of malfeasance. At the same time, we are dependent on governments to a degree that would have astounded the founders. We turn to government as the distributor of material benefits and that hard-to-define source of satisfaction known as “recognition,” and we describe rights in terms of equal access to these things. The founders thought of “freedom from” – that is, freedom from the depredations of bullies, including bullies in office, political elites. We think primarily of “freedom to,” freedom to expand official entitlements.

conclusion In 1938 Maurice Duplessis, premier of the Province of Quebec, invited (or summoned) to his office Israel Medres, the editor of Montreal’s daily Yiddish newspaper. It appears that Duplessis, perhaps alarmed by developments in Europe, wished to clarify “his position with respect to Jews.” He wanted to assure Medres “that he was not an enemy of the Jews.” He had Jewish friends! And he hoped that Medres

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would make this fact known to his readers. Medres said in reply that it did not matter to him whether M. Duplessis had Jewish friends: “For me it is important to know if you are a supporter of the democratic constitution under which we live and find protection in Canada. If you are not a supporter of the constitution, then we cannot rely on you, even if you have Jews among your friends.”41 Canadians have lost confidence in their democratic Constitution’s “protection.” We have forgotten that parliamentary government was designed to secure our right to life, liberty, and property. We can no longer bring into our minds without great effort the idea that Parliament’s inclusiveness and freedom of deliberation protect dissent, political opposition, political minorities, and thus our political and legal equality. We can say the words “free governments encourage human rights; illiberal governments discourage rights.” The formula still has resonance. But the means, the mechanism, by which parliaments and representative assemblies foster individual liberties lies under a cloud of unknowing. Rights were not universally enforced in the seventeenth century. They are not universally enforced today. But if we believe the philosophers and statesmen of the modern period, although not universally enforced, rights are indeed universal, belonging to “man.” The idea of the rights of man became a “theme” in political thought only in the seventeenth century, but as Thomas Pangle reminds us, what this “theme” said is that humans from the beginning of history have been rights bearers. The debates of the seventeenth century were about the way to guarantee rights, to make them live. It is the issue before us still. The seventeenth- and eighteenth-century philosophers said that men “enter” into government in order to secure their rights. They placed their faith in law, in the form of government – Locke’s parliaments – and in an effective “constabulary force,” an effective system of enforcements authorized by Parliament. Today, we are reluctant to praise one form of government above others, and we are losing faith in institutions, including Parliament. We still honour the courts; but the idea of impartial justice is under attack. Many no longer believe that objectivity is attainable. (“Everyone’s biased.”) We have profound doubts about the trustworthiness of society’s authorized “enforcers”; indeed, some wonder whether 41 Janice Arnold, “Duplessis Renounced Anti-Semitism on Eve of wwii, Book Reveals,” The Canadian Jewish News, 5 February 2004, 55. The book to which Arnold refers is Israel Medres, Between the Wars: Canadian Jews in Transition (Montreal: Vehicle Press, 2004), a collection of Medres’s newspaper essays from 1922 to 1944.

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a society can do without enforcers. All our thinking is confused. We have not ceased to demand our rights, but we allow ourselves to suppose that moral suasion, school programs praising “diversity,” and campaigns against “racism” will inculcate attitudes of equal respect. In short, we increasingly rely on political culture and political education. Many regard institutions and laws as expressions of “culture.” Our present-day “social imaginary,” to use Charles Taylor’s term,42 no longer encompasses, and can barely understand, the founders’ vision.

42 Charles Taylor, Modern Social Imaginaries (Durham and London: Duke University Press, 2004), 23: “The social imaginary is that common understanding that makes possible common practices and a widely shared sense of legitimacy.” It is not clear whether Taylor thinks that people can escape their “imaginary” – that is, whether people can fruitfully grasp, and act upon, notions that informed imaginaries of the past. Jocelyn Maclure’s explorations of Taylor on this point are illuminating, particularly his unpublished manuscript “De l“herméneutique de la modernité à l’éthique normative: Commentaire sur Modern Social Imaginaries.”

4

Civic Identity There “is a wilderness between the lower provinces and Canada; we have no sympathies or interests in common with that country; they are as much strangers to us as the people of the West Indies.” Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866

in chapters 1 and 2, i argued that the Fathers of Confederation were committed to an inclusive constitutional process and that they expected the fact of inclusiveness to inculcate a sense of nationhood. I argued, in brief, that they intended to give the new country what we call today a “civic identity.” It is time to say more about this civic identity and more, especially, about the idea of inclusiveness. In this chapter, I focus on the Fathers’ determination to protect the inclusive character of political institutions at the national level. In the next, I discuss their proposal to strengthen the rights of exclusive cultural affiliations at the provincial level.

wh at t h e fat h er s d i d : th e d ra f ti n g p ro c es s They took a first step toward an inclusive constitutional process in their selection of delegates to the first meetings of provincial elites at Charlottetown and Quebec. The Fathers – that is, the men who drafted the Quebec Resolutions – were not all Tories, as historians and political scientists so often imply. Influential Liberals were present at Charlottetown and Quebec. Christopher Moore reports his astonishment at reading in Donald Creighton’s The Road to Confederation that Charles Tupper proposed to boycott the Charlottetown meeting if the opposition was not invited. “I could not imagine any of today’s imperial first ministers ever considering such a proposal,” he says.1 He asked Creighton to explain 1 Christopher Moore, 1867: How the Fathers Made a Deal (Toronto: McClelland and Stewart, 1997) ix, xi.

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Tupper’s “odd gesture.” But Creighton had no explanation. Nor did other leading historians. Donald Creighton is foremost among the scholars wedded to the idea that Canada has a Tory constitution. He is the “laurentian” par excellence.2 Faced with evidence to suggest that the Fathers of Confederation emphatically did not think that the Constitution should be imbued with the Conservative ideology, he was apparently unable to gather his thoughts. He could not assimilate Moore’s question. The Canadian Tories, John A. Macdonald and George-Etienne Cartier, led a delegation that included their one-time foe and former leader of the Liberal Party, George Brown, as well as Oliver Mowat, soon to become the staunchly Liberal premier of Ontario.3 Prince Edward Island’s J.H. Gray took to Charlottetown a group that included an independent member in addition to opposition leaders. As Gray later explained in the Legislature: “Confederation is a matter calculated to affect the interests and welfare of every subject in British America irrespective of party, race, or faith; and consequently, to divest it as much as possible from a party question, three members of the government, three members of the opposition, and one independent member of this house were appointed to proceed to Quebec as delegates.”4 Thomas D’Arcy McGee summed up: “[This] is a miraculous and wonderful circumstance, that men at the head of the governments in five separate provinces, and men at the head of the parties opposing them, all agreed at the same time to sink party differences for the good of all, at the risk of having their motives misunderstood, from associating together for the purpose of bringing about this result.”5

2 See Robin Winks on Canadian historiography, in Robin Winks, ed., The Historiography of the Empire-Commonwealth (Durham, nc: Duke University Press, 1966). 3 Of George Brown’s decision to join the Great Coalition, W.P.M. Kennedy says in The Constitution of Canada: An Introduction to Its Development and Law (London: Oxford University Press 1922), 297: “Brown made perhaps the greatest constructive decision in Canadian history, certainly in his career. He had seen the vision. He turned his back on the past. With no coward’s bent head, but with forward look and with squared shoulders, he went out from his Ur of the Chaldees with faith, and knowing not whither he went.” 4 J.H. Gray, Prince Edward Island House of Assembly, 1 March 1865, in Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003) (hereafter cfd), 398. 5 Thomas D’Arcy McGee, Canadian Legislative Assembly, 9 February 9, 1865, in cfd, 429.

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It cannot be denied that the Fathers felt an obligation to rise above party allegiance. We may ask nevertheless whether they were successful. A.-A. Dorion, leader of the Rouges Party, argued emphatically that the Quebec Resolutions favoured Conservative objectives: “It is but natural that … [the] honourable gentlemen opposite want to keep as much power as possible in the hands of the government – that is the doctrine of the Conservative Party everywhere – that is the line which distinguishes the Tories from the Whigs – the Tories always side with the crown, and the Liberals always want to give more power and influence to the people.”6 Note Dorion’s use of the word “natural.” He was suggesting that pious talk about the neutral Constitution was just so much rhetoric; politicians will be politicians. Present-day theorists like Robert Hollinger offer a related argument. In Hollinger’s opinion the act of founding is bound to legitimate oppression, not so much because politicians cannot set aside ideological preferences as because institutions by virtue of being institutions, constitutions as constitutions, inevitably favour a particular way of life and thus benefit particular kinds of individuals – that is, benefit some elites at the expense of others and benefit all elites at the expense of the demos.7 Hollinger favours democratic practices where the rules of the Constitution are always in play; he hopes to eradicate the distinction between constitutional law and statute law. I doubt that Dorion would have taken the argument this far. Yet one wonders. I have already suggested that there is some truth to the kind of charge that Hollinger makes. Remember the argument brought by Paine and Jefferson: there is something unjust about the act of making decisions for later generations. There is something unjust about establishing rules “for all time.” Constitutions are made by particular elites in particular historical periods, and the best of them inevitably bear the marks of their composition. In this book, where we are exploring the political ideas of the Canadian founders, we must side with Locke, at least provisionally.8 As honorary Lockeans, then, we will conclude that rules of political deliberation 6 A.-A, Dorion, Canadian Legislative Assembly, 16 February 1865, in cfd, 17. The whole of this excerpt is valuable. I do not want to say that Dorion was a minority of one, but his supporters were few. 7 Robert Hollinger, The Dark Side of Liberalism: Elitism vs. Democracy (Westport, ct: Praeger, 1996). 8 In The Once and Future Canadian Democracy (Montreal and Kingston: McGillQueen’s University Press, 2003), I discuss at more length this idea that arguments for “strong democracy” make no distinction between political ends and means; see chapter 4, “What Romantics Say.”

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should have constitutional status. The “mores of representative government,” to use Taylor’s phrase, should be protected from political wrangling, not open to amendment for the purpose of promoting partial or exclusive objectives.9 A system in which the rules of the Constitution are always in play does not guarantee the right of dissent, nor does it protect individual liberties; it promotes bullying and silences minorities. In the worse case, it legitimates the rise of populist tyrants who claim to be the democratic voice of all and use this claim for partisan objectives. But even if we declare ourselves in favour of Locke, even if we agree that we must at least strive for the neutral constitution, and even if we agree that the Canadian founders did what they could to eliminate bias from the constitutional process, questions remain. Christopher Moore points out that notable groups were missing from the Quebec Conference. There were, for example, no representatives of the Rouges. George Brown was there and might be supposed to have represented all the interests on the “left,” including the Rouges, who had indeed been his allies and associates, but we know from many sources that after Brown’s decision to join Macdonald’s coalition government, Dorion no longer recognized him as spokesman. The Acadians were also absent, and, a tragic omission in Peter Russell’s opinion, aboriginals were unrepresented. In other words, although much was done at the drafting stage to secure the representation of diverse interests, the Fathers assembled at Charlottetown and Quebec did not in fact reflect all parties and all political perspectives. Does this omission of perspectives seriously detract from the legitimacy of the British North America Act of 1867? In the Canadian Legislature, Alexander Mackenzie framed the issue in this fashion: The “question is not, at the present moment, what is the best possible form of government, according to our particular opinions, but what is the best that can be framed for a community holding different views.”10 The men assembled at Quebec

9 Charles Taylor, “Shared and Divergent Values,” in Guy Laforest, ed., Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, 155–86 (Montreal and Kingston: McGill-Queen’s University Press, 1993), 156, 158–9. 10 Alexander Mackenzie, Canadian Legislative Assembly, 23 February 1865, in cfd, 94. And see Alexander Campbell, Canadian Legislative Council, 17 February 1865, in cfd, 208: “I would merely ask myself this: Is this Confederation desirable? Do I wish for it … If I do I shall waive my objections on this point and the other, in my desire for the success of the principle … After years of anxiety, after years of difficulty, after troubles here and divisions there, the scheme is found possible, and I will not put it away from me because I object to this point or that.”

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represented “different views.” But they did not themselves represent all the different views. To repeat: how serious is the omission?11 Peter Russell’s principal reason for believing that the Canadian founders rejected the doctrine of popular sovereignty is exactly this fact, that the group assembled at Quebec was not sufficiently representative. He wants an inclusive constitution, and he does not see inclusiveness in the Quebec formula. The Fathers thought of themselves as nation builders, he says, but they did not share “a common vision of the essential nature of the nation they were building.”12 He records a conversation that he had with the American constitutional thinker Walter Berns. (For years, he and Berns taught a course together at the University of Toronto on Canadian and American constitutional history and political ideas.) “One day, after I had been going on for some time about Canada’s constitutional debate, Walter turned to me and said, ‘Peter, you Canadians have not yet constituted yourselves a people.’ I have been brooding about Berns’s remark ever since.”13 To repeat: how serious is it that the Fathers did not represent the country’s diversity? We have the benefit of hindsight today. We know that parties akin in respects to the Rouges of the Confederation period have competed for seats in national and provincial legislatures with success: the Progressives, the United Farmers, the Cooperative Commonwealth Federation, the Reform and Alliance Parties. We know that individuals excluded from the franchise at the time of Confederation now enjoy the vote: aboriginals, women. It proved possible to loosen the guy ropes without moving out of the parliamentary tent. Indeed, the Parliament of Canada is a remarkably tolerant institution. Preston Manning’s Reform Party had profound doubts about the legitimacy of the parliamentary system. The Bloc Québécois has doubts about the legitimacy of Canada! Not everyone at the Quebec Conference agreed with all measures; not everyone in the late-joining provinces admired all features of the British North America Act. But they agreed that the Constitution would allow the contestation of “different views,” and – this is my opinion – they understood that it would eventually allow the participation of groups and parties not represented at the drafting stage or in the ratification debates. I think it is true to say of parliamentary government generally that it moves toward inclusiveness. The doctrine of popular sovereignty demands inclusiveness. The original contract – the Lockean teaching about 11 I am grateful to Christopher Alcantara for raising this question. 12 Peter Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd ed. (Toronto: University of Toronto Press 2004), 33. 13 Ibid., vii. In the conversation with Berns, Russell would have been discussing the constitutional debates of the late 1980s on the Meech Lake Accord.

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government’s origins – demands it. Locke’s idea of human equality demands it. Jeremy Waldron offers an argument to this effect. He is describing the views of Stephen Holmes: “The idea is that in setting up democratic institutions, in constituting the very possibility of ‘the will of the people,’ the members of a society intend to commit themselves not just to any old form of majoritarianism but to a particular form of majoritydecision making, namely the sovereignty of a ‘popular will formed in vigorous and wide-open debate.’” This they cannot do without, at the same time doing their best to create an open and tolerant climate for the effective expression of political opposition and dissent.14 Waldron’s argument continues: effective expression of political opposition requires “guarantees that minority opposition and dissent will not evoke any backlash from either temporary or permanent majorities.”15 Remember John A. Macdonald’s observation: “it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regarded.”16 Given a modicum of good will – the good will for which Alexander Mackenzie was pleading – and the participation of different parties and interests, even if not all parties and interests, the logic of constitution making points in the direction of inclusiveness. The precedents, principles, and institutions that are necessary to ensure equal treatment for the assembled groups and parties will, in time, open doors for others.

wh at t h e le g i s l ator s d i d : th e r at i f i c at i o n p ro c es s In the legislatures both Tories and Liberals exhorted their colleagues to free themselves from the “miserable spirit of party.”17 In the Canadian 14 Jeremy Waldron, Law and Disagreement (Oxford: Oxford University Press, 1999), 278, and see the general thrust of the argument in chapters 12 and 13. In this passage, Waldron is summarizing a passage from Stephen Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995); the direct quotations are from page 171 of Holmes’s text. Waldron is not entirely in agreement with Holmes; for one thing, he wants to emphasize the continuing presence of disagreements during the constitutional process. 15 Waldron, Law and Disagreement, 278. 16 John A. Macdonald, Canadian Legislative Assembly, 6 February 1865, in cfd, 206. 17 Joseph Cauchon, Canadian Legislative Assembly, 2 March 1865, in cfd, 448. In Right Honourable Men: The Descent of Canadian Politics from Macdonald to Chrétien (1994; reprint, revised and updated, Toronto: HarperCollins, 2004), Michael Bliss again depicts John A. Macdonald and his colleagues as men who

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Legislative Council, David Christie said: “It is not desirable that any constitution should be the work of a party; in so important an undertaking, all party spirit should be laid aside … because men of all parties are alike interested in the formation of a constitution, and because in the construction of such an instrument, the collective wisdom of the leading men of all parties is needed.”18 In the Canadian Legislative Assembly, Joseph Cauchon argued: “[In] a debate of such a solemn character, and when such destinies as regards the future of the whole of British North America are at stake within these walls, let us have the courage to rise superior to passions, hatreds, personal enmities, and a miserable spirit of party, in order to allow our minds to soar more freely in the larger sphere of generous sentiments, and of great and noble national aspirations.”19 In British Columbia’s Legislative Council, Henry Crease made the same point: “I am deeply impressed with the momentous character of the discussion into which we are about to enter, the grave importance of a decision by which the fate of this our adopted country of British Columbia, must be influenced, for better, for worse, for all time to come. And I earnestly hope that our minds and best energies may be bent to a task which will tax all our patriotism, all our forbearance, all our abnegation of self, and selfish aims, to combine all our individual powers into one, great, united effort for the common good.”20 Paul Romney suggests that although George Brown and John A. Macdonald were united in defence of Confederation and the Quebec Resolutions, each had a particular program to defend; each attempted to present partisan programs of previous years in a favourable light. Brown praised the Reform Party proposal of 1859 for the limited federation of Upper and Lower Canada. Macdonald and Cartier drew attention to the Conservative proposal of 1858 for a Canada-Martimes union. Romney argues: “we see here a struggle for priority between champions of rival policies, even as they protest that the Quebec scheme combines the best features of both.”21 I have no doubt that Romney is correct. I have no doubt that on occasion partisan preferences intruded. How

deliberately set out to draft a constitution that would permanently secure the advantage of the Conservative Party. (Bliss and A.-A. Dorion see eye to eye on this matter! Both believe that Macdonald coloured Canada blue.) 18 Christie, Canadian Legislative Council, 17 February 1865, in cfd, 433. 19 Joseph Cauchon, Canadian Legislative Assembly, 2 March 1865, in cfd, 448. 20 Henry Crease, British Columbia Legislative Council, 9 March 1870, in cfd, 13. 21 cfd, 285n, 287n.

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could it be otherwise? Yet I continue to think that all the legislators some of the time and the majority most of the time were committed to the idea that the debates should rise above partisanship. The Constitution should enable the contestation of political parties and ideologies on a footing of equality. Brown himself said: “For myself, sir, I care not who gets the credit of this scheme … The whole feeling in my mind now is one of joy and thankfulness that there were found men of position and influence in Canada who, at a moment of serious crisis, had nerve and patriotism enough to cast aside political partisanship, to banish personal considerations, and unite for the accomplishment of a measure so fraught with advantage to their common country.”22

george sinclair’s stumbling block To repeat: if Parliament is to represent all, if there is to be free and full deliberation in the Legislature, no party – that is, no part of the people – should be able to claim an advantage under the Constitution. All parties should be welcome. Inclusive deliberation requires partisan politics. But, and here the stumbling block looms, partisan politics requires a nonpartisan constitution. The rules for partisan deliberation should be above politics. But how can such rules be determined, and how can they be given legitimacy? The arguments of Waldron and Holmes are meant to address this issue, but Waldron and Holmes do not agree on all points. The difficulties are real. We saw in previous chapters that the majority of the legislators in the British North American provinces were prepared to ratify the new Constitution in their provincial houses after the fashion of statute law. We noted that a substantial minority objected, arguing for direct appeal to the people. But even those who argued for direct appeal supposed that the referendum results would be confirmed by parliamentary resolution. And here is the problem: to be effective, to be “parliamentary,” to have legitimacy, parliamentary procedures must be partisan. How can partisan procedures make nonpartisan … But before I take the argument around the block again, let us see how George Sinclair put the matter. Sinclair argued that J.H. Gray’s decision to include the opposition leaders in the drafting process at Charlottetown and Quebec was fundamentally wrong-headed: “The honourable member for Belfast [J.H. Gray] took credit to himself for the composition of the island delegation [to the Quebec Conference] – that it embraced men of opposite 22 George Brown, Canadian Legislative Assembly, 8 February 1865, in cfd, 286.

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opinions, gentlemen selected from each of the political parties in the legislature. That affords to my mind a very strong argument in favour of cautious deliberation, for there is always cause to fear that the prospects of honours and emoluments may be held out to induce unanimity of sentiment between parties who were previously opposed to each other.”23 Sinclair was saying that when government and opposition cosy up together, the people suffer; the parties scratch each other’s backs and forget who sent them to the Legislature. The contention here is not that bias results when party interests creep into the constitutional process. It is that bias results from the attempt to exclude party interests, from the very attempt to rise above party. And Sinclair had a point; parliamentary government is a system of checks and balances intended to ensure that no one party (be it the “democratic” party or the “oligarchic” party; the eastern party or the western party) can go its way unchallenged. It is meant to protect against the rise of government by a single elite, the “military-industrial complex,” if you like. It is meant to recognize the fact of dissent and opposition. As I said in previous chapters, Parliament’s claim to be a supremely inclusive institution rests on just this idea, that the checks and balances keep dissent alive; losers today can be winners tomorrow. But constitution making dismantles checks and balances and throws elites together. Constitution making is for “all time”; for the losers there is no tomorrow. As one legal scholar dryly notes: the “initial making of a constitution is … a mysterious matter.”24 Sinclair’s interjection is a salutary reminder. For the moment, let us set aside this discussion of problems attending the creation of a neutral constitution and consider a related issue – one that occupied the attention of legislators in every province. Would the neutral constitution suffice? To put the matter in present-day terms: is a civic identity – the barebones sense of inclusiveness and justice in national institutions – enough to hold a country together? Consider Samuel Huntington’s definition of nationhood: “a nation … is an imagined community … more specifically a remembered community, a community with an imagined history, and it is defined by its historical memory of itself. No nation exists in the absence of a national history, 23 George Sinclair, Prince Edward Island House of Assembly, 1 March 1865, in cfd, 399 24 Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Cambridge: Harvard University Press, 1996), 34, cited in Waldron, Law and Disagreement, 294. If only the great legislator would emerge from the ivory tower or descend from the mountain, give us the rules, and then depart to leave us in peace!

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enshrining in the minds of its people common memories of their travails and triumphs, heroes and villains, enemies and wars, defeats and victories.”25 Every speaker in these debates understood the kind of loyalty and sense of belonging that memory summons up. When they talked about their provincial constitutions and loyalties, it was clear that their affections – often intense – reflected more than satisfaction with regime and the civic identity; they were usually thinking as well about the province’s history, its connection with Britain or its independence from Britain, its successes, prosperity, opportunities, even its problems and controversies. In other words, they were thinking of what we today call cultural identity. What they had to cope with was that the federal union that they were now calling into existence had no collective history, no common memories, no common record of achievements.

25 Samuel P. Huntington, Who Are We? The Challenges to America’s National Identity (New York: Simon and Schuster, 2004) 115–16. Huntington’s is the classic definition of cultural identity. For the term “imagined community,” he is indebted to Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, 2nd ed. (London: Verso, 1991). Consider the similar definition provided by F.H. Underhill, The Image of Confederation (Toronto: cbc Publications, 1964), 2: “A nation is a body of men who have done great things together in the past and who hope to do great things together in the future. What makes them into a nation is not necessarily community of race, language, and religion, though these are powerful forces when they are present; it is their common history and traditions.” Although he uses the phrase “imagined community,” it is not clear that Huntington means to say that we can manipulate our memories. Jocelyn Létourneau, A History for the Future: Rewriting Memory and Identity in Quebec, trans. Phyllis Aronoff and Howard Scott (Montreal and Kingston: McGill-Queen’s University Press, 2004), engagingly explores the idea that a people can recreate memories and cultural identity through a collective effort. Philip Resnick, The European Roots of Canadian Identity (Peterborough, on: Broadview, 2005), flirts with a similar notion but in the end remains true to the idea that Canadian identity is firmly rooted in particular and unalterable historical facts. Someone pursuing the idea of Quebec or Canada as “an imagined community,” in Létourneau’s sense “a remembered community with an imagined history,” should also consult Jocelyn Maclure, Quebec Identity: The Challenge of Pluralism (Montreal and Kingston: McGill-Queen’s University Press, 2003); Charles Taylor, Modern Social Imaginaries (Durham and London: Duke University Press, 2004); and Jeremy Webber Reimagining Canada: Language, Culture, Community, and the Canadian Constitution (Montreal and Kingston: McGill-Queen’s University Press, 1994).

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the argument about sufficiency Would the new country find a place in the people’s hearts? We have already considered J.H. Cameron on this topic: “We are arranging to adopt an entirely new state of governmental existence … We are claiming for it, and desire that it shall have its best and surest foundation in the hearts of the people.” What bothered Cameron was whether the sense of nationhood could be created suddenly. Would the necessary ideas of obligation and responsibility under law spring into existence once the Constitution was ratified? As he pointed out, they were proposing to “embrace a large area of country under [the] new form of government.”26 The sheer size of the project was daunting. Moreover, in the provinces of the East, much of the debate on union took place under the threat of invasion by the United States. Many of the legislators expected to be at war shortly. Did they really think that the promise of legal equality in the institutions of an untried nation would take the people into battle? Charles Tupper offered a classic defence of what we are calling the civic identity: “We all know that the feeling of loyalty to one’s country, the pride in its institutions, lies to the fact that [its] institutions are able to afford protection to life and property.”27 In the New Brunswick House of Assembly, John Mercer Johnson said: “We want nothing better than British institutions, for under them we have as much liberty, and a little more, than they have in the United States.” In a burst of pride, he went on: “Our institutions are more republican [that is, more democratic] than the institutions of the United States. Our people have more power over their government than the people of the United States have over theirs.”28 We have seen the legislators arguing for an inclusive constitutional process; we have seen them arguing for the elimination of partisan bias from the 26 J.H. Cameron, Canadian Legislative Assembly, 13 March 1865, in cfd, 455–6. 27 Charles Tupper, Nova Scotia House of Assembly, 10 April 1866, in cfd, 174. Compare John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 123. Tupper was among those convinced that that union would enhance the provinces’ ability to fend off the Americans and would also strengthen the connection with Britain. He persisted with his line of argument and in the end won enough support in the Nova Scotia Legislature to secure the required parliamentary resolution. 28 John Mercer Johnson, New Brunswick House of Assembly, 2 July 1866, in cfd, 180.

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ratification process. The supposition is that, given the inclusive process, all subject to the law will see it as security for equal treatment and equal entitlement to law’s benefits: peace, order, and good government. Hence our present question: is the guarantee of rights and freedoms enough? In the New Brunswick House of Assembly, William Needham asked: “I should like to know where there is any nationality in this Confederation scheme.”29 In the Canadian Legislative Council, John Sanborn complained: “The constitution asked for was to be built on a flimsy foundation, consisting of certain ideas in the minds of a few men.”30 Christopher Dunkin compared British North America and the United States to the former’s disadvantage: The people of the United States … formed their whole system with a view to national existence. They had fought for their independence and had triumphed; and still in the flush of their triumph, they were laying the foundations of a system absolutely national … But we – what are we doing? Creating a new nationality, according to the advocates of this scheme. I hardly know whether we are to take the phrase as ironical or not. Is it reminder that, in fact, we have no sort of nationality about us, but are unpleasantly cut up into a lot of struggling nationalities, as among ourselves?31

In Dunkin’s view, the loyalty and affection of the legislators and colonists was given to their individual provinces and to England and empire. It is true that Maritimers sometimes expressed sympathy with the other colonies in the region; indeed, in 1864 they were contemplating the creation of a legislative union of Nova Scotia, New Brunswick, and Prince Edward Island. But few Maritimers felt that they had much in common with the people of the Canadas, Newfoundland, or the West. 29 William Needham, New Brunswick House of Assembly, 30 May 1865, in cfd, 202. 30 John Sanborn, Canadian Legislative Council, 9 February 1865, in cfd, 231. 31 Christopher Dunkin, Canadian Legislative Assembly, 29 February 1865, in cfd, 235. In the Canadian Legislative Assembly, 27 February 1865, in cfd, 347, Dunkin also said: “We have here a large class whose national feelings turn towards London; whose very heart is there; another large class whose sympathies centre here at Quebec, or in a sentimental way may have some reference to Paris; another large class whose memories are of the Emerald Isle; and yet another whose comparisons are rather with Washington. But have we any class of people whose feelings are going to be directed with any earnestness, to the city of Ottawa, the centre of the new nationality that is to be created?”

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William Needham was one of those who argued that the people of New Brunswick derived their nationality from the imperial connection: “We are ‘par excellence’ Bluenoses; those born in Ireland are Irishmen, in [England] Englishmen, in Wales Welshmen, but we are all British subjects as much as if we were born ‘Cockneys.’ We have the real British nationality and because we did not want any other we rejected the great botheration or Confederation scheme.”32 In Prince Edward Island, George Coles expressed a similar view: “I ask what greater nationality can we enjoy than that with which it is our pride and privilege at present to be connected? What greater flag can wave over us than the time-honoured banner of Old England.”33 In British Columbia, T.L. Wood spoke of “confederation with England”; “we have … confederation in its truest sense; confederation with all the security of protection, and all the pride of selfgovernment.” He rejected “incorporation” with the Dominion of Canada, “a country to which we are bound by no natural tie of affection or duty, and remote in geographical position, and opposed to us in material interests.”34 In Nova Scotia, Stewart Campbell contended: “there is a wilderness between the lower provinces and Canada; we have no sympathies or interests in common with that country; they are as much strangers to us as the people of the West Indies.”35 Here and there we find a speaker who argued that there are social commonalities. J.O. Fraser insisted that in the proposed union, the people of Newfoundland “would be received as friends and brothers by the other provinces; our sympathies and interests are in many respects identical. That identity was not the result of our position, but the result of the blood that flows in our veins, our national antecedents and traditions, and the common sentiment of unity that animates a people flowing from

32 William Needham, New Brunswick House of Assembly, 30 May 1865, in cfd, 202. “Botheration scheme” is a derisive term for Confederation coined by Joseph Howe. 33 George Coles, Prince Edward Island House of Assembly, 31 March 1865, in cfd, 224. Coles favoured measures to strengthen the imperial connection, including representation in the British Parliament. Other speakers in these debates proposed the construction of an imperial federation. Christopher Dunkin, Legislative Assembly, 28 February 1865, in cfd, 236, argued for “federalization of the empire.” 34 T.L. Wood, British Columbia Legislative Council, 10 March 1870, in cfd, 216. 35 Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866, in cfd, 243.

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a common stock.”36 But Fraser’s view was not widely shared. Most were of Dunkin’s opinion that there was no sense of common purpose: British North America was “cut up into a lot of struggling nationalities.”37 In the period leading to Confederation, we see acrimonious quarrels between French and English and between Catholics and Protestants. In the Canadian Legislature, Canada East and Canada West quarrelled over trade, the budget, and political representation. The Maritimes, Newfoundland, and British Columbia resented Canadian pretensions. We sometimes forget how divisive these early quarrels were. We forget how independent the separate provinces were. In Nova Scotia, Assembly member John Locke stated: “after obtaining responsible government we have become so free that we require nothing more in the way of independence.”38 In the Newfoundland Assembly, Ambrose Shea argued that responsible government brought “virtual independence.” He noted, for example, that the colony had legislated tariffs “hostile to the commercial interests of England.”39 In the Canadian Legislative Assembly, John A. Macdonald argued that Britain’s respect for the colonies’ independence was shown by the fact that the British were not interfering with the debates on Confederation: “Here we are in peace and prosperity, under the fostering government of Great Britain – a dependent people, with a government having only a limited and delegated authority, and yet allowed without restriction, and without jealousy on the part of the mother country, to legislate for ourselves, and peacefully and deliberately to consider and determine the future of Canada and of British North America.”40 It is surprising that this collection of quasi-independent countries – they called themselves countries – were able to put aside differences long enough to debate political union. Some of the founders would have liked to see the new nation become more British in character. Some hoped that it would gravitate toward the United States. A few, although only a few, promoted the republican notion of a virtuous leadership and

36 J.O. Fraser, Newfoundland Legislative Council, 14 February 1865, in cfd, 257. 37 Christopher Dunkin, Canadian Legislative Assembly, 29 February 1865, in cfd, 235. 38 John Locke, Nova Scotia House of Assembly, 16 April 1866, in cfd, 242. 39 Ambrose Shea, Newfoundland House of Assembly, 21 February 1865, in cfd, 219. 40 John A. Macdonald, Canadian Legislative Assembly, 6 February 1865, in cfd, 207.

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citizenry.41 But they knew – at some level they all knew – that there was no agreement on these matters. French speakers demanded protection of the French language and French education in Lower Canada, but they did not expect the French way of life to define the character of the union as a whole. Legislators from other provinces were acutely aware of Lower Canada’s demands. Recall Peter Russell’s assertion that the Fathers of Confederation “did not share a common vision of the essential nature of the nation they were building.”42 To repeat: there was no social vision, and all, or almost all, knew it. Russell is correct on this point. My argument is that although there was no social vision, there was a political one. There was a legal and institutional vision. The Fathers and the ratifying legislators believed that they had found a way to pursue common political objectives without requiring agreement at the level of “culture” and, as we shall see, without demeaning or overriding social differences. They devised, and bequeathed to us today, a collective political identity, a civic identity, or as they called it, a political nationality. Remember John Sanborn’s observation: “The constitution asked for was to be built on a flimsy foundation, consisting of certain ideas in the minds of a few men.” Shorn of context, the statement sounds remarkably pessimistic. But Sanborn believed that the flimsy foundation could be strengthened. He was asking for a direct appeal to the people on the issue of Confederation; he belonged to the school that regarded a parliamentary resolution as insufficient. He argued that Confederation must be “planted deep in the affections of the people,” and, like other speakers whom we have encountered – notably J.H. Cameron – he believed 41 Civic republicans embrace a social identity, which as I hardly need to say again is not obviously compatible with political diversity of the kind that obtained in the British North American colonies. In the Canadian Legislative Assembly, 9 March 1865, in cfd, 19, Richard Cartwright argued: “[The British Constitution] … does not require the possession of those lofty impracticable virtues which most republican institutions demand from their votaries.” Civic republicanism, or as it is also known, civic humanism, flourished in British North America at the time of the 1837–38 Rebellions. By the 1860s its appeal was waning; see Peter J. Smith, “The Ideological Origins of Canadian Confederation,” in Janet Ajzenstat and Peter J. Smith, eds, Canada’s Origins: Liberal, Tory, or Republican? 47–78 (Ottawa: Carleton University Press, 1995), 72: “the political ideology of agrarian democracy [civic republicanism] was not to be extinguished in Canada. It was to emerge as powerful as ever on the Prairies in the twentieth century, giving sustenance to radical movements of both the left and the right.” 42 Russell, Constitutional Odyssey, 33.

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that the act of voting on Confederation in a general election or in a referendum would inculcate this affection.43 In other words, it is wrong to suppose that loyalty and a sense of commonality are the necessary prior conditions. If the constitutional process is inclusive, loyalty and the sense of commonality may follow. We should see Cameron’s contentions in this light: “We are arranging to adopt an entirely new form of governmental existence and are … claiming for it, and desire that it shall have its best and safest foundation in the hearts of the people.”44 He was not describing a prior concord; he supposed that participation in the constitutional process would lay the foundation.

i n t e r va l : c o u l d t h e fat h e r s h av e c r eat e d a nat i o n al c u lt u ra l i d e nt i t y? It may be that where there is a strong cultural identity, Sinclair’s stumbling block can be avoided. If a constitution reflects the people’s shared experiences, their common ancestry, or their national character, there is less need for partisan debate to give the regime the appearance of inclusiveness. In the extreme case, partisan debate will not arise because all will regard the regime and laws as the expression of their individual and collective selves.45 The Constitution will have the legitimacy of a historical or natural fact. It will be as unexceptionable as the law of gravity. To repeat: Canada’s founders did not build on a cultural foundation; they did not offer one interpretation of British North American history, one vision of the national character. And there is no such foundation today, and the search for it is fruitless. Nevertheless, on the level of theory, one can see the attraction.46 43 John Sanborn, Canadian Legislative Council, 9 February 1865, in cfd, 231. 44 J.H. Cameron, Canadian Legislative Assembly, 13 March 1865, in cfd, 455–6. 45 In Who Are We? Samuel Huntington makes a powerful argument for cohesion of opinion at the social level. He is convinced that American political freedoms today are in jeopardy because the original American “Anglo-Protestant” way of life is in decline. To reinvigorate freedom Anglo-Protestantism must be revived. 46 J.S. Mill considered the possibility of a social foundation. See Newfoundland’s Ambrose Shea, quoting from chapter 16 of Mill’s Considerations on Representative Government, Newfoundland House of Assembly, 21 February 1865, in cfd, 257: “John Stuart Mill, one of the profoundest thinkers of the day, in speaking of the conditions necessary for the beneficial confederation of states, says ‘the strongest of all is identity of political antecedents; the possession of a national history, and consequent community of recollections; collective pride and humiliation, pleasure and regret connected with the same incidents in the past.’” See also Paul Romney’s note on this page.

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I said that Russell is right to suppose that the Fathers had no common social vision. What I have not said is that on this matter, he stands almost alone among Canadian scholars. In the field of Canadian political culture and identity, the laurentian argument maintains its favoured status: it is said that, indeed, the Fathers had a social vision and that the vision lingers; it still defines our sense of Canadianness and still affects our decisions in the field of public policy. William Christian calls the social vision “Tory”; Canada was a Tory invention, and Tories have a strong sense of the collective interest.47 David Taras agrees.48 It is true that some authors – Taras among them – suggest that present-day Canadians are in danger of forgetting our founding social vision. We are in danger of squandering the Fathers’ legacy. Michael Bliss argues that the Fathers’ vision should be called British rather than Tory and also contends that by the 1960s Canadian society had lost its British character.49 Michael Adams presents still another perspective. He agrees that the Fathers had a social vision. He does not agree that we are now losing it. In Fire and Ice he “challenges the myth of converging values that has led us to believe our Canadian way of life is doomed to extinction … Canada and the United States are not coming together but are diverging in significant ways.”50 47 William Christian and Colin Campbell, Political Parties and Ideologies in Canada, 4th ed. (Toronto: McGraw-Hill-Ryerson, 1996). 48 David Taras, “Introduction: The Crisis of Canadian Identity,” in David Taras and Beverly Rasporich, eds, A Passion for Identity: An Introduction to Canadian Studies, 3rd ed., 1–4 (Scarborough, on: Nelson, 1997), 1: “In the introduction to the first edition of A Passion for Identity written in 1986, I argued that the bonds that held Canada together were stronger than the forces that threatened to break it apart. The country was held together, I insisted, by a compassionate system of social caring, sweeping economic patterns, the prominent role played by the state, and wellunderstood and agreed-upon habits of political compromise. When the introduction to the second edition was written in 1992, I was no longer as optimistic. The country had been shaken by a number of convulsions: the failure of the Meech Lake Accord, the Native uprising at Oka, and the struggle over the Free Trade Agreement with the United States. I warned that the country was losing its ‘sense of place’ and that a deep anxiety, a pervasive unease seemed to hang over the country … Now, in 1996, the country seems adrift in crisis.” 49 Bliss, Right Honourable Men. 50 Michael Adams, with Amy Langstaff and David Jamieson, Fire and Ice: The United States, Canada and the Myth of Converging Values (Toronto: Penguin Canada, 2003). The quotation is taken from the back cover. Adams also says: “What I propose to show … is that [at] the most basic level – the level of our values, the feelings and beliefs that inform our understanding of and interaction with the world around – Canadians and Americans are markedly different, and are becoming more so” (4).

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Let me suggest that despite their different interpretations of Canadian history and Canadian political life, Christian, Bliss, Taras, and Adams share one big idea. Even Peter Russell participates in this big idea. All argue that the good life requires a cultural sense of national identity (not an onerous one perhaps, not a “blood and soil” identity, but a pleasant, low-level consensus about, let us say, the importance of the welfare state and Canadian distinctiveness vis-à-vis the United States). Russell thinks that the Fathers lacked this necessary sense of identity; Adams believes that they had it and that we have it still; the others suggest that the Fathers had it but that we are now losing it. The argument twists and turns; but all say in their different ways that Canada ought to have a social, a cultural, identity.51 The Fathers of Confederation and ratifying legislators present the great alternative. They rejected the idea that a nation would require a describable social character. Insofar as the new nation was to have an “identity,” it would be procedural and neutral – civic, not cultural. It would be inclusive, welcoming all political arguments and ideologies on a footing of equality. It is true that some of them hoped to see a gentle and general sense of cultural affiliation develop. They did not rule out the idea that the population of the new country would come to be proud of it as they “did great things together” and that pride in accomplishment would strengthen political obligation. But they expected this sense of affection to develop after Confederation, when and if people were satisfied that the national Legislature included them, when and if they were satisfied that the regime would protect them from foreign invasion and secure their rights, when and if they were satisfied that their children and grandchildren would participate in the regime’s material prosperity, when and if they did great deeds. Christian, Bliss, Taras, and Adams, and even Russell, assume that political institutions reflect prior commitments and prior loyalties. They suppose that what we were before Confederation (a population of British and French, with some other odds and bods, including not a few Americans) found expression in the “deal” done at Confederation. The founders, in contrast, argued that commitment, the possibility of collective endeavours, and loyalty would find expression after Confederation. It was their hope that loyalty and obligation would develop after Confederation.

51 Philip Resnick continues and develops this mode of thought in The European Roots of Canadian Identity (Peterborough, on: Broadview, 2005), esp. chs 7 and 9.

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after union Not a few legislators pursued the idea that the sense of purpose and communality would develop later, once the union was established. In Nova Scotia, Adams Archibald argued that uniting the colonies to ward off an American invasion would have a salutary effect. It is true, he said, that after union we would have no more means – that is, money – and no more men, “but what we have is concentrated; there would be one heart, one soul, one purpose, one controlling power extending over the whole Confederation, from Sarnia to Sydney.”52 I asked above whether the civic identity would suffice to support military effort. Archibald, who regarded war as inevitable, suggested that the act of fighting would create the nation. John Mercer Johnson seemed to think that the sense of commonality could be created by a deliberate act of will: “Every effort should be made to make us forget our provincial identity, so we would be one people from Sarnia to Newfoundland. [If] we go into it we must not talk of Canada as a foreign country, but be one people under one general government.”53 Note his reference to the general government – that is, Parliament. If New Brunswick went into Confederation, then the national institutions had to be the focus. Some speakers were very blunt. Consider this hard-headed statement by J.S. Helmcken: No union between this colony and Canada can permanently exist unless it be to the material and pecuniary advantage of this colony to remain in the union … The people of this colony have, generally speaking, no love for Canada; they care, as a rule, little or nothing about the creation of another empire, kingdom, or republic; they have but little sentimentality, and care little about the distinctions between the form of government of Canada and the United States. Therefore no union on account of love need be looked for. The only bond of union outside of force looked for – and force the dominion [of Canada] has not – will be the material advantage and the pecuniary benefit of the inhabitants. 52 Adams Archibald, Nova Scotia House of Assembly, 12 April 1865, in cfd, 236. The fear of an American invasion was very real; many speakers noted that during the Civil War, the United States had built a formidable army. But not all who discussed the threat of invasion concluded that union would enhance the security of the individual provinces. 53 John Mercer Johnson, New Brunswick House of Assembly, 2 July 1866, in cfd, 246. But consider the opinion of T.L. Wood, British Columbia Legislative Council, 10 March 1870, in cfd, 217: “I believe it is impossible to transfer a feeling of loyalty and fealty at will.”

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He added: “Love for Canada has to be acquired by the prosperity of the country and [by] our children.”54 A number of speakers argued that Confederation would bring increased prosperity and that prosperity would encourage loyalty to the new regime.55 But some doubted that prosperity would suffice, and others argued – in the manner of Canada’s economic nationalists in the 1960s and ’70s – that hopes for prosperity might promote ideas about union with the United States.

th e p ol i t i c al nati on a li t y In the absence of a common cultural vision, the Fathers invented a political one. It was an invention but not entirely novel. It was assembled from various sources. That it owed much to Locke, I have already said. It owed much to the American founders. We might say that it was new under the circumstances, new insofar as it was adapted for conditions in British North America. It has two aspects. The first I have already described: the general government was to be neutral and inclusive. Let me suggest that it is still true today to say that the national level of government – in a word, Parliament – is the arena that defines the Canadian political way of life. Canadian commonalities are found in the area of public law and in the institutions of democracy. Our identity as a nation rests on the fact that we are all, equally, subject to the law; we have an equal obligation to obey. We are equally obliged to appear in court if charged with a crime. We expect equal treatment in the criminal justice system. We all expect to pay taxes on income. We are equally entitled to peace, order, and good government. In short, our national identity rests on the fact that our national institutions are inclusive. All are subject to the rule of law. Parliament speaks for all. There is nothing distinctive about these commonalities. The obligations and benefits of Canadian citizenship are very like the obligations and benefits of citizenship in other liberal democracies. Our rights and freedoms are similar. Many of our institutions are similar, as are many of 54 J.S. Helmcken, British Columbia Legislative Council, 9 March 1870, in cfd, 250–1. When he made these remarks, Helmcken was an anti-Confederate. But he was one of the three delegates appointed by the provincial governor to negotiate the terms of union with the Dominion, and during the journey to Canada, he experienced a change of heart. 55 The contention that prosperity attaches people to a regime was common in the nineteenth century. For a discussion of the matter in the British North American context, see Janet Ajzenstat, “Durham and Robinson: Political Faction and Moderation,” in Ajzenstat and Smith, eds, Canada’s Origins, 139–58.

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our policies. However, although not distinctive, our national institutions and rights support a sense of nationhood. They keep the country together. They are a source of satisfaction – or could be if political scientists and the scholars of the Canadian identity did not have their eyes so firmly fixed on Canadian failings. They were once a source of national pride. They could be again. I said above that the political nationality has two aspects. We turn to the second aspect in the next chapter. It might be called the Father’s teaching on “multiculturalism.” It is intimately connected with the idea of the inclusive national constitution and the civic identity.

5

The Political Nationality “The questions that used to excite the most hostile feelings among us have been taken away from the general legislature and placed under the control of the local bodies.” George Brown, Canadian Legislative Assembly, 1865

the fathers of confederation provided for the preservation of the French language and defended separate schools and freedom of religion. They insisted on respect for provincial “individuality” within the bounds of the constitutional division of legislative powers. All this is known. Less well known is their belief that to secure these particular affiliations would require inclusive institutions at the national level. In chapters above, I have drawn the reader’s attention to the distinction favoured by today’s social scientists between “civic identity” and “cultural identity.” The Fathers called the former “the political nationality.” They used various terms to designate the latter. They almost always had in mind subnational groups. Thus they spoke of loyalty to local traditions, to “race,” to political associations formed in Europe (Scottish, English, Irish), to religion, and so on. A “civic identity” is inclusive. “Cultural identities” are particular, distinctive, exclusive. The founders’ argument was that the political nationality at the national level, the civic identity, would foster and protect particular identities at the provincial level. Is this argument convincing? We shall see.

th e “ p ol i t i c a l nati o n al i t y ” : cartier, langevin, brown The “political nationality” would establish an inclusive “general government” and, by this means, enable exclusive loyalities at the provincial level. George-Etienne Cartier, H.-L. Langevin, and George Brown were the chief spokesmen for this proposition. “Now when we were united together,” said Cartier, “if union were attained, we would form a political nationality with which neither the national origin, nor the religion of

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any individual, would interfere.”1 He continued: “Some parties … pretended that it was impossible to carry out federation, on account of the differences of races and religions. Those who took this view of the question were in error. It was just the reverse. It was precisely on account of the variety of races, local interests, etc., that the federation system ought to be resorted to and would be found to work well.”2 Langevin agreed: “What we desire and wish is to defend the general interests of a great country and of a powerful nation, by means of a central power. On the other hand we do not wish to do away with our different customs, manners, and laws; on the contrary those are precisely what we are desirous of protecting in the most complete manner by means of Confederation.”3 Today we are so used to living with social diversity that it takes an effort to recapture the novelty of the proposal. It embraced the idea of Parliament’s inclusiveness but said more. It argued that Parliament’s inclusiveness is compatible with exclusive traditions in the provinces. Indeed, it argued, as I have said, that Parliament’s inclusiveness guarantees those exclusive traditions. Think about the fact that Cartier referred both to “local interests” and to “races and religions.” Social diversity at Confederation had two dimensions: there were the differences between the provinces (the “local interests”) and the differences within each province (those of “race”/ethnic origin, language, and religion). Cartier does not draw our attention to the distinction; he jumbled together the differences among the provinces and the differences within. I suggest that he took this position because he had one remedy for both: the “political nationality.” We discussed differences among the provinces in the last chapter. Remember Stewart Campbell’s contention: “there is a wilderness between the lower provinces and Canada; we have no sympathies or interests in common with that country; they are as much strangers to us as the people of the West Indies.”4 Characterized by stiff local pride, local traditions, local economies, and Maritime resentment of the Canadas, the British North American colonies were a collection of more or less independent 1 George-Etienne Cartier, Canadian Legislative Assembly, 7 February 1865, in Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003) (hereafter cfd), 229–30. 2 George-Etienne Cartier, Canadian Legislative Assembly, 8 February 1865, in cfd, 285. 3 H.-L. Langevin, Canadian Legislative Assembly, 21 February 1865, in cfd, 235. 4 Stewart Campbell, Nova Scotia House of Assembly, 17 April 1866, in cfd, 243.

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small nations. Nominally, they were constituent parts of the British Empire. But after the establishment of “responsible government” at midcentury, Britain ceased to interfere in the domestic affairs of the colonies. In the field of international policy, the British could still exert influence and expect compliance, but it is a good question whether the ties of empire in the nineteenth century were more limiting than Canada’s presentday obligations to the international community. The point to remember is that the fact of empire and the colonies’ orientation to Britain discouraged the development of relations among the colonies. Our speakers are acutely aware that the colonies did not depend on each other. John A. Macdonald spoke of the “individuality” of the provinces, noting that at the Quebec Conference, “it was found that any proposition which involved the absorption of the individuality of Lower Canada … would not be received with favour by her people. We found too, that though their people speak the same language and enjoy the same system of law as the people of Upper Canada, a system founded on the common law of England, there was as great a disinclination on the part of the various Maritime provinces to lose their individuality, as separate political organizations, as we observed in the case of Lower Canada herself.”5 All the speakers were familiar with cultural, ethnic, and religious differences within the provinces. In Prince Edward Island and in Newfoundland, legislators worried about confrontations between Roman Catholics and Protestants. In pei, W.H. Pope observed: “We have 35,000 Roman Catholics, the majority of them Irish, of the extreme ultramontane stamp, and we have 45,000 Protestants, the majority of whom are Scotch Presbyterians, many the sons of Covenanters, who will never submit to the rule by Roman Catholics.”6 In Newfoundland, F.B.T. Carter spoke of a constant struggle for power between the two religious parties: “election after election was sought to be carried in certain districts by means which we all deprecated.”7 Equally bitter was the conflict between French and English in the Province of Canada. Listen to George Brown in the Canadian Legislature: “[T]he framers of this scheme had immense special difficulties to overcome. We had the prejudices of race and language and religion to deal with … and all the jealousies of diversified local interests.”8 5 John A. Macdonald, Canadian Legislative Assembly, 6 February 1865, in cfd, 279–80. 6 W.H. Pope, Prince Edward Island House of Assembly, 18 April 1864, in cfd, 330. 7 F.B.T. Carter, Newfoundland House of Assembly, 2 February 1865, in cfd, 331. 8 George Brown, Canadian Legislative Assembly, 8 February 1865, in cfd, 115.

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The “jealousies of local interests” – more than one commentator from the Atlantic provinces asked his colleagues why they should involve themselves in a union with Canada merely to help that unfortunate colony resolve its domestic conflicts! Everyone knew that Canada East and Canada West could no longer endure their legislative union. From 1858 the Canadians had been contemplating two schemes. The first was a federal union of the two provinces, Upper and Lower Canada (in law at this time, Canada West and Canada East, but everyone used the old designations). The second was the federal union of the several British North American colonies. All agreed that diversity – the differences among the provinces and the differences within – were deep-seated. In Cartier’s words: “The idea of unity of races was utopian – it was impossible. Distinctions of this kind would always exist. Dissimilarity in fact appeared to be the order of the physical world and of the moral world, as well as in the political world.”9 Some of the speakers in these debates hoped that Confederation would moderate passionate attachment to particular groups. None, or almost none, foresaw the development of a union with a homogeneous social climate.

celebrating “difference” Here is Langevin at greater length: We are told: “You wish to form a new nationality.” Let us come to an understanding on this word, Mr. Speaker. What we desire and wish is to defend the general interests of a great country and of a powerful nation, by means of a central power. On the other hand, we do not wish to do away with our different customs, manners, and laws; on the contrary those are precisely what we are desirous of protecting in the most complete manner by means of Confederation. Under the new system there will be no more reason than at present to lose our character as French or English, under the pretext that we should all have the same general interests; and our interests in relation to race, religion, and nationality will remain as they are at the present time. But they will be better protected under the proposed system, and that again is one of the strongest reasons in favour of Confederation.10 9 George-Etienne Cartier, Canadian Legislative Assembly, 7 February 1865, in cfd, 230. John Locke, “Second Treatise,” in Two Treatises of Government (1690), ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), paragraph 98, speaks of “the variety of Opinions, and contrariety of Interests, which unavoidably happen in all Collections of Men.” 10 H.-L. Langevin, Canadian Legislative Assembly, 21 February 1865, in cfd, 235.

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The proposal, in brief, called for a rigorously neutral civic identity at the level of the general government of the union (the Parliament of Canada) while allowing expression of cultural diversity in provincial politics. Cartier and Langevin give us a relatively sunny picture of diversity. Like others in these debates Cartier saw Great Britain as the model. Britain comprised “three great races” (i.e., the English, the Irish, and the Scots). “Had the diversity of race impeded the glory, the progress, the wealth of England? Had they not each contributed their share to the greatness of the empire?” He continued: “In our own federation we should have Catholic and Protestant, English, French, Irish, and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new confederacy.”11 It is easy to get the impression that Cartier and Langevin thought of cultural diversity as a phenomenon to be unambiguously celebrated. They struck an appealingly open-hearted note. And insofar as they spoke of preserving differences, it is a note familiar in our own day, as I have suggested. Preserving traditional and distinctive ways of life, rescuing minority languages, enjoying “difference” – these were preoccupations of Canadians in the last decades of the twentieth century and may well remain preoccupations in the twenty-first. Canadians have invested a great deal of energy in the idea that cultural diversity enriches. But consider Brown. He began from the same premise: cultural diversity is inevitable. But he did not celebrate it. He was no happy multiculturalist. He argued bluntly that social diversity is a threat to civil peace. Diversity excites “hostile feelings” among the populace. It shores up political relations of domination and subordination. His argument in a nutshell was that interests in relation to race, religion, and nationality must be excluded from the federal level and “thrown over on the localities.”12 He continued: Mr. Speaker, I am further in favour of this scheme because it will bring to an end the sectional discord between Upper and Lower Canada. It sweeps away the boundary line between the provinces so far as regards matters common to the whole people – it places all on an equal level – and the members of the federal legislature will meet at last as citizens of a common country. The questions that used to excite the most hostile feelings among us have been taken away from the 11 George-Etienne Cartier, Canadian Legislative Assembly, 7 February 1865, in cfd, 230–1. And see Henri Joly, Canadian Legislative Assembly, 21 February 1865, in cfd, 233–4. 12 George Brown, Canadian Legislative Assembly, 7 February 1865, in cfd, 289.

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general legislature and placed under the control of the local bodies. No man hereafter need be debarred from success in public life because his views, however popular in his own section, are unpopular in the other – for he will not have to deal with sectional questions; and the temptation to the government of the day to make capital out of local prejudices will be greatly lessened, if not altogether at an end … We have thrown over on the localities all the questions which experience has shown lead directly to local jealousy and discord, and we have retained in the hands of the general government all the powers necessary to secure a strong and efficient administration.13

History suggests that two great dangers are associated with passionate attachment to cultural identities in a country where there are many such identities. The first is autocracy: either a minority advances pretensions of birth, colour, or religion to exploit the majority, or representatives of the majority advance their claims, ignoring, crushing, and exploiting the minorities. The second danger is disruption of civil order – in the extreme, civil war. Brown understood these things, and I would argue that Cartier and Langevin did, too. They had their reasons for presenting the Quebec Resolutions in the best possible light. I believe that Cartier and Langevin were sincerely convinced that Confederation would offer equal opportunities to French-speaking Canadians at the federal level. (Recall Brown on equal opportunity: “no man hereafter need be debarred from success in public life” because of his “race” or cultural background.) I believe as well that they supposed that the powers allocated to the provinces would indeed protect the particular way of life cherished by the mass of the people in Lower Canada. They saw no reason to dwell on the dangers associated with particularity, and they especially saw no reason to rake up past injustices. As Joseph Dufresne argued: “What good can come from … ransacking history in order to hold up a single page, the record of an evil deed?”14 What Cartier and Langevin did not say directly but no doubt felt – to what degree I do not know – can be found in J.O. Beaubien’s speech in the Canadian Assembly, which began: “When France abandoned this country and England took possession of it, from that moment French immigration ceased entirely and gave way to persons of foreign origin –

13 Ibid., 288–9. I am grateful to Jennifer Smith for her comments on a first draft of this chapter, delivered at a meeting of the Learned Societies in Halifax. Professor Smith drew my attention to the significance of Brown’s remarks. 14 Joseph Dufresne, Canadian Legislative Assembly, 10 March 1865, in cfd, 353.

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of British origin.”15 An aura of sadness hangs over Beaubien’s statement. Paul Romney summarized: “With exquisite lucidity Beaubien maps out the true course of national survival under circumstances created by France’s abandonment of his people, a history that has obliged them to share their homeland with foreigners.”16 Nevertheless, Beaubien made it clear that he would vote for union and for the “political nationality” advocated by Cartier, Langevin, and Brown: Under Confederation, the political parties into which the provinces will be divided will find it necessary to form alliances, and our alliance will be courted by all, so that we shall in reality hold the balance of power … I have always remarked that material interests are of great weight in the formation of parties, and the conduct of French Canadians, with reference to their religious institutions, never inspired any uneasiness or distrust in our fellow-country-men of a different origin from ours when they found it in their interest to form an alliance with us; and I am certain that we shall find … the same disposition among the inhabitants of the lower provinces.17

th e c on s t i t u ti on a l di vi s i o n of legislative powers How does the notion of the political nationality fit with the lists of powers assigned to Parliament and to the provincial legislatures in the Constitution Act (1867)?18 To repeat a point that I have made before: the division of legislative powers fills the scholarly mind of today to the exclusion of matters that were of equal or greater weight in these debates, like the constitutional process, the means to legitimate the new regime, security for individual rights, the question of the civic identity, and protection for minority ways of life. But for all the attention given the division of powers, questions remain. What was the principle of the division? What were the larger categories? Charles Tupper’s tautological statement was fine as far as it went: “matters of a local character would occupy the attention of the 15 J.-O. Beaubien, Canadian Legislative Assembly, 2 March 1865, in cfd, 348. 16 For Beaubien’s speech, see cfd, 348–9, and for Romney’s comment, see cfd, 348. But see also the bitter statement by Joseph Perrault, Canadian Legislative Assembly, 3 March 1865, in cfd, 351: “whenever England stood in need of us to defend her power, she made concessions to us; but when that danger was once over, colonial fanaticism always attempted to withdraw those concessions, and to destroy the influence and liberties of the French race.” 17 J.-O Beaubien, Canadian Legislative Assembly, 2 March 1865, in cfd, 349. 18 The Constitution Act (1867), sections 91, 92, 93, 95, and 133.

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local legislatures whilst those of a general nature would be entrusted to the general legislature.”19 Most speakers said something similar. Yet the scholars express perplexity. Let me suggest that Brown’s observations about the political nationality offer a fruitful way of looking at the issue. The general government, Parliament, was assigned the tractable matters, those on which reasonable people may reasonably disagree, those on which legislators can compromise, those that allow prudence and pragmatism; or if you like, Parliament was assigned the matters that allow statesmanship. The provincial legislatures were assigned the less tractable matters, those dear to the individual heart, those on which even reasonable men and women may refuse to compromise, the deep attachments of family, ethnicity, and religion, those that sometimes lead to outright hostilities. In other words, the provinces were to get the matters that cannot be counted, divided, shared, pork-barrelled. I admit that the categories “more tractable” and “less tractable” may not be entirely satisfactory. As I cast my eye down the lists in the Constitution Act (1867), I see no particular reason for supposing that criminal law (a federal matter) should be considered tractable, while the establishment of courts of criminal jurisdiction (assigned to the provinces) is intractable. Of course, there is good reason to put criminal law beyond the reach of particular groups and interests. It is an honoured principle of British justice that criminal law should be inclusive in the strictest sense and thus be immune to pleas on behalf of birth or race, wealth or poverty. But why, then, give the administration of justice to the other level? I see no reason to suppose that marriage and divorce (federal) lend themselves to a pragmatic approach, while the solemnization of marriage (provincial) does not. (At the time of this writing, controversy rages over interpretation of the two clauses, both the one treating marriage and the one on the solemnization of marriage.) Yet the Fathers clearly argued that the division of legislative powers must represent and ensure the inclusive principles of the national level while also allowing and even encouraging exclusive loyalties at the provincial level. They explicitly linked the argument for federal inclusiveness and provincial tolerance of exclusiveness to the measures prescribed in the Quebec Resolutions and the British North America Act. Note how Langevin put the idea that the general Legislature would deliberate on general matters: “[I]n [the national] parliament there will be no questions of race, nationality, religion or locality as this legislature will only be 19 Charles Tupper, Nova Scotia House of Assembly, 10 April 1865, in cfd, 263.

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charged with the great general questions which will interest the whole confederacy and not one locality only.”20 Today, the division of powers described by the Quebec Resolutions and the British North America Act has been changed beyond recognition. Scholars sometimes blame the British law lords. It is said that the Judicial Committee of the Privy Council (jcpc), the adjudicative body that acted as a final court of appeal for the colonies and for the Dominion of Canada until 1949, betrayed the intention of the Fathers of Confederation. The contention is that John A. Macdonald and his Tory colleagues designed a centralized federation; the jcpc then perversely misinterpreted their scheme to give us a decentralized one. But this picture of the jcpc has been contested. And we have seen from Cartier, Langevin, and Brown that the categories “centralized” and “decentralized” do not get to the heart of the matter. The men who drafted the Quebec Resolutions wanted a federal Parliament that would be effective in its proper areas and provinces that would be effective in theirs. Keep Langevin’s formulation in mind: “What we desire and wish is to defend the general interests of a great country and of a powerful nation, by means of a central power.” And remember how he continued: “On the other hand, we do not wish to do away with our different customs, manners, and laws; on the contrary those are precisely what we are desirous of protecting in the most complete manner by means of Confederation.”21 The federal institutions would represent and shape an inclusive civic identity. And because the federal level had that character, the provinces would be free to secure particular cultural identities. The commentators often assume that the division of powers describes an “either/or,” as though the Fathers had supposed that strengthening the general government would weaken the provincial legislatures and that strengthening the provinces would diminish the general government. But the heart of the scheme as it emerged from the Quebec Conference did not foresee an either/or. The argument was that an effective general government would better enable the provinces to protect local traditions; the strength of the federal level would secure provincial powers. Each level has its “list,” and each has its task: the federal level must be effective in representing the inclusive sense of nationality if the provinces are to guarantee exclusive interests. There are difficulties with the formula. And the ratifying legislators did not fail to see them. How are the provincial legislatures to cope 20 H.-L. Langevin, Canadian Legislative Assembly, 21 February 1865, in cfd, 297–8. 21 Ibid., 235.

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with their local conflicts? Is it enough that the national level offers an avenue of escape? Will the example of moderation at the national level have an effect on political behaviour at the provincial level? Many speakers expressed the hope that after Confederation the acrimony of ethnic and religious quarrels in the provinces would lessen. In the Newfoundland House of Assembly, F.B.T. Carter argued: “[A] beneficial result of Confederation would be that the acerbity of feeling which had marked our political contests would be done away with. For a long time past there has been a constant struggle for power between the two religious parties.”22 Daniel Prowse agreed: “I consider that if Confederation will only put an end to the sectarian and political differences which are such a bane to our community; if it will only put down the small fry of newspapers and petty politicians who help to fan the flames of religious strife, and who fatten like vultures upon our local sectarian differences; if Confederation will only do this, as I trust in time it will, I for one will hail it as the greatest boon that could ever be conferred upon this colony.”23 The hope was that the local hotheads would go to Ottawa, where they would find their ambition engaged by the prospect of acting on a larger stage but where they would also discover that they must play by federal rules and forego their habit of promoting themselves by inflating intractable claims. John Kent argued: “There was an expansive benevolence and an enlargement of views generated by amalgamating with large and populous communities. Our isolation and contracted sphere of action was apt to operate injuriously in many respects, whereas union with the neighbouring provinces would produce increased intercourse, and an interchange of sentiments and hospitalities must result beneficially in many respects.”24 As James Madison argued in The Federalist, no. 10, a larger country would perhaps be 22 F.B.T. Carter, Newfoundland House of Assembly, 2 February 1865, in cfd, 331. 23 Daniel Prowse, Newfoundland House of Assembly, 6 February 1865, in cfd, 332. 24 John Kent, Newfoundland House of Assembly, 27 January 1865, in cfd, 144. But consider also William Needham, New Brunswick House of Assembly, 3 April 1866, in cfd, 131: “I know there are men who would soar away beyond us, who are not satiated with all that little New Brunswick can give them, and they reach forward to the celebrated towers and palaces of far-off Ottawa; for this they would let New Brunswick go to the winds and be lost forever. Bring us near to the darling of our souls, the far-away Ottawa, with its miles of cornice and its acres of plaster, and let us revel there in vice-regal glory.”

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less vulnerable to the problem of “faction” – that is, less vulnerable to the hostilities aroused by intractable demands.25 A related problem, an acute one, suggested that encouraging the provinces to protect their provincial “individuality” would serve the provincial majority but put the minority at a disadvantage. It seemed to some speakers, for example, that the formula called the “political nationality” would do very little for the English minority in Lower Canada. There is a long and lively debate in Canadian history on the subject of the English minority in Quebec; it dates from 1791 (or before) and, as I do not need to tell readers, continues to our day in one form or another.26 E.-P. Taché argued that there “might be a portion of the inhabitants of Lower Canada who might at a first glance have greater reason to complain than the French Roman Catholics, and these were the English Protestants.”27 But, he continued, when the English fully considered the scheme, they would be reassured. The English would form the majority in the general Legislature, for example, and would also be represented in the upper chamber. Let me note one item of special interest in Taché’s speech. He suggested that the codification of French civil law that was under way at the time would prove gratifying to both French and English and would lay to rest fears among the English about their business interests. Paul Romney reminds us that the English minority had long been annoyed by what they perceived to be the provincial bias against commercial enterprise: “The abolition of the Lower Canadian legislature by the union of 1840, and the rise of a commercially minded francophone bourgeoisie, facilitated a blending of the French Canadian social and English commercial values. The process culminated in the codification of the civil law between 1859 and 1866.”28 Taché was suggesting – it is a familiar argument in political philosophy – that commerce is a universal solvent, turning intractable affiliations into interests open to deliberation and moderation. He was arguing, in brief, that the 25 Compare Robert Pinsent, Newfoundland House of Assembly, 14 February 1865, in cfd, 332: “We are told that Confederation will relieve us from political turmoil and sectarian strife, that under its benign sway the contending passions of the people will be appeased, that the voice of faction will be hushed.” 26 For an excellent exchange on this subject in the Canadian Legislature, see 3 February to 10 March 1865, in cfd, 333–53. 27 E.-P. Taché, Canadian Legislative Council, 3 February 1865, in cfd, 333–4. 28 Paul Romney, note to Taché’s speech, in cfd, 334. A few days after Taché, Cartier spoke to the same point, expressing similar hopes for the development of commercial enterprise; see Canadian Legislative Assembly, 7 February 1865, in cfd, 335.

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English minority had little to fear. Lower Canada was open for business, and commercial men of both “races” were interested. A.-A. Dorion was not convinced. He contended that provincial minorities – he was thinking chiefly of the English in Quebec – would use the federal system to thwart the will of the provincial majority: “we may find parties so hotly opposed to each other in the local legislatures that the whole power of the minority may be brought to bear upon their friends who have a majority in the general legislature for the purpose of passing some law objectionable to them but desired by the majority of their own section. What will be the result of such a state of things but bitterness of feeling, strong political acrimony, and dangerous agitation?”29 Today the distinction between federal and provincial powers prescribed by the Fathers and upheld by the law lords, has all but disappeared. The federal government uses its “spending power” to determine political objectives in health care and in education, matters originally assigned to the provinces. The provincial governments clamour for conditional subsidies and other grants of money, thus inviting increased federal interference in provincial matters. And so it goes. The two levels of government are now involved in almost every legislative jurisdiction, and both intrude in the sphere of individual freedom. Indeed, it is widely acknowledged that the growth of the welfare and regulatory state has played a role in transforming the original division of powers. Are we seeing Brown’s nightmarish scenario? Has politics in Canada become a head-butting exercise, a shouting match, without civility, without the prospect of resolution in the general interest?30 The question in Brown’s day was whether the men drafting the Quebec Resolutions could create a level of government (Parliament) that excluded the intractable matters. The division of legislative powers was meant to ensure that, as the formula had it, local and particular interests were dealt with locally, while the general matters, the issues that 29 A.-A. Dorion, Canadian Legislative Assembly, 16 February 1865, in cfd, 296. 30 In his list of factors that have signally contributed to Canadians’ lack of confidence in national politics, J. Patrick Boyer puts first the breakdown of the division of legislative powers; “Just Trust Us”: The Erosion of Accountability in Canada (Toronto: Breakout Educational Network, in association with Dundurn Press, 2003), 36. (Among his other factors are: abolition in 1969 of the requirement that the House of Commons examine spending estimates “line-by-line”; curtailment of the comptroller general’s powers; the abandonment of the balanced budget; and the failure of members of Parliament to take advantage of remaining opportunities for open debate on policy directions.)

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would affect each and all individuals in the country equally, were dealt with at the national level. The question for us is this: with the collapse of the division of powers, or rather with the jumbling of powers, have we created conditions that allow – even encourage – the intrusion of intractable matters into national debates? And is this intrusion distorting our civic identity and sense of Canadian nationhood? When we think of how Quebec’s demands intrude into the national Legislature, the short answer appears to be obvious: “yes.” But perhaps there is more to say on this topic. Canada is one of the world’s oldest federations, and for all the heat, noise, and heart-stopping moments in the debates between Quebec and the rest of Canada over the years, we are one of the most successful. We have endured and are still enduring, and Canadians are living well, with peace, order, and more or less good government. I contend that intrusion of particular demands in national affairs (Quebec’s demands among them) is indeed damaging the civic identity; it makes a mockery of the idea that Parliament is an inclusive arena. It erodes political accountability and damages the citizens’ sense of political efficacy. But I do not want to exaggerate the effect of the particular quarrel between Canada and Quebec. As I argue in chapter 10, the erosion of civility in politics is evident in many countries; Canada is not alone. To repeat: when we turn to present-day affairs, the question is no longer whether Parliament’s inclusiveness guarantees particular affiliations in the provinces. The question now is whether Parliament’s involvement with regional and provincial matters, and with intractable particular demands, is damaging the effectiveness of the national Legislature and damaging especially its ability to focus our sense of civic identity. I am not suggesting that the founders expected to exclude from parliamentary debate all references to history or to religious traditions, custom, and established practice. Such an expectation would be absurd. In the ratification debates, legislators had no hesitation in appealing to their Loyalist background to explain their political preferences, their affection for England or Scotland, their admiration for the United States, or their sense of superiority to Americans, and of course, their attachment to provincial tradition. They had no hesitation about appealing to the Christian tradition. They cited the Bible as often as Shakespeare, although perhaps less often than they cited constitutional texts and authorities. The point, however, is that they did not expect that an appeal to Christianity, or to history, or to ideology would put an end to debate, serving as a last and irrefutable declaration that would swamp all opposition. They did not expect even that appeals to the imperial authority and the tradition of empire would stop discussions. They did their best

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to ensure that arguments entered the arena of political deliberation on a footing of equality. They hoped to convince according to the rules of parliamentary deliberation. In short, although they spoke with passion and conviction, they did what they could to avoid intransigence, “the strife, and the discord and the abuse.”31 Thus their hopes for moderation in the regime’s future Parliament were high. If the ratifying legislators could moderate their arguments under the difficult conditions of constitutional deliberation, where they were required by the nature of their task as founders to discuss intractable matters, surely their successors in Parliament, freed by the constitutional division of powers from the necessity of entertaining the most divisive subjects, would have equal success.

l o c k e a n d to l e r a n c e The issue of intransigent ethnic, cultural, and social differences is a perennial one. Brown had a clear sense of its high importance Here is a people of two distinct races, speaking different languages, with religious and social and municipal and educational institutions totally different; with sectional hostilities of such a character as to render government for many years well-nigh impossible … And yet, sir, here we sit, patiently and temperately discussing how these great evils and hostilities may justly and amicably be swept away forever. We are endeavouring to adjust harmoniously greater difficulties than have plunged other countries into all the horrors of civil war. We are striving to do peacefully and satisfactorily what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland could only crush by the iron heel or armed force … We are striving to settle forever issues hardly less momentous than those that have rent the neighbouring republic [the United States] and are now exposing it to all the horrors of civil war. Have we not then, Mr. Speaker, great cause of thankfulness that we have found a better way.32

The “better way” is the political nationality. I have said that it owes much to Locke. In A Letter Concerning Toleration Locke argues for exclusion of particular, passionate attachments from the public sphere.33 31 George Brown, Canadian Legislative Assembly, 8 February 1865, in cfd, 285. 32 Ibid., in cfd, 14. 33 John Locke, A Letter Concerning Toleration (1669), edited and introduced by Patrick Romanell (Indianapolis, in: Bobbs-Merrill and the Library of Liberal Arts, 1950).

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Candidates for public office do not compete on the basis of race, origin, creed, and language. Administrators do not favour one race, origin, or the like. One may advance arguments from belief in public debate, but one has no right to expect automatic compliance. In short, just as the Fathers proposed to fob the intractable demands off on the provinces, Locke proposes to sweep them into the private sphere. Yet the central question remains. Can we, indeed, through assertion of principles or through a constitutional division of powers so confine passionate loyalties? Will speeches and pieces of paper suffice? Locke’s “separation of church and state” and the Fathers’ “political nationality” seem to invite failure. The ambitions of politicians, the greed of special interests, the stubbornness of the human heart – all militate against success. Yet on the whole, Locke’s prescription has served the liberal democracies well. At any rate, we have not yet come up with a better one. And at the risk of anticipating my conclusion, let me suggest that the Canadian Fathers’ version once served this country well. I would certainly argue that the Fathers’ version is more coherent than the proposals for multiculturalism offered by today’s students of the Canadian identity. It has never been easy to reconcile the twentieth-century picture of multiculturalism with the notion that there is one political ideology or program – such as support for the welfare and the regulatory state – toward which all true Canadians gravitate. The Fathers’ formula for political nationality escapes this difficulty since Canadian identity at the national level attaches to inclusive institutions and principles, not to a substantive culture and exclusive way of life. Critics sometimes suggest that the notion of the civic identity is itself particular; it originates with particular thinkers – like Locke – in a particular culture.34 Thus it is said that the Canadian founders endorsed what George Grant would call “their own.”35 They embraced familiar institutions and familiar ideas. They did not ask whether these ideas and institutions were universally good. (In other words, they were not philosophical.) In a stronger version of this argument, it is said that the notion of the civic identity is a chimera; it is impossible.

34 I am grateful to Reed Scowen for raising this point. 35 From his study of Plato, Grant draws the distinction between “love of the good” and “love of one’s own.” Generations of Canadian students of political philosophy are familiar with it from Grant’s Lament for a Nation: The Defeat of Canadian Nationalism (Toronto: McClelland and Stewart, 1965). Lament has been republished many times; see the edition from McGill-Queen’s University Press, 2005, with a new introduction by Andrew Potter.

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Those embracing the supposed civic identity can be asserting only the interests of prevailing elites. And so on.36 Consider Samuel Huntington’s contention that the principles of what he calls the “American Creed,” including Lockean respect for individuals, the rule of law, and equal rights, originated in a particular culture: the English-speaking, “Anglo-Protestant culture” of the seventeenth century. (We have already noted the importance of the seventeenth-century philosophers; we do not have to quarrel with the idea that the crucial elements of liberal democracy originated in Europe at a particular time.) The contentious part of Huntington’s thesis is the suggestion that the American creed requires the continuing support of the culture of AngloProtestantism, that the creed will not thrive in a different culture; take away Anglo-Protestantism, Huntington argues, and American rights and freedoms will falter. Thus he worries that recent waves of immigration to the United States from Roman Catholic, Spanish-speaking countries will have deleterious consequences.37 Does he confront the idea that, especially in the circumstances of the United States today, with its broad diversity, his plea for a particular culture – Anglo-Protestantism, “one’s own” – necessarily detracts from the universal good and from principles like equal rights and the impartial rule of law? Many passages suggest that he does not. The Canadian Fathers were more tolerant. They certainly had no doubt that Locke’s formula was suitable for Roman Catholics! The formula was transferable: its benefits could be reaped by peoples who in their private lives, in their family traditions, and in their religious practices did not live like seventeenth-century Englishmen (or like twentyfirst-century Americans); it could serve peoples who did not share the memories, the culture, and the historical experiences of British North America’s English-speaking settlers or, indeed, the memories and historical experiences of Canada’s original French-speaking population. Locke expected that in a state where all equally enjoy the benefits of national citizenship and incur its obligations, individuals would continue to 36 Wilfred M. McClay, “The Founding of Nations,” First Things, no. 161 (March 2006): 33–9 at 33, describes the prevailing view in academe: “There is a settled assumption in the West, particularly among the educated, that every founding was in reality a blood-soaked moment, involving the enslavement or exploitation of some for the benefit of others. Foundational myths are merely attempts to prettify this horror.” McClay himself does not subscribe to this interpretation. 37 Samuel P. Huntington, Who Are We? The Cultural Core of American National Identity (New York: Simon and Schuster, 2004), chs 3–6.

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identify in private life with particular groups, particular religious denominations. And where all equally accept citizenship’s responsibilities, those particular affiliations can be allowed. Such was Locke’s hope; such was the Fathers’ hope. I would argue that the Fathers had weighed the benefits and believed their program “good.” They embraced it not because it was their own but because it was universally good.

d e m o c r a c y o n tr i a l In the social sciences today, it is sometimes suggested that cultural diversity benefits the larger society because, as Gertrude Himmelfarb puts it, the presence of diverse traditions and social organizations corrects the “democratic flaw identified by Tocqueville … the power of the collective mass of the people, which may be inimical to the liberty of individuals and minorities,” and because it is in the particular traditions, in families and communities, “that character takes shape, children become civilized and socialized, rights are complemented by duties, self-interest is reconciled with the general interest, and civility mutes the discord of opposing wills.”38 To put it briefly: the fact of diversity checks the “tyranny of the majority,” while the various groups and communities inculcate democratic mores.39 The scholars who make this kind of argument refer to the groups, families, communities, churches, and cultural organizations collectively as “civil society.” “The restoration of civil society,” says

38 Gertrude Himmelfarb, One Nation, Two Cultures (New York: Vintage Books, 2001), 34–5. For a superlative account of public discussion groups and associations that performed this function in Upper Canada, see Jeffrey L.McNairn, The Capacity to Judge: Public Opinion and Deliberative Democracy in Upper Canada, 1791– 1854 (Toronto: University of Toronto Press, 2000). 39 Thus Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon and Shuster, 2000), argues that even humble organizations like bowling leagues serve an educative purpose in a liberal democracy, teaching individuals how to get along with differences of opinion, rubbing off the edges of bias and crude self-interest. For a discussion of Putnam’s thesis and for further references, see Himmelfarb, One Nation, Two Cultures, 36. In Himmelfarb’s view the problem is not that membership in groups is declining, as Putnam would have it. The “problem today would seem to be not an insufficiency of civil society but its deformation.” Some powerful institutions – she mentions trade unions, philanthropies, foundations, and universities – “do not so much mediate between the individual and the state as impose themselves on the individual with the collusion of the state” (36).

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Himmelfarb, is today “the most serious attempt” to find a remedy for the moral disorders of democracy.40 Where did the Canadian Fathers stand? It is true that they hoped to preserve differences of “customs, manners and laws.”41 It is surely not wrong to say that they, as much as Himmelfarb, wished to preserve “civil society.” They believed that a good country includes flourishing religious institutions, strong families, good neighbours, benevolent societies, and so on. But unlike Himmelfarb, they were not unambiguously confident that such associations always foster tolerance and the habits of mind and heart consonant with liberal democratic practice. Rather, they suggested that “civil society” groups, although undoubtedly beneficent on occasion, have the potential to promote exclusive sentiments and to stoke antagonism toward other groups. Himmelfarb fears moral disorder, and she looks for a remedy in the reform of society. She hopes to restore the family as arena of moral and social instruction, and she looks benignly on religious organizations as instruments of social outreach.42 The Fathers feared political hostilities, and their “better remedy” depended not on reform of society and culture but on establishing the appropriate political institutions. Although they said less than we might like about the consequences of allowing claims of “race” and religion to invade the sphere of the general government, they said enough to suggest that if Parliament lets into the national 40 Himmelfarb, One Nation, Two Cultures, 30. In chapter 2, Himmelfarb traces the concept of “civil society” to Tocqueville and Hegel, but notes that “it is extraordinary how recently – within the last decade or two – not only the term but the idea came into general circulation” (33). She is herself an unabashed advocate of the civil society. And in contrast to the many social scientists and historians who lament its decline, she is cautiously optimistic about its survival in the United States today. 41 H.-L. Langevin, Canadian Legislative Assembly, 21 February 1865, in cfd, 235. 42 It is part of Himmelfarb’s argument in The Roads to Modernity: The British, French, and American Enlightenments (New York: Alfred A. Knopf, 2004), that social agencies rooted in the religious traditions may be more effective than a state or national organization staffed by bureaucrats in rehabilitating individuals suffering from drug addiction or in administering family assistance. She is, in short, an advocate of “faith-based charities.” As a historian, she is impressed by the achievement of voluntary groups in founding schools and universities, associations to alleviate conditions in prisons, and associations for the relief of poverty. She is impressed by the role that religious enthusiasm played in ending slavery and the slave trade. Her view of civil society is “rosy,” indeed.

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arena competing interests of an intractable kind, the Legislature and the nation will be subject to the ills endured by the united Province of Canada in the miserable years before Confederation, the period of “fierce contests,” “the strife, and the discord and the abuse.”43 Jean Bethke Elshtain extends our understanding of institutional remedies. She charges the federal government of the United States with the creation of entitlements and subsidies that entrench intolerant demands, with the consequence that the national sense of citizenship and the idea of deliberative politics are severely eroded. Like Himmelfarb, Elshtain regards the United States of today as a morally disordered society. She is appalled by the “culture of mistrust,” by declining levels of involvement in politics, and by cynicism about political institutions and politicians: “We have a veritable shopping list of disconcerting facts at our disposal that speaks to cynicism and a turn inward toward the self.” Indeed, in some passages her argument closely resembles that of Himmelfarb. She even uses the phrase “civil society.” Nevertheless, it becomes clear that what principally worries Elshtain is not the loss of civil society but the loss of civic institutions and the sense of national citizenship. Individuals increasingly see themselves as members of particular associations, with particular histories and particular demands.44 They are unable to engage in fruitful deliberation with other citizens because all their demands are connected with their particularity and are thus intractable. They participate as members of a “race,” or religion, or (very often) a historically disadvantaged group. They have no comprehension of an inclusive arena where one’s “race” and particular history are neither an advantage nor a disadvantage. They have no common rules of argument, no overarching liberal democratic institutions. (Recall George Brown’s hope that the political nationality – the civic identity – would make the people of the new nation “citizens of a common country.”)45 Of the politics of “identity” (by which she means the proliferation of demands in the name of race and particularity), Elshtain says: “Flaunting one’s most intimate self, making a public thing of oneself [is one matter]; arguing for a position, winning approval, or inviting dissent as a citizen is something quite different.”46 To repeat: in contrast to 43 George Brown Canadian Legislative Assembly, 8 February 1865, in cfd, 285. 44 Jean Bethke Elshtain, Democracy on Trial, the cbc Massey Lectures for 1993 (Toronto: Anansi, 1993), 4. 45 George Brown, Canadian Legislative Assembly, 7 February 1865, in cfd, 289. 46 Elshtain, Democracy on Trial, 55.

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Himmelfarb, who would restore civil society and culture, Elshtain proposes reform of our civic institutions. Although a short book, Elshtain’s Democracy on Trial describes in some detail the policies and institutions that encourage Americans to think in terms of particular entitlements and to associate the loss of entitlements with rejection of their rights and denigration of their very humanity.47 In such an environment, every loss is absolute, and every gain is “forever.” Moderation vanishes. The political scene degenerates into “fierce contests,” “the strife, and the discord and the abuse.”48 I do not want to suggest that the mid-nineteenth-century legislators and the late-twentieth-century thinkers are alike in all respects. The decline of legislatures and political parties, the growth of the welfare state, the extension of government into the private sphere – these are facts of the late twentieth century, familiar to Himmelfarb and Elshtain, unknown to the British North Americans. I note especially that Himmelfarb cannot forget the horrors of twentieth-century totalitarianism, in which membership in particular cultural associations was forbidden and individuals found themselves distrusting even family; she fears the extremes of individualism, the single person confronting the state in the absence of intermediate organizations. But there is common ground. Canada’s founders and the twentiethand twenty-first-century political thinkers share much. The civil society that is so dear to Himmelfarb derives from the Scottish Enlightment – as she herself tells us in her admirable history of ideas entitled The Three Roads to Modernity.49 Tocqueville discovered it in nineteenth-century America. That it flourished in British North America, I have already suggested. It was taken for granted by Cartier and Langevin. Moreover, the kind of intransigent political contestation that Elshtain fears is surely what James Madison feared and what Brown feared (and Cartier and Langevin, too, although they said less on the topic). I have said that it is what Locke feared. It is the phenomenon that the Canadian founders sought to prevent. 47 Huntington, Who Are We? ch. 7, is also worried about the emergence of theories and programs of multiculturalism that encourage Americans to identity not with the nation as a whole but with subnational and “transnational” groups. He worries as well about American elites who regard patriotism with suspicion, if not contempt. 48 George Brown, Canadian Legislative Assembly, 8 February 1865, in cfd, 285. 49 In The Roads to Modernity, Himmelfarb uses “British Enlightenment” rather than the familiar term “Scottish Enlightment.” Her reasons are persuasive.

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Let me summarize the underlying dilemma. The barebones constitution that the Canadian founders prescribed for the national level protects the rule of law, impartiality, and political equality. It protects the realm of public deliberation. But it does not necessarily build the social connections that conduce to the most satisfying life. The barebones constitution lacks energy; indeed, it is designed to discourage political fervour. And there is more: where the civic identity is dominant, tolerance sometimes reigns to the point where distinctions between better and worse are allowed to lapse. As we are well aware in our day, the collapse of the distinction between better and worse erodes confidence in liberal democracy’s institutions and thus threatens the grounds of the civic identity itself. To allow the formulation of political arguments in terms of matters close to the heart brings back the energy, the immediacy, and the passion that encourages a sense of efficacy in politics. But it also encourages the intrusion of exclusive demands into the nation’s politics to the point where it threatens the rule of law, justice as equality, and public deliberation. Favouritism flourishes; the culture of complaint and victimization encroaches. Political antagonisms become unmanageable, and political discontent increases. Now think again about the formula devised by the Fathers of Confederation: it argues that the power of particular traditions in enriching life depends on maintaining at the national level the dimension of political life in which particularity does not count. Yes, I think we can say that the Canadian Fathers are addressing issues that have long been familiar in political thought and are still familiar. We can say more: their analysis and their formulation is not inferior. We could do worse than to restore the political nationality, supposing it possible.

l a s t th o u gh t s on th e i d e a of c o ll ec t i ve nat i on a l i d en t i t y The Canadian founders rejected the idea of a national cultural identity not only because those meeting at Quebec in 1864 represented different political constituencies and not only because they required the agreement of Liberals and provincial rights advocates as well as dyedin-the-wool Conservatives. They also rejected it because a substantive identity is inevitably exclusive, favouring the founding peoples over latecomers, the majority over minorities. The founders’ rejection of the collective national identity was considered and deliberate. They expected the population of the new nation to take pride in their “identity” not because it was distinctive, not because it encapsulated a social vision, not

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because it incorporated a particular history or expressed particular social and economic values. Rather, they expected the population to be proud that the country’s Constitution and laws would allow it to do well the things that all countries should do: promote equality, nondiscrimination, the rule of law, justice, civil peace, and prosperity. It surprises me that Canadian cultural nationalists can wish for a substantive identity at the national level, a “distinctive” Canadian identity, a collective “coming together,” without a shiver of fear. If the founders are right, the idea of a substantive national identity threatens the integrity of particular affiliations, many of them dear, many of them longstanding elements of Canadian life. But more: insofar as the substantive national identity strives to speak for all, it is just a step away from the romantic nationalists’ appeal to blood and soil. Canadians can flirt with ideas of common national purpose and substantive identity, I think, because we have lived together for a long time with the Lockean formula, the political nationality endorsed by the Fathers, in which at the national level political institutions protect political dissent and bar no one from participation for reason of his or her origin or affiliation. It is almost impossible for Canadians to suppose that this country will ever be wracked by the terrible passions that inflicted such damage on European nations in the twentieth century. I hope that our short-sightedness never catches up with us.

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pa r t t w o What Went Before? What Is Happening Now?

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6

Celebrating 1791: Two Hundred Years of Representative Government1 lord simcoe described the constitutional act of 1791 as “the image and transcript of the British Government and Constitution.”2 But was it? It divided the old Province of Quebec into Upper Canada and Lower Canada and assigned to each a representative assembly. It was clearly intended to inculcate in British North America what Charles Taylor calls the “mores of representative government.” Did it also embody the principles of “equality, non-discrimination [and] the rule of law”?3 This chapter looks at the debate on the 1791 Act in the British House of Commons. Among the participants were Edmund Burke and Charles James Fox. Everything they say suggests that they thought the Mother Country was establishing in Canada the “image and transcript” of the British system, parliamentary government in all its magnificence. It is true that Burke, presciently aware of the looming chaos in France, calls attention to features of parliamentary government that promote civil order, while Fox, in 1791 still an ardent admirer of the French Revolution, emphasizes British liberties.4 But both praise the British Constitution in extravagant terms, 1 This chapter was first published in the Canadian Parliamentary Review (Spring 1991): 26–30. 2 John Graves Simcoe used the phrase upon proroguing the first session of the Upper Canada Legislature. And see W.P.M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713–1929 (Toronto: Oxford University Press, 1930), Document 59, Simcoe to Portland, 1794. 3 Charles Taylor, “Shared and Divergent Values,” in Guy Laforest, ed., Reconciling the Solitudes: Essays on Canadian Federalism and Nationalism, 155–86 (Montreal and Kingston: McGill-Queen’s University Press, 1993), 156, 158–9. 4 On Burke’s prescience, see Gertrude Himmelfarb, The Roads to Modernity: The British, French and American Enlightenments (New York: Knopf, 2004), 92. Burke’s anticipation of the momentous events in France is “remarkable,” she

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and both argue that in the form prescribed for the Canadas, it would allow the colonists all rights proper to subjects of the British Crown. Yet before many years were up, it was evident to almost everyone in the Canadas and to at least some people in Britain that the 1791 institutions were intolerably limiting the colonists’ freedoms. In 1837 law and order broke down. Something had gone wrong.

th e d e b at e i n t h e m o t h e r o f pa r l i a m e n t s Upper and Lower Canada were not the first of the British North American colonies to obtain representative institutions. Nova Scotia had enjoyed a popularly elected assembly from 1758, Prince Edward Island from 1773, and New Brunswick from 1784. The importance of the Constitutional Act of 1791 stems from the fact that the new regime in the Canadas required an act of the British Parliament. In the Maritime provinces, the British government had been able to establish representative institutions by the simple means of issuing instructions to the provincial governors. In the case of the Canadas, it was necessary to repeal sections of the Quebec Act and to pass new legislation. The bill was introduced in the House of Commons by William Pitt in March of 1791, secured approval in May, and came into effect in the Canadas on 26 December 1791.5 No parliamentarian will be surprised to learn that few changes were made to the bill during its passage through the Commons. What makes the 1791 debate significant is the character of the arguments advanced. As they examined what was in effect a new political constitution for a new society, the members of the British Commons described and justified British parliamentary institutions. The real subject of the debate was the institutions and political conventions grounding British parliamentary practice. The legislators were intensely conscious of the work of the American and French constitutionalists of the period. They treated the Canada Bill as an opportunity to make a British statement about liberal government that would rival those of the revolutionary nations. The institutions that

says. “Regicide, war, and terror are all prefigured in the Reflections, as if they had already happened. Burke took the measure of the Revolution at the outset.” Burke’s Reflections on the Revolution in France appeared in 1790. 5 William Grenville, secretary for the home department, was the author of the bill. See his correspondence with Lord Dorchester, governor of Quebec, in Kennedy, ed., Statutes, 184–90. The new provincial Parliament of Lower Canada met on 17 December 1792 and the first Parliament in Upper Canada on 17 September.

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they prescribed for the Canadas were meant to prove to the world that the British form of government could offer all the rights and benefits that free men desire.6 As Charles James Fox argued, the subjects of the British North American colonies would be able to compare their institutions with those of other nations and see the superiority of the parliamentary form.7 He urged his colleagues to “keep in mind those enlightened principles of freedom, which had already made rapid progress over the considerable portion of the globe, and were becoming every day more and more universal.”8 A constitution agreeable to the colonists’ own wishes, said Pitt, would be “a free constitution, in the English sense of the word.”9 In short, the legislators of 1791 went at their task in the spirit of men engaged in a great act of constitution making. What we have in the 1791 Act is the British Constitution, the famous unwritten constitution itself, in legislative form. The Constitutional Act of 1791 was to be a declaration about liberal freedoms that would compare well with the American Constitution and the French Declaration of the Rights of Man and Citizen. While there was much to celebrate with the 1791 bicentennial, Canadians could expect little of the kind of fanfare that surrounded the French and American bicentennials. Undoubtedly, our admiration for 1791 has been tarnished partly because the new Constitution proved unworkable. Within a very few years, the proud new legislative assemblies of 6 Phillip A. Buckner, The Transition to Responsible Government (Westport, ct: Greenwood Press, 1985), 48, 49: “Grenville had virtually conceded the principle so vigorously advanced in the Thirteen Colonies, and as vigorously opposed in Britain, that the constitution of the colonies was meant to duplicate that of the home country.” Addressing the new Legislative Assembly of Upper Canada in 1792, Governor John Graves Simcoe said that it was his intent to render the province as nearly as possible “a perfect image and transcript” of the British Constitution; see Simcoe’s dispatch to Portland, in Kennedy, Statutes, 215. The Act was in part a response to demands from United Empire Loyalists coming into Quebec for the political freedoms that they had enjoyed in the Thirteen Colonies. 7 “Canada must be preserved to Great Britain by the choice of its inhabitants,” argued Fox; Parliamentary History 29 (8 April 1791), 110. The deficiencies of political practice in eighteenth-century Britain are well known. This is not the place to tell the story of England’s rotten boroughs, the restricted franchise, and ministerial attempts to manipulate elections and bribe members of the Commons. The Constitution that was so highly praised by the 1791 legislators was the British Constitution in the best sense, the Constitution as it ought to have been. 8 Parliamentary History 29 (8 April 1791), 105 9 Parliamentary History 29 (11 May 1791), 404.

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the Canadas were involved in hopeless quarrels with the upper legislative chambers and political executive, and by 1837 strife on political and constitutional issues had become so intransigent that a sizeable proportion of the populace believed that war against the government was the only remedy. What happened to dash the great hopes of the British legislators? Some explanation must be given of the failure of the new regime in the Canadas before we can turn to an analysis of the 1791 debate. Was the 1791 prescription, the Constitution of Grenville, Pitt, and Fox, hopelessly flawed? When the story of the years immediately after 1791 is told, we may find that there is still reason to think well of the Constitution intended by the legislators of 1791.

th e r ec ep t i o n i n q u eb ec : b éda rd ’ s o pi n i o n Pierre Bédard, by all accounts the best student of constitutional law in the colonies during this early period, described the Constitution of 1791 in terms as laudatory as any used by Pitt and Fox. It was a “rare treasure,” he said, a form of government that would bring the inhabitants of the province freedom of a kind that they had never known before.10 No one was more aware of the difficulties of the new regime than Bédard. As leader of the majority party in the Assembly, a party consisting mainly of French Canadians, he was constantly at war with the “English” in the Executive and Legislative Councils. Nevertheless, he did not believe that war between the branches of government was what the British had intended with the 1791 Act. His study of British constitutional authorities – among them Charles James Fox and Edmund Burke – satisfied him that the legislators of 1791 had intended the colonies to follow the British parliamentary practice of appointing to the political executive men who could command a majority vote on money bills in the lower house.11 There should have been no quarrel between the executive and lower house be10 See the prospectus for Bédard’s journal, published in November, 1806. The death of Fox was commemorated in the first issue. For excerpts from the 1791 debate on the Canada Bill, see Le Canadien 1, no. 3 (6 December 1806). Bédard’s constitutional views are discussed more fully in Janet Ajzenstat, “Canada’s First Constitution: Pierre Bédard on Tolerance and Dissent,” Canadian Journal of Political Science 23, no. 1 (March 1990): 30–57. 11 For Bédard on the constitutional principle that we now refer to as “responsible government,” see Le Canadien 1, no. 10 (24 January 1807). See also comments on Bédard’s perception of this principle in Fernand Ouellet, Lower Canada, 1791–1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), 63.

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cause the governors should have had to appoint executive councillors sympathetic to the Assembly. The whole difficulty in Lower Canada, Bédard decided, had come about because the governors had been allowed to spend British money on provincial affairs.12 They could pay their executive councillors with British funds, ignoring the Assembly. Bédard remained convinced that there was no flaw in the Constitutional Act of 1791. The prescription had been magnificent; only corrupt practice had destroyed it. If he was correct in his analysis of the problems facing the colonies under the 1791 regime, was he also right in describing the 1791 Act as a “rare treasure”? Was there a great formula for political freedom in the 1791 Act, as he supposed? Two aspects of the Act pose special difficulties for the reader of today. First, it appears to express marked distrust of democratic institutions. During the debate on the Canada Bill, members argued for measures to strengthen the “aristocratic” principle in the new Constitution. They talked of curbing democratic tendencies in the colonies. The Act provides for an upper chamber (referred to in the debate as the “aristocratic” house) and, more than this, contains measures that would have encouraged establishment of a landed aristocratic class in the Canadas. Second, everything in the Act appears to take for granted French Canadian satisfaction with life under British institutions and laws. It would be easy to see in both aspects of 1791 mere class interest and British chauvinism. Closer examination of the 1791 debate reveals a different picture. What the legislators feared in “democracy” was not the democratic form of government we know today. They were alarmed by the idea of democratic tyranny, democratic absolutism, the kind of rule that brings to power political leaders who profess to speak for the whole people and consequently allow no opposition. Rightly or wrongly, they believed that democratic tyranny was a threat in Europe and North America at the time. The language of the debate had an old-fashioned ring: members referred to the political executive in the colonies – the governor and Executive Council – as embodying the “monarchic” principle. The upper 12 Kennedy, Statutes, 209: “A long as the Crown enjoyed … financial independence there was a farcical element in representative institutions.” Was the financial independence of the Crown intended by the legislators of 1791? Perhaps not; however, it was often favoured by colonial administrators. See, for example, Sir Robert Short Milnes’s dispatch of 1 November 1800, in Kennedy, Statutes, 217–22. The fact remained that all attempts to ensure the imperial connection by strengthening the governor’s role in colonial affairs prevented the full flowering of British constitutional principles in the colonies. The logic of 1791 tended in one direction, and the logic of empire in another.

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legislative house was said to be the “aristocratic” branch of government, and the lower house the “democratic” or “republican” body. Nevertheless, the institutions that they describe are clearly those of the British parliamentary system, in form not utterly unlike today’s. Moreover, it was because they believed that the parliamentary system guaranteed political and individual freedoms that they could suppose that the French Canadians would welcome the new institutions. The Constitutional Act of 1791 was considered good not because it was British but because it granted the freedoms that all men in all societies value.

th e l oo m i n g th r eat of the french revolution The debate on the Canada Bill is well known to scholars – indeed, it is famous – but curiously enough not as a discussion of the grant of political freedoms to the colonies. Its fame derives from the fact that it was the occasion on which Fox and Burke quarrelled about the French Revolution, splitting the Whig party and ending twenty-five years of friendship. Historians usually suggest that the quarrel was more or less irrelevant to the bill before the House when it broke out. Those who write about Whig party fortunes barely mention the Canada Bill, while those who treat the 1791 Act usually do little more than hint at the broader issues suggested by the discussion of the French crisis.13 The key to the Act lies in seeing the relationship between the legislators’ reluctance to countenance measures to strengthen the democratic branch of government in the Canadas and Burke’s rhetorical outbursts about the evils of the revolution and popular government in France. Burke entered the debate charging that the republican principles springing up in revolutionary France would soon prove a threat to political freedom everywhere, even in England. He reminded his listeners of his arguments in Reflections on the Revolution in France.14 He told of terrifying events in France. At one point, he called the regime in France “an anomaly in government,” more terrible even than republican government. It was “‘a shapeless monster, born of hell and chaos.’”15 13 Mason Wade, The French Canadians, 1760–1967, vol. 1 (Toronto: Macmillan, 1968), 87: “The final bill … was little affected by its passage through parliament and the debate on it was chiefly notable for the irrelevant clash of Burke and Fox on the French Revolution.” 14 See Parliamentary History 29 (11 May 1791), 417–18, and generally the arguments of 8 and 11 May. 15 Parliamentary History 29 (11 May 1791), 421.

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The central thesis of eighteenth-century constitutionalists was that the British Constitution balanced “monarchic,” “aristocratic,” and “democratic” institutions in order to protect against the development of “simple” forms of monarchy, aristocracy, and democracy. In the eighteenth-century description, the simple forms have one characteristic in common: all involve claims by individuals, cliques, a hierarchy, or party to an absolute and necessary title to rule. “Simple” democracy was democratic absolutism. Burke sees the seeds of autocratic rule in the French Revolution. Indeed, he was one of the first in Britain to become disenchanted with the revolution that had begun with such great promise. His argument was that if Britain, with all its weight of tradition, might not be able to withstand the onslaught of republicanism, the new societies of British North America would surely prove vulnerable. In the clause-by-clause reading of the Canada Bill, he supported all measures that would restrain and balance the powers of the colonial Legislative Assembly and strengthen the “aristocratic” chamber. Indeed, Burke was one of the members prepared to entertain the idea of fostering a landed aristocracy in the colonies. It is worth noting that nowhere does he argue that a stronger colonial upper house and executive would be effective in maintaining the imperial connection. His point was always that strengthening the aristocratic and monarchic elements in the colonies would be necessary to protect freedom within the colonies. Fox attempted to avoid discussion of his position on the French Revolution. Nevertheless, he was known to have expressed admiration for the Declaration of the Rights of Man and Citizen. If disenchantment had set in, he was reluctant to admit it in these debates. He was still thinking of a future in which freedom broadened out from age to age. He ridiculed the idea of a hereditary aristocracy in Canada. Were “those red and blue ribbons which had lost their lustre in the old world … to shine forth again in the new?”16 He maintained that Britain did not need to create a titled class to act as legislative councillors. Under the new Constitution, men of “commerce and wealth” would soon gain the kind of respect that would make them eligible for appointment to an upper chamber.17 16 Parliamentary History 29 (8 April 1791), 107. 17 A question for Fox as for other members was whether the seigneurial class in Lower Canada formed an effective aristocratic class. Most members doubted that it did. Fox argued that whatever respect accrued to the seigneurs under the new regime would result from wealth, not inherited position; see Parliamentary History 29 (11 May 1791), 413: “The extension of commerce and wealth in the province, which there was every reason to imagine would follow the introduction of the new constitution, would make them hold a fair weight in that constitution,

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He proposed measures to strengthen the legislative assemblies of the Canadas and was instrumental in persuading the government to increase the number of seats in the Assembly of Lower Canada from the thirty proposed by Pitt to fifty.18 Against Pitt’s suggestion that colonial elections be held every seven years, Fox argued for elections held yearly or every three years.19 In the end, it was agreed that sessions would be called yearly and that elections would be held every four years. Burke depicted Fox as a “republican” and “democrat,” a friend of revolution and threat to the British Constitution.20 The quarrel was memorable, “Burke giving way to frenzied temper and Fox … wiping eyes tear-stained over a broken friendship.”21 What is interesting is that Fox did not defend himself by arguing the merits of the democratic or republican position. In fact, he roundly denied republican and democratic leanings. He claimed that he valued the “monarchic” and “aristocratic” principles in the British Constitution as much as any man in the House. He argued over and over that he believed, just as Burke did, that the fullest safeguards for political freedom lay in a constitution balancing monarchic, aristocratic, and democratic or republican institutions. In proposing a larger assembly for the colonies, he meant to give the “democratic branch” as much weight as the “aristocratic” and “monarchic” elements but not more. “It would be indispensably necessary that an aristocracy should make a branch of the constitution for Canada,” he argued, adding that “it was equally important with either the popular or monarchic.”22

and imperceptibly clothe them with that respect and influence that ought to belong to the aristocratic branch of a free government.” 18 Pitt gave Lower Canada’s population as 100,000 and Upper Canada’s as 10,000. The number of seats for Upper Canada was set at sixteen. Fox argued unsuccessfully for an increase. 19 See Parliamentary History 29 (11 May 1791), 421. 20 Ibid., 417–18. See the note at 417 giving a paragraph from the Morning Chronicle of the following day: “The great and firm body of the whigs of England, true to their principles, have decided on the dispute between Mr. Fox and Mr. Burke, and the former is declared to have maintained the pure doctrines by which they are bound together, and upon which they have invariably acted. The consequence is, that Mr. Burke retires from parliament.” 21 W.P.M. Kennedy, The Constitution of Canada: An Introduction to its Development and Law (London: Oxford University Press, 1922), 86. 22 Parliamentary History 29 (11 May 1791), 410, 411–16.

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Burke claimed that the differences between himself and Fox were of great importance. Fox argued that they were minor and from the present-day perspective, there appears a large measure of agreement. To understand the 1791 Act, it will help to fix our attention on the fact that they were both proponents of the constitution that mixed “monarchic, “aristocratic,” and “democratic” elements. It is too simple to regard Fox as the friend of democracy and Burke as the advocate of aristocracy. Fox was not prescribing “simple” democracy any more than Burke was, and he did not think, any more than did Burke, that the popular house should be the chief locus of the parliamentary system. Both believed that the tendency toward democratic rule must be checked in some degree. Fox stressed measures to dignify the “democratic” branch because he was alert to dangers associated with the aggrandizement of the political executive. His nightmare was a Britain returned to the evil rule of Stuart days. Translated into our own terms, what he feared above all was rightwing authoritarianism. For Burke, in contrast, the greater threat was likely to come from political figures or parties who professed absolute authority to speak for popular interests, the kind of political leaders who emerge through revolution. In other words, he feared authoritarianism of the left. Their quarrel about the “balance” of the elements in the mixed constitution was enough to split the Whig party and enough to bring them out on different sides of the Canadian question, but both were foes of absolutism, and both saw parliamentary institutions as the form of government supremely guaranteeing protection against all forms of absolutism. What characteristics of the parliamentary system provide this protection? From the 1791 debates, we learn that dividing legislative power among the three branches of government is important. A fuller picture of what is involved emerges from Bédard’s analysis of the political strife in Lower Canada in the years immediately following the 1791 Act. Bédard on the British Constitution is as helpful as the British legislators, often more helpful. Bédard was addressing a populace new to the parliamentary system; he had to explain at length principles and practices that the 1791 legislators took for granted. Like Fox and Burke, he cast his arguments in the language of the mixed or balanced constitution. The governor and the provincial Executive Council were to make up the “monarchic” branch, the Legislative Council was to comprise the “aristocratic” branch, and the Legislative Assembly would serve as the “democratic” branch. Echoing Fox’s perspective, he argued that the “monarchic” branch in Lower Canada, not the “democratic,” was the threat to political order and freedom. Indeed, he

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depicted the governor as high-handedly attempting to establish a form of absolute rule in the name of the British imperial interest.23 Bédard did all he could to assert the Assembly’s right to powers comparable to those exercised by the British House of Commons. In particular, he insisted on the Assembly’s right to exercise the power of the purse. Nevertheless, he, too, was no champion of “simple” democracy. Like his mentors, he argued that each constituent part of the parliamentary system must have its proper constitutional powers. While he endeavoured to strengthen the lower branch by arguing that the House should vote all taxing and spending legislation, he did not propose to deprive the governor of constitutional prerogatives, particularly the right to recommend money bills. Bédard’s reforms would have made the colonial Assembly a more dignified and effective body, but they would not have deprived the executive of the power to govern. In fact, his reforms would have had the result of giving the colonial executive legitimacy, thus enabling it to govern effectively. The “monarchic” branch would govern; the “democratic” branch would legitimate. This is exactly the vision of the eighteenth-century constitutionalists. The executive branch was to have the support of the majority in the popular house and thus the scope and power to govern. But it is important that the executive can claim the support of only the majority. The ministers of the Crown in any one government do not represent the political views of the entire people, the whole nation, and consequently can claim no absolute title to rule in the name of the demos. In the eighteenth-century argument that the executive did not speak for the demos was the constitutional guarantee against monarchic and aristocratic absolutism. By the same token, the constitutional body that can truly claim to represent the whole people confers legitimacy on the governing branch and checks the ambitions of the “monarchic” body but does not itself govern. Here is the guarantee against “simple” democracy.

“ k i n g , l o r d s , a n d c o m m o n s ” i n t h e n e w wo r l d For the legislators of 1791, there remained a question: could a constitution designed originally to serve the classes and estates of England be 23 There are two sides to the story of the quarrel between the popular leaders in the provinces and the governors. The governors complained that despite their special sources of funds, they were able to exercise little political discretion. See the account in Buckner, The Transition, 50ff. But if Bédard’s argument is overstated, it is right in essence.

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reproduced in the relatively egalitarian social conditions of North America? Was it feasible to recommend an “aristocratic” house for a population without an aristocracy? Fox argued that an upper legislative chamber could be maintained through the appointment of able and wealthy individuals. Burke feared that wealth alone would not guarantee the upper house the kind of respect necessary to balance the importance of the popular chamber.24 Does society shape politics, or do politics shape society? In the end, the legislators of 1791 tended to come down on the side of the modern, small-“l”-liberal conclusion: politics is prior. Good political institutions can be established in any society. This is the argument that in our own time gives confidence to those who believe that there are institutional remedies for social and economic ills. In the eighteenth-century debate, it meant that it was not necessary to reproduce in British North America the special historical and social environment that had given rise to the king, Lords, and Commons of the English form of government. The British Constitution was exportable. The institutions of the parliamentary system would thrive in an egalitarian society, guaranteeing political and individual rights to all regardless of social class. The same tendency of thought led to the conclusion that the French would welcome the new regime. The new Canadian institutions had the form of their British counterparts, but their importance did not lie in the fact that they had originated in England. The Constitutional Act of 1791 was important and admirable because it would ensure, in Bédard’s words, the “free exercise of rights and liberties.”25 The new Constitution enshrined universal aspirations. It was not suited to one people, one race, or one nationality alone. Despite the changes of two centuries, these principles of the eighteenthcentury Constitution are still valued. Indeed, the bones of the eighteenthcentury Constitution can still be seen in the Canadian political system. This surely gave us something to celebrate with the 1791 bicentennial.

24 Parliamentary History 29 (11 May 1791), 420. 25 See Pitt’s argument that the French Canadians would adopt British institutions from conviction, in Parliamentary History 29 (8 April 1791), 113.

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Canada’s First Constitution: Pierre Bédard on Tolerance and Dissent1 what went wrong with the grant of representative institutions to the Canadas in 1791? Pierre Bédard (the subject of this chapter) and Lord Durham (chapter 8) lay the blame on the British government. Fearing that left to themselves the colonists would elect parties and politicians whose objectives were antithetical to British interests, the Colonial Office encouraged the development of oligarchies in British North America – the colonial “Family Compacts” – and kept them in power with funds drawn from the imperial purse. Here is Durham’s recommendation: “It is not by weakening but strengthening the influence of the people on its Government; by confining within much narrower bounds than those hitherto allotted to it, and not by extending the interference of the imperial authorities in the details of colonial affairs, that I believe that harmony is to be restored, where dissention has so long prevailed.”2 That Durham, the governor general of British North America and a powerful man in his own right, could publish such sentiments is one thing and, given his liberal reputation, not surprising. That Bédard, relatively powerless, ever at the mercy of Lower Canada’s governor (a man nicknamed “The Beast”), could advance a similar contention is another thing: utterly amazing and entirely admirable. 1 This chapter was first published in the Canadian Journal of Political Science (March 1990): 39–57. The bulk of my work on Bédard’s constitutional thought was done during my tenure of the Jules and Gabrielle Lèger Fellowship, the award given by the Social Sciences and Humanities Research Council of Canada for the study of the Crown in parliamentary democracies. I most gratefully acknowledge the council’s assistance. 2 Lord Durham, Lord Durham’s Report (1839), abridged by Gerald Craig (Montreal and Kingston: McGill-Queen’s University Press, 2007) (hereafter Craig, ldr), 137.

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introduction Locke maintains that the intolerant are not to be tolerated, meaning by the intolerant those who will not acknowledge the equality of all in the political arena but insist on the superiority of individuals or political groups claiming the sanction of God, conscience, or nature.3 Writing in the seventeenth century, he feared chiefly political groups who argued from religious authority: priestly hierarchies and divine-right kings. For men like Lower Canada’s Pierre Bédard in the nineteenth century, intolerance takes a different form. Bédard confronted a clique that claimed title to govern on the basis of national origin rather than religious authority. Nevertheless, his understanding of tolerance is recognizably Lockean. Like Locke, he was inveighing against rule by a faction claiming a special sanction, and like Locke he regarded this claim as unacceptable because it breaches the principle of equality. The French initially welcomed the Constitution of 1791, believing that it would give the province’s French-speaking inhabitants a new dignity and new freedoms. But the road to freedom proved far from smooth, and two decades into the new regime, some French Canadians were expressing considerable disenchantment. To understand the dilemma of politics in Lower Canada, Bédard and his colleagues had to think through the idea of the British Constitution as enshrining political equality and freedom – an idea that they derived from reading British constitutional authorities (among them Locke) – with the knowledge, illuminated by those same authorities, that imperial rule in the colony was intolerant. The British tradition promised equality, but British officials in the province (and the English-speaking elite who had privileged connections with officialdom) refused political office to qualified French Canadians. The tradition promised freedom to criticize the government in power, but Lower Canada’s British administrators punished attempts to expose inequities. What emerges from Bédard’s wrestling with the British tradition and colonial problems is a description of constitutional principles – in particular, those principles that permit free criticism of government in Parliament and the press – that has few parallels in Canadian political thought. To show his thought in relief, I compare Bédard with two of his associates who felt considerably less admiration for the British constitutional tradition. We find in François Blanchet and J.T. Taschereau, I shall argue, a critique of Bédard’s views that prompts 3 John Locke, A Letter Concerning Toleration (Indianapolis, in: Bobbs-Merrill, 1950), 69.

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reflection on the proper limits of free speech and political opposition even in an essentially tolerant polity. First leader of the French Canadian party in the Legislative Assembly of Lower Canada and editor of French Canada’s first journal of political opinion, Le Canadien, Bédard argued that the Constitutional Act of 1791 had guaranteed French Canadians all the political rights and freedoms of British subjects.4 He claimed especially the right to speak freely in Parliament and in the press for French Canadian interests.5 He resolutely opposed the policies of the British government in the province while just as resolutely declaring his confidence in British political institutions and the British tradition of free political speech. Blanchet and Taschereau, in contrast, although for years Bédard’s associates in the Assembly, viewed political opposition as at best petty and more probably dangerous.6 Like Bédard, they resented the special 4 Blackstone and Jean Louis De Lolme are quoted in Le Canadien, sometimes at length. See, for example, Le Canadien 2, no. 15 (2 March 1808); 2, no. 25 (7 May 1808); 2, no. 32 (25 June 1808); 3, no. 29 (3 June 1809); and 3, no. 37 (29 July 1808). The journal also cited or ran excerpts from British documents relating to Canada, the journals and debates of the British Parliament, and statutes and journals of the assemblies of other British colonies and ex-colonies. For a list of books and documents that Bédard purchased for the parliamentary library, see Journals of the Legislative Assembly of Lower Canada 15 (11 April 1807). The list includes Malthus and Bentham as well as a wealth of law books. Lawrence A.H. Smith, “Le Canadien and the British Constitution, 1806–1810,” Canadian Historical Review 38 (1957): 93–108, lists the books read by Assembly members at this time. As Smith notes, the Canadians shunned radical and utopian thinkers, concentrating on “arguments expounding the rule of law and toleration” (100). For Bédard’s constitutional ideas, see Smith, “Le Canadien” – an excellent account; Fermand Ouellet, Lower Canada, 1791–1840 (Toronto: McClelland and Stewart, 1980); and John L. Finlay, “The State of a Reputation: Bédard as Constitutionalist,” Journal of Canadian Studies 20 (1985–86): 60–76. 5 See the prospectus for Le Canadien, which promises to take advantage of the province’s liberty of the press to explain to readers “the rare treasure which we possess in our Constitution.” (All translations from Le Canadien and other French sources are mine.) The third issue cites Pitt, Burke, and Fox to uphold an argument about the rights of British subjects; see Le Canadien 1, no. 3 (6 December 1806). 6 See “Mémoire au Soutien de la Requet des Habitans du Bas-Canada, à son Altesse Royale le Prince Regent,” in Robert Christie, A History of the Late Province of Lower Canada, vol. 6, Interesting Public Documents and Official Correspondence (Montreal: John Lovell, 1855), 313–26. It must be noted that in attributing the “Mémoire” to Blanchet and Taschereau, I am running counter to prevailing

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privileges of the “English” faction in the province, but they were less enamoured of freedom and equality in the abstract. In a “Mémoire” of 1814 addressed to the Prince Regent, they proposed constitutional reforms that would have sacrificed a degree of political freedom in the interest of reducing the adversarial climate in the provincial Legislature.7 Putting the best possible construction on their position, I shall argue that they refrained from demanding full political equality for French Canadians because they understood that tolerance and political equality are necessarily limited in a colonial dependency.8 They were realists, I suggest, ready to settle for the half-loaf. Bédard is the hero of the story; it was his vision of liberal freedoms that triumphed in the end, years after his death. Nevertheless, I shall argue that the criticism of Bédard’s program and tactics implied by the opinion among historians. Both Ouellet and Finlay argue that the “Mémoire” is essentially Bédard’s work. See, Ouellet, Lower Canada, 88–9; Fernand Ouellet, “Pierre-Stanislas Bédard,” in Dictionary of Canadian Biography, vol. 6, 1821–1835 (Toronto: University of Toronto Press, 1987), 43–8; and Finlay, “The State of a Reputation,” 72–4. I give reasons below to support the idea that Bédard did not write the “Mémoire,” arguing for one thing that it is unconvincing to suppose that one and the same person could advance the very different constitutional arguments embodied in Le Canadien and in the “Mémoire.” Nevertheless, cautious readers may want to treat my attribution of the “Mémoire” to Blanchet and Taschereau as a hypothesis rather than established fact. 7 Everyone acknowledges that Blanchet and Taschereau bore considerable responsibility for the “Mémoire.” Opinions differ merely about the extent to which they relied on Bédard’s arguments. We know from Bédard’s correspondence with John Neilson that Blanchet and Taschereau appealed to Bédard for help while they were preparing the “Mémoire” and that he sent them notes and documents. See the letter to Neilson of 2 November 1814, in Public Archives of Canada (pac), Neilson Collection, vol. 2, 391. (Bédard at this time was living in Trois Rivières, effectively an exile from the political scene.) Ouellet makes much of the evidence in the correspondence. But the letters in fact show us Bédard complaining to Neilson about being able to do very little to assist Blanchet and Taschereau. See his letter of 25 September 1814, in pac, Neilson Collection, vol. 2, 378–9, where he says that he can do so little because he is constantly busy, has so little information, and is without books. The plain sense of the letters of 25 September and 2 November is that Bédard wished he could have had a larger hand in writing the “Mémoire.” 8 For an argument that does more to suggest how imperialism and liberalism might be reconciled, see Stéphane Dion, “Durham et Tocqueville sur la colonisation libérale,” Journal of Canadian Studies 25, no. 1 (Spring 1990): 60–77.

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memorialists (as I shall call them) is not entirely ill-founded. From the memorialist perspective, Bédard the constitutionalist looked like a threat to constitutional order, and his passionate advocacy of political freedoms appeared to be a danger to freedom. That the governors of those years did not regard Bédard’s tactics in the Assembly as an expression of faithfulness to the British constitutional tradition is well known. Bédard and the Canadian party were taken to be subverting British interests, a charge that was made more serious by the fact that Britain was at war. In the spring of 1810 the presses of Le Canadien were seized, and Bédard and a number of his associates, including Blanchet and Taschereau, were thrown in jail.9 It is perhaps not surprising that some of the Canadians should have come to see as the salient fact in provincial politics not that the 1791 Act allowed political opposition but that the British administrators equated political opposition with disloyalty. Bédard himself never relinquished his confidence in British institutions. After his release from jail, he argued that what had happened ought not to diminish French Canadians’ admiration for their Constitution. Every other form of government would be subject to the same and even greater inconveniences, he said. “What is notable about this one is that it furnishes the means of remedy. All the difficulties we have suffered ought only to show the advantages of our constitution. It is a masterpiece that can only be known through experience.”10 He may have spent as much as a year in jail. His health and his career were damaged. In the circumstances, the statement is surely a remarkable affirmation of faith.

bédard on “responsible government” To develop the full dimension of his constitutional thought, we must first take up Bédard’s discussion of the political executive as a collective ministry. Some historians, notably Ouellet, describe Bédard as a proponent of the constitutional principle that we now call “responsible government.”11 Others argue that the first decade of the nineteenth 9 See J.-P. Wallot, “Pierre Bédard et ‘Le Canadien,’” Magazine de la Presse, 2 July 1966; and Ouellet, “Pierre-Stanislas Bédard,” 47. 10 Address to voters in the constituency of Surrey, cited in F.-X. Garneau, Histoire du Canada, vol. 2, 5th ed. (Paris: Librarie Félix Alcan, 1920), 487. See also Fernand Ouellet, Economic and Social History of Quebec, 1760–1850 (Ottawa: Gage [Carleton Library], 1980). 11 Ouellet is convinced that Bédard was the first proponent of the principle in Canada or Britain; see his Lower Canada, 88, and “Pierre-Stanislas Bédard,” 49. Ouellet’s term is always “ministerial responsibility” rather than “responsible government.”

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century was too early for “responsible government.” Aileen Dunham, for example, maintains that the British themselves had barely developed an understanding of the principle before Durham described it in the Report on the Affairs of British North America in 1839.12 On this issue, I agree with Ouellet. The following passage from Le Canadien is a convincing description of “responsible government” and is very much in line with parliamentary practice even today. Describing the British Constitution, Bédard wrote: The ministry must necessarily have a majority in the House of Commons. When it loses the influence that has been given it or when its programme no longer appears good, it is relieved. It sometimes happens that when the King desires to know which of the two programmes the nation wishes to adopt, that of the ministry or that of an opposition, he dissolves Parliament. Then the nation exercises its judgement … It is after the people’s feelings have been indicated by the choice of persons whose programme it adopts that the new ministry is established. The ministry is sure of being sustained by the House of Commons and the people as long as it does not deviate from its principles.13

The monarch acts through ministers, and the ministry is to be dismissed when it can no longer command the support of the majority of the people’s representatives in the popular house: this is as good a statement on “responsible government” as anything in Durham.

12 Aileen Dunham, Political Unrest in Upper Canada, 1815–1836 (1927; reprint, Toronto: McClelland and Stewart [Carleton Library], 1963), 154. Phillip A. Buckner suggests how influential Dunham was in The Transition to Responsible Government: British Policy in British North America, 1815–1830 (Westport, ct: Greenwood, 1985), 4, 5. For Durham on “responsible government,” see Janet Ajzenstat, The Political Thought of Lord Durham (Montreal and Kingston: McGillQueen’s University Press, 1988), 52–72. 13 Le Canadien 1, no. 10 (24 January 1807). It should be said that the notes and articles in Le Canadien are unsigned or signed with pseudonyms. This note is attributed to Bédard by most readers, including Ouellet and Finlay. J.-P. Wallot has suggested that Bédard is not proposing the full-blown version of “responsible government” but merely that ministers should be held responsible individually through the threat of impeachment; see Wallot, “Pierre Bédard et ‘Le Canadien.’” I would argue that Bédard’s use of the term “ministry” (ministère) – and his suggestion that the ministry has a simple program and the “opposition” another – means that he is indeed thinking of a collective ministry and collective responsibility.

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What makes commentators uneasy about ascribing the concept of “responsible government” to Bédard is not only that he is so early, but also that he links the argument that the ministry must command the support of the majority in the Legislative Assembly with an argument for the “independence” of the Assembly. The Assembly is to have constitutional powers that mark it as a branch of government distinct from the political executive. Indeed, as we shall see, Bédard, following Blackstone, argued for the “independence” of the three branches of Parliament: the political executive and the upper and lower houses. The plea for “independence” appears to observers to be simply incompatible with “responsible government.” “Responsible government” is said to imply a close relationship between the political executive and the lower house. It is often characterized as a “fusion” of the executive and lower house.14 Moreover, historians usually argue that the great problem with the political constitution of the Canadas after 1791 was that the political executive was too separate from the popular house, too independent in fact.15 “Independence” is said to have been the problem in those years, and “responsible government” the remedy. From this perspective, Bédard’s plea for “independence” seems to miss the mark entirely. But when we have understood his position, we shall see that while the term “independence” is old-fashioned, the idea behind it is not and that “independence” in Bédard’s sense is still a fundamental characteristic of parliamentary systems. The easiest way to see what Bédard meant by “independence” is to look at his use of the term in political debate. The term “independence” appeared repeatedly during the Canadian party’s campaign against the seating of judges in the Legislative Assembly. The Canadians maintained that judges held their positions and drew their salaries at the pleasure of the Crown and that judges in the Assembly were therefore virtually certain to support the governor’s proposals regardless of program, thus violating the “independence” of the House.16 The debate on this issue lasted more than two years, but the Judges Bill went through at last in 1810. It was a major victory for

14 So Finlay, “The State of a Reputation,” 75, arguing that Bédard was a proponent of the “dying creed of checks and balances,” concludes that he simply could not have stood for “responsible government.” 15 See, for example, R. MacGregor Dawson, “Representative and Responsible Government,” in The Government of Canada, 5th ed., revised by Norman Ward (Toronto: University of Toronto Press, 1970); chapter 1 is entitled “Representative and Responsible Government.” 16 The report of Bédard’s speech in the Assembly, Le Canadien 2, no. 14 (27 February 1808); Le Canadien 2, no. 16 (9 March 1808).

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the Canadians. Appeals to “independence” figure again in Canadian claims that the executive was interfering in elections. The Canadians’ arguments on this score resemble those of British parliamentary reformers in the eighteenth and nineteenth centuries.17 The problem in Canada was not so much that the governor and his favourites were buying seats or bribing electors directly, British-style; rather, it was argued, the governor was using his authority as the king’s representative to sway voters. The result was again a violation of the “independence” of the lower house.18 In the argument against election interference, the Canadians were insisting that the composition of the lower house was to be determined by the electorate, not by the government of the day. In the campaign against the judges, they were arguing that the political executive must seek to command support in the lower house through an appeal to program and principle rather than through bribes of “place.” This is the case for “independence.” It is an argument against political corruption. Far from being incompatible with “responsible government,” it is rather the foundation of that principle. The ministry commands the support of the majority in the lower house, but the House as a whole must be something more than a body of docile legislators. Only if the House is “independent” will the nation be able to exercise freely its judgment in elections and influence the choice of ministry.19 Bédard views the political executive and the lower house as inseparable but, at the same time, distinguishable. Each has its powers under the Constitution.

17 H.T. Dickinson provides a useful guide to the eighteenth-century reformers and their platform in Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Weidenfield and Nicolson, 1977), esp. 181–92. From May 1809, when the quarrel with Craig began to heat up, Le Canadian regularly ran excerpts from the English Bill of Rights above the dateline – an English statement on the rights of Parliament to which the Canadians felt themselves in every way entitled. 18 The most vigorous statements about the Assembly’s independence were prompted by the intemperate speech made by Governor Craig on dissolving Parliament in May 1809. Craig openly attacked the Canadians in the Assembly, while praising government party supporters. See Journals of the Assembly 1, no. 17 (15 May 1809). See the letter from “N” in Le Canadian 3, no. 29 (3 June 1809), citing Blackstone and Locke in support of the contention that all Crown influence in elections is forbidden. 19 Remember the statement on “responsible government” in Le Canadien 1, no. 10 (24 January 1807); and see Le Canadien 3, no. 51 (4 November 1809), 2nd ed.

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It should be noted that in arguing for “responsible government,” Bédard was not recommending a simple sort of democracy in which the popular house is dominant. Although he endeavoured to enlarge the powers of the Legislative Assembly, he insisted that it was to have no more than the powers enjoyed by the British House of Commons. He was always at pains to say that he was not attempting to reduce the powers of the political executive.20 The most important of the traditional constitutional powers of the popular house, in Bédard’s view, is the power to vote supply. But he did not wish to undermine the executive’s power to introduce money bills. Just as the political executive must not encroach upon the powers of the Assembly, the lower house must not usurp the powers of the executive. Canadians tend to think of constitutional history as falling into two periods: before and after “responsible government.” We regard responsible government as the most important principle of modern parliamentary systems, we assume that it was responsible government that made modern political freedoms possible in these systems, and we like to flatter ourselves that it acquired its first clear-cut formulation in connection with Canadian questions.21 A hint from Bédard suggests a very different picture, in which the struggle for “independence” appears as the significant theme of British constitutional history rather than the struggle for “responsible government.” From 1688 or thereabouts, the king and his political advisors required the support of a majority of the members of the lower house in order to secure the passage of supply. The crucial question was always whether the king and ministers would attempt to bribe members and electors in order to maintain the needed support or whether the king would be required to select his advisors from among those whose program was acceptable in a freely elected House. Something like “responsible government” obtained from 1688. It was “independence” that still had to be achieved.22 Bédard campaigned for “independence” because it is the independence of the lower house that makes possible free debate and political opposition in Parliament. Given that the majority in the popular house 20 Le Canadien 1, no. 18 (21 March 1807); 1, no. 26 (16 May 1807). 21 See, for example, Chester New, Lord Durham: A Biography of John George Lambton, First Earl of Durham (Oxford: Clarendon Press, 1929), 495–6. 22 Durham dates “responsible government” from 1688, to the utter confusion of his commentators; see Craig, ldr, 46, 50, 138. Phillip A. Buckner, The Transition to Responsible Government, 5, argued that “the essential principle that the ministers of the Crown were responsible to Parliament for the general conduct of the executive government was clearly established in the eighteenth century.”

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usually supports the political executive, the minority is nevertheless free to oppose – exactly because the two bodies, political executive and lower house, are not “fused.” When today’s parties object to closure in parliamentary debate, when they protest Cabinet’s attempts to streamline the passage of legislation through such devices as omnibus bills, when they uphold the dignity of the Commons, they are acting in an old and honourable tradition, defending what Bédard knew as the “independence” of the popular house.

colonial realities All too evidently, something was badly awry in Lower Canada, something that went deeper than the governor’s attempts to pay off one or two favourites in the Assembly or to meddle in elections. Since the French Canadian party held the majority of seats in the Assembly, the governor’s advisors on the Executive Council ought to have been sympathetic to Canadian opinion. In fact, the Executive Council was always composed of members of the minority “English” party: the composition of the council was never affected by elections. What had gone wrong? By the time that he began writing in Le Canadien, Bédard had the answer. He did not suppose that with the 1791 Act Britain had intended anything less than the British Constitution complete and perfect. The problem did not lie with 1791 and certainly not with the British Constitution proper. He argued rather that the difficulty stemmed from the fact that after 1791 the British continued to subsidize a part – indeed, a substantial part – of Lower Canada’s public expenses.23 The result was that the governor had money to spend for which he did not have to be accountable to the Assembly; he could choose and pay his executive councillors without recourse to the popular house.24 Bédard’s most important campaign in these years was directed toward persuading the authorities, and 23 On this matter, Donald Creighton’s classic article is still indispensable; see Creighton, “The Struggle for Financial Control in Lower Canada, 1818–1831,” Canadian Historical Review 12 (1931): 120–44. 24 See Le Canadien 1, no. 25 (7 May 1808), where the “independence” of the Assembly was linked to the right to review money bills. Note that Bédard, Journals of the Assembly 18 (6 February 1810), was not proposing to pay less than the governor wanted but quite the contrary: he was proposing that the province raise, and that the Assembly vote, a much larger sum than the governor had ever submitted to the House. How much extra money was needed? The picture was confused, but it appears that the provincial revenues fell short by almost half; see Journals of the Assembly 18 (17 February 1810).

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his own colleagues in the Assembly, that Lower Canada should assume full responsibility for the civil expenses of the province. His objective was to enable the Assembly to vote all spending bills, in the manner of the British Commons. It was his insistence on this fundamental constitutional principle, the power of the purse, that landed him in jail. It might seem unexceptionable that the leader of the popular party in the lower house insisted on the traditional powers of that branch of government, the more so since he was so careful not to trespass on executive prerogative. But Bédard’s proposal that the Assembly take responsibility for all civil expenses ran into difficulty precisely because, as his own analysis showed, the trouble lay in Britain’s retention of responsibility in British North America. It was British money and the imperial connection that gave the governor and his supporters their peculiarly privileged status. Bédard’s demands were interpreted by the governor as entirely improper for a member of a colonial legislature, however much in line with British constitutional tradition and however proper for a member of the British House of Commons.25 We are coming to the heart of Bédard’s dilemma. That the “English” party monopolized the Executive Council was not the most serious aspect of the situation in Lower Canada. The real truth was that the council did not act as a ministry at all. The governor did not act through advisors, certainly not Bédard’s great adversary Sir James Henry Craig. Craig was mired deep in politics, acting as de facto prime minister and leader of the English faction. If the problem had been only that the English-speaking colonists monopolized the Executive Council, opposition like Bédard’s would have been allowed, however futile. It was the fact that all opposition was directed to the Crown that made Bédard’s campaigns threatening. To represent his constituents and to act the role of party leader, Bédard was required to challenge the ministry. But all challenge involved him in a direct attack on the governor and on the imperial connection. The more that he insisted on British constitutional freedoms and the more that he attempted to realize the equality and tolerance about which he had learned from his British authorities, the more vulnerable he was to the charge of betraying British interests. When we turn to Le Canadien on the role of the governor, the picture is confusing at first because the journal seems to be entirely ignorant of the governor’s political meddling! Bédard is open about the executive councillors’ lack of support in the Assembly but not about the relationship between the governor and the Executive Council. Not to put too 25 See Craig’s remarks in Journals of the Assembly 18 (23 February 1810).

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fine a point on it, he deliberately misrepresents, or jokes about, the governor’s role. In everything that he said and wrote, Bédard insisted that the governor indeed acted through a ministry. Speaking in the Assembly, he would pointedly address his remarks to “those persons who had led his Excellency into error.”26 It is true that he manages to convey an appreciation of the situation between the lines. I have no doubt that even his slowest readers caught on. The fact remains that he keeps up the pretence. Some were of the opinion that there was no ministry, he argued in a typical passage: “It is not surprising to find this opinion in a country which has not yet made use of the freedom of the press; it is the job of a free press to make the ministers known. Moreover it is a maxim of the ministry of this province that there is no ministry and that the Governor does everything.”27 By pretending that the governor acted through a ministry, Bédard was attempting to avoid the charge that he was attacking the Crown.28 It was a device meant to enable him to mock British authorities while professing loyalty to Britain.

the “memoire” Bédard and the memorialists both made much of the fact that with the governor tied to the minority in the Executive Council, the Canadians found that they had to submit docilely to the leadership of the English on the council or else appear to be disloyal.29 What the governor knew of the Canadian party and French Canadian grievances, and thus put in his reports to England, was what he heard through the representations of the minority party, whose members had every interest in misinforming him, in making the French appear disloyal, and indeed, in governing them so that they would tend to become disloyal. According to the argument, the heat of national divisions in the Assembly had been communicated to the mass of the people; the people’s confidence in their

26 See, for example, Journals of the Assembly 17 (10 April 1809). 27 See the letter from A.B. in Le Canadien 1, no. 11 (31 January 1807), which goes on: “To make the King’s Representative responsible for the counsels of the ministers is both unjust and unconstitutional. It exposes the King’s Representative to lose the confidence of the people through the faults of the minister.” See also Le Canadien 2, no. 34 (9 July 1809); 2, no. 35 (16 July 1808); 2, no. 16 (9 March 1808); and 1, no. 9 (17 January 1807). 28 See the letter from “Junvenis” in Le Canadien 4, no. 2 (9 December 1809). 29 “Mémoire,” 314. Compare Le Canadien 1, no. 11 (31 January 1807).

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constitution was being undermined, and the happiness intended by the king and Parliament of Great Britain in 1791 had not been realized.30 Ouellet maintains that the argument of the “Mémoire” compares well in many respects with the position that Bédard set forth in Le Canadien. He is convinced, indeed, that Bédard was the chief author of the “Mémoire.” Much of his argument turns on a passage in the “Mémore” recommending that the governor should have the power to call to the Executive Council the principal members of the majority party in the Assembly. Ouellet interprets this passage as a reference to “responsible government” and, following his understanding of Bédard as an advocate of “responsible government,” cites it as proof that Bédard composed the “Mémoire.”31 It is my view that Bédard and the memorialists developed very different analyses of the problem in the province. In particular, I would argue, Ouellet is mistaken to suppose that the scheme described in the “Mémoire” is “responsible government.” What is recommended in the “Mémoire” is an Executive Council composed of members of both the French and “English” parties. The majority party members would join the representatives of the minority on the council but not supplant them. In short, the “Mémoire” proposed an Executive Council that would represent all interests in the Assembly. “After having heard the two parties,” goes the argument, the governor “would be in a position to decide what measures to take, and to transmit correct information to England.”32 There is nothing in the memorialist scheme about the “independence” of the popular house. The “Mémoire” says nothing, for example, about the Assembly’s power to vote money bills, a matter crucial to

30 “Mémoire,” 314–15. 31 Ouellet, “Pierre-Stanislas Bédard,” 45–7. See “Mémoire,” 319. Finlay, “The State of a Reputation,” 72–4, recognizes that the doctrine of the “Mémoire” cannot be reconciled with the idea of “responsible government.” But he accepts Ouellet’s claim that Bédard is the author of the “Mémoire” and as a result is forced to argue, despite Ouellet, that Bédard could not possibly have been an advocate of “responsible government.” 32 “Mémoire,” 319. Ouellet, “Pierre-Stanislas Bédard,” sees that the “Mémoire” calls for an executive council representing the two parties, but he insists that such a system is more or less “responsible government” (46). He has to admit that the argument of the “Mémoire” cannot be assimilated in all ways to the position that Bédard put forward in Le Canadien. He suggests that Bédard may have changed his mind or been confused (43–5).

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Bédard.33 Both Assembly and Executive Council would represent the entire spectrum of political opinion; the distinction between the political executive and the popular house is virtually erased. Moreover, the “Mémoire” endorses the idea of a governor active in politics. The governor “would not be obliged to follow advice given when he did not find it just; he would merely have the advantage of profiting from it when he needed.”34 Whoever wrote this, it was surely not the Bédard of Le Canadien!35 The memorialists were pleading for less antagonism, less contestation. The principle of “responsible government” yields a highly adversarial system: political opposition and free debate in Parliament are protected as necessary to good government. But the memorialists saw no value in opposition. They argued that with their proposal in place, the parties forming the executive would come to agreement on their projects, and then – this is all important – the “two parties would quickly unite in the assembly.” They continued: “Much useless opposition would be avoided – opposition that comes about only because the projects are conceived separately and because the amour propre of those conceiving them has been engaged.”36 First, the leaders of the parties would cooperate in the Executive Council, then the parties would unite in the Assembly, and at last the odious national divisions in the populace would be healed. The memorialist scheme would have left the colonists largely dependent on the governor’s goodwill and political wisdom. Whereas Bédard faced a hostile despot, the memorialists, it appears, were ready to settle for a beneficent one. 33 Bédard never lost interest in this issue. See the letter of 30 November 1825 in pac, Neilson Collection, vol. 5, 203–5. 34 “Mémoire,” 320. 35 Underlying my disagreement with Ouellet about the authorship of the “Mémoire” is that Ouellet takes the kind of sociological approach to the material that is typical of many historians, while I analyze it as the expression of a political philosophy. Ouellet describes Bédard’s thought in terms of particular economic and social circumstances; he sees Bédard as spokesman for his social class. This makes it easy for him to overlook the difference between a constitution in which parties alternate in office and a constitution in which the head of government rules after consulting various interests; both systems might have promoted the interests of that French Canadian middle class. What a theoretical analysis reveals is sharp difference between coherent arguments in the “Mémoire” and Le Canadien that cannot easily be explained away by references to class interest or the assumption that Bédard was confused. 36 “Mémoire,” 321.

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b éda r d o n t he s epar at i o n o f pow er s We are now in a position to examine what Bédard, following his eighteenth-century mentors, regarded as a more fundamental principle than “independence.”37 This principle guarantees freedom of political debate both within Parliament and without and may be called the “separation of powers.” It is related to independence; in practice, a violation of the one principle would threaten the other. Yet independence and the separation of powers may be distinguished at the conceptual level, and Le Canadien was always careful to do this. Independence describes relations among the three branches of Parliament: the ministry, upper house, and lower house. The separation of powers describes relations between the three branches of Parliament (which together are said to comprise the legislative power) and the executive power. Writers in Le Canadien distinguished between the executive power as one of the three branches of the Legislature and the executive power proper. One contributor to Le Canadien noted, for example, that “the executive power as such is inferior to the legislative power,” and then continued, “and as for its being one of the branches of the legislature, although the first in rank and dignity, the other branches are not dependent on it.”38 Compare Bédard: “When the government exercises its executive power all must obey; every act contravening that obedience is the act of a bad subject. But when the government exercises its part of the legislative power, it is not more than one of the three branches of the legislature, the first, and the two other branches are independent of it.”39

37 I am grateful to Peter Aucoin for his comments on the material in this section. 38 Le Canadien 3, no. 29 (3 June 1809). The commentators have stumbled badly over this quotation. Both Ouellet and Lawrence A.H. Smith take it to mean that the author was arguing for the superiority of the Legislative Assembly over the political executive. Not so. While the legislative power, meaning the three branches of the Legislature (the two legislative houses and the political executive) is superior to the executive power proper, the three branches of the Legislature are not superior or inferior to one another. Underlying the commentators’ mistake, I think, is the vague conviction that if the parliamentary system does not locate real political power in the representative Assembly, it ought to. 39 Le Canadien 3, no. 22 (26 April 1809). See also Journals of the Assembly 17 (10 April 1809).

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Jean Louis De Lolme and Blackstone were Bédard’s sources.40 The point was that British subjects owed the decrees of the executive power absolute obedience, the kind of obedience that a tyrant demands. But since people may dissent from and contest these same decrees when they are proposals of the executive as a branch of the Legislature, the populace is freer than any tyrant’s subjects. “In the exertion … of the prerogative which the law has given him,” says Blackstone, “the King is irresistible and absolute, according to the forms of the constitution. And yet if the consequence of that exertion be manifestly to the grievance or dishonour of the kingdom, the parliament will call his advisors to a just and severe account.”41 De Lolme argued: the English do not leave the power to make laws “to the disposal of the person who is already invested with the public power of the state – that is, of the person who lies under the greatest and most important temptations to set himself above them.” The legislative power belongs to Parliament, and no individual, least of all the monarch, can demand obedience to laws to which Parliament has not assented. In the exercise of his powers, the king is no more than a magistrate, says De Lolme, and “the laws … must direct his conduct, and bind him equally with his subjects.”42 “The executive power as such is inferior to the legislative,” as Le Canadien puts it.43 Having argued that all must obey when the government exercises its executive power, Bédard went on: “But when the government exercises its part of the legislative power,” far from being required to regard the political opposition of the Assembly to the ministry as “illegal,” it is rather the “duty” of the Assembly (and the upper house) to “freely oppose every time they believe it necessary.”44 With respect to the executive power proper, we owe absolute obedience and loyalty; with respect to the executive as one branch of the legislative power, we are free to

40 De Lolme describes the difference between the two sorts of executive power in the clearest terms; see Jean Louis De Lolme, The Constitution of England, ed. John MacGregor (London: Henry G. Bohn, 1853), bk 1, ch. 5, 61. The Constitution of England was first published in French in 1770 and in English in 1775. It was widely read in England and in both Upper and Lower Canada. De Lolme might be called Canada’s forgotten constitutional mentor. 41 William Blackstone, Commentaries on the Laws of England (New York: Augustus M. Kelly, 1969), bk 1, pt 2, ch. 7. 42 De Lolme, The Constitution of England, bk 1, ch. 4, 52. 43 Le Canadien 3, no. 29 (3 June 1809). 44 Le Canadien 2, no. 22 (26 April 1809).

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oppose the government without being disloyal, free to campaign against laws without undermining respect for law.45 Bédard always conducted himself as though the separation of powers was entrenched and honoured in the province. He never forgot that our freedom to oppose and dissent is possible only where we are not absolved from obedience. While he was urging his constituents to stand firm on their rights under the Constitution to elect representatives who would foil the governor’s political plots, he did not fail to remind them to honour and obey the governor as the king’s representative.46

pa r t y a n d o p p o s i t i o n That responsible government and “independence” entail alternation of parties in office might seem obvious. But did Bédard fully understand this connection? Did he expect to see himself and his colleagues in the Executive Council? He described the alternation of parties in office clearly enough when he was discussing British politics.47 Unfortunately, he said less about parties and party competition in Lower Canada than we would like. He would have found a good description of party competition in his authorities. De Lolme was struck by the pacific character of party competition in England. He contrasted the quarrels of the British Whigs and Tories with the “lasting and rancorous divisions” that marked the politics of continental Europe. Party competition in Europe could make of one nation “two distinct peoples in a kind of constant warfare with each other.” The political “prepossessions and party spirit” of England, in contrast, were not productive of “dangerous consequences.”48 De Lolme explained the relative mildness of English politics as the consequence of what he referred to as the “stability of the Crown” in that

45 On the separation of powers in the British constitutional tradition, see M.J. Vile, Constitutionalism and the Separation of Powers (Oxford: Clarendon Press, 1967). For the idea that the separation of powers informs the Canadian Constitution today, see Janet Ajzenstat, “Comment: The Separation of Powers in 1867,” Canadian Journal of Political Science 20 (1967): 117–20. 46 Le Candien 2, no. 25 (7 May 1808). And see the election address from 1810, widely attributed to Bédard, “A Tous les Électeurs.” This address is one of several that have been included on the last reel of the Canadian Library Association microfilm of Le Canadien for this period. 47 Le Canadien 1, no. 10 (24 January 1807). 48 De Lolme, The Constitution of England, xix.

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country – “the remarkable solidity of the governing authority.”49 The argument resembles the one that we saw in the last section: obedience to the executive power enables political freedom. The solidity of the governing authority, said De Lolme, “takes from great men all serious ambition to invade this authority.”50 The greatest threat to civil peace in his view is always from armed revolts mounted by political leaders striving to capture the nation’s supreme power. That in England the supreme power is not a prize did not mean that all competition between great men ceased. The England that De Lolme described was no more free of ambition and “violent disposition” than the European countries of the Continent. The bulk of the people, he said, “like the bulk of mankind in all countries … suffer themselves to be influenced by vehement prepossessions for this or that side of public questions.”51 Indeed, in some passages De Lolme expressed surprise at the heat of political debate and “party divisions” in England. He had more cause, then, to remark that this political debate was not productive of dangerous consequences. It is an important part of De Lolme’s argument that because the powers of the Crown are unattainable, ambitious leaders compete to limit those powers. Their “salutary jealousy” of the Crown spurs them to frame “effectual principles for laying [the Crown] under proper restraints.”52 In De Lolme’s picture, the great men of the Continent gathered armies to compete for state power, while ambitious men in England gathered party followings for the competition to extend public liberties. Much of De Lolme’s The Constitution of England is taken up with the story of the growth of individual freedoms in England 49 Ibid.; and see bk 1, ch. 1, and bk 2, ch. 1. 50 Ibid., bk 2, ch. 17, 280: “Great men” cannot “transfer to themselves the supreme executive authority.” See also bk 2, ch. 2, 154–6, and the story in bk 2, ch. 1, of the man of great ability who has acquired “in high degree the love of the people and obtained a great influence in the House of Commons.” De Lolme pictures this man as the greatest threat to the Constitution of England! He is, according to De Lolme, a potential tyrant merely biding his time as the people’s favourite in order to “unmask [his] ambition.” But given “the stability of the Crown,” says De Lolme, the “only door which the constitution leaves open to ambition, of whatever kind it may be, is a place in the administration during the pleasure of the king” (149). This chapter is furnished with references to Machiavelli’s History of Florence and to English statesmen, people’s favourites for the most part. Did Bédard, leader of the province’s popular party, read this tale with interest? We may suppose. 51 Ibid., xix. 52 Ibid., bk 2, ch. 17, 280; and see bk 1, chs 6 and 7.

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from Magna Carta to the eighteenth century – a story that we know Bédard and his friends read with care. If De Lolme did not describe parties and party systems exactly as a political scientist would do today, he nevertheless identified the ground of modern systems. He showed us parties that are willing to tolerate other parties’ claims and other parties’ political successes because no party’s claims are absolute and no party’s success is permanent. Bédard surely understood that with the separation of powers and independence in place, the governor of Lower Canada would have had to choose executive councillors from among those sympathetic to the Canadians. If Bédard did not admit outright that he and his associates expected to rise to the executive, perhaps is it not so hard to see what his difficulties were. To secure the independence of the Assembly, he was proposing that the provincial government assume responsibility for all civil expenses. As his political opponents delighted in pointing out, the first consequence of this was bound to be a sharp increase in taxes.53 Admitting that legislative independence would also involve the alternation of parties in office would have been tantamount to saying that the Canadians were campaigning for a tax increase in order to pay themselves executive salaries – hardly an attractive election platform. Bédard was at pains, nevertheless, to identify local candidates with a party label. In his election flyers, he listed the candidates according to their voting record on key issues: the Judges Bill and the civil expenses issue.54 Since almost all those Assembly members who supported the French party leaders on the Judges Bill also voted with them on civil expenses, the lists produced two columns, one showing candidates who supported Canadian objectives and the other grouping candidates who opposed these objectives. A political scientist today would say that Bédard was using party labels to structure the vote. Certainly, he wanted to be sure that the voters in all constituencies knew which candidates supported Bédard. We see how close Bédard was to the full modern view of parties when we turn to the memorialists. Underlying the memorialists’ willingness to 53 See the untitled flyer in English, beginning “My Children, let me request your attention for a few minutes. Fifty years you have been fattening upon the bounty of a Generous Government.” It appears on the last reel of the Canadian Library Association microfilm of Le Canadien. 54 See “Aux Canadiens,” “À Tous les Électeurs du Bas Canada,” and other flyers. These addresses can be found on the last reel of the Canadian Library Association microfilm of Le Canadien for this period. See also Le Canadien 2, no. 47 (9 October 1809).

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let go of “independence” and their uneasiness about political opposition was a distrust of the idea of party division – indeed, a distrust of the very idea of party. Bédard saw ambition as benign; the memorialists regarded it as destructive. One of the most harmful things about the situation in the province, in their analysis, was that ambitious party leaders were led to sacrifice the national interest and the people’s happiness to their personal pride, party gains, and party projects. The memorialists described the typical member of the Executive Council as someone whose amour propre “requires him to make the most of the part he has taken, often at a whim, or out of a spurt of rivalry on an unforeseen question.”55 They could see parties only as factions, shaking public confidence and dividing the people into hostile camps. The Canada that they described looks like De Lolme’s Europe, a country suffering from the kind of partisan contestation that leads to civil war or revolution. We have seen enough of the memorialist program to know what justified Bédard. The principles on which he insisted are indeed the principles that guarantee modern political freedoms. We know this when we see that the memorialists accepted the governor as ruler with great, perhaps unlimited, discretion. The memorialist remedy followed from the insight that in a colonial dependency, the agent of the superior government must have discretionary powers. Intolerance and privilege are a fact of imperial rule. In Lower Canada the person invested with the public power of the state, the governor, was charged by the British Parliament with responsibility for British interests in the colony; where British affairs were involved, the governor was required to meddle on the political side. If we accept the idea that Blanchet and Taschereau were realists, we will suppose that they were prepared to sacrifice a measure of political freedom because they hoped to open the largest possible political opportunities for French Canadians. Nevertheless, everything in their own depiction of the quarrels, ambition, and thwarted pride in the politics of Lower Canada promoted the idea that to rely on the political wisdom of a single individual is folly.

bédard’s compromise Bédard the constitutionalist was caught in a similar impasse. The memorialists accepted dependency and gave up tolerance and equality. But Bédard, battling for equality, was clearly a threat to the imperial connection. The program that he espoused would have entailed severing most

55 “Mémoire,” 320–1.

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institutional ties with Britain and making Lower Canada a new nation – albeit a nation with a British constitution and British political freedoms. But more than this, Bédard’s campaign threatened political order within the province. Even in his modest demands, he found himself – despite his own principles – attacking the Crown, the institution that buttressed law and political obligation in Lower Canada. His defence of Lockean equality, and his opposition to the intolerant clique governing the province, brought into the political arena and party debate discussion of the founding principles of the Constitution. But bringing the founding principles into party debate suggested that they could be compromised in the way of ordinary political programs – or that the speaker was advocating revolution. Bédard had taken on the task of a legislator in the largest sense, adopting the role of a founder. As a capital-“l” legislator, he was appealing to principles beyond provincial law and the Constitution, brandishing the Blackstone “bible”; as a small-“l” legislator in the provincial House, he claimed the privileges and protection of the provincial Constitution, especially the right of free political speech. Bédard was intolerantly preaching tolerance. There was more than bad temper behind Craig’s decision to jail the Canadians. Bédard became as great an embarrassment to the British administrators in jail as he had been in the Legislature. The Canadians were never charged, and Bédard refused to leave jail until he had been given a chance to state his case in law. One by one the others jailed with him made their apologies to the governor and went home. Bédard left only when threatened with forcible eviction.56 But his days of political activism were limited. The governor succeeding Craig, Sir George Prevost, devised a far better way to suppress him and in 1812 appointed him to the bench in Trois Rivières. It will be remembered that Bédard had led the successful campaign to deny judges seats in the Assembly. With this appointment, to a town removed from the political centre, he was in effect exiled. It is usually said that Bédard accepted a judicial appointment in order to be able to provide for his family. But it may also be that he saw accepting as a way to put an end to a campaign that increasingly threatened the political order. It was Bédard’s compromise. He told his friends that the appointment was the administration’s apology, an admission that the imprisonment had been illiberal – and I believe that he took it as a good augury for the future.57 56 See Francis J. Audet and Edouard Fabre Surveyer, Les Députés du Premier Parlement, 1792–1796 (1909; reprint, Montreal: Les Édtions des Dix, 1946). 57 pac, Neilson Collection, vol. 3, 135. See also Ouellet, Lower Canada, 93.

8

Modern Mixed Government: A Liberal Defence of Inequality1 much changed in the years after bédard. In the first decade of the century, the French party had been relatively powerless. Bédard believed that it was his task to save Lower Canada from the tyranny of the “few.” By 1838, the year of Lord Durham, the French had become a powerful if disorganized presence in the provincial Parliament, dominating the legislative agenda and taxing and spending in defiance of constitutional law. Durham saw it as his task to save the province from the tyranny of the “many.” But for both Bédard and Durham the remedy was the same – the one and sovereign remedy for a troubled regime: the constitutional principle that we know as responsible government.

mixed government: the argument for “balance” In the eighteenth century British Whigs and Tories both argued that a strong political executive, relatively immune to popular demand, was as necessary to good government as a legislature responsive to popular demand. The good political constitution, it was said, required a “balance” of more representative and less representative institutions. This was the defining characteristic of the famous balanced or mixed constitution. As late as the 1830s liberals and conservatives were still arguing for “balance,” often in terms very like those of the eighteenth-century men. During the debates on the Great Reform Bill, for example, both parties claimed that “balance” – the mixed regime – was their objective. Among those who argued that the Bill would support mixed government was Lord Durham, and it will be

1 This chapter was first published in the Canadian Journal of Political Science (March 1985): 119–34. I wish to thank colleagues who suggested sources and revisions: Peter Russell, Robert A. Fenn, Thomas Lewis, John Seaman, George Breckenridge, and Rainer Knopff.

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part of the argument here that the mixed regime is what he prescribed for the colonies of British North America in his report of 1839. For the Benthamite Radicals of the 1830s, in contrast, nothing was more pernicious than the old idea of balance.2 They heaped scorn on the theory of the mixed regime and, like many who came after, believed that good government required an executive immediately responsive to popular demand. Whereas Durham proposed a form of government for the colonies in which a strong executive was to balance a representative assembly, the Radicals urged a constitution in which the executive would be subordinated to the Assembly, a mere tool of the “people,” or the people’s representatives. This chapter considers the eighteenth- and nineteenth-century argument for “balance,” particularly insofar as it casts light on the feature of our parliamentary system commonly referred to as executive dominance. Mixed government doctrine is compared with the Radical position, and I then suggest in what way the older view may be seen as more interesting – indeed, implausible as it may appear on the face of things, more relevant to twentieth-century concerns. That it is not entirely out of the way to look for relevance is suggested by the fact that British parliamentary systems today are characterized by strong and comparatively independent executives rather than by the docile ones favoured by the Radicals.3 As Tom 2 “Talk of balance,” Bentham had written years before, “never will it do: leave that to Mother Goose and Mother Blackstone … when forces balance each other the machine is at a stand”; “Plan of Parliamentary Reform,” in John Bowring, ed., The Works of Jeremy Bentham, vol 3., 433–538 (New York: Russell and Russell, 1962), 450, original emphasis. James Mills, Essays on Government, Jurisprudence, Liberty of the Press and Law of Nations (New York: Augustus M. Kelley, 1867), 15, attacks the theory of balance as “wild, visionary, chimerical.” “If there are three powers, how is it possible to prevent two of them from combining to swallow up the third?” Their disciples of the 1830s in the Philosophical Radical Party hew to the same line. For example, Henry Samuel Chapman, “What Is the Result of the Elections? Fully Answered,” Daily Advertiser (Montreal), 8 December 1834, saw the Parti patriote victory in 1834 as a vindication of Benthamite teachings: the “people” of Lower Canada had seen the worth of the “philosophers’” doctrine and overthrown the old balanced constitution. 3 Only for a comparatively short period in the mid-nineteenth century was the popular house in Britain really able to humble the executive branch and bring ministers to account by making and unmaking governments. The lower house in Canada flourished at about the same time; see Thomas Hockin, “Flexible and Structured Parliamentarism: From 1848 to Contemporary Party Government,” Journal of Canadian Studies, Special Issue on Responsible Government, no. 14 (1979): 8–17, and other articles in this issue.

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Truman puts it: “All the conventions of cabinet government promote a cabinet-solidarity-loyalty to the government and its leader, and secrecy in relation to public opinion, and this is extended down through the ranks of the government party … by the twin spirits of partisanship and ambition.” The system, he goes on, is “strong enough to withstand very great public pressures.”4 It remains to be seen in what sense such a system could be described as beneficial. It was Durham’s intention in his report to persuade the Colonial Office and the colonists to adopt his constitutional views over the superficially attractive new ideas being put forward by the Benthamites: “It needs no change in the principles of government, no invention of a new constitutional theory to supply the remedy which would, in my opinion, completely remove the existing political disorders.”5 The English Benthamite party, the Philosophical Radicals, were the radical group of the time most concerned with Canadian affairs. John Arthur Roebuck, for example, had been commissioned by Papineau and the Legislative 4 Tom Truman, “A Critique of Seymour M. Lipset’s Article, ‘Value Differences, Absolute or Relative: The English-Speaking Democracies,’” Canadian Journal of Political Science 4 (1971): 497–525 at 511. 5 C.P. Lucas, ed., Lord Durham’s Report on the Affairs of British America, vol. 2 (Oxford: Clarendon Press, 1912) (hereafter Lucas, ldr), 277–8; Lord Durham, Lord Durham’s Report (1839), abridged by Gerald Craig (Montreal and Kingston: McGillQueen’s University Press, 2007) (hereafter Craig, ldr), 139. Durham’s English speeches are filled with references to the “balance,” or “harmony,” of powers and to the “three estates.” During the election campaign of 1837, for example, he argued, “I wish to rally as large a portion of the British people around the existing institutions of the country – the throne – the Lords – the commons and the Established Church. I do not wish to make new institutions, but to preserve and strengthen the old”; from a letter dated 8 July 1838 to Russell Bowlby, intended for publication, cited in Chester New, Lord Durham: A Biography of John George Lambton, First Earl of Durham (Oxford: Clarendon Press, 1929), 314. Other examples will be given below. The eminent Whigs of his father’s generation and before – Charles James Fox in particular – were always his heroes. Throughout his career, he described himself as heir to their tradition. This was the theme of his speeches at the Fox anniversary dinners in 1819 and 1821, for example; see John Reid, ed., Sketch of the Political Career of the Earl of Durham (Glasgow: John Reid, 1835), 71–3, 97, 98. He often refers to motions for parliamentary reform initiated by Fox, by Charles Grey, and by William Lambton, his father, and above all to the program set forth in the petition laid before Parliament in 1792 by the association known as The Friends of the People, of which William Lambton and Charles Grey were leading members; see Hansard, Parliamentary History, 1066–1803 30 (6 May 1793), 787–99.

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Assembly of Lower Canada in 1835 to represent Canadian interests in the British Parliament. Roebuck, Henry Samuel Chapman, Joseph Hume, and others, including John Stuart Mill, argued the Parti patriote case for years. They thought of the Patriotes as a progressive, democratic party and took Patriote success at the polls to be a sign that the great principle of democracy would eventually triumph everywhere, and aristocracy go down to defeat.6 Durham, on the other hand, saw the Patriote dominance of politics in Lower Canada as a situation to be corrected. To put it briefly, he thought that Lower Canada had become too democratic and was convinced that the economic problems of the province could be traced to this fact.7 He noted that the Legislative Assembly had gained a surprising control over public moneys, a far greater control than the Assembly of Upper Canada had achieved. The Patriotes had been able to entertain the idea of running their own administrative programs and, for a short time at any rate, had been able to pay their own administrative officers.8 In other words, they had acted as a self-contained democratic government, conducting public business in the name of the people. As Durham put it, the Assembly had “endeavoured to extend its authority in modes totally incompatible with the principle of constitutional liberty”; it had “transgressed our notions of the proper limits of 6 John Arthur Roebuck, in a letter to Papineau (September 1836), described the British Whigs as the party of aristocracy and the Assembly party of Lower Canada as a party “of the people,” representing the great opposing principle of democracy; see Public Archives of Canada (pac), Roebuck Papers, vol. 2, 19. “My whole case rested on democracy,” he said of his commission from Papineau. “The people whom I was representing were democrats”; in Hansard, ser. 3, 26 (9 March 1835), 670. In his simplified black-and-white version of Benthamite doctrine, all of politics could be seen as a struggle between aristocracy and democracy; see Hansard, ser. 3, 36 (31 January 1837). Chapman uses the same language in “What Is the Result of the Elections?” 7 Thus Durham describes the Assembly as attempting and failing to establish a school system, attempting and failing to carry out famine relief, unable to promote a coherent policy on the subject of land tenure reform. The practice of local grants for local works helped the Assembly party at the polls, but in Durham’s opinion, it was a “vicious practice, productive of evil”; see Lucas, ldr, 90. Narrow, petty interests were gratified by the Assembly, but it was not able to formulate the large economic programs needed at the time; see Janet Ajzenstat, “Liberalism and Nationalism,” Canadian Journal of Political Science 14 (1981): 587–609 at 598–600. 8 Lucas, ldr, 81–100; Craig, ldr, 46–60.

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Parliamentary interference.”9 Faithful to the idea of “balance,” he saw that the executive must be strengthened and the Legislature curbed: “The defective system of administration in Lower Canada commences at the very source of power; and the efficiency of the public service is impaired throughout, by the entire want in the Colony of any vigorous administration of the prerogative of the Crown. The fact is, that, according to the present system, there is no real representative of the Crown in the Province: there is in it, literally, no power which originates and conducts the executive government.”10 He proposed as a means to strengthen the executive two constitutional principles not in operation in the colonies at the time. Both, he argued, had been long established in Britain.11 The first we may call the money bill principle. 9 Lucas, ldr, 84, 80–1; Craig, ldr, 60, 51–2. The Constitution of 1791 was deficient in that it did not allow the popular house the powers proper to a representative body, such as the power to vote supplies. The Assembly of Lower Canada had “transgressed” and reached for improper powers in the attempt to secure those proper; see Lucas, ldr, 80–1, and Craig, ldr, 51–2. In the end Durham defined the powers proper to each branch; in effect, he instated a separation of powers so that transgressions would cease: “There can be no reason for apprehending that either party would enter on a context, when each would find its interest in the maintenance of harmony; and the abuse of the powers which each would constitutionally posses, would cease when the struggle for larger powers became unnecessary. Nor can I conceive that it would be found impossible or difficult to conduct a Colonial Government with precisely that limitation of the respective powers which has been so long and so easily maintained in Great Britain”; see Lucas, ldr, 280, and Craig, ldr, 139. 10 Lucas, ldr, 101; Craig, ldr, 56. This is not to say that the executive was left entirely without resources. It was unable to govern the province, but “Fortified by family connexion and the common interest felt by all who held, and all who desired, subordinate offices,” the Executive Council was only too able to gratify the interests of individuals and the party; see Lucas, ldr, 78, and Craig, ldr, 51. 11 “Since the Revolution of 1688, the stability of the English constitution has been secured by that wise principle of our Government which has vested the direction of national policy, and the distribution of patronage in the leaders of the Parliamentary majority”; see Lucas, ldr, 79, also 279, and Craig, ldr, 51, 138. Thomas Hockin, “Flexible and Structured Parliamentarism,” 10–11, argues that Durham was quite wrong to date the emergence of cabinet government so early. But the idea was hardly peculiar to Durham. Joseph Hamburger, Macauley and the Whig Tradition (Chicago: University of Chicago Press, 1976), 22, notes that Macauley, for example, dated cabinet government from shortly after 1688.

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In the constitution that he proposed for the united Canadas, money bills were to originate with the Executive Council. The executive would thus initiate the major legislative programs, and the Assembly would be confined to review of government budgets and spending.12 The money bill principle would have had the effect of establishing executive independence while, at the same time, enabling the popular house to curb the excesses of the executive branch. The second principle we now refer to as “responsible government.” The governor and his Executive Council were to carry on government “by means of those in whom the representative body had confidence” and to resign if a majority vote in the Legislature went against them.13 Historians have given a great deal of attention to the proposal for “responsible government” (and very little, often none at all, to the money bill principle), but they have too often interpreted it as though Durham hoped to see the executive subordinated and the Legislature endowed with the power to make and unmake governments easily. This has had the effect of obscuring the extent of his disagreement with the Benthamite Radicals.14 However, there is every reason to argue that when he spoke of a “power” that is to “originate and conduct the executive government,” he meant to establish an executive council with the characteristics that we now denote by the term executive dominance. He meant to introduce the convention of “cabinet-solidarity-loyalty to the government and its leader,” the system “strong enough to withstand very great public pressures,” in which for the most part the executive is supported in office by the majority party in the Legislature. As with the money bill principle, “responsible government” was also to provide the Assembly with the power to curb unduly ambitious executives. The popular house was to have the power to “balance” the executive but not the power to govern. As an Englishman who had laboured over the Great Reform Bill, Durham could only approve of the “almost universal suffrage” and the largely fair electoral practices that he found in Lower Canada.15 The Patriotes’ claim to govern was based on solid electoral success; they were 12 Lucas, ldr, 286–7, 328; Craig, ldr, 143–4, 170. Durham speaks of the “true principle of limiting popular power” and of the need for “an essential limitation on the present powers of the representative bodies in these Colonies.” 13 Lucas, ldr, 278; Craig, ldr, 139. 14 Hockin, “Flexible and Structured,” n14, for one, describes Durham as a Benthamite. 15 Lucas, ldr, 74; Craig, ldr, 47. Even the Radicals had no quarrel with the basis of representation.

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assuredly the majority party in the province. Moreover, as he noted, the Patriotes shared a remarkable “community of interest” with their French-speaking electorate.16 But he did not believe that universal suffrage, fair electoral practices, or even a shared community of interest were a sufficient guarantee of government responsiveness. Much of his analysis of the political problems of Lower Canada was devoted to showing how, as the years passed, the Assembly party had come more and more to pursue its own narrow purposes and to neglect public demand.17 Indeed, he suggested that it was precisely because the electorate had come to see the Patriotes as the only party capable of sharing their interests that the party could ignore the growing economic distress of the province. It had no need to gratify popular demand in order to secure reelection. In Durham’s analysis, then, something more than a broad suffrage and “community of interest” is required in order to secure good government. What he prescribed was an executive able to “withstand very great public pressures.” To see why he believes that such an executive is the remedy – that is, why a system with a strong executive will be more responsive to public demand than the democratic form of government urged by the Radicals – we must turn to the eighteenth-century constitutional authors.

mixed government and the salus populi The eighteenth-century thinkers argued that the mixed regime, composed of monarchic, aristocratic, and democratic elements, was superior to simple monarchy, aristocracy, and democracy.18 One eighteenth-century Whig claimed, for example, that the mixed form of government was superior in bringing wealth to the “millions”; “what greater honour can be done to the three orders of which our government is so happily composed than to see them as they really are, that is, as the channels, through which ease, plenty and security are derived

16 Lucas, ldr, 33; Craig, ldr, 23. 17 Lucas, ldr, 58–62; Craig, ldr, 36–40. 18 For my understanding of the eighteenth-century mixed-government theorists, I am indebted to H.T. Dickinson, ed., Politics and Literature in the Eighteenth Century (London: Dent, 1974), a selections from writings by Jonathan Swift, Lord Robert Molesworth, Joseph Addison, John Trenchard and Thomas Gordon, Bolingbroke, David Hume, Edward Spelman, Robert Wallace, John Willies, Joseph Priestly, and others. I have also drawn on Dickinson’s Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Weidenfield and Nicolson, 1977).

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to millions of people.”19 Similarly, Durham spoke of “order, tranquillity and improvement” as the goals of good government, and clearly it is the settler population of the colonies – the mass of the people – that he hoped to benefit.20 Elsewhere, he suggested that freedom for the “people” is the great benefit of good government: “I hold that in our form of government by King, Lords and Commons, there will be found as great a degree of liberty as ever existed in any other country of the world, and as much rational freedom as any people under the sun can, or ought to, enjoy.”21 Mixed government, he suggested, provides as much freedom for the people as simple democracy. Indeed, he believed that the balanced constitution provides a surer guarantee than simple democracy that there will be any freedom at all in the long run. Statements of this order were seen by the Benthamites as malicious lies, rhetoric to blind the mass of the people to the work of the aristocratic-oligarchic Whig and Tory minority.22 And although they use more neutral language, most historians and political scientists today appear to hold like views. They do not take British government in the eighteenth and early nineteenth centuries to have been a true mixed regime – if, indeed, there was ever such a form of government – but an oligarchy, government by a privileged and propertied minority protecting its interests at the expense of the mass of the people.23 They suggest, then, that there is no real political theory of mixed government to be derived from a study of the British writers and that what we have in the old documents, speeches, and essays is a sort of conventional jumble of references to classical authors – abstract language to show particular interests in a good light. There seems to be something to this view when we first look at the documents. It is certainly the case that the competing parties of the 19 Edward Spelman, “The Preface to a Fragment Out of the Sixth Book of Polybius (1743),” in Dickinson, ed., Politics and Literature, 114. 20 Lucas, ldr, 9; Craig, ldr, 8. 21 Speeches of the Earl of Durham, Delivered at Public Meetings in Scotland in 1834, 8th ed. (London: Ridgway, 1838), 18, 19. 22 So Roebuck, for example, denounces the “official” party in Lower Canada as a minority “seeking to domineer by force or fraud over the suffering majority.” This is from the scheme for the government of the colonies that Roebuck drew up for Durham in 1838 and later reprinted in Colonies of England: A Plan for the Government of Some Portion of Our Colonial Possessions (London: John W. Parker, 1849), 201. 23 This is true even of H.T. Dickinson.

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eighteenth and nineteenth centuries appealed to the idea of the mixed regime in the name of very different policies. The eighteenth-century thinkers to whom I have referred were divided into quarrelling parties: “court” and “country.” The court Whigs typically recommended measures to maintain the prerogatives of the Crown and to strengthen the influence of the ministers of the Crown in government and Parliament. They claimed that this was necessary in order to offset threatening democratic influences and to forestall a decline into simple democracy. But the “country” party of the period, the Whigs and Tories who opposed the court faction, argued that court measures would cause a dangerous inflation of executive powers. They suggested that the court program would overthrow the mixed regime entirely, leaving Britain to descend into simple monarchy.24 The contest between Whigs and Tories during the Great Reform Bill debates again showed opposing parties citing the benefits of balance. Grey, for the Whigs, argued that the popular branch of government needed bolstering in the face of trends that had long favoured the aggrandizement of the executive.25 He insisted that the Bill would “support the interests of the Crown, the Aristocracy and the people” and, in this way, preserve the Constitution and form of government on which Britain’s prosperity had so long depended.26 In short, he suggested that the introduction of wholesale reforms was needed to sustain the mixed

24 See Dickinson’s introduction to Politics and Literature, esp. xiii-vi. 25 Compare Durham arguing for the Reform Bill: “We have not introduced anything new or unknown to our Constitution … To give security to the three estates is the object of our bill”; in Hansard, ser. 3, 3 (28 March 1831), 1028–29. J.A.R. Marriott, England Since Waterloo (New York: G.B. Putnam’s Sons, 1922), 101, argues that although the ideas of Grey and his ministers in 1832 may have been characterized principally by a surprising lack of foresight, the Grey government did indeed believe that their efforts at the time of the Reform Bill would not alter the essential features of the British Constitution: “The changes of 1867 and 1884 … implicit in the earlier revolution … were neither foreseen nor intended by Lord Grey and his colleagues … Neither then nor later had the Whigs any intention of satisfying democratic aspirations.” G.M. Trevelyan, however, took the view that the long-term consequences of the Reform Bill, foreseen or unforeseen, should in some sense redound to the credit of the party. When Chester New, Lord Durham, 190, refers to the Durham Report as “the charter of Canadian democracy,” he surely betrays Trevelyan’s influence. 26 Hansard, ser. 3, 8 (7 October 1831), 320–5.

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regime that the country had long enjoyed and was still enjoying. For the Tories, Peel argued that, on the contrary, the Bill would not preserve the Constitution but “convert the mixed government under which we had lived into a simple democracy.”27 Grey’s arguments are almost exactly like those of the eighteenth-century country gentlemen, Peel’s like those of the court party. But all in all it is not as difficult as one might suppose to see a political theory in the apparently one-sided statements of court and country, Whig and Tory. We must take court and country arguments together, Grey’s and Peel’s, to get the complete doctrine. According to Blackstone’s classic argument, the great virtue of the balanced constitution is that it transforms petty demands into political programs in the national interest. As he has it, members of the executive – that is, ministers of the Crown (the monarchic branch) – will inevitably strive to aggrandize offices and careers; the aristocracy will seek rewards for class, family, and faction; and members of the Commons will put forward diverse competing claims on behalf of individuals, groups, and localities. But under the operation of the balanced constitution, the Commons vetoes measures designed to forward only family and faction, while the Lords and Crown reject measures too petty to reconcile with great aims, and the two legislative houses together combine to prune executive power and curb the ambitions of individual ministers.28 Thus cabinet ministers, members of the Lords, and representatives of particular loyalties and groups find that they can gratify their interests only in terms of programs benefiting many or all – from the lowest political motives, legislation compatible with high principles, and from the selfish schemes of short-sighted men, programs of a kind that the wise and selfless man could approve. The system requires, then, that each party plump for its own interests – the court party for greater ministerial powers, the country party against; and the kind of general and abstract praise for mixed government that so often prefaces appeals for particular measures indicates each speaker’s or writer’s awareness of the role that his party plays. “Balance” is everyone’s aim; the contest between court and country 27 Sir Robert Peel, quoted in R.L. Schulyer, British Constitutional History Since 1832 (Princeton: Anvil Books, 1957), 114–15. 28 Gareth Jones, ed., The Sovereignty of the Law: Selections from Blackstone’s Commentaries on the Laws of England (Toronto: University of Toronto Press, 1973). In his first great reform speech, Durham cited passages from Blackstone to this effect; see Hansard, ser. 2, 5 (17 April 1821), 365.

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must continue forever, each side putting its case as best it can but never overthrowing the other entirely.29 Durham’s case is instructive because he drew on the court argument when prescribing for Canada and on the country argument when proposing reforms in Britain. Whereas in Canada he proposed measures to strengthen the executive with respect to the popular house, in England he campaigned, like Grey, for measures to strengthen the House of Commons with respect to the executive. In his British speeches he urged household suffrage, redistricting, the secret ballot, and frequent parliaments. But in each case, in Canada and in Britain, his object was the same: redressing the balance. What he proposed for the Canadas as for Britain was the old Constitution of 1688. If different remedies were required, it was because the disorders differed. In Britain, as he saw it, the democratic branch was too weak; in Canada, it was too strong. His argument for a strong executive in Canada is surely the more interesting because he worked so long and so hard in England for a more democratic representation in a stronger House of Commons. To correct executive aggrandizement, a stronger Commons; to prevent “simple” democracy, a dose of “monarchy – that is, a stronger executive: this would seem to be the heart of the doctrine of balance. But there is still another level. It will be necessary to consider briefly Machiavelli’s famous defence of mixed government in The Discourses because he had a great influence on many of the eighteenth-century thinkers but, more important, because he magnified this aspect of the teaching, whereas his British followers, perhaps for good reason, said less. There are traces of Machiavelli’s analysis even in Durham’s work, but we do not have to assume that Durham had read The Discourses. By the midnineteenth century, Machiavelli’s ideas had become a tradition of thought, no longer always associated with his name.

29 From the Radical point of view, of course, the debate between the old-line parties was a sham. In the 1830s, Radical and Whig programs were not dissimilar as far as particular measures. Both campaigned for ministerial “retrenchment,” extension of the franchise, and reform of electoral practices. But the underlying aim was very different. It was the Radical’s dearest hope that the measures that the Whigs themselves put forward would, with a little help from their friends the Radicals, overturn the balance entirely, putting an end to Whig and Tory alike and subjecting all branches of government to the pure and untrammelled will of the people.

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t h e f e w a n d t h e m a n y, o r t h e wo l v e s a n d t h e l a m b s Machiavelli’s description of the Constitution of Rome in The Discourses seems at first sight to be no more than an expression of his admiration for mixed government in its classical form. The blending of the three “estates” – the monarchic, aristocratic, and democratic – he says, had made Rome a perfect republic. But he goes on immediately to say that “it was the friction between the plebs and the senate that brought this perfection about.” Having reminded his readers of the classical tradition with its three-fold division, he drops it and promotes the discussion of a two-fold one. In every republic, he continues, “there are two different dispositions, that of the populace and that of the upper class, and … all legislation favourable to liberty is brought about by the clash between them.”30 Plebs and senate, populace and upper class, poorer and richer: as he turns the argument this way and that from chapter to chapter, Machiavelli gradually shows that he is not referring to a conventional aristocracy as against the mass of the people but to a natural distinction between the few who are endlessly ambitious, especially for power, and the many who are not as ambitious, desiring chiefly to hold on to possessions.31 He speaks of the “princes” and the “people,” not, for example, of the few and the many; but we know from The Prince just how little Machiavelli’s princes owe to birth or fortune. Now for Durham as well there are two kinds of men, and for him, as for Machiavelli, the distinction is of the first importance for politics. He may speak of the three estates, but he has the two-fold division always in mind. He gives several pictures of the men ambitious for power. In his description of the assimilation of the populace of Louisiana, they are the “aspiring” men of French origin who found the rewards of governing Louisiana insignificant compared with the interests involved in politics in Washington. The “aspiring” men among the French population were moved by ambition for political office, whereas the rank and file among them were satisfied with merely imitating the commercial habits of the English in order to acquire wealth.32 The ambitious men, again, are the American adventurers ready to promote “undisguised projects” in Texas and the Canadas. In the British colonies they are the disloyal leaders among the English-speaking populace who wished to rule a territory larger than the “small and insignificant communities,” in which 30 Machiavelli, The Discourses (Harmondsworth: Penguin, 1970), I.2, I.4. 31 Ibid., I.5, I.8. 32 Lucas, ldr, 303; Craig, ldr, 156.

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they found themselves. And, most important, they are the French Assembly leaders in Lower Canada, able to consider going to war because they believed that they had been denied political office consonant with their talents.33 They can be found in every social class and in every branch of government, and they head the diverse competing interests in society. Their presence, according to the mixed-government thinkers, including Durham, explains why among the mass of the people, prior to the action of good political institutions, one finds a multiplicity of competing interests, not a coherent popular will or harmony of interests such as the Benthamites supposed. There are natural thieves and natural victims; men can be classed as wolves or sheep. It should be noted that nothing in this teaching justified inequality before the law or privileges for the few transcending the law. It is true that the doctrine derives from ancient theories based on suppositions about man’s natural inequality.34 But the eighteenth-century thinkers cast it in the mould of equality of rights. Durham is not describing a natural aristocracy but something more like a natural class of bullies. In his view, the few and the many may share the same goals (i.e., possessions and freedom), but the many will hope chiefly for security – in his term, “tranquillity” – in which to enjoy possessions, while the few, who are endlessly desiring, will give up “tranquillity” to attain their objectives. The Benthamites hoped that the absence of a conventional aristocracy in the colonies would smooth the way for the introduction of majoritarian democracy, but Durham had no trouble prescribing the mixed regime for colonies without a landed aristocracy. One could always count on a home-grown crop of able and ambitious troublemakers. “As long as personal ambition is inherent in human nature, and as long as the morality of every free and civilized community encourages its aspirations, it is one great business of a wise Government to provide for its legitimate development.”35 The natural princes staff both the party of the few and the party of the many and, indeed, occupy all the positions in the balanced constitution. 33 Lucas, ldr, 268–9, 311; Craig, ldr, 131. 34 Zera Fink, The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth Century England Evanston, il: Northwestern University Press, 1962), traces the introduction of the idea of mixed government into British political thought. See also the review of The Classical Republicans in Leo Strauss, What is Political Philosophy? And Other Studies (Glencoe: The Free Press, 1959), 290–2. Strauss points to the differences between the ancient doctrine and the modern, implicit in Fink’s account. 35 Lucas, ldr, 312; Craig, ldr, 162.

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Harvey Mansfield has summarized this aspect of Machiavelli’s teaching. In a republic, tyranny is mitigated by the fact that princes “watch each other, and thus oppose their own jealousy to their own arrogance. The people do not ‘watch’; lacking the desire and the virtù to take away liberty, they are unable to guard it.”36 This, then, is the mainspring turning the wheels of mixed government: jealousy among the potential tyrants – that is, among the few. The balanced constitution is good because it provides the institutions from which princes may effectively “watch” and curb each other. In particular, it is good if one believes that the chief end of government is ease and plenty for the millions because – and this is fundamental – positions in the executive are limited in a modern mixed regime, such that some among the few will always find it necessary to occupy a position in the institution representing the mass of the people. The popular house of government is a good place from which to begin “watching.” (One could begin the cursus honorum in the mixed regime of Rome as a tribune. Durham was first a member of the House of Commons, then of the House of Lords, and then a minister of the Crown: tribune, senator, consul.) Significant about those tribunes in the British House of Commons was that in order to further their own careers and gratify their ambition, or merely to hold their place in the House or society, they had to “watch” the members of the executive and had to do so by representing the interests of some or all of the people. That in a modern mixed regime there are both representative and nonrepresentative institutions is what keeps the lower house honest. In the eighteenth and early nineteenth centuries, men elected on a very narrow franchise campaigned for parliamentary reform and better representation in the Legislature; there were popular representatives long before there were popular elections, and there was a “democratic” branch of government long before the demos began to participate. Did the country gentlemen of eighteenth-century England differ much in their way of life from members of the court party? If we oppose them all to the mass of the people, they all look like members of the same privileged 36 Machiavelli, The Discourses, I.13. I am indebted to Harvey C. Mansfield, Jr, for guiding me through The Discourses. See his Machiavelli’s New Modes and Orders: A Study of the Discourses on Livy (Ithaca: Cornell University Press, 1979.) Harvey Mansfield also alerted me to the full significance of 1688 for the eighteenth- and nineteenth-century thinkers. See his “Party Government and the Settlement of 1688,” American Political Science Review 58 (1964): 933–46. Professor Mansfield again prompted thoughts about the mixed regime in the twentieth century in his The Spirit of Liberalism (Cambridge: Harvard University Press, 1979).

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and wealthy class, just as the Radicals claimed. Nevertheless, over the years we find the country party members of this class proposing such measures as parliamentary reform, free and frequent elections, redistricting to give a fairer representation in the House according to population distribution, limitation of election spending, and the secret ballot; they inquired into management of public funds, curbed bribery of electors and bribery of members of the House of Commons, and restrained patronage.37 These are the eighteenth-century men. Country interests were in eclipse from the turn of the century to the 1820s, but after memories of the French Revolution had faded, reformers very like the country members emerged again, demanding ministerial retrenchment, redistricting, parliamentary reform, free and frequent elections, the secret ballot, and – which was new – the extension of the franchise.38 The justification given for reforms was the same in the nineteenth century as in the eighteenth. They were intended to strengthen the democratic branch of government in order to curb the ambitions of men in executive office and, in general, to oppose the aggrandizement of executive and bureaucracy. And since the country members promoted these measures in order to maintain their place in the lower house or sometimes, perhaps often, in order to move from country to court, we must say that they acted always in their own selfish interest. But this is not a bad record for thieves! In their capacity as thieves, they found themselves looking after the victims, the wolves guarding the sheep. Thus, according to modern mixed-government theory, the natural thieves are the greatest danger to the mass of the people in simple monarchy, simple aristocracy, and – most important for us – in simple democracy. But under the mixed constitution, they are virtually the saviours. The great superiority of the mixed regime, according to its proponents, lies in its power to turn the thieves – potential tyrants – into beneficent legislators and administrators responsive to popular demand. “The most uninstructed population anywhere trusted with political power,” Durham wrote, “is placed in the hands of a small body of instructed persons, in whom it reposes the confidence which nothing but such domestic connexion, and such community of interest could generate.”39 But “domestic connexion” and “community of interest” had not guaranteed responsive legislators. On the contrary, “community of interest” had enabled the members of the Legislative Assembly to avoid meeting popular demand. Just as the Executive and Legislative Councils were dominated by an irresponsible English clique, according to Durham, so the lower house in the 37 Dickinson, Liberty and Property, 181–92. 38 Durham, announcing his reform platform in 1819, was one of the first. 39 Lucas, ldr, 312; Craig, ldr, 162.

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province was dominated by “demagogues” and “agitators” who claimed to speak for the people but, in fact, sought to further their own objectives.40 He believed that the ambitious few could be restrained only by enabling them to rule. And he knew as well that if the people were not to suffer, the few must rule under a constitution that mixed more representative and less representative institutions. Nothing was more important than to enable the French-speaking “demagogues” of Lower Canada, the very men who had brought the government in the province to a standstill and provoked rebellion, to take their place in a strong, relatively independent Executive Council. Some of those left behind in the Legislature would then find the popular platform necessary and begin at last to bring popular claims into Parliament. In a longer work, “balance” as espoused by the British thinkers could be compared with the American doctrine of the separation of powers. It would be instructive, for example, to compare Durham and Tocqueville on this subject. Tocqueville describing American institutions of the 1830s sounds much like the British Whigs: “I am not so much alarmed at the excessive liberty which reigns that country [the United States] as at the inadequate securities which one finds there against tyranny.”41 And in more than one passage, he entertains the Whig remedy: “If … a legislative power could be so constituted as to represent the majority without necessarily being the slave of its passions, [and] an executive so as to retain a proper share of authority … a government would be formed which would still be democratic while incurring scarcely any risk of tyranny.”42 But in fact, he had doubts about the efficacy of a purely political remedy and 40 Lucas, ldr, 33; Craig, ldr, 30. 41 Alexis de Tocqueville, De la Démocratie en Amérique (Paris: Garnier-Flammarion, 1981), 350: “ce qui me répugne le plus en Amérique, ce n’est pas l’extrême liberté qui y règne, c’est le peu de garantie qu’on y trouve contre la tyrannie.” Translated in Alexis de Tocqueville, “Unlimited Power of the Majority in the United States and Its Consequences,” in Democracy in America, The Henry Reeve Text, ed. Phillips Bradley, vol. 1, 264–80 (New York: Vintage Books, 1945), 272. 42 Tocqueville, De la Démocratie en Amérique, 350–1: “Supposez … un corps législatif composé de telle manière qu’il représente la majorité sans être nécessairement l’esclave de ses passions: un pouvoir exécutif qui ait une force qui lui soit propre … vois aurez encore un gouvernement démocratique, mais il n’y aura presque plus de chances pour la tyrannie.” Translated in Tocqueville, “Unlimited Power,” 272. Reeve’s translation was published in 1835, but there is every evidence that Durham read at least some parts of the first volume of De la Démocratie in the orginal French, which also appeared in 1835. He adopted phrases and whole sentences from the concluding section.

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about British mixed government in particular.43 He looked to social institutions in addition to political (e.g., the growth of voluntary associations, the study of law and of the classics) to preserve in egalitarian society something of aristocratic tastes, perspectives, and talents and, by this means, to prevent or forestall the decline into mediocrity, mob rule, and tyranny. But Tocqueville’s underlying thought is comparable to Durham’s. A measure of inequality preserves freedom, as well as equality – to paraphrase Durham, as much rational equality “as any people under the sun can, or ought to, enjoy.”

l e s s o n s f o r to d ay ’ s r e f o r m e r s When Durham and the eighteenth-century thinkers advocated executive independence, they were not promoting paternalistic government. Far from it; they were liberals through and through. Nor were they interested in defending elite interests at the expense of the mass of the people. That the executive should be somewhat hived off from public opinion was part of their teaching, but they argued that in the balanced constitution the whole system answered to public demand and met popular interests precisely because one branch of government was not directly responsive, and to the extent that we find this idea persuasive, we must conclude that they had the salus populi in mind. At bottom, these thinkers were concerned to maintain conditions in which an institutionalised political opposition would flourish. What they feared was the emergence of “simple” democracy, by which they meant a form of government in which the mass of the people are left without means to oppose or resist political leaders ruling in the name of the people. It was Durham’s view that Radical constitutional proposals for the colonies would have placed the colonists in exactly this position. Political scientists and historians usually stress the differences between the British Constitution of the eighteenth century and our twentiethcentury system.44 Nevertheless, if we concentrate on the relationship between the executive and the lower house rather than, for example, on party organization or the extent of the franchise, it is the similarities that are noticeable. British ministers in the eighteenth century relied on bribes of place and pension rather than on “the twin spirits of partisanship and ambition,” but the relative independence of the executive was

43 Tocqueville, De la Démocratie en Amérique, 251. 44 For example, Dickinson, Liberty and Property; A.H. Birch, Representative and Responsible Government (Toronto: University of Toronto Press, 1964).

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just as much a fact.45 (Durham argued, as we have seen, that with “responsible government” he was proposing a principle established in England from 1688.) It is surely proper to ask if this constitutional feature serves the same purpose now as, according to theorists, it did in the old days. Would a present-day Durham take the country position in Canada and advocate reforms to strengthen the “watchers” in the Commons? Perhaps. But he would continue to insist at the same time that popular interests are better protected by a form of government in which the executive branch is relatively insulated from public pressure than by a system in which the popular house simply has the upper hand and can make and unmake governments easily.

45 See John Stewart, “Strengthening the Commons,” Journal of Canadian Studies, Special Issue on Responsible Government, no. 14 (1979): 35–47.

9

Collectivity and Individual Rights in “Mainstream” Liberalism: John Arthur Roebuck and the Patriotes1 this chapter describes the correspondence between LouisJoseph Papineau and his agent in the British Parliament, John Arthur Roebuck. They had two things to say to each other. First: they asserted and explored their shared hostility to parliamentary government. On this subject they were brothers in arms. They saw eye to eye. The Papineau that emerges from these letters is the man of the 1837 Rebellions. He was convinced that in Lower Canada the British parliamentary form of government had become inescapably oppressive. And Roebuck assured him, over and over, that it was as oppressive or more oppressive in the Mother Country. Far from being the sovereign remedy for oligarchy (as Bédard and Durham would argue), parliamentary government is in and of itself oligarchic. The letter writers agreed that it would not be enough to turn the insufferable “English party” out of office. What was required was to get rid of the insufferable English Constitution. And what was their second topic? It is a matter on which they were worlds apart. Papineau was a staunch nationalist; Roebuck was a universalist. We are back with the arguments broached in chapters 4 and 5. Let me add that in the decades after the failure of the Rebellions, Papineau’s anti-parliamentary ideas went into eclipse. Thus his direct contribution to Confederation and to the design of Canada’s Parliament was minimal. But as Canadians today know very well, opposition to the parliamentary regime would make its way back into Canadian political thought in the twentieth century. Papineau’s anti-parliamentary heirs would win seats in Canadian legislatures, including the Parliament of Canada.

1 This chapter was first published in the Journal of Canadian Studies (Fall 1984): 99–11. I am grateful for the comments of members of the Brock University Politics Department on an early version of this chapter, read at a departmental colloquium.

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introduction Many political scientists today would argue that collective rights should be recognized in law and government. They see a rise of ethnic and national movements everywhere and take this as evidence that modern men have continued to value traditional loyalties and collective allegiances. “Liberals and their historic doctrine neglect collective entities,” one author suggests. “The requirements of logic and the long-term requirements of universal justice commend the idea of accepting communities as right-and-duty bearing units.”2 The “mainstream” of Western political thought, according to another, “has shown little understanding or respect for the cultural diversity of mankind, and made scant allowance for it as a possible concern of government.” We need a “closer scrutiny of those elements favourable to cultural pluralism in the Western political tradition.”3 It is not, however, a “scrutiny of the elements favourable to cultural pluralism” that is needed if we are to evaluate the case for collective rights. Rather, I would suggest that we need a better exposition of the “mainstream” doctrine, for liberals have typically argued that the recognition of collectivity in law will necessarily result in the curtailment of individual rights. At bottom, then, the mainstream argument against cultural pluralism does not turn on an assessment of the strength or value of minority ways of life but on the assumption underlying all liberal thought, namely the unconditional status of individual rights and freedoms. The rejection of collectivity was not a mere matter of “neglect” or failure to respect diversity. It followed from the very definition of liberal justice. As one political scientist notes, students of developing nations until quite recently defined “a modern society” as “one that has sufficient cultural homegeneity that public rights and public policies can be universal.”4 2 Vernon Van Dyke, “Collective Entities and Moral Right: Problems in LiberalDemocratic Thought,” The Journal of Politics 44 (1982): 21; and “The Individual, the State, and Ethnic Communities in Political Theory,” World Politics 29, no. 3 (April 1977): 343–69 at 369. I am grateful to Gordon Means for supplying this source and others cited below. 3 Kenneth McRae, “The Plural Society and the Western Political Tradition,” Canadian Journal of Political Science 12, no. 4 (December 1979): 673–88 at 688. 4 Gordon Means, “Human Rights and the Rights of Ethnic Groups: A Commentary,” International Studies Notes 1 (1974): 12. He lists F. Tõnnies, F.X. Sutton, Talcott Parsons, Fred Riggs, David Apter, and “a host of others.” For their model of development from “tradition” to “modernity,” Dale Posgate and Kenneth McRoberts, Quebec, Social Change and Political Crisis (Toronto: McClelland and Stewart, 1976), drew on S.M. Lipset, David Easton, Karl Deutsch, Daniel Lerner, and others.

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It may well be true that the mainstream thinkers underestimated the force of ethnic and nationalist feeling in the modern world. The important question, however, is not whether they were right in their assessment of the strength of such feelings but whether they were right in believing that there is necessarily a conflict between a collective right and an individual right. If it is the intention of recent writers, as the quotations above suggest, to find a compromise by which individual rights and collective rights can be combined, then nothing could be more salutary than an examination of the thinkers who insist that no such compromise is possible. Among the most typical and interesting mainstream thinkers are the nineteenth-century Europeans like Durham and Tocqueville who argued that the assimilation of the French in Canada was both inevitable and good. For the most part, Canadian historians have seen nothing but prejudice or ignorance in such views.5 Every student of Canadian history learns to condemn Durham on the subject of French Canada. But Durham and Tocqueville argued for assimilation because they believed that only this course would ensure liberal rights and freedoms for all.6 Nothing so easy to dismiss as prejudice and ignorance lies behind their analyses. They put forward a case against accepting communities as “rights-and-duty-bearing units” -- to use the phrase suggested above -- in the name of individual rights. It is just this aspect of the mainstream position that must be explored. The mainstream figure examined here is John Arthur Roebuck, a prominent young British radical in the 1830s. His views on the subject of nationality were, in broad outline, like those of Durham and Tocqueville. Throughout the period that he wrote and spoke of Canadian affairs, he argued that the French Canadians should assimilate to the English way of life. The peculiar interest of his pronouncements lies in the fact that he was the agent, the paid spokesman, of the French Canadian cause in Britain in the years just before the 1837 Rebellions. His argument for assimilation was put forward in the name of Papineau and the Patriotes!

5 Michel Brunet and Ramsay Cook come to mind as exceptions. See Cook’s discussion of Brunet on Durham in Canada and the French Canadian Question (Toronto: Macmillan, 1966), 138–9. 6 See Janet Ajzenstat, “Liberalism and Nationality,” Canadian Journal of Political Science 14, no. 3 (September 1981): 587–609; and “French Canada and the Liberal Theory of Nationality, some Now Unpopular Ideas,” a paper prepared for the Canadian Political Science Association Meeting, Dalhousie University, 1981.

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Roebuck always suggested that assimilation was the only course compatible with freedom, democracy, and progress for the French. In expounding this view, he gave a workmanlike account of some -- but by no means all -- aspects of the mainstream position. A study of his opinions, then, may not resolve the question of collective versus individual rights, but it will bring the major issues into relief.

c u l t u r a l a s s i m i l a t i o n a n d pa p i n e a u ’ s s i l e n c e The Legislative Assembly of Lower Canada appointed Roebuck as its agent in the spring of 1835. He proved extremely diligent, organizing and leading British opposition to Colonial Office policies in the Canadas in those critical years before and during the Rebellions. For more than a decade in all, he received instructions and requests from Papineau and other Canadians and exchanged documents, news, and opinions. He spoke at length in the House, published articles, and lobbied cabinet ministers. Even after he lost his seat in the Commons in 1837, and could no longer claim to be acting as the Assembly’s official agent, he pressed on. He spoke at the bar of the Commons and Lords during the debates in January and February 1838 on the Canadian Rebellions; wrote to Prime Minister Melbourne, offering to go to Canada as special emissary; and founded a newspaper, the Canadian Portfolio, to present the rebel cause sympathetically to the British people, publishing five inflammatory issues before funds dried up.7 In speech after speech, article after article, Roebuck argued that the French were assimilating and should assimilate to the British way of life. He believed that the French and English in Canada should become one people, just as the French, English, Dutch, and Spanish had become one in the United States. “No one has ever yet said that the French of Louisiana are unhappy, though forming a portion of the American 7 R.E. Leader, Life and Letters of J.A. Roebuck (London: E. Arnold, 1897), records some of the activities of January and February 1838, although in general he says little about Roebuck’s Canadian affairs. Roebuck’s friend, Henry Samuel Chapman, official secretary to the agency, reported on the campaign and the difficulties in publishing the Portfolio in letters to Papineau’s associate E.B. O’Callaghan; see Public Archives of Canada (pac), Papineau Correspondence, vol. 2: “Here your friends are working prodigious efforts to check the unholy war now waging against the Canadians and I am glad to say a general feeling of sympathy is growing up in your favour.” For Roebuck’s long letter to Melbourne, see pac, Roebuck Papers, vol. 5, no. 8. At about this time, too, Roebuck prepared a long essay on the colonies for Lord Durham. See below.

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union,” he argued in a pamphlet of 1836, Existing Difficulties in the Government of the Canadas. “The Dutch of New York never complain; and there is no reason to believe that the Canadians would have cause to deem themselves injured.”8 Moreover, he believed that he faithfully represented Papineau and the Assembly party. He argued that rapid assimilation was a major tenet of Papineau’s program and that such assimilation as had been accomplished had been the work of the Patriotes. In an article in the Westminster Review in 1835, Roebuck suggested that while it was true that the “majority of those who are struggling for the maintenance of abuses are English,” it was also the case that “in everything except language, and a few inconvenient laws, the population of Lower Canada is substantially English.”9 If Papineau’s party were to come to power, he argued, those few remaining inconvenient laws would be swept away. The French had no desire “to maintain in predominance French customs and laws” or to “prevent any innovation which savours of English habits, manners or feelings.” They had no “blind and prejudiced admiration of their own laws, and customs.”10 If it seems strange to find an agent of the Patriotes putting forward assimilationist views, it should be noted that the correspondence shows that Papineau knew very well the message that Roebuck was propounding. Yet he said nothing to correct him. During the years that Roebuck acted on their behalf, Papineau and the others did not indicate in any way that they disagreed with his assimilationist stance. Neither did they suggest that they valued their nationality and way of life. Roebuck reported all his efforts as agent. The correspondence did not flag, nor did he soft-pedal his position on assimilation. In a report to Papineau of September 1836, for example, he urged the Canadians to read Existing Difficulties. The pamphlet, he said, would give the Assembly members the “spirit and substance” of the arguments that he had been putting forward on their behalf in the House of Commons.11 8 John Arthur Roebuck, Existing Difficulties in the Government of the Canadas (London: C. and W. Reynell, 1836), 44. The pamphlet reproduces an article by Roebuck, “The Canadas and Their Grievances,” from the second issue of the London Review, July 1835, with the addition of supplementary material under the heading “Subsequent Events” and an appendix in which letters and some official documents are given. 9 John Arthur Roebuck, “Affairs of Canada,” The Westminster Review 46 (October 1835): 146. 10 Roebuck, Existing Difficulties, 24. 11 pac, Roebuck Papers, vol. 2, no. 11, 4 September 1836.

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The pamphlet, in fact, is more explicitly assimilationist than some of his speeches. He suggested that the French were eager to relinquish their traditions. “Should the time ever arrive at which the English, or persons speaking English should out-number those speaking French,” he went on, “the latter do not dread any oppression at the hands of the former.”12 All this was for Papineau to read in order to assure himself that his spokesman in England was faithfully representing the cause of the Parti patriote!13 Letters came back from Canada full of support and encouragement. “May you carry on with your generous efforts toward expanding the cause of freedom in both worlds on the great stage on which you operate so brilliantly,” wrote Papineau in the fall of 1835.14 When shortly after Roebuck’s appointment the colonial secretary, Lord Glenelg, protested that he was an inappropriate agent for Legislative Assembly interests, the Assembly voted formally to renew the appointment, expressing complete support for his representation of its position during the previous year and in the summer of 1835.15 A letter of March 1836 12 Roebuck, Existing Difficulties, 45. Roebuck believed that the French, as a democratic party, would find their interests gratified by majority government, even under an English majority: “The interests of the majority in the present case would be the interests of the whole people, the minority included; and the rules by which the majority would be guided would conduce to the happiness and security of all” (45). But his example is hypothetical. He was not in favour of the union of the Canadas; the French were the majority in Lower Canada and were entitled to rule. 13 The pamphlet and his speeches contain for the most part material with which Papineau was in agreement and ideas that Papineau himself had conveyed to Roebuck. Thus Roebuck attacked the institutions of the Legislative Council (upper legislative chamber) and the Executive Council, denounced the individuals who dominated the councils -- the “official persons,” the “official tribe” as he put it -- and proposed measures to enhance the powers of the Assembly and Papineau’s party. The Legislative Council was to be made elective or, better, abolished; an elective Executive Council was suggested; the whole of the revenue of the province was to be placed entirely under the control of the Assembly; and so on. 14 pac, Roebuck Papers, vol. 1, no. 4, October 1835: “Vous continuerez vos généreux efforts pour le développement de la cause de la liberté dans les deux mondes sur le grand théâtre où vous agissez avec tant d’éclat.” Translated by Gérard Vallée, with my thanks. 15 Documents relating to this incident are found in pac, Roebuck Papers, vol. 3, no. 13. The items that Roebuck thought would interest his audience most he had printed in the appendix to Existing Difficulties. pac, Roebuck Papers, vol. 6, contains a letter of enthusiastic support from H. Roy and Jacob De Witt, dated 18 September 1835.

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suggests that Papineau regularly distributed copies of Roebuck’s letters and statements to other Patriotes. “We agree with you,” he wrote in this letter. “We understand one another, we respect each other, we love each other.”16 And at the end, he was still writing from exile. There are many letters from this period expressing his gratitude to Roebuck and those associated with him for their extended efforts in January and February 1838: “The wonders of industry and diligence which you display in defending a country from time immemorial ruled with crude partiality and shamelessly tyrannized ... will earn you a debt of gratitude on the part of those able to appreciate the number and size of the obstacles you had to overcome.”17 The historians who discuss Roebuck’s appointment as agent have said almost nothing about his stand on assimilation.18 By contrast, Canadian historians have written a great deal about Durham on this subject. His views are regularly said to have been racist or chauvinist, and in connection with this, it is sometimes suggested that Englishmen of the time

16 pac, Roebuck Papers, vol. 1, no. 5, 13 March 1836: “Je suis de pair avec vous ... Nous nous comprenons, nous respectons, noun nous aimons les uns les autres.” Translated by Gérard Vallée. 17 Ibid., 28 September 1838: “Les miracles d’industrie, de diligence que vous avez opérés pour la défense d’un pays qui a été de tous temps gouverné avec une grossière partialité, et qui est aujourd’hui tyrannisé impudemment ... devront vous assurer un culte de reconnaissance, de la part de ceux qui son capables d’apprecier le nombre et là grandeur des obstacles que vous aviez à surmonter.” Translated by Gérard Vallée. 18 See, for example, H.T. Manning, The Revolt of French Canada, 1800–1835 (Toronto: Macmillian, 1962); Joseph Hamburger, Intellectuals in Politics: John Stuart Mill and the Philosophic Radicals (New Haven: Yale University Press, 1965); William Ormsby, The Emergence of the Federal Concept in Canada, 1939–1845 (Toronto: University of Toronto Press, 1969); Peter Burroughs, The Colonial Reformers and Canada, 1830–1849 (Toronto: McClelland and Stewart and the Carleton Library, 1969); R.S. Neal, Class and Ideology in the Nineteenth Century (London: Routledge and Kegan Paul, 1972); and William Thomas, The Philosophic Radicals: Nine Studies in Theory and Practice, 1817–1841 (Oxford Clarendon Press, 1979). All discuss Roebuck as agent for the Legislative Assembly; none mention his stand on assimilation. An exception is Fernand Ouellet, Lower Canada, 1791– 1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), 241: “Roebuck ... thought of the patriote movement quite simply as a liberal and reformist one.”

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were in general a prejudiced lot.19 Mason Wade, for example, in his well-known history of the French Canadians, argues that prejudice was “natural” to the English ruling class. Peter Burroughs, in The Canadian Crisis and British Colonial Policy, suggests that Englishmen in those days could countenance the “destruction of the French Canadian nationality” because “knowledge concerning cultural differences between nations was still primitive.”20 It is difficult to explain Roebuck in this fashion. I have already suggested that Durham should be seen as having spoken for the “mainstream”; in Roebuck’s case, the charges of ignorance and prejudice seem inadequate even at first glance. If he was an advocate of assimilation, he was also a passionate defender of the Patriotes. He hoped for Patriote victories in politics and war, and he argued for independence for the colony under Papineau’s rule. He was in constant touch with the French Canadians. His letters are filled with protestations of friendship and respect. In all his pronouncements, he seems to have been moved by a sincere desire to benefit the Canadians. What is required at the very least, then, is an explanation that will tell us why he believed that assimilation would benefit his friends, why he thought that it was endorsed by the Parti patriote, and why the Canadians did not speak up to correct him. Perhaps more than any other, Roebuck’s case suggests the inadequacy of the usual approach to the assimilationists of the nineteenth century. Not prejudice or ignorance, but what might be called the radical version of the mainstream position, informs Roebuck’s speeches and articles. He assumed, as we shall see, that assimilation was the best course because he believed that only this course was compatible with liberal justice; and he assumed that the Patriotes approved of assimilation because he believed the party to be modern and liberal. It may be that Papineau saw in Roebuck’s arguments a rational statement based on assumptions 19 Mason Wade, The French Canadians, 1760–1967, vol. 1 (Toronto: Macmillan, 1968), 197, 210, refers to Durham’s policies as “racist.” Peter Burroughs, The Canadian Crisis and British Colonial Policy, 1828–1841 (Toronto: Macmillan, 1972), 5, 103, calls them “chauvinist.” William Ormsby, “Lord Durham and the Assimilation of French Canada,” in Norman Penlington, ed., On Canada, Essays in Honour of Frank H. Underhill, 37–53 (Toronto: University of Toronto Press, 1971), 37, sums up: “Lord Durham’s Report is generally regarded as one of the most perceptive and significant documents in Canadian history, but at the same time his recommendation that French Canada should be assimilated is deplored as indicative of a regrettable blind spot.” 20 Wade, The French Canadians, 198; Burroughs, The Canadian Crisis, 5.

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with which he was, at least in part, sympathetic. If he did not entirely approve of Roebuck’s conclusions, he could perhaps find no convenient way to refute them.

th e a r gu m en t a g ai ns t pa r l i a m e n t a r y g o v e r n m e n t Roebuck’s views on assimilation were part and parcel of his radical political views. He was one of James Mill’s disciples and an associate of the coterie surrounding John Stuart Mill at this time. He sat in the British House of Commons as a member of the Benthamite party, the Philosophical Radicals.21 Among his associates in the House -- to name those who spoke most often on Canadian affairs and in general followed his lead in this area -- were Joseph Hume, William Molesworth, and George Grote.22 When Roebuck put forward the political demands of the Parti patriote, he did so in the language of the utilitarian philosophers while at the same time exhibiting the facts of Canadian history and the claims of the Patriotes as proof of utilitarian doctrine. In Roebuck’s black and white version of his masters’ teachings, the Parti patriote and the Philosophical Radicals stood for the great principle of democracy in the struggle against aristocracy.23 Indeed, most of the Radicals sided with the Patriotes in 1837 and 1838 principally because they saw the party as representing the majority of the populace in 21 The autobiographical fragments in Leader, Life and Letters, give the story of Roebuck’s encounters with the Mills. Roebuck’s tribute to James Mill in his autobiography is much less full of gratitude than George Grote’s comparable tribute -- see Harriet Grote, The Personal Life of George Grote (London: Murray, 1873) -- but in Roebuck’s more philosophical writings, he acknowledges his debt. He does so, for example, in a note to his article “Of What Use Is the House of Lords?,” in Pamphlets for the People (his 1835 newspaper), pamphlet no. 9. 22 There were only a dozen or so Philosophical Radical members in the Parliament of 1832 among fifty or more radicals of all persuasions, and their numbers dwindled as the decade wore on. They had an importance unrelated to number, however, in part because when the Canadian question was foremost in the British Parliament, the Radicals could claim through Roebuck to speak for the disaffected colonists. The story of the Radicals’ relations with the Whigs and the use that the Radicals made of the Canadian crisis is told in Hamburger, Intellectuals in Politics. 23 See Roebuck’s account of the party situation in England in his letter to Papineau of September 1836, in pac, Roebuck Papers, vol. 2, no. 11; and his address to the Commons, in Hansard 36 (31 January 1837).

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the province. The demands of the Assembly party were for that reason holy and just, in John Stuart Mill’s words.24 But none of the Radicals was more outspoken in his admiration of the Patriotes and none was more forthrightly a democrat than Roebuck. “My whole case rested on democracy,” he said in a speech to the Commons in 1835; “the people whom I was representing are democrats.”25 It is Roebuck the democrat, then, who believed that Papineau was anxious to discard the trappings of the old way of life and eager to adopt modern progressive programs. In the scheme for colonial government that he prepared for Durham on the eve of Durham’s departure for Canada, he wrote: “The truth is that the division of the people is not into French and English, but into friends of popular government, and friends of government by a small body of placeholders.”26 The Assembly party, as a party of “the people” -- the democratic party -represented the mass of the people of both national origins. The “official” party of Englishmen ensconced in the colonial Legislative and Executive Councils represented only the narrow and partial interests of a very few Englishmen and English-speaking colonists. He did not believe that the mass of French and English in the province had different economic and political goals. “It so happens,” he wrote, “that the interests of the inhabitants of the townships and of the seigneuries, are, in fact, identical. Both portions of the population are purely agricultural, and

24 John Stuart Mill, “Lord Durham and the Canadians,” London and Westminster Review 28 (January 1838), 513: “We are prepared to assert to the utmost without restriction or qualification, the justice and holiness of the cause in which these men have taken arms.” 25 Hansard 26 (9 March 1835), 670. It is sometimes argued that the Philosophical Radicals represented and claimed to represent not the “people,” meaning the majority of the populace, but the middle classes only; see, for example, William Thomas, “James Mill’s Politics: The Essay on Government and the Movement for Reform,” The Historical Journal 12, no. 2 (1969): 249–84; and the rejoinder by Wendell Carr, “James Mill’s Politics Reconsidered: Parliamentary Reform and the Triumph of Truth,” The Historical Journal 14, no. 3 (1971): 553–80. Joseph Hamburger gives the background of this controversy in Intellectuals in Politics, 45– 53. I am persuaded, with Hamburger, that it is correct to call the Philosophical Radicals majoritarian democrats. This is most certainly true of Roebuck and Chapman in their representation of Canadian affairs. 26 Roebuck reprinted the scheme in Colonies of England: A Plan for the Government of Some Portion of Our Colonial Possessions (London: John W. Parker, 1849); see especially 201.

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the circumstances affecting their welfare ... are common to both.”27 Programs to benefit the one group would also benefit the other. When finally the Patriotes came to power, Roebuck believed that they would promote measures for the prosperity of all. As democrats, they would be concerned with the kind of programs that preoccupy democratic governments in every country.28 He often pointed out, for example, that under Papineau’s government the people of Lower Canada would come to enjoy at last the prosperity and the way of life so long established in the great democratic nation to the south. He believed, in short, that Papineau was fully justified in demanding autonomy for Lower Canada, or complete independence under a Patriote government, because the Patriotes -- indeed, the French-speaking populace generally -- were already assimilated to the most progressive ideas of the age.29 No doubt he thought that the French population would go on speaking French for generations or at least for the foreseeable future. He did not say much on this topic; but this was the opinion of his associate Henry Samuel Chapman, for one.30 It would appear that neither Roebuck nor Chapman believed that language defined a people or a nationality or that it was the mark of a distinctive culture. After all, one can speak of justice, prosperity, and freedom in any language.

27 Roebuck, Existing Difficulties, 25. 28 For the idea that the Patriotes were anxious to have the seigneurial laws reformed, see ibid., 29; and Hansard 36 (6 March 1837), 1350. For the suggestion that they would welcome great numbers of British immigrants, see ibid., 60; and Hansard 33 (16 May 1836). Note also ibid., 46: “But still the question comes round -- will the French majority of Catholics persecute the minority of ‘English Protestants’? I answer boldly – NO!” 29 When Roebuck was not arguing for or predicting political independence for Lower Canada, he suggested a federal union of the several colonies as the measure most likely to secure a degree of independence for the colony. He set out his proposal for federation in: a speech in the Commons, Hansard 37 (14 April 1837), 1220; his letter to Melbourne, pac, Roebuck Papers, vol. 2, no. 8; and the scheme for government that he drew up for Durham. Papineau expressed his approval of Roebuck’s idea of federation in his letter of 28 September 1838. 30 Henry Samuel Chapman, “What Is the Result of the Elections? Fully Answered,” Daily Advertiser (Montreal), 8 December 1834. This article originally appeared as a pamphlet. See page 18 where Chapman suggests that French will continue “just as Welsh in Wales, the native language of Scotland in that country.”

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progressive politics and universalism Roebuck was one of those political thinkers who look forward to the “universal and homogeneous state,” to use a phrase made familiar by George Grant. He saw no difference, for example, between the national character of the English-speaking populace of the British North American colonies and the national character of the people of the United States. Was he right about this? Grant and many who followed him have suggested that the English-speaking provinces were home to ideas and beliefs antithetical to American liberalism. But Roebuck -- and this was true of Durham and Tocqueville as well -- apparently found no conservative or loyalist character among those north of the border to distinguish them from their neighbours.31 Roebuck thought that British North American institutions were less perfect than those of the Americans. He believed that the Canadians were less prosperous because they lived under less satisfactory laws. But he wrote of the populations north and south as though they were identical in customs and “manners.” Even if we conclude that European observers were wrong about this, it must be admitted that when they argued that the French in Lower Canada would and must assume the British nationality, they meant to designate a British nationality that could not be distinguished from the nationality of the United States. In short, they were not so much describing the process by which the French would become English as the process by which all peoples become indistinguishably liberal. As David Cameron reminds us in Nationalism, Self-Determination and the Quebec Question, liberalism, like the other major political ideologies of our time, has assumed that “with every advance of the doctrine” the “strength of nationalist sentiment would recede.”32 Students of developing nations used to believe that “social change from tradition to modernity involves convergence to greater and greater cultural and social uniformity on a world-wide scale.”33 Roebuck was a thinker in this vein – not an English nationalist, not a chauvinist, but a universalist. Underlying his universalism was the mainstream theory of justice as freedom for individuals regardless of race, origin, or creed. 31 Lord Durham, Lord Durham’s Report (1839), abridged by Gerald Craig (Montreal and Kingston: McGill-Queen’s University Press, 2007) (hereafter Craig, ldr), 130–1; Alexis de Tocqueville, De la Démocratie en Amérique (Paris: Garnier-Flammarion, 1981), 536. 32 David Cameron, Nationalism, Self-Determination and the Quebec Question (Toronto: Macmillan, 1974), 1. 33 Means, “Human Rights,” 12.

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The mainstream argument holds that minority peoples in a society indifferent to race, origin, and creed will gladly relinquish particular and traditional ways of life in order to participate in the prosperity, rights, and freedoms of the modern state. Thus Roebuck believed assimilation to be the choice of the French Canadians. In Durham’s view the Frenchspeaking populace of Louisiana had made just such a decision. The French settlers in that area, he said, had come to envy the commercial success of the English who had moved to the territory, and they quickly adopted the way of life that would yield them the same benefits. The educated and ambitious among the French desired the rewards of political office, particularly at the highest level, the federal, and took up the way of life that would achieve this desire.34 Gerald Craig speaks of the English of the time as wanting to “break down” the French Canadian culture, and Peter Burroughs describes them as wanting to “destroy” it; their choice of terms, however, shows an inability to comprehend the liberal perspective of Durham and Roebuck.35 Craig and Burroughs write as though the process of assimilation was coercive, willed by brutal outsiders. But in the opinion of the older liberal thinkers, and many social scientists, assimilation was often, perhaps always, the result of a multitude of individual decisions by members of the minority. (“Men willingly change masters believing to better themselves,” says Machiavelli, speaking to the prince who is eager to appropriate lands differing from his own in laws, culture, and tradition.)36 The change of law in Louisiana, said Durham, “was not forced on the legislature and people of the State by an external authority, but was the suggestion of their own political widsom.”37 Durham and Roebuck proposed assimilation because they perceived indifference to race, colour, and creed as just, according to the highest liberal conception of justice; that is, it was the policy allowing the greatest freedom to the individual. And it was for this reason, too, that they opposed measures to protect minority ways of life. Such policies would deny opportunities to individuals who were capable of obtaining wealth or position in the larger society. Durham indeed believed that policies promoting particularity would have the effect of forcing most of the French-speaking populace into an economically subordinate role. The cultural mosaic would inevitably stack vertically; the peoples at the bottom would inevitably be exploited. 34 Craig, ldr, 155–7. 35 Burroughs, The Canadian Crisis, 5; Craig, ldr, xliii. 36 Niccolò Machiavelli, “On Mixed Principalities,” in The Prince, trans. Mark Musa, 9–27 (New York: St Martin’s Press, 1964), 9. 37 Craig, ldr, 155.

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Roebuck’s arguments had a similar force but were expressed in terms of his own radical fears and distrust of authority. He was convinced that the English “official tribe” -- the Englishmen and minority of settlers in the Legislative and Executive Councils -- could see only too well the advantages of policies of exclusion and preference. He believed that they were systematically promoting the idea of French nationality in order to subordinate the French and to prevent the mass of the people, French and English, from seeing their common interests and their common enemy: “I solemnly charge the Executive for the last twenty years with disgracefully and most corruptly endeavouring to create and perpetuate national and religious hatred among a large body of his Majesty’s subjects, and, for their private and paltry purposes, of stirring up and maintaining amongst those who ought to be brethren something nearly approximating the direful calamities of a civil war.”38 Other observers of the time, Durham among them, argued that the Patriotes were quite as adept at exploiting nationalism for political purposes. Not a whisper of this appeared in Roebuck’s writings. He was convinced that a majority party would generate only wholesome sentiments. The argument common to Durham and Roebuck is in brief that, insofar as liberal justice prevails and members of minorities come to participate in the economic and political systems of the modern nation, they inevitably adopt the way of life typical of all modern liberal societies. Particular traditions within the nations fade, and the differences between the nations themselves become less. On the other hand, insofar as distinctly different ways of life are maintained within the boundaries of the modern state, the minorities will live under conditions that, from the liberal point of view, appear unjust. Assimilation is justified because it is the only policy compatible with individual freedom. There is much to debate in this view. Many contemporary social scientists, as I have suggested, believe that the first part of the argument is manifestly false. Under conditions of freedom, they suggest, individuals may well choose to retain particular loyalties. They point out that the 38 Burroughs, The Canadian Crisis, 5. In the introduction to Lord Durham’s Report, Craig writes: “We should note that Lord Durham could not know as clearly in 1839 what we know today, that it is foolhardy and naive to speak of breaking down the customs of a well-established and organized ethnic and cultural community” (Craig, ldr, xliii). Englishmen in Lower Canada commonly believed that the process of assimilation was coercive. See “Address from the Constitutional Association of Montreal to the Inhabitants of British America,” reproduced in C.P. Lucas, ed., Lord Durham’s Report on the Affairs of British North America, vol. 3, Appendixes (Oxford: Clarendon Press, 1912), Appendix A, document no. 9, 21–8.

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political arena today is filled with demands couched in terms of ethnicity and nationality. Yet the second part of the argument might still be true. In that case, the new demands will fail as they come up against long-cherished individual rights or succeed but at the expense of individual rights. If prudence, in the face of the new demands, should dictate the recognition of collective rights, we ought to be prepared to consider the possible cost. It is precisely this issue, I have suggested, that we are most in danger of slighting today. And it is precisely this issue that the study of the mainstream authors forces on us. In a longer chapter, more could be said on the first part of the preceding argument. What is the real character of ethnic and cultural differences in liberal society? Roebuck seems to have believed, for example, that language differences might well continue in Lower Canada. Durham advocated bilingual policies -- the “amalgamation” of French and English customs and laws. This suggests that they believed that an utterly assimilated people might long retain their original language -- and no doubt, habits of friendship and memories of the old way of life. A study of the nineteenth-century liberals might show that what advocates of cultural pluralism today hail as significant cultural differences are, from the mainstream perspective, no more than pleasant variations on the liberal theme.39 As Tocqueville suggested: “The consequence is that there is less difference at the present day between the Europeans and their descendants in the New World, in spite of the ocean that divides them, than there was in the thirteenth century between certain towns that were separated only by a river.”40

a f o u n d i n g th wa r t e d Roebuck’s stand on assimilation was not incompatible with the admiration and friendship for Papineau that he expressed over and over in his 39 For a fuller discussion of this point, see Howard Brotz, “Multiculturalism in Canada: A Muddle,” Canadian Public Policy 6, no. 1 (Winter 1980): 41–6. 40 Tocqueville, De la Démocratie en Amérique, 540: “aussi remarque-t-il aujourd’hui moins de différence entre les Européens et leurs descendants du nouveau monde, malgré l’Océan qui les divise, qu’entre certaines villes du xiii e siécle qui n’étaient séparées que par une rivière.” Translated in Alexis de Tocqueville, Democracy in America, The Henry Reeve Text, ed. Phillips Bradley, vol. 1 (New York: Vintage Books, 1945), 451. The Reeve translation was known to Roebuck. The whole of Tocqueville’s concluding section to volume one of De la Démocratie en Amérique should be compared with the Durham Report. Durham borrowed ideas and even whole sentences.

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letters. Quite the contrary; the friendship explains the fervour with which he argued for assimilation. He hoped for victory, prosperity, and progress for his Canadian friends. When he described them as discarding, or having already discarded, the French way of life, he was testifying to Papineau’s success as leader of the majority party and justifying the right of the Patriotes to govern. Papineau’s silence may be seen in this light. I have suggested that he found a strong liberal argument -- not prejudice or ignorance -- in Roebuck’s pronouncements. For one thing, he may have believed Roebuck’s views to be confirmed by his own political experience. As he and others sought to secure a larger place for French Canadians in the politics of Lower Canada, did they find themselves proposing measures that savoured of the French Canadian way of life or measures conducive to a new way not perceptibly different from that of other modern nations? That Papineau recognized the value of a liberal regime, we know from his speeches.41 But we cannot say that he held his own traditions and way of life in contempt. There is certainly evidence to show that he loved the habits, laws, and “manners” that he saw slipping away. We have only to remember the vituperation with which he responded to the Durham Report.42 In the fall of 1838, after Papineau and Roebuck had stepped into the wings -- Papineau in exile and Roebuck without influence or even a Commons seat -- there was a curiously poignant exchange of letters. Papineau wrote to describe the fate of the French Canadians who had emigrated to the United States, particularly those who had settled in the western states. The British and Irish who leave Canada for the United States, he said, are not expatriated; they find a softer sky, a richer sun, and a better edition of their own laws, manners, and social habits: “But those hapless French 41 See, for example, Papineau’s 1830 speech to the Assembly, cited in Michel Brunet, “The British Conquest and the Canadiens,” Canadian Historical Review 40, no. 2 (June 1959): 93–107 at 93: “Now religious tolerance; security against arbitrary imprisonment, thanks to the privilege of the habeas corpus; equal protection guaranteed by law to person, honour and property of citizens; the right to obey only laws made by us and adopted by our representatives -- all these advantages have become our birthright, and will be, I hope, the lasting heritage of our posterity. In order to conserve them, we should act like British subjects and free men.” 42 Louis-Joseph Papineau, Histoire de l’insurrection du Canada, en refutation du Rapport de lord Durham (Montréal: Éditions d’Orphée, 1963). For a more developed account of Papineau and nationality than can be given here, see Fernand Ouellet, Louis-Joseph Papineau, a Divided Soul (Ottawa: Canadian Historical Association, 1961); and the description of the Patriotes in Ouellet, Lower Canada.

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Canadians, if they abandon the place of their birth, break each and every link they hold most dear and firm.”43 He goes on to describe the ruins of the old French communities in Ohio, Illinois, and elsewhere. It was perhaps the one time that he betrayed real national feeling to Roebuck. Roebuck’s response shows the character of his cosmopolitan thought perfectly. He believed at this time, October 1838, that the British government would never allow the exiles to return to Lower Canada, and he wrote proposing a grand scheme to alleviate their condition. He and Papineau together would obtain a tract of land in the American West -in Illinois, Iowa, Indiana, or perhaps a wilderness area beyond these states -- and together they would found a new community, or a new state of the Union. Their two names, “especially yours,” said Roebuck, would attract a great following in England and among the exiled Canadians. Together in the new state, they would draw up a constitution and laws like those they had championed together over the years in their struggles with the British whigs and the colonial “official” party.44 Did he assume that Papineau’s concern was solely for the welfare of the individual French Canadians in exile? At any rate, he showed no understanding at all of Papineau’s term “expatriation.” Papineau could see very well that the changes for which he and Roebuck had worked in Lower Canada would bring new freedoms while at the same time eroding the laws, manners, and social habits that he cherished. He could see the worth of both the new way of life and the old, and he knew that they were incompatible. Perhaps in this he showed more insight than Roebuck, who could find no value in anything but the cosmopolitan society.45 His silence on the subject of nationality in the correspondence, I would argue, is as instructive as the suggestion we derive from Roebuck that cultural pluralism must erode individual rights and freedoms. 43 pac, Roebuck Papers, vol. 1, no. 5, 17 May 1838: “Mais les infortunés Canadiens Français, s’ils fuient la terre natale brisent tous et chancun de ces liens si chers et si forts.” Translated by Gérard Vallée. 44 pac, Papineau Correspondence, vol. 2, 24 October 1838. 45 Compare Durham’s broader view when, anticipating the dissent likely to greet his own proposal to hasten the assimilation of the French, he writes: “their nationality is, after all, an inheritance; and they must not be too severely punished, because they have dreamed of maintaining on the distant banks of the St. Lawrence, and transmitting to their posterity the language, the manners, and the institutions of that great nation, that for two centuries gave the tone of thought to the European Continent”; see Craig, ldr, 145. There is no comparable passage in Roebuck’s speeches or articles. Durham does not deny that patriotism, allegiance to a particularity, is a political good. He denies that this good is compatible with liberal justice.

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in the grassroots inquiry known as the underground royal commission, Patrick Boyer and his associates suggest that “There is no ready form, forum or procedure, no way for an individual citizen to truly connect with or evaluate our government, which means, in turn, that we cannot appreciate the consequences of the demands we make upon our government.”1 The statement undoubtedly captures Canadian sentiment; we have long forgotten the founders’ contention that Parliament hears all voices. Cynicism, anger, and apathy prevail. David Taras says: “Where the common wisdom once held that governments had a critical role to play in protecting the public interest, there is now a corrosive cynicism about politics and government – governments are seen as inept, ineffective, and wasteful.”2 Distrust of politicians and government is not an evil per se, as Locke would be the first to tell us. The trouble today is not that we do not like this law or that, this party or that. It is that we do not like legislative politics; we do not like the regime. Distrust in this sense is not limited to Canada; every nation in the industrialized world is experiencing the phenomenon. On political apathy in the European Union, George Weigel says: “European man is abandoning the hard work and high adventure of democratic politics, seeming to prefer the false domestic security of bureaucracy and the false international security of the un system.”3 Of the United States, Jean Bethke Elshtain argues: 1 J. Patrick Boyer, “Just Trust Us”: The Erosion of Accountability in Canada (Toronto: Breakout Educational Network and Dundurn Press, 2003), 28. 2 David Taras, “Introduction: The Crisis of Canadian Identity,” in David Taras and Beverley Rasporich, eds, A Passion for Identity: An Introduction to Canadian Studies, 3rd ed., 1–4 (Scarborough, on: Nelson, 1997), 2. 3 George Wieigel, “Europe’s Problem – and Ours,” First Things, no. 140 (February 2004): 18–25.

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“Even as nations and peoples formerly under the domination of the Soviet empire proclaim their political ideals in language that inspired and secured the founding of Western democracies … our own democracy … is faltering, not flourishing.”4 Gloomy thoughts about the future of liberal democracy are the order of the day. Mark Lilla blames Western “intellectuals”: “Fascist and Communist regimes were welcomed with open arms by many Western European intellectuals throughout the twentieth century, as were countless ‘national liberation’ movements that instantly became traditional tyrannies, bringing misery to unfortunate peoples across the globe. Throughout the century Western liberal democracy was portrayed in diabolical terms as the real home of tyranny – the tyranny of capital, of ‘metaphysics,’ of ‘power,’ even of ‘language.’”5 Lionel Trilling contends that “the characteristic element of modern literature, or at least of the most highly developed literature [is] the bitter line of hostility to civilization which runs through it.” By “literature,” he means, in addition to novels and poetry, the major works of the last century in philosophy and the social sciences. He goes on: [T]he historic sense of our literature has in mind a long excess of civilization to which may be ascribed the bitterness and bloodiness both of the past and of the present and of which the peaceful aspects are to be thought of as mainly contemptible – its order achieved at the cost of extravagant personal repression, either that of coercion or that of acquiescence; its repose otiose; its tolerance either flaccid or capricious; its material comfort corrupt and corrupting; its taste a manifestation either of timidity or of pride; its rationality attained only at the price of energy and passion.6 4 Jean Bethke Elshtain, Democracy on Trial, the cbc Massey Lectures for 1993 (Toronto: Anansi, 1993), 3. On American cynicism and the declining interest in electoral politics, see Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: Norton, 2004), 161–7. The relatively high voter turnout in the 2004 elections in the United States took political scientists by surprise. Both the Democratic and Republican Parties were at pains to appeal to the economically disadvantaged, young people, and other minorities in a deliberate effort to rectify the problem of low turnout. 5 Mark Lilla, The Reckless Mind: Intellectuals in Politics (New York: New York Review of Books, 2001), xi. 6 Lionel Trilling, “On the Teaching of Modern Literature” (1961), in Leon Wieseltier, ed., The Moral Obligation to Be Intelligent: Selected Essays, 381–401 (New York: Farrar, Straus and Giroux, 2000), 381, 391. Trilling’s students read Yeats, Eliot, Joyce, Conrad, Proust, Kafka, Mann, and Gide. As prolegomena to this literature, he assigned Fraser, The Golden Bough; Nietzsche, The Birth of Tragedy and

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Do not suppose that Trilling finds contempt for bourgeois society (“civilization”) only in high-flown literature. In other writings he makes it clear that he believes the contempt to be embedded at all levels of society; it is part of our common heritage. In the fall of 2004 the Canadian Broadcasting Corporation (cbc), in conjunction with musical experts and radio listeners, selected the fifty best popular songs of the last 100 years.7 Some listeners described their choices as “anthems.” These were the songs that had formed their opinions and given a voice to their moral and political identities. In the top ten were the Beatles, Bob Dylan, U2, Led Zepplin, Nirvana, and the Rolling Stones. Judy Garland singing “Over the Rainbow” checked in at number six, followed by The Clash, Woody Guthrie, and Steppenwolf. My point is that none of the songs express satisfaction with ordinary life as most of us know it. None express confidence in human agency. There were utopian visions of boundless love and peace, like John Lennon’s wistful “Imagine,” which was ranked number one, songs of rage and longing, rebellion and despair. There were powerful statements about the injustice and oppression of working life and family life; there were many about the meaninglessness of existence. There was nothing on the list in praise of “civilization.” “Happy Talk,” “Pack Up your Troubles,” “I’m Gonna Start All Over Again” – songs articulating this kind of sentiment did not make the fifty tracks. What we heard were musical statements of stunning effect from the heart of the European counterEnlightenment. If we follow Lilla and Trilling, we may be tempted to conclude that Locke is now irrelevant. He was a man of the Enlightenment whose day has passed. The Canadian founders’ happy confidence in him was misplaced. They were “provincials” in the old sense of the word, far removed from European centres of thought. They knew almost nothing about the deep-seated attack on Locke as it developed in the last quarter of the eighteenth century. Must we conclude that liberal democracy was doomed from the beginning? Let me suggest that we abandon this line of thought. Nothing

The Genealogy of Morals; Freud, Civilization and Its Discontents; Dostoyevsky, Notes from Underground; and Tolstoy, Death of Ivan Ilyitch. Of the Tolstoy he says: “I hesitated in compunction before following Notes from Underground with Tolstoy’s Death of Ivan Ilyitch, which so ruthlessly and with such dreadful force destroys the citadel of the commonplace life in which we all believe we can take refuge from ourselves and our fate. But I did assign it” (397). 7 http://www.cbc.ca/50tracks/vote/index.html.

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that I have said in this book equips us to do justice to the powerful arguments of the counter-Enlightenment, let alone challenge them. Let us consider, instead, that while liberal democracy may ultimately fail, there could be many years of life in it yet. Locke’s admittedly imperfect formula has served Canadians well. We should not be in a hurry to discard it before its time. In chapters above, I have argued that it is our ignorance of Locke and the Canadian founders that is hampering us. Rather than exploring the apocalyptic ideas of the counter-Enlightment and their impact on our social values and culture, I propose that we turn to the more mundane task of examining our political institutions, using our knowledge of Locke and Confederation. Recall Michael Ignatieff’s plea for study of institutions: “What we need is a reinvigoration of the institutions of free government by checks and balances, by open forms of adversarial justification in courts, legislatures, and the press. Reinvigoration means simply that our institutions need to do the job that they were designed to do. We need to understand what they are there for, trust in them, and make them work.”8 The contention is that if we recapture Locke, we will do better – in the short term at least. I am not recommending a return to the seventeenth century or to the nineteenth century. Indeed, I do not propose to discuss specific reforms. But if there are to be reforms, let me suggest that they will be better ones if undertaken in light of the founders’ insights. My argument in this chapter is that Canadian politics is moving from reliance on representative institutions to reliance on ones that are less representative, from institutions that are inclusive to ones that are exclusive. I suggest that Canadians are losing confidence in politics and government because, despite new opportunities for political participation and despite occasional experiences of success, they think that crucial decisions are being made about which they are not consulted, in forums that do not require their consent.

decline of legislatures Years ago, K.C. Wheare described the “decline of legislatures.” John Meisel, observing the same phenomena, described the “decline of parties.” Among the indications of decline (or causes of decline) are: the growth of the positive state and the increasing influence of bureaucrats, the proliferation of political interest groups, increased reliance on federalprovincial diplomacy, and a growing demand for direct democracy and for 8 Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Toronto: Penguin, 2004), 155.

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the election of instructed delegates.9 Wheare and Meisel are still read and for good reason.10 They lay the dilemma before us: where we once supposed that the major decisions of Canadian political life were made in legislatures by our elected representatives, we now believe that decisions are made in extra-parliamentary arenas, in a fashion not always easy to describe, by aggregations of elites who are more or less unaccountable. Wheare and Meisel say less than we might like about why we no longer trust the traditional avenues of participation – legislatures and political parties – but they give us a sense of the magnitude of the change. The full dimension of the problem comes to light when we see how very little people trust the new venues.11 Think again about Meisel’s inventory of changes. First among them is the proliferation of political interest groups. Groups sometimes profess to speak for large numbers of citizens. But they are more effective when their focus is narrow, and even the broadest groups fall short of perfect inclusiveness. The National Action Committee on the Status of Women speaks for many women but not for all. The Canadian Taxpayers Federation speaks for many but not for “me.” Groups are not accountable to the general public, and even members may find it hard to hold spokespersons and leaders responsible. It is true that to become law, political measures originating with groups must be ratified by the Legislature. The suggestion is that groups wield an undue influence or that measures come to Parliament as “done deals,” which the majority party approves more or less automatically. Two charges are brought against Parliament. It is said that the process is too “majoritarian”; the government of the day rams its measures through, and minorities are silenced. But just as often, it is said that 9 K.C. Wheare, Legislatures, 2nd ed. (New York: Oxford University Press, 1968); John Meisel, “The Decline of Party in Canada,” in Hugh Thorburn, ed., Party Politics in Canada, 5th ed., 98–114 (Scarborough, on: Prentice-Hall Canada, 1979). And on the decline of parties, see Zakaria, The Future of Freedom, 180–4. For the consequences of relying on instructed delegates see Rainer Knopff, “Populism and the Politics of Rights: The Dual Attack on Representative Democracy,” Canadian Journal of Political Science 31 (1988): 683–705. The great teacher on the topic is, of course, Edmund Burke. 10 And see Matthew Mendelsohn, “Public Brokerage: Constitutional Reform and the Accomodation of Mass Publics,” Canadian Journal of Political Science 33 (2000): 587–92. 11 Some of the ideas that follow were first mooted at a conference on federalism and legislatures sponsored by the University of Windsor in the spring of 2002. I am grateful to Lloyd Brown-Jones for the invitation.

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Parliament is too adversarial; we hear too much from the minorities; the process is too long-winded; nothing can be accomplished without a chorus of carping dissenters, and in the end the public interest is too often forgotten, with factions winning the day. Confusion reigns in all our thinking. Locke depicts Parliament as the supremely representative institution; Parliament – and only Parliament – represents all who are subject to its edicts, all interests and shades of political opinion, and for this reason only Parliament has the authority to ratify political measures. I suggested in chapter 1 that because of periodic elections, parliamentary sovereignty (the principle that allows parliaments to overrule previous decisions), and the majority vote, parliaments give us a good, perhaps the best, possible approximation of decision making in the general interest. They give us the best possible approximation of Locke’s perfect inclusiveness. If Boyer and his associates are right, Canadians remain dubious. But let me suggest that although they do not believe the Canadian Parliament to have the character that Locke would ascribe to it, Canadians wish that it did. The idea of representative and inclusive decision making retains its appeal. Donna Greschner argues: Canadians want a decision-making process “that not only hears all voices but takes all experiences and aspirations into account.”12 I agree; this is what we want. To summarize: Canadians have lost confidence in both the traditional avenues of participation and also, it would seem, in the new ones. We do not believe that we have anywhere an institution or process that can claim the legitimacy that attaches to inclusiveness. And we feel the lack. “I” do not have a way to record my objections or my support for political measures that affect my life and livelihood. “I” am left out. Some people are getting ahead, but “I” am not one of them. It is a curious fact that in this period of disenchantment, Canadians have never had more opportunities to participate. The incorporation of interest groups into the process, the use of e-mail to reach our representatives, the publication of information about legislation and budgets on the Internet: these innovations promise a breakthrough. Yet politics in Canada today remains intransigent, angry, and intolerant of disagreement. At the same time, paradoxically, it is apathetic; it is informed by a sense of discouragement. We see politics as a matter of competing biases

12 Donna Greschner, “Commentary,” in David Smith, Peter MacKinnon, and John C. Courtney, eds, After Meech Lake: Lessons for the Future, 223–5 (Saskatoon, sk: Fifth House, 1991), 224.

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and conflicting, particular preferences, and we fear that some preferences are unjustly favoured. “Each thing meets in mere oppugnancy.”13

constitution making, the courts a s p o l i c y ve n u e , a n d g l o b a l i z a t i o n Now consider these developments: (1) the Canadian penchant for constitutional reform; (2) the use of the courts to effect change in public policy; and (3) recourse to international tribunals to resolve Canadian disputes. All disregard Parliament. Indeed, taken together, they might be called the Philosopher’s Stone: they promise a politics of absolute justice and effectiveness beside which Parliament’s pretensions look shabbier than ever. Constitution Making Proposals for “mega-constitutional” reform inevitably attack confidence in the present system.14 Under the general amending formula in the Constitution Act (1982), the reform proposals in the Charlottetown Accord had to be approved by majority votes in Parliament and the provincial legislatures. Thus attention focused on the legislative process, and spokespersons for both the “yes” and the “no” sides of the debate heaped scorn on legislative representation and majoritarianism. Why should a majority vote determine Canada’s future? Why should members of Parliament and members of the provincial and territorial legislatures decide? Surely ordinary Canadians have at least as much right. No one – or almost no one – had a kind word for Parliament as a representative arena or for parliamentary deliberation. Parliamentary ratification and parliamentary deliberation – the pillars on which we still rely to legitimate law and policy – were declared hopelessly inadequate.15 No one, or almost no one, had a good word to say for the Constitution enshrined in the British North America Act. No one consulted the founders’ debates on means to legitimate a constitution. 13 The phrase is from Ulysses’ speech on “degree” (“the heavens themselves, the planets and this centre”) in Shakespeare’s Troilus and Cressida. 14 I am describing constitutional proposals like the Meech Lake Accord and the Charlottetown Accord that were intended to recast fundamental institutions and principles. It is understood that incremental adjustments to constitutional law will be necessary from time to time. See Janet Ajzenstat, The Once and Future Canadian Democracy (Montreal and Kingston: McGill-Queen’s University Press, 2003), ch. 14, 137–47, 184–8. 15 An exception was the majority report of the Beaudoin-Edwards Committee, The Process for Amending the Constitution of Canada: The Report of the Special Joint Committee of the Senate and House of Commons (Beaudoin-Edwards Report), 20 June 1991.

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The Courts as Policy Venue Before 1982, courses in Canadian public law emphasized federalism, the legislative process, and criminal law. Today, the Charter has muscled in, taking six weeks or more in a one-term course, months in a two-term course. Students find the Charter fascinating, and topping the list of favourite Charter topics is this question: are political interest groups using the courts to effect change in public policy? Under the Canadian Charter of Rights and Freedoms, a political interest group or coalition of groups, perhaps encouraged by the government of the day, may enter in the courts a charge that Parliament or a provincial legislature has passed a law that constrains individual rights or that Parliament has failed to pass a law recognizing entitlements. A group’s factum is sometimes accompanied by the suggestion that the court recast the legislation by writing out or writing in clauses, and courts sometimes comply. A court may order government to rewrite the law in toto. The typical factum is written in the language of rights. The contention will be that women, gays, and so on are discriminated against; or to be more precise, that this woman or this gay couple have been denied equal protection under the law or equal benefit of the law. But in this era of the positive state, the objective is to change policy. As F.L. Morton and Rainer Knopff put it, the courts traditionally protected the individual from government but now facilitate involvement with government.16 Particular cases will have a narrow focus: a feminist group wants changes in the Criminal Code to curtail interrogation of victims in sexual assault cases; gays want changes in pension regulations to allow the distribution of survivor benefits to same-sex partners. But well-organized groups, groups that regard themselves as part of a “movement,” expect – or hope – to pursue their policy objectives in sustained and systematic fashion through a series of cases.17 They proceed case by case and step by step.18 16 See F.L. Morton and Rainer Knopff, The Charter Revolution and the Court Party (Peterborough, on: Broadview Press, 2000). Jean Bethke Elshtain, Democracy on Trial, 15, distinguishes rights as immunities (typical of classical liberalism) from rights as entitlements. 17 See F.L. Morton, Law, Politics and the Judicial Process in Canada, 2nd ed. (Calgary: University of Calgary Press, 1992), ch. 7, especially Morton’s introduction, 229–34, and the statements by representatives of the Women’s Legal Education and Action Fund (leaf), 234–51. 18 As the Supreme Court of Canada began hearings on the gay-marriage reference in the fall of 2004, spokespersons for the gay rights movement spelled out the step-by-step approach. Alex Munter said that the hearing was the culmination of twenty years of litigation; there were few victories at the beginning, but as cases

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We might ask whether groups are successful in securing policy changes by this means. Are Canadian courts determining policy matters of substance? Opinions vary.19 Certainly, major groups continue to put their efforts into this endeavour, and the federal government has indicated its confidence in the process by funding court challenges. In a typical Charter case, a number of groups will appear, some arguing for one interpretation of the legislation and legal precedent, some arguing for other interpretations.20 The number and variety of the groups suggests that participants indeed regard the judicial process as a significant way to obtain political objectives. I think that we are entitled to conclude that use of the courts to determine policy is proceeding on a scale without precedent in pre-Charter Canada. Some Canadians think that reliance on the courts in this fashion benefits the country. I have no intention of entering into the debate on this issue. In this discussion, I am not asking whether in a particular case the courts should have reached this decision or that. My point is that the attempt to determine public policy in the courts, effective or

mounted, the breakthrough occurred – a steady winning streak. “What we’re talking about is the culmination of decades of work by many, many people to get to this point, bit by bit, law by law”; Janice Tibbetts, “Gay Activists Predict Victory,” National Post, 6 October 2004. 19 Early in 2004 Sujit Choudry of the University of Toronto Law School issued a report contending that the “popular outcry over judicial activism” rings hollow. According to Choudry, statistics “cast considerable doubt on broad claims that the Supreme Court is running Canada”; Sujit Choudry, quoted in Kirk Makin, “Critics of Supreme Court Off Base, Study Says,” Globe and Mail, 2 February 2004. But one notes that political interest groups have not been deterred. In the summer of 2004 groups appeared in the courts arguing for changes to the federal government’s policy on health-care funding, for the extension of provisions on same-sex marriage, and for the introduction of a policy on samesex divorce. I will not mention the ongoing campaign to secure the guaranteed wage. I will say that there was a group proposing to use the courts to defeat the federal gun-control program. I am grateful to Michael Stein for bringing Choudry’s study to my attention. 20 Ian Brodie, Friends of the Court: The Privileging of Interest Group Litigants in Canada (Albany, NY : State University of New York Press, 2002). And see Shannon Ishiyama Smithey, “Cooperation and Conflict in Group Activity in R. v. Keegstra,” in Patrick James, Donald E. Abelson, and Michael Lustig, eds, The Myth of the Sacred: The Charter, the Courts and the Politics of the Constitution in Canada, 189–204 (Montreal and Kingston: McGill-Queen’s University Press, 2002).

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not, demeans Parliament and parliamentary deliberation. There is first the obvious fact that the courts now do some things that legislatures used to do. Defenders of judicial activism like to say that judicial decisions have always had legislative effect. This is true. It seems, nevertheless, that the judiciary, assisted by “friends of the court,” are more open about encroaching on Parliament’s territory and more intrusive.21 But there is more to say about the matter. The fact of political activity in the courts has other consequences for our legislatures. Courts traditionally ignored parliamentary deliberations and for good reason. The courts were supposed to be beyond the reach of politics.22 They were protected from Parliament’s pleas and recriminations, and they took no notice of a law’s “legislative history.”23 The traditional court thus had no reason to draw attention to Parliament’s particular excellences; it had no reason to take note of Parliament’s claim to be representative of the variety of political opinions and its claim to rely on inclusive deliberation. Courts today continue to ignore “legislative history.” But insofar as they are now forums for the contestation of policy issues, the pretence of ignorance about parliamentary deliberation has signal consequences. Parliament takes on the appearance of a monolith, and Parliament’s pronouncements are made to seem like heavy-handed attempts to curb the lively policy debates in the judicial arena. Perhaps I am exaggerating. But what is surely true is that under the new dispensation, the old idea – dear to Canada’s founders – that a parliamentary regime and parliamentary deliberation secure the people’s rights and freedoms becomes difficult to comprehend; persons dedicated to the pursuit of policy objectives in the courts will have difficulty admitting the proposition; the mind boggles. If we conclude that reliance on the courts has indeed given Canadians good policies, we must nevertheless ask whether the price – the disregard for Parliament and for parliamentary democracy and deliberation – has been too high.

21 Brodie, Friends of the Court, xi-xix. 22 The principle of judicial independence is acknowledged in part 7 of the Constitution Act (1867). 23 As Dennis Baker and Rainer Knopff argue in “A Minority Retort: A Parliamentary Power to Resolve Judicial Disagreement in Close Cases,” The Windsor Yearbook of Access to Justice, no. 21 (2002): 347–59, courts ignore especially the distinction between the majority and the minority in Parliament; in other words, they ignore the fact of opposition and deliberation in the Legislature.

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Globalization By the phenomenon of “globalization,” I mean the involvement of states with international treaties, organizations, and tribunals. Globalization in this sense offers still another venue for political interest groups. In the international arena, political parties are not welcome. Thus the group for “Canada” typically speaks for some women, or some aboriginals, or some children. They lobby for statements from a United Nations committee, or better, for a decision from an international tribunal, that can be cited at home to influence policy makers or to influence opinion in Canadian courts. Global politicking takes the political process still farther from Parliament and the provincial legislatures and farther from the ordinary Canadian citizen. Politicking in courts, whether domestic or international, raises this crucial question: how should one react to a court decision with which one disagrees? Courts are designed to settle disputes and to put an end to political differences and political deliberation. Supposedly, the court’s majority opinion puts the contested issue to rest, once and for all. But all too often issues come alive again. How should one react? Can one “kick against the pricks”? And how does one go about it, beyond grumbling to family and writing to the papers? Should one protest? There is the fear that expressing dissent will undermine the rule of law and confidence in the judicial system. Decisions at the level of supreme courts can be reversed, but they are not supposed to be easily reversed. Judges are reluctant to overturn precedents for the very reason that to do so calls in question their role as final arbiters. A similar situation obtains in the constitution-making process. Constitutions are meant to last. Although everyone knows that changes can be made, everyone knows as well that constitutional reform is difficult and is supposed to be difficult; constitutional law is supposed to be superior law, long-lasting law. In short, in the courts and at the constitutional bargaining table, participants hope and expect that questions will be resolved, that political debate will end, that old complaints will be swept away, that we will free ourselves from the shackles of history and advance to a new stage in the human story. Hence the appeal of these venues for political interests: there are big prizes for winners. There is, especially, the hope that opponents will go down to defeat forever or at least for many years. A well-planned group strategy plays on all three fronts: policies and objectives that cannot be obtained at the constitutional bargaining table, or have yet to be obtained, can perhaps be wrested from Canadian courts with the assistance of an influential edict from an international body.

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Globalization in the sense that I have described is our new imperialism. Just as the nineteenth-century oligarchs in British North America (the men in the Family Compact and “Chateau Clique”) cosied up to the British imperial government and Colonial Office to get what they wanted for themselves and their families and friends, so today’s political interest groups cosy up to the metropolis called the United Nations as well as to other global decision makers, demanding programs and policy statements that will fit their particular interests and please their particular Canadian clients. Parliamentary deliberation and parliament’s claim to represent and speak for Canadians go by the boards. In the courts and in the constitutional reform process, demands are made in the name of absolutes: justice, human rights, world opinion, the future. The politicking is exciting for winners because it inflates the participating individual’s sense of “political efficacy.” It can be crushing for losers, and to repeat, it is not obvious what recourse losers have. But to have no obvious recourse against decision makers, to have little hope of turning out the old gang, to be unable to campaign against detested policies is to live in an autocracy. And in autocracy anger and apathy flourish.

th e f u r t h e r c a s e f o r pa r l i a m e n t a n d pa r l i a m e n t a r y d e l i b e r a t i o n Courts purport to be final arbiters, putting an end to political contestation. Constitutions purport to describe principles about which there should be no debate. Parliaments, in contrast, make no claim to end debate and no claim to express consensus. On particular measures, the vote is taken, a decision is made, and the matter becomes law. But the issue can be reopened. Disagreement continues. In parliamentary systems, expressions of disagreement are considered beneficial – indeed, necessary. If there is no debate, if there is no dissent, there is no Parliament.24 To repeat: the courts are reluctant to cast aside precedent in overt fashion because a court that reverses itself calls in question the reliability of 24 The story is told that when Margaret Thatcher toured the assembly room of the European Parliament, she expressed her admiration for the various furnishings and systems of technical support and then said: “But of course it’s not a Parliament.” It was not a Parliament in Thatcher’s opinion because the seats were set out in the fashion of a theatre auditorium; the arrangement did not express the oppositional nature of parliaments: Conservatives confronting Liberals. For an interesting discussion of seating arrangements in deliberative arenas, see Charles Blattberg, Shall We Dance: A Patriotic Politics for Canada (Montreal and Kingston: McGill-Queen’s University Press, 2003) 133–4.

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Before and Now

the judicial process. But a Parliament that overturns a statute is acting in the proper parliamentary manner, responding to argument and to the expression of public opinion. A parliamentary “reversal” is welcome; it is proof that the system works. If there is a better process for encouraging dissent and for including the disaffected – indeed, if there is a better system for protecting political minorities – I suggest that political practice and thought have not yet discovered it. By encouraging dissent, parliaments moderate intransigence and forestall anger. The statement sounds paradoxical, but consider: losers fret, but they do not fear the sting of absolute defeat. There is always a way back into the game. The next turn of the wheel may bring victory. This is the traditional boast. Parliamentary democracy was designed expressly to give individuals, groups, and parties the right to voice political disapproval and to bring that disapproval home in concrete fashion by ousting the decision makers. It thus allows and encourages political disagreement and keeps alive the dissenters’ hopes and their sense of efficacy. Every precedent in the parliamentary tradition militates against protecting decisions from dissent. Every precedent argues against suppressing disagreement. It is Parliament’s open-endedness that grounds its claim to be inclusive, representing all, representing the nation. It is open-endedness that grounds its claim to secure human rights. The staunch opponents of Confederation argued repeatedly that they could not conscientiously pronounce on a measure meant to last “forever.” To pass such a measure would confer an unparliamentary privilege on the majority of the day. It would be unacceptably exclusive. It would amount to an attack on Parliament’s fundamental principles and thus an attack on the people’s rights and freedoms. Remember George Sinclair’s “stumbling block.” In the face of arguments for “rising above party” in the ratification debates, Sinclair contended that setting aside partisanship would dispose legislators to think of their common interests as a political elite. They would think of “honours and emoluments.”25 They might be tempted to design a constitution to

25 George Sinclair, Prince Edward Island House of Assembly, 1 March 1865, in Janet Ajzenstat et al., eds, Canada’s Founding Debates (Toronto: University of Toronto Press, 2003) (hereafter cfd), 399: “The honourable member for Belfast [J.H. Gray] took credit to himself for the composition of the island delegation [to the Quebec Conference] – that it embraced men of opposite opinions, gentlemen selected from each of the political parties in the legislature. That affords to my mind a very strong argument in favour of cautious deliberation, for there is always cause to fear that the prospects of honours and emoluments may be held out to induce unanimity of sentiment between parties who were previous opposed to each other.”

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entrench elite interests. He was right. Where partisanship is curtailed, oligarchy threatens, and rights and freedoms are in jeopardy. Yet in the chapters in part 1, we also saw the case for nonpartisanship in constitution making. Listen again to David Christie: “It is not desirable that any constitution should be the work of a party; in so important an undertaking, all party spirit should be laid aside. Why? Because men of all parties are interested in the formation of a constitution.”26 If we believe Christie, we will conclude that making a constitution that allows for the contestation of parties positively requires the cooperation of party elites. To allow partisan contestation in the constitutional process may indeed lead to bias and will certainly lack the appearance of legitimacy. What enables agreement on process? What legitimates it? The legislators in British North America’s parliaments and assemblies were being asked to pronounce on constitutional law. They were “making” a constitution, or rather, saying “yea” or “nay” to a constitution. They were engaged in deliberation about the rules of deliberation. They were representatives who were determining the role of representation. They were, in short, parliamentarians who had left the arena of moderation and entered the arena of finality and intransigence. Their position was intolerable. How fortunate we are that although aware of the difficulties, they persisted to give us not a perfect form of government (for all human endeavours are flawed) but one that has never been bettered.

26 David Christie, Canadian Legislative Council, 17 February 1865, in cfd, 433.

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Index

Adams, Michael, 83, 84 Alliance Party, 71 Annand, William, 37 Archibald, Adams, 85 Beaubien, J.O., 93–4 Bédard, Pierre, xiv, 116, 124, 126–8, 145; Locke’s influence on, 124–5; and power of the purse, 122; and responsible government, xiv, 116, 122, 135, 129–31 bicameralism, 117–18, 119, 120, 123; and the mixed regime, 151, 153, 157–8 Blackstone, William, 7, 130, 139 Blanchet, François, 125–6, 142–3 Bliss, Michael, 83–4 Boyer, Patrick, 180, 185 British Columbia, 15, 33; enters Confederation, 46 British North America Act (1867). See Constitution Act (1867) Brown, George, 68, 70, 88; and civil war, 101; on constitution making, 74; and division of legislative powers, 93, 95; and social conflict, 90, 92–3, 99, 107 Browne, G.P., 33 Burke, Edmund, 4, 6, 7, 35, 113; and the Constitutional Act (1791), 113,

119, 20–1; 120–1 and the French Revolution, 118; his quarrel with Fox, 118 Burroughs, Peter, 170, 175 Cameron, David, 174 Cameron, J.H., 9, 10; on constitution making, 45–6, 82; and national identity, 77 Cameron, M.C., 39, 51 Campbell, Stewart, 18, 19, 38, 50 Canada, Province of, 46, 90, 91 Canadian Charter of Rights and Freedoms, xv; section 33 of, 53 Carter, F. B.T., 50, 97 Cartier, George-Etienne, 28, 39–40, 68, 88–89; on social diversity, 91, 92, 93 Cartwright, Richard: on political dissent, 42–3 Cauchon, Joseph: on Confederation as revolutionary act, 25, 36; on constitution making and party affiliation, 73; on representative government, 40–1 Chapman, Henry Samuel, 173 Charlottetown Accord of 1992, 186 Charlottetown Conference of 1864, 7, 32, 67–8 Christian, William, 83, 84 Christianity, 100

196

Index

Christie, David: and American Founders, 26, 36–7; and party affiliation, 73, 193 civic republicanism, 80–1 Coles, George, 79 Constitution Act (1867), xv, 21, 55–9; and bicameralism, 56; division of legislative powers, 94–5, 96, 99, 100; executive and legislative powers, 56–9, 60–1; and parliamentary sovereignty 54, 58; and popular sovereignty, 47; and property rights, 60. See also responsible government Constitution Act (1982), xv; and amending formula,186 Constitutional Act (1791), 113–15, 124–6, 133; and bicameralism, 119; and individual rights, 123. See also Bédard Cooperative Commonwealth Federation (ccf), 71 Cotler, Irwin, 49 Craig, Gerald, 175 Craig, James Henry, 124, 134 Crease, Henry, 18, 19; on party affiliation, 73 Creighton, Donald, 14 Currie, James, 37 De Lolme, Jean Louis, 139; on the British Constitution and individual rights, 141; on party contestation, 142 Dicey, A.V., 36; and individual rights, 62–3; and popular sovereignty, 35; on right of revolution, 35, 52, 63 Dorion, A.-A., 27, 69 Dunham, Aileen, 129 Dunkin, Christopher: and national identity in United States, 78 Duplessis, Maurice, 64–5 Durham, Lord (John George Lambton), 124, 145; on assimilation of

French Canadians, 165, 169, 176, 6,177; and Benthamite Radicals, 146–7, 152; and Louisiana, 175; and the mixed regime, 151–2, 153, 157; on parliamentary government, 148–51, 159; and the Parti patriote, 148, 151; and responsible government, 149–50 Elsthain, Jean Bethke: and civic identity in United States, 106–7; and today’s political discontents, 180–1 European Enlightenment, 47, 182; and counter-Enlightenment, 182–3 federal union: British North American colonies, 91, 173n29; Canadian and Maritime Provinces, 73, 91; Upper and Lower Canada, 73, 91 Fox, Charles James, 113; bicameralism, 119, 120, 123; and the mixed regime, 117–18; and representative government, 114–15, 119, 120, 123; and universal rights, 118, 123 Fraser, J.O., 79–80 Gairdner, William D., xii, 32n39 Galt, Alexander, 28 Gentles, Ian, xii Gilbert, William, 25, 33; on constitution making as irrevocable act, 38 Granatstein, Jack, 33 Grant, George, 102, 174 Gray, J.H., 74; on constitution making and party affiliation, 31, 68; and individual rights, 53 Greschner, Donna, 185 Grote, George, 171 Helmcken, J.S., and national identity, 85, 86; on popular sovereignty, 33

Index historiography, Canadian, xv, 11–12, 18; and Confederation, 15–16, 18, 19, 20, 24; laurentian school, 14– 16, 49; and Locke, 3–6; and national identity, 14, 49, 83–4; and popular sovereignty, 24. Himmelfarb, Gertrude: on the American founding, 18, 20; and “civil society,” 104–5; compared to Canadian Fathers, 105–6 Hogsett, George, 50 Hollinger, Robert, 69 Holmes, Stephen, 72, 74 Howe, Joseph, 63 Hume, Joseph, 171 Huntington, Samuel, 75–6; and cultural origins of American identity, 103 Ignatieff, Michael, 20, 183 imperial connection, 90; and colonial independence, 170; and colonial oligarchy, 124, 127, 136, 143 Innis, Harold, 14 Jefferson, Thomas, 19, 29 Johnson, John Mercer, 27, 77, 40, 85; on original consent, 10, 52–3 Kent, John, 97 Knopff, Rainer, 187 Laird, Alexander: on the Red River annexation, 25 Langevin, H.L., 93, on civil unrest, 107; on social diversity, 88, 89, 91– 2, 96 Lawrence, William, 37; on British freedoms, 50; on constitution making as revolutionary act, 25 Létourneau, Jocelyn, 76n25 Lilla, Mark, 181–2

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Locke, John, 7, 55, 182; and bicameralism, 56–7; executive and legislative powers, 55, 56, 57–8, 59, 69–70; and human equality, 10, 52; influence on Confederation, 3–5, 6, 8, 10, 183; popular sovereignty, 8–10, 34; and property rights, 59–60; and right of revolution, 23–4, 62–3; and the social contract, 10, 22–3, 55; toleration of social diversity, 101–2, 125 Locke, John (Nova Scotia legislator), 80 Longworth, John, 50 Macdonald, John A., 39, 68; and imperial connection, 80; and parliamentary inclusiveness, 41–3; and party affiliation, 73; and political dissent, 42–3 McGee, Thomas D’Arcy, 68 Machiavelli, Niccolò, 175; on constitution making 45; and the mixed regime, 156 Mackenzie, Alexander, 70 McLelan, Archibald, 38 Maclure, Jocelyn, 66n42 McNeill, William, 37 Madison, James, 97, 98, 107 Manitoba, 15 Mansfield, Harvey, 158 Medres, Israel, 64–5 Meisel, John, 183–4 Mill, John Stuart, 7; and Philosophical Radicals, 171, 172 Molesworth, William, 171 Moore, Christopher: on constitution making, 67–8, 70; and Donald Creighton, 14n27 Morgan, Edmund, 34 Morton, F.L. 187 Mowat, Oliver, 68

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Index

national identity, 8–9; and civic rights and responsibilities, 12, 16, 75, 86– 8; and cultural origins, 12–13, 14, 82–3, 184; and Parliament, 11, 84, 86, 92 Needham, William, 78–9 Newfoundland: enters Confederation, 31, 46; and religious conflict, 90 New Brunswick, 15, 46, 114 Nova Scotia, 15, 46, 114

popular sovereignty: in British law, 34; and human equality, xiii, 9–10, 26, 48; and right of revolution, 33–4; violated in annexation of Red River settlement, 25, 47. See also A.V. Dicey, John Locke Prince Edward Island, 7, 15, 27, 33, 114; enters Confederation, 90–1; and religious conflict, 90 Progressive Party, 71 Prowse, Daniel, 97

O’Halloran, James: on constitution making and popular sovereignty, 24, 28 oligarchies, colonial (Family Compact, Chateau Clique), xv, 7– 8, 64, 191 Ontario, 15 Ouellet, Fernand, 136

Quebec, xiv, 15 Quebec Conference of 1864, 7, 32, 37, 67–8

Paine, Thomas, 19, 29 Pangle, Thomas, 6, 52 Papineau, Louis-Joseph, xiv, 163; correspondence with Roebuck, 167–9, 172; and French Canadian nationalism, 163, 178–9 parliamentary government: and federation, 8; and inclusive representation, 16–17, 41, 61, 71, 183–5; and individual rights, 51, 53, 118, 125; majority decision-making, 17, 41, 53, 184–5; and national identity, 8, 11, 16, 67; Papineau’s opposition to, 163; and political dissent, 41, 125–6, 132–3 191–2; and twentyfirst century political discontent, 11–12, 65, 180–1, 185–6. See also responsible government, Constitution Act (1867) Parti patriote, 167–9, 170–1 Pitt, William, 114–15 Pope, W.H., 90

ratification debates, 6–7, 32–3, 84 Rebellions of 1837 and 1838, 114, 116, 163 Red River settlement, 15, 33; and popular sovereignty, 25, 46–7 Reform Party, 71 representative government: origins in British North America, 114 Resnick, Philip, 14 responsible government: 7, 15, 122, 131; in English law, 61; and imperial connection, 90, 143–4. See also Bédard, Durham Revolution of 1688, 34, 162 Roebuck, John Arthur, xiv, 163, 165, 166–7 169; and French Canadian nationalism, 166, 168, 175, 177; and parliamentary government, 163; and Philosophical Radicals 171–2. See also Papineau Rohr, John, 32n29 Romney, Paul, xii, 73, 94; on codification of civil law, 98 Ross, John, 28 Russell, Peter, 47–8, 81, 83; and the “Canadian inititative,” 28–30; and

Index popular sovereignty, 24; and representation at Quebec Conference of 1864, 70, 71 Sanborn, John, 78, 81–2 secession from Confederation, 40 Seymour, Benjamin, 38 Shea, Ambrose, 80 Simcoe, John Graves, 113 Sinclair, George: on constitution making and party affiliation, 74, 75, 192 Smiley, Donald: and individual rights in civil and common law, 54–5; on language and education rights in Constitution Act (1867), 54 Smith, Peter, J. 19 social diversity: diversity within provinces 89, 90–1, 164, 176; inter-provincial differences in British North America, 89. See also Cartier, Langevin, Brown, Dunkin Taché, E.P.: on codification of civil law, 98–9 Taras, David, 12, 13, 83–4; on political discontent, 180

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Taschereau, J.T., 125–6, 142–3 Taylor, Charles: on Canada’s national identity, xi, 8, 48; and “social imaginaries,” 66 Tessier, Peter, 37 Tocqueville, Alexis de, 160–1; on assimilation of French Canadians, 165; and modernization, 177 Trilling, Lionel, 181–2 Tupper, Charles, 67; on national identity, 77 United Empire Loyalists, 4, 6 Wade, Mason, 170 Waite, Peter, 32 Waldron, Jeremy: and the “footprint” of original consent, 23, 41; and political dissent, 72 Weigel, George, 180 Wetmore, Andrew, 37, 38 Wheare, K.C, 183–4 Winks, Robin, 14 Wise, S.F., 19 Wood, T.L.: on imperial connection, 79