Roads to Confederation: The Making of Canada, 1867, Volume 1 9781487514990

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ROADS TO CONFEDERATION The Making of Canada, 1867 Volume 1 In recognition of Canada’s sesquicentennial, this two-volume set brings together previously published scholarship on Confederation into one collection. The editors sought to reproduce not only the “classic” studies about the people, ideas, and events associated with the passage of the British North America Act, 1867, but also scholarly works that capture the complexities of the Confederation project. This ambitious anthology challenges the notion that there exists one dominant narrative underpinning 1867, and includes research that focuses on Indigenous peoples. Seven articles written in French are translated for the first time for publication in this collection. In the first volume of this anthology, Roads to Confederation introduces readers to the competing approaches to the study of Confederation and provides material that considers the nature of the 1867 project from the perspective of peoples and communities who have been traditionally excluded from the literature. It also includes the definitive scholarship on the ideational underpinnings of the making of Canada as well as several leading articles that set out different ways to understand the nature and purpose of the 1867 agreement. jacqueline d. krikorian is an associate professor in the Department of Political Science at York University. david r. cameron is Dean of the Faculty of Arts and professor of Political Science at the University of Toronto. marcel martel is a professor and Avie Bennett Historica Canada Chair in Canadian History at York University. andrew w. mcdougall is a lecturer of Political Science at the University of Toronto, Scarborough. robert c. vipond is a professor in the Department of Political Science at the University of Toronto.

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ROADS TO CONFEDERATION The Making of Canada, 1867 Volume 1

Edited by Jacqueline D. Krikorian, David R. Cameron, Marcel Martel, Andrew W. McDougall, and Robert C. Vipond

With a Foreword by Meric S. Gertler, Rhonda L. Lenton, and Mamdouh Shoukri

UNIVERSITY OF TORONTO PRESS Toronto Buffalo London

© University of Toronto Press 2017 Toronto Buffalo London http://www.utorontopress.com Printed in Canada ISBN 978-1-4875-0227-0 (cloth)   ISBN 978-1-4875-2188-2 (paper)

Printed on acid-free, 100% post-consumer recycled paper with vegetable-based inks.

Publication cataloguing information is available from Library and Archives Canada.

University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council, an agency of the Government of Ontario.

Funded by the Financé par le Government gouvernement du Canada of Canada

for tomorrow’s Confederation scholars pour les futur(e)s chercheurs et chercheuses de la fédération canadienne

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Contents Volume 1

Foreword xiii Meric S. Gertler, Rhonda L. Lenton, and Mamdouh Shoukri Preface and Acknowledgments xxi I  Introduction: The Study of Confederation 3 Jacqueline D. Krikorian, David R. Came ron, Marcel Martel, Andrew W. McDougall, and Robert C. Vipond II  Other Voices, Other Stories 55 1. A Concise History of Canada’s First Nations  59 Olive Patricia Dickason and William Newbigging 2. Displacement and Assimilation  83 Royal Commission on Aboriginal Peoples 3. Gender and the Confederation Debates  92 Kathryn McPherson 4. French Canada and Confederation: The Acadians of New Brunswick 99 Gaétan Migneault

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III  Ideas of Confederation 113 1. Constitutional Odyssey: Can Canadians Become a Sovereign People? 115 Peter H. Russell 2. Reference re. Secession of Quebec  138 Supreme Court of Canada 3. The Canadian Founding, John Locke and Parliament  145 Janet Ajzenstat 4. Social History of Ideas in Quebec, 1760−1896  164 Yvan Lamonde 5. Federalism as a Way of Life: Reflections on the Canadian Experiment 203 Samuel V. LaSelva 6. 1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered 221 Robert C. Vipond IV One New Nation, Two Founding Nations or a Compact of Provinces? 247 1. Conservatism and National Unity  251 D.G. Creighton 2. The Genesis of Provincial Rights  268 Norman McL. Rogers 3. Confederation: A Pact or a Law?  284 Richard Arès 4. Nature of Confederation  312 Royal Commission of Inquiry on Con stitutional Problems (Tre mblay Report) 5. Quebec and Confederation: Past and Present  329 Ramsay Cook

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6. The Invention of a Myth: The Pact between Two Founding Peoples 344 Stéphane Paquin Copyright Permissions 361 Contributors 365

Volume 2

Preface and Acknowledgments xi V  From Canada East to Quebec 3 1. The French Canadians and the Birth of Confederation  5 Jean-Charles Bonenfant 2. French Canadians and the Founding of Confederation  25 Lionel Groulx 3. The Negation of a Nation: The Quebec Cultural Identity and Canadian Federalism  40 Eugénie Brouillet 4. Canada and Its Aims, According to Macdonald, Laurier, Mackenzie King, and Trudeau  68 Stéphane Kelly 5. The French-Canadian Idea of Confederation, 1864–1900  83 A.I. Silver

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VI  The East, Ontario, and the West 117 1. The Life and Times of Confederation, 1864–1867  119 P.B. Waite 2. New Brunswick’s Entrance into Confederation  158 George E. Wilson 3. The Maritimes and Confederation: A Reassessment  179 Phillip Buckner 4. The Maritimes and Confederation  213 P.B. Waite 5. George Brown  219 J.M.S. Careless 6. The West and Confederation  231 W.L. Morton 7. Promise of Eden: The Canadian Expansionist Movement and the Idea of the West, 1856–1900  251 Doug Owram VII  The Geopolitics of Confederation 277 1. Confederation; or, The Political and Parliamentary History of Canada from the Conference at Quebec, in October 1864, to the Admission of British Columbia, in July 1871  281 John Hamilton Gray 2. British Policy in Canadian Confederation  294 Chester Martin 3. Britain’s Withdrawal from North America, 1864–1871  313 C.P. Stacey 4. The United States and Confederation  328 Yves Roby

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5. Seward’s Attempt to Annex British Columbia, 1865–1869  348 David E. Shi VIII  1867: A Formative Event? 369 1. Unequal Union: Roots of Crisis in the Canadas, 1815–1873  373 Stanley B. Rye rson 2. On the Edge of Empire: Gender, Race and the Making of British Columbia, 1849–1871  386 Adele Perry 3. The Origins of Quebec Society  396 Fernand Dumont 4. The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History  407 Ian McKay 5. Clearing the Plains: Disease, Politics of Starvation and the Loss of Aboriginal Life  432 James W. Daschuk Copyright Permissions 461 Contributors 465 Select Bibliography 473

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Foreword

On July 1, 1867, under the byline “Confederation Day,” the Toronto Globe explained with quiet confidence that a “united British America, with its four millions of people, takes its place this day among the nations of the world.” Heralding the decision of the provinces of Canada, New Brunswick, and Nova Scotia to come together to form the Dominion of Canada, the newspaper expressed its “hope that Canadians – using the word in its new and large acceptation – will worthily fulfill the duties which Providence has confided to them.”1 For many, the move toward Confederation was a considerable achievement. George-Étienne Cartier, Attorney-General for Canada East, deemed it a “momentous occasion,”2 Samuel L. Tilley, Premier of New Brunswick, argued it was “necessary to the welfare” of the colonies,3 while Charles Tupper, Premier of Nova Scotia, held that it “would give strength to each and every portion of the Confederacy.”4 Others emphasized the significance of the event in the context of the global arena. John A. Macdonald, soon to become the country’s first Prime Minister, explained that a union of the British North American colonies would help them “become important, not only to England, but in the eyes of foreign states, and especially of the United States.”5 Scottishborn Reform politician and founding publisher of the Globe, George Brown, emphasized it was more than simply a change in governance. There was “no other instance on record of a colony peacefully remodelling its own constitution…. Canada is rightly setting the example of a new and better state of things.”6 But the negotiating process had taken three years and, at times, was anything but certain. The opposition in Nova Scotia was extensive, Prince Edward Island and Newfoundland withdrew from participation,

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and there had been a number of invasions by Fenian marauders who sought to create chaos in the British colonies. Not to be left out, legislators in Washington also entered into the fray. In the summer of 1866, the House of Representatives introduced a bill to annex the British North American colonies instead of seeing them unite under the British ensign.7 General Sherman then added his two cents, explaining to his fellow Americans, “We don’t want Canada, but if we should, a campaign of five days would bring it.”8 Despite this general tumult, Confederation proceeded. It had the support of officials in London and the local political and business elites from Halifax to Toronto. New Brunswick and Nova Scotia entered into the agreement to promote economic growth, ensure the development of a transcontinental rail system, and secure their borders against any future incursions. The province of Canada shared these goals. But it had additional rationales for engaging in the nation-building exercise. Canada West (Ontario), with approximately 45% of the residents living within its boundaries, was supportive because representation by population was to be adopted in the Parliament of Canada.9 Canada East (Quebec), seeking to protect the interests of its French-speaking residents, ensured the British North America Act, 1867 gave exclusive legislative jurisdiction to the province in all areas relevant to the protection of its linguistic and cultural identity. Six provinces joined in the years that followed. Manitoba, following the uprising in Red River, was created in 1870, British Columbia joined in 1871, and Prince Edward Island in 1873. Saskatchewan and Alberta became provinces in 1905 and Newfoundland in 1949. Three territories also became part of Canada – the Northwest Territories in 1870, Yukon in 1898, and most recently, Nunavut in 1999. Today, 150 years later, Canada has grown from four million to thirty-five million people from coast to coast to coast. There is much to celebrate. July 1, 2017, marks a milestone in the country’s peaceful development as a nation that is virtually unparalleled in the world. According to all of the usual metrics – including education, housing, health, income, and human development – there are few rivals to Canada in terms of the wealth and prosperity of its people. The United Nations Human Development Index consistently ranks Canada as one of the best places to live. Its constitution, guaranteeing a wide range of both individual and community rights, is considered to be so progressive that other state actors have adopted similar provisions in their own governance structures. Canada today has an



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international stature, a developed economy, and a thriving democracy that make it the envy of many. It is highly sought after by people around the globe wishing to emigrate. Its recognition of the importance of multiculturalism, now entrenched in the Canadian Charter of Rights and Freedoms, underscores the country’s commitment to diversity and inclusion. At the same time, for the 1.4 million people10 who identify as Indige­ nous peoples, there has often been very little to cheer about. The vast majority, who live off reserves,11 are more likely to experience poorer health,12 have less education, and face higher unemployment.13 Indige­ nous peoples are far too often victims of violence,14 and at the same time endure greater incarceration rates.15 Those who live on reserves do not have better experiences, and some face additional challenges accessing even the most basic of necessities such as housing, schools, and clean water. And the residential schools experience remains in the forefront of our minds.16 Nor do all Francophones look to Confederation as a significant or important event. Although the intensity of the sovereignty debates of the 1980s and 1990s has waned, the status of Quebec in Canada is an everpresent issue in the political arena. The adoption of the British North America Act, 1867 may have marked the establishment of a new country, but for some, it constituted just one more pragmatic step designed to ensure the survival of their cultural and linguistic identity. The country is, therefore, still a work in progress. It continues to evolve, with a constitution that has proved time and again equal to the emerging challenges it faces. It will no doubt continue, not just now but in the decades ahead, to meet the needs of its people. Universities have an important role to play in Canada, both in commemorating the 150th anniversary of Confederation and in looking ahead to the country’s bicentennial in 2067. Such commemorations are celebratory, of course; but in a free and democratic society they must also include reflection and discussion as integral components. These are necessary so that our accomplishments may be appreciated, and our failures addressed – all with a view to building an even more just, inclusive, and prosperous country and a stronger voice for collaboration and peace around the world. Canada’s universities, which share the particular rights and responsibilities inherent in the principle of academic freedom, are crucial sources of this reflection and discussion. Accordingly, it is most appropriate that the editors of these volumes have cast wide and deep in selecting their contents. It is also most

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welcome that they have curated the material in such a way as to facilitate a truly progressive approach to the study of Confederation – most notably, by placing “other voices, other stories” at the outset of the selections. This contribution is especially timely, as Canadian universities begin to do their part in responding to the Calls to Action of the Truth and Reconciliation Commission of Canada in response to the terrible legacy of the Indian residential school system. The academic partners in the National Centre for Truth and Reconciliation, hosted by the University of Manitoba, stand out in this effort. Speaking for our own institutions, as part of York University’s Indigenous strategy, Glendon College presented its Truth and Reconciliation Declaration on Indigenous Language Policy at the International Conference on Language and Culture Contact in November 2016 – a declaration that proposes seven principles for postsecondary insti­tutions to consider as they develop strategies to respond to the Calls to Action. The following month, Prime Minister Justin Trudeau announced that his government was committed to bringing in an Indigenous languages act during 2017. In January 2017, the Univer­sity of Toronto was entrusted with the report of its Truth and Reconcili­ation Steering Committee, entitled Wecheehetowin (Working Together), which identifies immediate and long-term actions needed in six key areas. Writing in Policy Options, Sheila Cote-Meek, Associate Vice Presi­dent, Academic and Indigenous Programs at Laurentian University, noted the scale and scope of the challenges Canadian universities face in all of this, but also argued that “[t]he positive responses to the commission’s recommendations that we are currently seeing in post-­secondary education do give a sense of hope that deeper and more systemic and transformative change is possible.”17 This sense of hope pervades our institutions’ collective contribution to the commemoration of Canada’s sesquicentennial. Converge 2017, a national conference organized by Universities Canada, focused on the role of the country’s universities in promoting pluralism, equity, and inclusivity, and outlined the road ahead to our bicentennial in 2067. We should not underestimate the importance of that contribution – it is fundamental to our continued success in the face of internal and external challenges, and will be essential to our resilience in the midst of global economic, social, and political trends that have the potential to heighten polarization and undermine solidarity. In fact, universities – especially in relatively peaceful and stable countries such as Canada – are uniquely suited to foster the constructive



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debates on alternative futures from which policy innovation and greater social cohesion can emerge. In this light, the importance of Canadian Studies, and the study of Confederation in particular, is especially clear. Our country has undergone a dramatic transformation since its centennial year, becoming an increasingly urbanized society. These and other massive, secular changes – including climate change and population aging – along with crises such as the plight of migrants from Syria and elsewhere, will require a renewed and concerted effort over the next fifty years to ensure that Canada continues to develop as a progressive society and as a force for good in the world. This interdisciplinary collection of distinctive perspectives on Canada’s establishment as a country represents an important and timely contribution to those efforts as we come together to mark Canada’s 150th anniversary year. Presenting a comparative view of French and English scholarship on Confederation, this volume affirms the importance of the unique perspectives of Quebec and of the Francophone community. Moreover, by featuring the voices and stories of those who have been traditionally underrepresented – including Indigenous ­peoples and women – as well as materials published since 1872, this collection offers its readers a deeper, broader, and more complex understanding of Confederation than previous analyses have afforded. We commend the editors for undertaking this valuable project, and welcome the vital dialogue it will surely spark on Canada’s history and its future. Meric S. Gertler President, University of Toronto Rhonda L. Lenton President and Vice-Chancellor, York University Mamdouh Shoukri President Emeritus and Professor, York University Toronto, Ontario July 2017

xviii Foreword NOTES 1 “Confederation Day,” Globe (July 1, 1867), 1. 2 George-Étienne Cartier, Attorney General (Canada East), Legislative Assembly of the Provincial Parliament of Canada, February 7, 1865, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose, 1865), 53. 3 Samuel L. Tilley, Provincial Secretary and Leader of the Government of New Brunswick, speech in Hamilton, Ontario, November 4, 1864, in Edward Whelan, ed., A Brief Account of the Several Conferences Held in the Maritime Provinces and in Canada, in September and October, 1864, on the Proposed Confederation of the Provinces, together with a Report of the Speeches Delivered by the Delegates from the Provinces on Important Public Occasions (Charlottetown: Haszard, 1865), 211. 4 Dr. Charles Tupper, Leader of the Government, Nova Scotia, speech in St. John, New Brunswick, September 14, 1864, in Whelan (1865), 54. 5 John A. Macdonald, Attorney General (Canada West), Quebec Conference, October 11, 1864, in Joseph Pope, ed. Confederation: Being a Series of hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell, 1895), 55, 56. 6 George Brown, letter dated August 26, 1864, Quebec, Extracts from Family Correspondence, reprinted in Alex. Mackenzie, The Life and Speeches of Hon. George Brown (Toronto: Globe Printing, 1882), 227. 7 H.R. 754, A Bill for the Admission of the States of Nova Scotia, New Brunswick, Canada East, and Canada West, and for the Organization of the Territories of Selkirk, Saskatchewan, and Columbia, 39th Congress, 1st Session (July 2, 1866). 8 “Don’t Want Canada,” Daily Clarion and Standard (Jackson, Mississippi: July 20, 1866); and “News Items,” The Free Press (Burlington, Vermont: July 27, 1866). 9 The 1861 census listed 1,396,091 people living in Canada West; 1,110,664 in Canada East; 193,800 in New Brunswick; 330,857 in Nova Scotia; and 80,857 in Prince Edward Island. Government of Canada, Library and Archives website, viewed on May 6, 2017. http://www.bac-lac.gc.ca/ eng/census/1861/Pages/about-census.aspx. 10 “In the 2011 National Household Survey, 1,400,685 people identified as Aboriginal persons, representing 4.3% of the total Canadian population” (footnote omitted) “Population and Geographic Distribution: The Aboriginal Population Is Diverse,” Statistics Canada website, viewed on May 6,



11

12

13

14

15

16

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2017. http://www.statcan.gc.ca/pub/89-645-x/2015001/pop-concepteng.htm. Approximately 1.1 million Indigenous peoples live off a reserve. Statistics Canada, 2011 National Household Survey, “Aboriginal Identity Showing Area of Residence and Sex: Canada and Newfoundland and Labrador.” Statistics Canada website, viewed on May 6, 2017. http://www.stats.gov. nl.ca/Statistics/Census2011/PDF/ABO_AreaResidence_Sex_ CanNL_2011_NHS.pdf. Statistics Canada, “Study: Social Determinants of Health for the OffReserve First Nations Population Aged 15 Years and Older, 2012,” released 2016-04-12, based on data from the 2012 Aboriginal Peoples Survey and the 2012 Canadian Community Health Survey. Statistics Canada website, viewed on May 6, 2017. http://www.statcan.gc.ca/daily-quotidien/160412/dq160412a-eng.htm. Statistics Canada, “Study: Literacy and Numeracy among Off-Reserve First Nations People and Métis, 2012,” released 2016-05-18, based on data from the Programme for the International Assessment of Adult Competencies. Statistics Canada website, viewed on May 6, 2017. http://www.statcan. gc.ca/daily-quotidien/160518/dq160518b-eng.htm. The federal government initiated a National Inquiry into Missing and Murdered Indigenous Women and Girls in 2016. MMIWG website, viewed on May 6, 2017. http://www.mmiwg-ffada.ca/en/about-us/. Statistics Canada, Correctional Services Program, “Adult Correctional Statistics in Canada, 2013/2014,” Statistics Canada website, viewed on May 6, 2017. http://www.statcan.gc.ca/pub/85-002-x/2015001/ article/14163-eng.htm#a8. The Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future (2015). TRC website, viewed on May 6, 2017. http://www.trc.ca/websites/trcinstitution/File/2015/Findings/Exec_ Summary_2015_05_31_web_o.pdf. Sheila Cote-Meek, “Post-secondary Education and Reconciliation,” Policy Options (February 16, 2017). Policy Options website, viewed on May 6, 2017. http://policyoptions.irpp.org/fr/magazines/fevrier-2017/post-secondaryeducation-and-reconciliation/.

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Preface and Acknowledgments

This two-volume collection has been assembled in recognition of the country’s sesquicentennial, bringing together previously published scholarship on the people, ideas, and events associated with the passage of the British North America Act, 1867. This interdisciplinary project aims to capture the complexities of Confederation scholarship and highlights the evolution of its interpretation over time. The historical discourses underpinning Confederation studies reflect a series of complex and contested narratives that are foundational to our day-to-day politics. The goal of this collection is to set out these debates by providing not only “classic” studies of Confederation, but also scholarly work that challenges our conventional understandings and approaches to the topic. We seek both to understand the past and to gain insights into the challenges we face today and those we need to consider for tomorrow. Anniversaries, both personal and national, are very often fraught; the celebration associated with these moments is frequently alloyed by critical reflection, by alternative accounts that subject the conventional narrative to radical scrutiny. The alternative account that has called into question the Confederation celebrations of 2017 is the Indigenous story. For Indigenous peoples, the very idea that the “founding” of Canada in 1867 is the privileged political and constitutional moment in the lives of the peoples that live on the top of the North American continent is offensive. What about the treaties, signed by Indigenous peoples and the Crown, before and after Confederation, that sought to establish the relationship between Europeans and Indigenous peoples? What about the sorry record of treaty violation that followed thereafter? Indeed, what about the destruction of centuries-old Indigenous political and community development that was the result of European contact? For

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Indigenous peoples, these are the historical moments and processes that need to be woven into our understanding of the present, and there is more of tragedy about them than satisfaction in national achievement. We recognize that the 1867 scholarship has largely ignored both the contributions of Indigenous peoples and the hardships they have endured. For the most part, Francophone and Anglophone scholars have written the history of the making of Canada by defining it as a process affecting only British North America’s two main linguistic communities. The role of Indigenous peoples and the implications of their marginalized status have not been fully explored in the scholarly literature on Confederation. It is a gap we wish to acknowledge; this collection begins to redress it. The scholarship included in this project spans 145 years (1872–2017), involves forty-five individual and institutional authors, and includes two original and thirty-eight existing works. Published simultaneously by the University of Toronto Press and by Les Presses de l’Université Laval, the collection contains twenty-nine studies translated into either English or French for the first time. Contributions were chosen for their originality, focus, methodologies, and varying perspectives. We sought a range of competing viewpoints that reflect the richness of the approaches that both frame and underpin Confederation scholarship broadly defined. Whether originally written in French or English, this anthology aims to house some of the very best scholarship that has been published on the making of Canada. This is a four-cornered project, involving two universities – York University and the University of Toronto – and two publishers – the University of Toronto Press and Les Presses de l’Université Laval. Our acknowledgments reflect that. When we began this project, we had no idea how complex the undertaking would be and had little appreciation for the number of tasks we would need to accomplish to achieve our goal. The list of people on whom we have relied, and whom we wish to thank, demonstrates the extent of the enterprise and the many hands that helped to make it happen. If an army marches on its stomach, a scholarly publication advances only if there is money. We have been the beneficiaries of financial support from many quarters. At York University, we thank: the York University Canada 150 Fund; the Avie Bennett Historica Canada Chair in Canadian History; the Robarts Centre and its Director, Gabrielle Slowey; the Department of Political Science and its Chair, David Mutimer; the Faculty



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of Liberal Arts & Professional Studies for a Minor Research Grant 2016– 17 and for support from the Book Publication Subvention Program; and the Office of Research Services for a SSHRC Research Opportunity Grant. At the University of Toronto, we thank: the U of T Canada 150 Fund; the Department of Political Science and its Chair, Louis Pauly, and its Interim Chair, Ryan Balot. We greatly appreciate the assistance of colleagues who reviewed material for us and offered invaluable advice: Les Jacobs, Susan Kennedy, David Koffman, Tony Mauti, David McNally, Leo Panitch, Miriam Smith, and Kenton Storey. Without the support of our research assistants, we could not have got the job done, and each has our warm thanks: Mathieu Arsenault, Julieanne Enns, Zack Goldford, Brianna Guenther, Rebecca Hellam, Geleta McLoughlin, Rebecca Rossi, Jasprit Singh, and Kate J. Winterton. Some of the contributions in the collection had to be translated from French into English. We are in Lin Burman’s debt for translating six articles into English. As part of the course work for the Advanced Translation Project/Project Management at York’s Glendon Campus, a team translated the contribution of Richard Arès into English, and we thank the students for their work: Nicole Anichini, Anna Bandyk, Jillian Castelltort, Jessica Domingues, Wendy Duff, Chris Haggertay, Kim Tran, and Sally Vusi – all under the able supervision of Professor Lyse Hébert. We also are grateful to Jennifer Brunet, Geneviève Deschamps, Lise Dufour, François Gauthier, Carmélie Jacob, Mathieu Lapointe, André Larose, and Leslie Talaga for translating a series of English contributions in the collection into French. Wayne Herrington, Ian MacKenzie, Anne Laughlin, Breanna Muir, and Daniel Quinlan at the University of Toronto Press and Denis Dion, Jocelyne Naud, Laurie Patry, and Diane Trottier at Les Presses de l’Université Laval offered us invaluable guidance as we prepared the manuscript for publication in English and French versions. We appreciate all their efforts. A number of people at both universities were extraordinarily helpful in moving the project forward. At York, we thank: Margo Barreto, Nadya Bloom, Janet Friskney, Helen Papacharalambous, and Associate Dean Sandra Whitworth. And at the University of Toronto: Cynthia Chandler, Mary-Catherine Hayward, Teresa Nicoletti, and Sari Sherman.

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Finally, our warm appreciation to the family and friends who in many different ways helped us on our way: Randy Hesp; Don and Julie Krikorian; John and Rowena McDougall; Jonathan McKay; Dorothea Wiens; Renée, Dominique, and Éva Choquette; Charley Rose and Max Eledam; Lauren and Cooper Elliott; Madaket and Ewan Iris; Luca L.S. Paneduro; and Andrew T. Winterton. Jacqueline D. Krikorian David R. Cameron Marcel Martel Andrew W. McDougall Robert C. Vipond Toronto, Ontario July 1, 2017

I Introduction: The Study of Confederation Jacqueline D. Krikorian, David R. Cameron, Marcel Martel, Andrew W. McDougall, and Robert C. Vipond

1. The Confederation Moment Mock turtle soup, sirloin beef, salmon, and sautéed rabbit were just a few of the entrées served. Partridge, wild duck, and turkey – both boiled and roasted – also were on the menu. Dessert included an array of ice creams, pastries, and plum cakes. And, of course, there was alcohol, and lots of it. It was a feast fit for a Queen, or at least a Queen’s representative, Sir Richard Graves MacDonnell, the Lieutenant Governor of Nova Scotia. The banquet, held on September 12, 1864, at the Halifax Hotel, was a celebration of considerable importance for British North Americans. Just days earlier, their political leaders had met in Charlottetown and agreed to unite to form “one common country” whose “wealth, talent, [and] resources” would constitute “a Nation possessing no ordinary capabilities.”1 The advantages of the proposed Confederation among the provinces of Nova Scotia, New Brunswick, Prince Edward Island, and Canada were vividly highlighted in the speeches that night. John A. Macdonald (Canada West) explained that the “meeting in Halifax will be ever remembered in the history of British America,” as it was the “first opportunity” to announce their unanimous decision to form a union of the provinces “for the advantage of all.”2 George-Étienne Cartier (Canada East) noted that the delegates’ primary objective was to bring the

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Roads to Confederation

colonies “into a great nation,”3 while Dr. Charles Tupper (Nova Scotia) emphasized that the purpose of uniting British North America was to “consolidate our influence, and place us in a position not only to aid each other, but … [also] the Parent State.”4 Samuel Leonard Tilley (New Brunswick) highlighted the importance of a railroad and inter-colonial free trade to ensure “the promotion of the prosperity of these Provinces, [and] their advancement, socially and politically.”5 Indigenous peoples were not included in the discussions leading up to the British North America Act, 1867, nor were they part of the celebrations in the aftermath of its adoption. They were, effectively, invisible to the political leaders of British North America. The debates in the Province of Canada on the proposed Confederation referred to the state of Indiana as often as they mentioned “Indians.” And when Indigenous peoples or issues significant to them were addressed, it was not out of a concern for their interests or rights. George Brown, for example, discussed the “vast Indian Territories” between British Columbia and Upper Canada “that will ere long, I trust, be opened up to civilization under the auspices of the British American Confederation.”6 Macdonald argued for a strong central government, explaining that the United States – which had just endured a bloody civil war – had made an error at its formation. There, “each state reserved to itself all sovereign rights,” whereas for him, the union of British North Ameri­ can colonies would remedy this defect and confer “on the Provincial bodies only such powers as may be required for local purposes.”7 Not everyone, however, shared his vision. Some viewed the proposed new arrangements as embodying strong, autonomous provincial governments. Sir Étienne-Paschal Taché, for example, noted that “questions of a general nature” would be reserved for the federal government while emphasizing that provincial governments “would have the power to manage their domestic affairs as they deemed best.” He explained that Lower Canada (Quebec) would be able to “preserve its autonomy together with all the institutions it held so dear,” allowing them to “exercise the watchfulness and surveillance necessary to preserve them unimpaired.”8 South of the border, the Americans were watching as the colonies of Canada, Prince Edward Island, Newfoundland, New Brunswick, and Nova Scotia debated the merits of uniting as one country under the British flag.9 Maine, which had long-standing disputes with its northern neighbours over fisheries, trade, and its New Brunswick boundary,



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was particularly concerned about invasions from an emboldened British North America. Maine’s governor, Joshua Chamberlain, in an impassioned address to the state legislature in Augusta, explained that along with the French Empire of Mexico, “the scheme for the consolidation of the British Provinces” was “part of the great conspiracy against Liberty on this youthful continent.”10 Many French Canadians living in the United States also sought to dissuade their compatriots from joining a new Confederation. Some even petitioned Congress to stop the proposed union. They argued that a merger of the British North American colonies would be “hostile to the prosperity and peaceful pursuits of American citizens.”11 They wanted the British colonies to join the United States and, in the process, enlarge the French population of America. Also opposed to a British stronghold on their northern border were the Fenians living in the United States. On a handful of occasions, they invaded the British North American colonies, though, in fact, they caused more fear than actual damage or injury. Their goal, of course, was to disrupt British policy toward Ireland. J.F. Fitzpatrick explained at a meeting in Buffalo, “They did not intend to harm the Canadians, but make war against England at her weakest point.”12 Pockets of opposition existed in the U.S. House of Representatives as well. The member from New York, Henry Raymond, viewed the proposed Confederation as a threat to Americans as “a powerful monarchy, under the protection and with the support of a foreign nation, cannot be regarded as otherwise than hostile to the peace and menacing to the safety of the Republic.”13 And in the summer of 1866, Nathaniel Banks (Massachusetts), chair of the Foreign Affairs Committee, sought to ensure that all of the territory of North America fell under the stars and stripes. To this end, he introduced a bill into the House in July of 1866, to annex the British colonies, all of their land and resources, and in exchange, provide them with approximately $86 million. Banks’s bill also proposed merging Nova Scotia with Prince Edward Island, and Newfoundland with Quebec.14 That Banks did not ask the British colonists if they wanted to be annexed was a minor detail for the American statesman. For him, it seemed a good proposal and surely the British Americans would eventually see it that way too. Pennsylvania’s Journal endorsed his viewpoint. They could not “understand why, as a matter of choice, sensible Canadians should prefer remaining under the control of a distant and neglectful

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Roads to Confederation

government.”15 And others talked of a military option. General Sherman reassured his compatriots, “We don’t want Canada, but if we should, a campaign of five days would bring it.”16 For Toronto’s Daily Globe, the annexation initiative was a “ridiculous scheme.” The paper’s editorial staff explained the American proposal was laughable: “We might have felt insulted, had he actually offered us material advantage as an inducement to surrender our allegiance” rather than the “superlatively foolish bit of political romancing.” They suggested that perhaps annexing the moon would be a more viable alternative for the United States.17 South Carolina’s Yorkville Enquirer effectively agreed, calling it just “another scheme for trouble” by the Radical Congress in Washington.18 And the Charleston Daily News reported that Ottawa was looking into presenting a bill to Parliament “providing for the annexation to the British Provinces of Minnesota, Michigan, and other border States,” adding that “the success of this plan is as probable as any other.”19 The Government of the United States, for its part, was less concerned about the comings and goings of America’s northern neighbours than was the chair of the Foreign Affairs Committee. It took notice of the proposed Confederation north of their border with limited interest. For the most part, officials in Washington were too busy with their own problems to be very worried about what was happening in the British colonies. The Civil War had just ended, and on March 2, 1867, Congress enacted the first of the Reconstruction Acts, placing ten Southern states under military governments. There was a general understanding that the British colonies would want to join the United States eventually, so there was no need to force the issue. Almost three years after the meetings in Charlottetown, Confederation was realized in London. On February 12, 1867, the Earl of Carnarvon, Secretary of State for the Colonies, introduced A Bill for the Union of Canada, Nova Scotia and New Brunswick into the House of Lords.20 He explained that the legislation was “laying the foundation of a great State – perhaps one which at a future day may even overshadow this country.”21 Lord Monck, who was to become the first Governor General of the Dominion of Canada, explained to his peers in the House of Lords that the union would be conducive “to the good government of these Provinces,” and it would enable them to “choose their future position in the world.”22 And in the House of Commons, Charles B. Adderley, the Under-Secretary of State for the Colonies, refuted any notion that Nova Scotia had been pressured into the Confederation or that the



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measure was simply designed to resolve the constitutional problems of the province of Canada. As he explained, “[T]hose difficulties were no more the cause of the proposal for the union of the Provinces than the divorce of Henry VIII was the cause of the Reformation.”23 There was considerable support for the measure among British parliamentarians on both the government and opposition benches. For sure, some concerns were aired, including “petitions from the Governors, Principal and Fellows at McGill College, Montreal, from the Provincial Association of Protestant Teachers of Lower Canada, and others” regarding the education provisions in what was to become the province of Quebec.24 But it was widely accepted that the new arrangements would promote trade and commerce, reduce British defence expenses in North America, and further serve to entrench the bonds of the Empire. Only six weeks after the bill was given first reading, and alongside the Metropolitan Poor Act, 1867 and the Dog Licenses Act, 1867, the British North America Act, 1867 received Royal Assent on March 29, 1867.25 The Dominion of Canada came into effect a few months later on July 1, 1867. Celebrations took place in all of the major cities of the first four provinces of the new nation – New Brunswick, Nova Scotia, Quebec (formerly Canada East), and Ontario (formerly Canada West). In Ottawa, there was a 101 gun salute and a large bonfire; in Toronto, there was a concert at the Horticultural Gardens followed by fireworks; and in Halifax there was a military procession.26 In Montreal, “the Mayor with an escort of trumpeters” proclaimed the New Dominion and “Maj. Stevenson’s Battery fired a salute in Victoria Square.”27 At the same time, opposition to Confederation also was on display. In Halifax there were flags lowered to half-mast,28 while in Saint John, the Union Jack hung reversed on some flagstaffs, though the Saint John Globe explained there was some question as to whether this was by design or ignorance.29 The New York Times provided full coverage of the changes taking place on its northern border. It was relatively skeptical about the new constitutional arrangements that provided for a “mixture of democracy and monarchism.” Readers were advised that patriotic, judicious, and moderate men might be able to make “it work for a time.” But overall, there was a negative assessment of the new Dominion – they would “be saddled with a debt far beyond their ability to sustain”; there was an “undue exercise of imperial influence”; it would now have to bear “the entire cost of their own defence”; and the smaller powers would be shut out of the federal government’s power. For the New York Times, it was “difficult to regard such a Constitution as anything else than provisional.”30

8

Roads to Confederation

Despite its critics, the skepticism with which it was received in some quarters, and some significant challenges along the way, Canada’s constitution has continued to serve its people for 150 years. There have been a number of amendments, the most significant in 1982 with the introduction of the Canadian Charter of Rights and Freedoms, and the addition of provisions relating to the Rights of the Aboriginal Peoples of Canada. The country has also expanded to include new provinces and territories: Manitoba (1870); Northwest Territories (1870); British Columbia (1871); Prince Edward Island (1873); Yukon (1898); Alberta and Saskatchewan (1905); Newfoundland (1949); and Nunavut (1999). One hundred and fifty years later, the Confederation compromise of 1867 has proved to be enduring. In recognition of the country’s 150th anniversary, this two-volume collection brings together outstanding scholarship on Confederation, whether originally written in French or English. Our goal is to provide readers with a broad range of perspectives, and we sought to include not only some of the “greatest hits,” but also material that traditionally has been viewed as outside the scope of Confederation studies. To this end, research focusing on Indigenous peoples has been included in this collection, as they have been generally excluded in scholarly literature in this field. This introduction is organized into three further sections. The first explains the impetus behind the collection and addresses the rationale for this project. The second discusses how we selected the material for the two volumes. Here we describe our process, including the survey of approximately 3,500 historians and political scientists undertaken in the spring of 2016. In the remaining section, we consider different ways scholars have approached the study of Confederation: by considering how Francophone and Anglophone scholars envisioned Confederation; by examining how it has been analysed by scholars through time; by examining competing perspectives embedded in the literature; and thematically, by addressing debates and issues important to the field. In the process we hope to provide insights not only into how Canada and its making has been studied, but also the significant gaps in the literature that still need to be addressed. 2. The Impetus behind This Collection This two-volume collection is intended to foster a substantive conversation about Canada and its future. Scholarship on the 1867 process



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has meaning for our current social and political development. In part, we wanted to unsettle the traditional boundaries of Confederation scholarship by considering the narrative of 1867 in a way that was more inclusive than previous collections of scholarship have suggested. Indigenous peoples, in particular, effectively have been excluded from Confederation scholarship. We wanted to begin to expand the traditional conception of what constitutes the body of literature on 1867. This project is also designed to ensure that, on the 150th anniversary of Confederation, scholarship is accessible. In 1999, Janet Ajzenstat, Paul Romney, Ian Gentles, and William Gairdner published Canada’s Founding Debates, comprising “excerpts from the debates on Confederation in all the colonial parliaments from Newfoundland to British Columbia and in the constituent assembly of the Red River Colony.”31 This collection, subsequently translated into French, constituted an enormous public service to scholars and to the Canadian public. Also of significance is the edited collection by Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay entitled Ces constitutions qui nous ont façonnés: Anthologie historique des lois constitutionnelles antérieures à 1867. It was later translated into English. It reprints important scholarship that re-examines, “from a serious, comparative and critical standpoint, the events and texts that led to the union of several British colonies in North America.”32 Our goal here is to do something similar for the secondary literature on Confederation itself. The need is clear. Many books are not available at local libraries or online. Journal articles are not readily accessible to the public, and even those that are accessible are not located in one place. Moreover, many people are not even aware of the scope of literature available. For example, research on Confederation was first published in 1868 with John MacMullen’s The History of Canada from Its First Discovery to the Present Time.33 John Hamilton Gray completed the first full-length analysis of Confederation in 1872 entitled Confederation; or, The Political and Parliamentary History of Canada from the Conference at Quebec, in October 1864, to the Admission of British Columbia, in July, 1871.34 Historian Frederic G. Mather published one of the first studies on Confederation from an American perspective in the Atlantic Monthly in 1880,35 while L.O. David completed one of the first full-length studies on the issues leading to the Confederation movement in Canada in L’Union des Deux Canadas, 1841–1865 (1898).36 And George M. Wrong, Sir John Willison, Z.A. Lash, and R.A. Falconer published one of the first collections to recognize a major anniversary of Confederation

10

Roads to Confederation

in Federation of Canada, 1867–1917 (1917).37 Several significant authors from earlier periods also seem to have been neglected in existing scholarship, including Richard Arès, Chester Martin, Norman McL. Rogers, and C.P. Stacey. One of our goals in this collection, therefore, is to draw attention to the comprehensive range of material available. We also want to ensure this material is accessible in another way, namely by making the best of Confederation scholarship available in both French and English. Although compiling collections of material on the anniversaries of Confederation is something of a Canadian scholarly tradition, the research has usually been published either in French or English alone. This matters, because it has the effect of narrowing and reinforcing, rather than broadening and challenging historical perspectives. Lastly, we – a team of scholars with training in history, political science, and law – undertook this project because the constitutional design decisions made in 1867 still matter greatly. The social, economic, and political context in which we live and work now has changed since the mid-1860s, yet the distinctive institutional configuration created by the Fathers of Confederation – parliamentary democracy and federalism – remains largely intact. Issues relevant to today’s politics (such as the rights of Indigenous peoples, the nature of intergovernmental relations, fiscal transfers, education, language, and the constitutional amendment process, among others) all have a foundation in the country’s 1867 debates. Understanding the competing perspectives on the emergence of Canada, therefore, has real value and relevance to our current political dialogue. To the extent that the Fathers created not just a constitution but also a “constitutional culture”38 that continues both to enable and constrain democratic politics in Canada, it is important to understand how and why it took the shape it did in 1867. 3. Selection of the Material Given the diversity in the range of approaches to understanding Confederation, it was a challenge to select the material for this collection. We began the process by preparing a bibliography on all of the Confederation scholarship that we knew existed. We were pleasantly surprised at the richness of material available in both official languages. We decided early on that there was no type of analysis that would be excluded from consideration – book chapters, articles, lectures, government publications, and court cases. We wanted each selection for the



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collection to have made an original, innovative, or meaningful contribution to the field in either French or English. Once this threshold was met, we considered three other factors. None of these criteria was required, but a combination of them influenced our selection. First, we wanted to include material that addressed a diversity of subject matter – people, communities, regions, and issues, even if they had been generally ignored or overlooked in the past. Foremost in our mind was that the collection should include scholarship focusing on Indigenous peoples. They were not consulted about the 1867 project, nor were they invited to any of the constitutional conferences held during the 1860s. Their communities were profoundly affected by it nonetheless. Second, Canada as a country has spanned 150 years, and we wanted to ensure the scholarship selected did the same. We were keen to include both historical and contemporary material. To this end, the collection contains excerpts from the first full-length history of Confederation in 1872 and from one written in 2016. Third, we wanted the literature selected to represent a diverse range of methods, approaches, and perspectives. We therefore identified sources that reflected a cross-section of scholarship on the nature of the 1867 project. After examining each potential article for inclusion, we arrived at a consensus for our selections. We then undertook a Canada-wide survey to get a sense of what other scholars thought of our choices and to see if they had other suggestions we had not considered. In other words, we wanted to confirm that our selections were representative of the field. To do this, we worked with Lesley Jacobs, the Director of the Institute of Social Research at York University, to develop a survey on Confeder­ ation scholarship. It was sent to approximately 3,500 scholars listed as instructors in history or political science departments on the websites of Canadian universities in April 2016. Our criteria for inclusion in the survey were expansive. We sought responses from all faculty members who taught in these departments, including contract, part-time, and permanent faculty, as well as emeriti and those who held crossappointments to other departments or faculties. Moreover, we made no attempt to pre-judge interest in, or familiarity with, Canadian history or politics. Rather, we cast our nets as broadly as possible, inviting participation from scholars in all fields of political science and history, understanding full well that a survey about Canadian Confederation would excite less interest among those who study (for instance) medieval history or the politics of South Asia.

12

Roads to Confederation

The survey, available both in English and French, asked respondents to select the authors and works that most influenced their own understanding of the Confederation period. To this end, we provided a list of approximately forty authors and fifty publications and asked respondents to choose the most influential from each category. We separated the French-language sources from the English-language sources to ascertain how French and English scholarship was assessed independently. We also provided an opportunity for respondents to suggest other publications or scholars not on the list. Almost 500 people responded to the survey. Considering the size and character of the survey project, this was an extremely robust response rate. We aggregated the results to identify the most frequently cited, that is, the most “influential,” authors and works on Confederation as selected by our respondents. The survey results reinforced many of the preliminary choices we had made for our collection and, at the margin, helped us make difficult choices about others. Here are some broad findings that emerged from the data. First, the survey results vividly confirm earlier studies that argue there is an asymmetry between Francophone and Anglophone scholars; Francophone scholars are much more likely to read scholarship in English than Anglophone scholars are to read scholarship in French. Among Franco­ phone respondents, Fernand Dumont was considered to be the scholar who most influenced their understanding of the nature and significance of the Confederation project, with Ramsay Cook a close second. Samuel LaSelva, A.I. Silver, Stanley B. Ryerson, and Jean-Charles Bonenfant then followed. Among Anglophone respondents, on the other hand, the story is quite different. The Confederation scholars they most frequently mentioned wrote almost exclusively in English. Peter Russell and Donald Creighton clearly stood out as the most influential, while Ramsay Cook, Janet Ajzenstat, and A.I. Silver also ranked highly. The scholarship respondents cited also underscored the linguistic divide. Most Anglophone students of Confederation still largely read, and are most influenced by, English-language scholarship alone. This result reinforced our commitment to include French-language scholarship in this collection. The collection contains extensive representation of Francophone scholarship, and seven selections have been translated from French to English for the first time. Both English and French respondents emphasized the importance of primary sources in the study of Confederation. Royal commission



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reports such as the Rowell-Sirois Report (1940), the Tremblay Report (1956), and the Laurendeau-Dunton Report (1970) were cited as influential works. Canada’s Founding Debates, edited by Ajzenstat, Gentles, Romney, and Gairdner, which reproduced legislative debates during the 1860s, also was ranked highly. Second, it was clear to us that scholarship examining the role of political elites and institutions is dominant among the scholars surveyed. From the outset, we were committed to broadening the field of political vision to include those groups and communities whose interests were affected by the Confederation proposal but who had no or little political standing. But the scholarship that was identified as influential by survey respondents clearly emphasized “high politics.” Of course, framing history in terms of “high politics” is less dominant as an approach now than it once was, especially among professional historians. This may explain the tendency among Anglophone respondents to identify a cluster of “classical” studies as most influential. And it may explain why most of the scholars identified as influential worked at a time when political history, especially seen through the lens of elites and institutions, was the dominant approach. We were struck, however, and this is the third way in which the survey informed and refined our thinking, by a number of suggestions from respondents that fell outside of the 1867 arrangements per se. For Fernand Dumont, for example, the turning point for French Canadians was the Union of Lower Canada and Upper Canada, and not Confederation, since the repression of the 1837–38 rebellions meant the abandonment of any attempts to become sovereign until the 1960s. For scholars such as Dumont, to treat Confederation as a “founding” both exaggerates its importance and misidentifies Canada’s real origins. Fourth, there was a recognition that more research needed to be undertaken on Indigenous communities during Confederation period. This was by far the most common response to the questions of what areas of future research needed attention and recognized an important gap in the scholarly literature. As one survey participant explained, there is a real need to re-balance the focus, which, to date, has been on the nationbuilding initiatives undertaken by the likes of Macdonald. For this scholar, “the dominant set of works for our next generation of historians and students” should focus on “an ‘indigenization’ of knowledge, that is a move away from the Euro/White Canadian-centric lens” that currently dominates the literature. This finding also confirmed our selections for this collection.

14

Roads to Confederation

The survey demonstrated that the Confederation project was understood to be, at bottom, a constitutional project, and the materials included in this anthology reflect that fact. But as these findings also suggest, it was not an all-inclusive, once-and-for-all “founding.” Rather, the survey confirmed our view that the promulgation of the British North America Act, 1867 was one part, albeit an important part, of a larger, more complex, and more developmentally varied process that ultimately produced Canada. We have tried, especially in the first and last sections of the anthology, to capture some of the elements of this dynamism to emphasize that there were many pathways that led to the making of Canada. While Donald Creighton’s famous 1964 study was entitled The Road to Confederation, we believe that in 2017 it is important to recognize there are many ways to understand the move towards Confederation. 4. Approaches to the Study of Confederation The study of Confederation has evolved significantly over the past 150  years, and no doubt will continue to do so. This section reviews some of the dominant approaches, and in the process, provides some context to the selection of materials in this two-volume collection. At the same time, our review underscores there are a number of significant gaps in the literature, particularly as they pertain to Indigenous peoples whose role as a third founding nation has received scant attention in Confederation scholarship to date. In the first part of this section, we review the two dominant visions of Confederation advanced by Francophone and Anglophone scholars over the past 150 years. Next, we focus on the importance of the intellectual and temporal context in which Confederation research is undertaken. How the making of Canada is framed and understood has been significantly affected by the period in which a scholar undertook his or her analysis. The third approach we examine focuses on the competing perspectives embedded in the Confederation literature. Whether the adoption of the British North America Act, 1867 is understood as an important event, part of a larger structural change, or even a relevant issue, is inherently shaped by one’s viewpoint. Lastly, research on Confederation can be understood thematically, as a series of debates or questions that have been the focus of scholarship. This section briefly considers seven of the major issues addressed in the 1867 literature and, in the process, briefly reviews the organization of each chapter in the two-volume collection.



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a) The Francophone and Anglophone Visions of Confederation Book Two of the 1968 Report of the Royal Commission on Bilingualism and Biculturalism explained that Canadian children traditionally have been taught one of “two versions of Canadian history – an English version and a French version.”39 The history books in English focus on “the establishment and survival of Canada as a political entity in North America,” while for those in French, “the dominant theme is the development and survival of French-Canadian society.”40 Although there have been changes to school curriculums since the 1960s, these two visions continue to be the dominant accounts of the making of Canada. The implications are significant, as they affect not only our historical narrative, but also our current political debates. Paul Romney has pointed out in Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation, “One of the things that bedevils relations between the two peoples is the discrepancy between what they each learn about the history of their country.”41 Equally significantly, these two visions of Confederation perpetuate the myth that there is no role or place for Indigenous peoples in the making of Canada. The different Francophone and Anglophone visions of Confederation are perhaps best demonstrated in the debates of the 1937 annual meeting of the Canadian Political Science Association. Roger Brossard, a newly minted law graduate from the Université de Montréal, delivered a conference paper entitled “The Working of Confederation: A French Canadian View.”42 While his emphasis on the dynamics of federalism was expected, given Judicial Committee decisions limiting federal involvement in the economy at that time, the English-speaking conference participants were hostile both to him and the message he delivered. Brossard explained that Confederation was “in spirit if not in letter, a pact, a compromise between two races, on the basis of absolute equality with all that equality means,”43 and that provincial autonomy was a definitive feature of this arrangement.44 But he argued the 1867 agreement was not working as intended and, in hindsight, the French-Canadian opposition to it in the 1860s was justified. Provincial powers had been narrowly interpreted in areas French Canadians “considered sacred.”45 Any use of French-language rights outside of the “Quebec Reserve” had been met with immediate opposition from the majority.46 Statistical evidence demonstrated that French Canadians not only were appointed to fewer public service positions than their English counterparts, but they also were underpaid relative to them.47 And Quebec benefited less

16

Roads to Confederation

than other provinces from federal policies and programs pertaining to settlement, railroads, and subsidies.48 Brossard anticipated that this portrayal of Quebec’s position might not be well received by the conference participants. He tried to reassure them in advance, by explaining that he was not one of those people in Quebec who called themselves separatists.49 He emphasized that “whether of English descent or French descent, we are all, unknowingly perhaps, deeply Canadian at heart.”50 At the end of his presentation, he even apologized to those present by explaining that if he had “hurt [his] English-speaking fellow citizens by a too brutal exposition of the facts,” it was because he thinks and reacts as a Frenchman (as he called himself), while they “have learned to think and react as good Englishmen should.”51 But Brossard miscalculated if he thought this mea culpa would temper conference participants’ criticisms. Professor F.H. Underhill, University of Toronto, chastised Brossard for “dwelling” on the “moral aspects” of the issue, “as too many French Canadians were wont to do.” Brossard had “if not by affirmation by inference,” suggested “in French Canada, particularly in Quebec, there was a higher moral quality than in any other part of Canada.” Underhill told Brossard that “such a superior attitude was dangerous” and not­ ed that the young scholar had “scarcely touched upon” the economic problems facing the country in his analysis.52 Professor Frank Scott, McGill University, said he sympathized with Brossard but explained he had placed “too much emphasis … on the danger of undue interfer­ ence with racial and religious guarantees.” Scott said, given demographic changes, Brossard had not considered that the “privileges now enjoyed in the one province where French Canadians were in the majority should, and might, be extended to provinces where they were in the minority.” According to Scott, this “was a proper realization of what was in the minds of those responsible for the arrangements made in 1867.”53 Political scientist Alexander Brady, University of Toronto, told Brossard that there was an inconsistency in his “very excellent paper,” as he had argued that French-Canadian opinion in Quebec was both supportive and opposed to change of the British North America Act, 1867. Brady “would like to have heard to just what extent Monsieur Brossard was prepared to agree to revision [of existing constitutional arrangements].”54 Paul Martin, M.P., also was critical of Brossard’s analysis: If Monsieur Brossard properly interpreted public opinion in Quebec, there would be occasion for discouragement. Certainly the intention of the Fathers of Confederation, both French- and English-speaking, was that a



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nation composed of various provinces should be the ultimate result, and the stress laid by Monsieur Brossard on provincial autonomy is hardly in keeping with this thought.55

Martin suggested to Brossard that he had “under-estimated the extent to which public opinion in English-speaking Canada supported the retention of racial and religious privileges.”56 Only Brooke Claxton, then a lawyer in Montreal, came to Brossard’s defence in any meaningful way. He gently chided the distinguished participants for their relatively harsh critiques that morning, and explained “that it would be well for this group to realize that there had been considerable change of recent date in the province of Quebec.”57 These exchanges underscore, in vivid fashion, the point made in the Bilingualism and Biculturalism Report about the two versions of Canadian history. They reflect the fundamental distinction between the two communities on the nature of Confederation that has underpinned the politics of Canada for 150 years. They also demonstrate the linguistic and national divisions in the country and their impact on both scholarship and policy. Part of the story is about how history is written. The scholars who offer the accounts of the 1867 project no doubt have their own personal views and biases.58 But there is also a clear divide between the Francophone and Anglophone scholarly communities that significantly affects the very narrative of Confederation, and accordingly, the relations between the two main linguistic communities. Part of the problem, surely, stems from the fact that Anglophones do not sufficiently engage with scholarship written in French. In 2002, two of the editors undertook an analysis of how federalism was studied in Canada. David R. Cameron and Jacqueline D. Krikorian reviewed twelve journals in law, political science, economics, and history that were published in both French and English between 1960 and 1999.59 One aspect of the project was to gain an insight into the kinds of sources that influenced the research and analysis of students of Canadian federalism. A detailed examination of the footnotes of the various publications was undertaken for this purpose. One of the findings that emerged from this study was how rarely Anglophone scholars used French-language sources in their work. In a review of the citations on Confederation scholarship in three political science journals published between 1980 and 1999, the authors found that the articles written in French used English sources approximately 51% of the time, whereas articles written in English used French sources

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Roads to Confederation

approximately 5% of the time.60 In 2007, François Rocher addressed the issue in a more comprehensive manner in “The End of the ‘Two Solitudes’? The Presence (or Absence) of the Work of French-Speaking Scholars in Canadian Politics.” Rocher also found that “[t]he academic research on Canada done by my francophone colleagues seemed almost ignored in English literature dealing with Canada.”61 A.R.M. Lower refers to the existence of these two communities and two ways of life as the “primary antithesis” of Canadian history.62 He accepted there would be no merger between them. These competing Anglophone and Francophone narratives of 1867 infuse historical writings, shape the way in which we have interpreted history, affect today’s policy debates, and influence the construction of our imagined communities.63 But at the same time, they frame Confederation as a merger of two nations and ignore Indigenous peoples, their contributions, and the hardships they endured.

b) Confederation Scholarship and the Lens of Time: 1917, 1967, and 2017 When the Confederation plan was introduced to the Canadian Legis­ lative Assembly in February 1865, Governor General Monck said he “looked forward to the rise of ‘a new nationality’ under confederation.”64 The Rouge opposition from Canada East took umbrage at the invocation of a “new nationality.” Macdonald, however, embraced it: And it seems to me, as to [the other delegates], and I think it will so appear to the people of this country, that, if we wish to be a great people; if we wish to form … a great nationality, commanding the respect of the world, able to hold our own against all opponents, and to defend those institutions we prize … this can only be obtained by a union of some kind between the scattered and weak boundaries composing the British North American Provinces.65

Not to be outdone, Cartier followed with his own sketch of a distinctively Canadian national identity: Objection had been taken to the scheme now under consideration, because of the words “new nationality.” Now, when we were united together, if union were attained, we would form a political nationality with which neither the national origin, nor the religion of any individual, would interfere.66



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These statements are noteworthy in a couple of ways. The first is that, from the outset, the debate over Confederation in Canada centred on the claim that federal union entailed nation-building – understood not simply as the construction of a transcontinental railroad or other public works but as a form of civic identity and attachment. As Frank Underhill explained in 1963, the Fathers of Confederation deliberately initiated the narrative of a “complex nationality” and were aware of the boldness of their claim.67 Supporters and opponents alike understood perfectly clearly, that in making a constitution the Fathers were attempting to fashion a new national identity; both sides understood the stakes. The second observation is that the statements by Macdonald and Cartier were aspirational. They understood that nations are constructed over time. The role of constitution-makers, like the Fathers of Confederation, is to identify certain basic symbols, institutions, values, and cultural commitments that can over time create a bond among people “who imagine themselves connected to each other as objects of special concern and loyalty by something that they share.”68 Constitutions flourish as a tool of nationalism to the extent that they resonate with, and are embraced by, citizens who see them as crucial parts of their cultural heritage. They are a resource to be drawn on, not so much at the time of their creation as by future generations.69 Constitutional anniversaries, of which 2017 is an example, are therefore important social and political moments, because they provide special opportunities to reinforce, repair, and even reinvent the sort of shared cultural heritage that is the glue that binds nations together.70 As Bernard Yack puts it, [A] nation is an intergenerational community. The members of a nation share something that connects them back in time to a particular point of origin and forward into an indefinite future. As such, they share predecessors and successors who are regularly invoked to deepen the ties that bind the living and extend their sense of obligation to past and future generations.71

This is why commemorations – collective acts that dwell on what a defined community has inherited – whether glorious or traumatic, celebratory or painful – matter.72 As Matthew Hayday and Raymond Blake note in the introduction to their recent collection of studies of holidays and national days,73 the deployment of such cultural symbols in Canada is a complex matter. The

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use of cultural symbols is historically dynamic; it changes both in form and content over time. Thus, “the identities of Canadians, Quebeckers, Acadians, British Columbians, and so forth were not static, nor were the means by which they were celebrated and marked.”74 What is more, these identities are plural, not singular; Canadian identities have never been “monolithic, and one of the most interesting dimensions of these [national holidays] is the contestation between competing conceptions of what these identities were, and what they should be.”75 The patterns that Hayday and Blake detect in the celebration of annual micro-­ historical holidays, such as Victoria Day, Empire Day, and Canada Day, characterize, we believe, the macro-historical markers of 1917, 1967, and 2017 as well. Canadian scholars have long recognized the anniversaries of the 1867 project with publications on the history of Confederation. There is a cluster of this type of “anniversary research” at each of the country’s significant milestones. Some of these studies are celebratory in nature, some are more analytical, while others are critical and revisionist. This section examines the relationship between the country’s Confederation anniversaries and the historical scholarship that captured their relatively contested essence. We hope this brief temporal review of “anniversary scholarship” will provide insights into the social fabric of the nation during these periods as well as further context for the publication of this collection. As W.A. Mackintosh explains, “History is emphatically not ‘past politics’; it is the life of yesterday in the present.”76 The Semicentennial, 1917 In 1917, on Canada’s semicentennial, the country was in the midst of an acute crisis. There was a war in Europe and division on the home front. Fifty years after Cartier endorsed the British North America Act, 1867 on behalf of Canada East, Francophones were reflecting on their place in the new nation. Indeed, they were questioning the very nature of the Confederation agreement. As Marcel Martel demonstrates in Le deuil d’un pays imaginé, French-speaking minorities outside of Quebec were equally dissatisfied, since their right to French education was limited or denied in most provinces.77 Several issues pitted Anglophones against Francophones, placing Quebec sovereignty momentarily on the political agenda. Between 1867 and 1917, there had been several incidents that created tension between the French- and English-speaking populations. The arrest and condemnation of Métis leader Louis Riel, in 1885, for his role



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in the Indigenous and Métis uprising in the Prairies divided the country along linguistic lines. The Quebec Legislative Assembly’s passage of the Jesuits Estates Act in 1888 had been the focus of a bitter dispute between Protestants and Catholics. There also were a series of crises in education. In New Brunswick (1871), denominational schools were left without adequate funding. In Manitoba, French was abolished as an official language in 1890, and a series of legislative measures systematically dismantled French-language education by 1916. And in 1912 in Ontario, the use of French instruction was restricted to the first two years of elementary school. But it was the conscription crisis during World War I that resulted in the greatest rift between English and French Canada. Although Prime Minister Borden had assured a jittery public that the military draft would not be necessary to support Great Britain, he reversed this policy. In 1917, Parliament adopted the Military Service Act, which introduced conscription. A divisive election on the issue was held in December of that year, and Borden was returned as Prime Minister but with almost no support in Quebec. French-speaking Quebec sent a clear message to Ottawa that they were flatly hostile to conscription in the province. In January 1918, Joseph Napoléon Francœur introduced a motion for sovereignty in the Quebec legislature: That this House is of [the] opinion that the Province of Quebec would be disposed to agree to breaking the Federation pact of 1867 if the other Provinces consider that Quebec is an obstacle to the unity, progress and development of Canada.78

Although the measure did not pass, the sentiment it reflected was potent and long lasting. It was a symbol in the starkest terms of the dissatisfaction Francophones had with the implementation of the Confederation bargain. And it brought into full view the idea that Canada was divisible if French-speaking Quebec could not have its voice heard on critical national affairs. On the country’s fiftieth anniversary, Le Devoir spoke of the negative implications of the country’s involvement in Great Britain’s war: Canada’s participation in the war, in the manner and in the proportions in which it takes place, jeopardizes the future of the nation, creates between its principal elements the most cruel of divides, reversing the traditions and ruining the principles on which Confederation was founded. It would

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suffice, by itself, to explain the absence of enthusiasm, the lack of manifestation of the feeling of national unity that marks the fiftieth anniversary.79

In contrast, the Montreal Gazette, the Saint John Globe, and the Toronto Globe led with coverage of Prime Minister Borden’s Canada Day speech linking the maturity of the nation to its important contribution to the war for the Empire. Explained the headline in The Gazette, “Must Main­ tain Effort in Last Great Chapter, Sir Robert Borden Utters Inspiring Message on Occasion of Dominion’s Anniversary.”80 Similarly, scholarship focusing on Canada’s fiftieth anniversary reflected this deep division between the French and English communities. In 1917, Lionel Groulx, who would become one of the most widely recognized French-speaking historians, commented on the betrayal, contending that Canada had become “a servile state of the British Empire.”81 He denounced immigration that came mostly from English-speaking countries and referred to French Canadians as a minority, regardless of where they lived in the country at the time. Although Groulx wrote a positive assessment of 1867, he questioned what politicians had done with the 1867 compromise. Instead of protecting Francophones and their rights, he argued they failed as leaders, since French Canadians were no longer guaranteed cultural security anywhere in the country. He emphasized that he thought the fiftieth anniversary speeches “hypocritically speak of peace and national unity,” leaving French-speaking minorities on the defensive and fighting “not just for one or other of their rights, but for the supreme right of existence”: And these things are happening under the impassive eye of our central government, which has constantly demonstrated a perfect stupidity of its duty. In time of crisis do we see it doing something effective to defend minorities and keep intact one of the bases of the 1867 agreement? … How can the supreme power urge us to respect past commitments when it is, itself, perpetuating a regime of rights and oaths violations against us; these violations carried out by an ally, take on the character of abject betrayal.82

At the time Groulx wrote this, he was actively involved in the Ontario school crisis and this, no doubt, further entrenched his views. In contrast, Anglophone scholars writing about Confederation heralded the country’s achievements in their 1917 anniversary studies. In recognition of fifty years of Confederation, the University of Toronto



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published four lectures emphasizing Canada’s accomplishments. En­ titled the Federation of Canada, 1867–1917, its prefatory note explained that although the country was “almost wholly occupied with the great war,” the authors felt they would be neglecting their “patriotic duty” if they failed to commemorate such a notable anniversary. They describe large audiences attending their Confederation lectures and say that they were publishing them “in the hope that they may help to emphasise the significance of a momentous political movement.”83 Each contribution in the University of Toronto fiftieth anniversary collection highlighted Canada’s achievements both at home and in its involvement in World War I. Noted historian George M. Wrong reviewed the political history of Confederation and ended his contribution with a “tribute of admiration to the builders of 1867.” For him, “[w]e can do nothing better than to continue their work in the spirit in which they conceived it.”84 Journalist Sir John Willison’s paper recognized some of the “imperfections and failures of the Fathers of Confederation,” while also recognizing their accomplishments, explaining they “would rejoice with solemn pride in the spirit of the young nation.”85 Zebulon A. Lash, a member of the bar and former Deputy Minister of Justice, delivered a lecture on the legal niceties of the British North America Act, 1867. He argued that the “great Dominion of Canada” was “organized, prosperous and law-abiding” and had demonstrated it could shoulder its “full share” of defending both the Empire and humanity.86 In his contribution, the fourth in the collection, the then President of the University of Toronto, Robert A. Falconer, emphasized the importance of Canadian participation in the righteous war, though he focused his analysis on the social fabric of the nation. He argued that Canada had been “a successful achievement”87 and he reviewed many of its strengths, including education, commerce, and western expansion. Falconer expressed a conventional English-speaking Canadian view of his day, arguing that Western Canada was fulfilling its destiny as a region for European settlement where English would be the dominant tongue. Although there was no contribution to the collection by a Franco­ phone, the status of French Canada was addressed at varying points by the authors. Wrong’s analysis emphasized that the constitution made Canada a bilingual country where “equal status” was given to both linguistic communities. For him, “[t]he compromise in Canada gave the French language a national status as the sister tongue with English in

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all federal affairs.”88 Willison portrayed leading Francophones in 1867 in a generous and positive light, including those who were opposed to Confederation.89 Falconer speaks positively of Francophones in general, though he was less generous to the “Quebec nationalist” who “aims at producing [a nation within a nation] and … instigates the common people to fret against their barriers and to claim rights beyond those given them by the constitution.”90 Between 1913 and 1917, there also was a massive collection of historical scholarship edited by Adam Shortt and Arthur G. Doughty. Entitled Canada and Its Provinces,91 this twenty-three volume edited collection houses 152 articles by ninety-six authors on the history of Canada between 1534 and 1913. Shortt and Doughty emphasized their goal was to provide “a sound knowledge” of history in order to facilitate “a broad national spirit” and “[g]ood citizenship.” They recognized the “danger of sectionalism” resulting from geographic distances and the “differences of environment, of local interest, language and race” and argued that “[w]ith knowledge, the prejudice and narrowness of sectionalism give way to an enlightened patriotism which vibrates to the sentiment of nationality.”92 Implicitly, they recognized the divisions in the country, though did not systematically address them in any direct manner. Several distinguished writers were involved, including Thomas Chapais, J.W. Dafoe, A.D. De Celles, T.G. Marquis, Duncan McArthur, Edward Sapir, and O.D. Skelton. While political history was the primary focus of the collection, other fields of study were also addressed. For example, eleven articles focused on education, eight examined religion, and nineteen addressed agriculture and natural resources (including mining, forestry, and fisheries). Some of the research concentrated on policy issues (such as labour, immigration, architecture, and the postal service) while still others focused on varying communities in Canada (such as the Acadian and the Red River settlements). Combined, this scholarship offered a comprehensive view of the country on its fiftieth anniversary that had no comparator at the time. Indigenous communities were the focus of five articles, and Duncan Campbell Scott, who had risen through the ranks at the Department of Indian Affairs between 1879 and 1932, authored three of them. He discussed the military, administrative, and governance aspects of the “Indian problem”93 and detailed the efforts undertaken “to civilize, educate and christianize the Indians.”94 Anthropologists J.A. Teit and E. Sapir wrote the other two studies, providing an anthropological perspective on some western communities.95 Teit was one of the



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rare exceptions in the scholarly community during this period when he commented on the “evils of the white man’s civilization” on Indig­ enous communities.96 However, in aggregate the fiftieth anniversary scholarship largely ignored Indigenous populations and their interests. The focus was on divisions between the English- and French-speaking populations. It was implied in some scholarship, and directly addressed in others. The literature of the period shows clearly there was a sense that the country was at a turning point: the conscription crisis and Canada’s involvement in World War I ushered in a new era of nations, nationalism, and what it meant to be Canadian. The Centennial, 1967 For many, Canada’s 100th anniversary was a true coming of age for the country. Canada had formally shed its colonial status with the passage of the Statute of Westminster, 1931 and was actively engaged on the world stage. The presentation of the 1957 Nobel Peace Prize to Lester B. Pearson for organizing the United Nations peacekeeping intervention in the Middle East during the Suez crisis was considered a symbol of the country’s new middle-power status in the international realm. This understanding of an emerging confident nation was reinforced several years later with Canada’s successful hosting of the 1967 World Exposition in Montreal. But on the home front, the nature and tenor of the political debate was shifting. The death of Maurice Duplessis in 1959, and the subsequent election of Liberal leader Jean Lesage ushered in the Quiet Revolution in Quebec. The secularization and modernization of the province’s social and economic foundations led to a new self-awareness for its French-speaking inhabitants. Not only was there a re-awakening of the province’s conception of itself as the protector of the Québécois identity, but it also began to re-envision its future relationship with Englishspeaking Canada as an equal partnership between Quebec, a province defined as the national community of French Canadians, and the rest of Canada. The corresponding emergence of the Parti Québécois in 1968 – a sovereigntist party that would eventually be elected to govern the province in 1976 – left more than a few wondering about the long-term viability of the 1867 project on the eve of its 100th anniversary. In his book The Empire Within, Sean Mills has documented how in 1960s Quebec, decolonization theory fuelled a sense of alienation and helped make sense of the struggle faced by French Canadians, famously

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defined by Pierre Vallières. French Canada and Quebec seemed to have reached a boiling point.97 The Front de libération du Québec was formed and engaged in a series of violent acts throughout the 1960s. In 1965, the Royal Commission on Bilingualism and Biculturalism released its preliminary report and stated that Canada “without being fully conscious of the fact, is passing through the greatest crisis in its history.”98 Two years later, French President Charles de Gaulle toured Quebec and provocatively declared on the balcony of Montreal City Hall “Vive le Québec libre!” In a July 4, 1967, editorial for Le Devoir entitled “Beyond Illusions,” Jean-Marc Léger reacted to comments made by Fernand Dumont. Ac­ cording to Dumont, despite the Conquest, French Canadians had been able to survive because they were isolated. Now Léger claimed that there was no clear strategy regarding the future of French Canada. There was no political leadership. For Léger, there was nothing to be proud of about French Canada. Referring to Dumont, he argued the future required that French Canadians opt for sovereignty.99 On the other hand, the Toronto Star’s enthusiastic coverage of Canada at 100 was typical of English-language newspapers. Its entire front page featured stories about events in Ottawa, the speech by the Queen, and the 50,000 people in attendance at the city’s Centennial birthday parade. It also contained a twenty-four-page special insert section dedicated to capturing the mood at the start of Canada’s second century.100 As in 1917, the anniversary scholarship of the period reflected the political tension on the home front. The Journal of Canadian Studies launched in 1966 with a debate about what really happened when Nova Scotia, New Brunswick, and Canada decided to unite in 1867. Donald Creighton wrote the first article in the first issue of the new journal entitled “Confederation: The Use and Abuse of History.” It was not the first time that Creighton questioned the intentions of those who interpreted historical events.101 Creighton argued that some Quebec politicians were re-inventing the true meaning of the 1867 arrangements in order to justify their current demands for constitutional reform. For Creighton, the re-interpretation of Confederation as a pact or agreement between two nations stood in stark contrast to his view that the Fathers of Confederation intended to establish “a great transcontinental nation in the form of a constitutional monarchy under the British Crown … [with] the concentration of legislative power in a single sovereign legislature.”102 The special 1967 Confederation issue of Revue d’histoire de l’Amérique française103 included scholarship by Richard Arès, Jean-Charles



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Bonenfant, Robert Boily, François-Albert Angers, Léon Pouliot, and two earlier publications by Groulx himself. Rosario Bilodeau wrote the introduction and emphasized that Con­ federation has not always been a joyful experience for Francophones. He explained that the journal decided to publish a special issue on the topic but he stressed that the articles did not adopt a “celebratory tone” and “had no intention of promoting propaganda in favour of the celebrations.” Rather, it was a moment to reflect on 100 years of shared history and to take stock of accomplishments.104 Bilodeau cautiously emphasized that the various contributions would highlight the challenges that Francophones had faced since 1867 and, more specifically, would analyse why Confederation had not delivered more positive results for them. Although his preface was relatively short, it appears that Bilodeau was trying to walk a fine line between being neither too critical nor too enthusiastic about the 1867 project.105 Father Richard Arès’s contribution contained an argument that he had developed in an article published in 1963 in the journal Relations entitled “la grande pitié de nos minorités françaises.”106 Using the results of the 1961 Canadian census, Arès argued that Confederation had accelerated the process of linguistic assimilation, creating a situation in which more than half a million French-speaking people outside of Quebec had lost touch with their language. He stated that the cultural and linguistic assimilation of French Canadians in the rest of the country would have terrible consequences for the survival of Confederation. The differences in perspectives and sentiments between Creighton and Arès are striking, though more restrained in most of the other centennial scholarship.107 As part of the Canadian Historical Readings series, Ramsay Cook published a collection of six previously published articles by historians – D.G. Creighton, C.P. Stacey, P.B. Waite, Walter Ullman, A.G. Bailey, and G.F.G. Stanley – entitled Confederation.108 In his introduction, Cook pointed out, “No French-Canadian historian has written a full-scale documented study of Confederation” that was comparable to “those published by English-speaking scholars.” He explained that this point was significant because it underscored that 1867 did not hold the same meaning for the two communities and that some Francophones viewed it “as a tragedy for their people.”109 Cook acknowledged the important contributions by French-Canadian scholars such as Lionel Groulx and Thomas Chapais. But it is notable that there is no work by a French scholar included in this centenary anthology. The federal government sponsored a bilingual publication on Con­ federation for the centennial celebrations in a series of ten pamphlets

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written for a general audience. Both English- and French-speaking scholars participated in the project. The Centennial Commission published the collection. The series, written for a general audience, did little more than touch upon the concerns being expressed by nationalists in Quebec. During this period there also was a flurry of book publications, albeit primarily in English. P.B. Waite’s The Life and Times of Confederation, 1864–1867 (1962)110 is perhaps one of the most recognized English studies of the period, given its use of over 350 French- and English-language newspapers to allow for the “sound” of the voices of Confederation in his research.111 Francophone scholarship provided a relatively pessimistic assessment, emphasizing how unsuccessful Confederation had been for Quebec. Of note is Richard Arès’s full-length study on Confederation entitled Dossier sur le pacte fédératif de 1867, La Confédération: pacte ou loi?112 and François Hertel’s book entitled Cent ans d’injustice? Un beau rêve: le Canada.113 A number of other significant books were published as part of the Canadian Centenary Series. This collection effectively built upon the remarkable Canada and Its Provinces series fifty years earlier and is comparable in terms of its scope and significance. It was a considerable accomplishment, involving collaboration among government, private-sector, and scholarly communities. W.L. Morton and D.G. Creighton conceived of the series whose “general theme … [was] the development of those regional communities which have for the past century made up the Canadian nation.”114 From the outset, they envisaged the project as one that would provide a “general narrative treatment” that “should deal in a balanced way with economic, political, and social history.”115 The collection was published over approximately twenty-five years, from the 1960s to the last volume in 1988 by Morris Zaslow, The North­ ward Expansion of Canada, 1914–1967.116 The collection included Marcel Trudel’s The Beginnings of New France, 1524–1663,117 Hilda Neatby’s Quebec, The Revolutionary Age, 1760–1791,118 and Jack Granatstein’s Canada 1957–1967: The Years of Uncertainty and Innovation.119 The series was a considerable accomplishment. Many of the country’s most distinguished historians were involved. There was a clear chronological ordering to the work, with each book examining a particular theme within a specific time period. Conscious that history is an interpretation of events not based in science, Morton and Creighton explained that they deliberately sought to ensure that “certain parts of the history [were] told twice, in different volumes from different points



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of view, in the belief that the benefits gained out-weigh the unavoidable disadvantages.”120 Yet, all in all, as Lyle Dick has argued, the work emphasizes “the commonalities, rather than the differences, in Canadian history.” Dick points out that the collection was not designed to “accommodate alternative national aspirations, the history of Indigenous peoples, or other groups or regions that did not fit in with its emphasis on Anglo-French duality within the Canadian nation-state.”121 Indeed, Dick notes that in 1962, the Indian-Eskimo Association of Canada had expressly sought to ensure that “a reliable account of the contribution of our Indians to the development of Canada” was included in the collection. Morton, however, responded that, while the authors would give the issue whatever attention they could, he did not envision that “[a]n anthropological or sociological treatment” could be expected in the series.122 The Confederation scholarship of the country’s centennial period was extensive, and at times highly political. It did not display a shared sense of what tomorrow would bring; there were genuine divisions in the country, and the Confederation scholarship reflected the national mood. As in 1917, Francophones had concerns not only about the direction of the country but also their place in it, but the difference was that by 1967 the sovereignty movement had placed Quebec’s status within or outside the country – and therefore Canada’s very existence – squarely on the national agenda. Indigenous peoples continued to be left on the sidelines of scholarly debate with relatively little interest shown in their history, culture, or circumstances, despite the discussion of their status that emerged around the federal government’s 1969 White Paper. The release of the White Paper, which proposed an end to Indian status and the assimilation of First Nations into Canadian society, galvanized a new generation of Aboriginal political leaders who would play a key role in shaping constitutional politics in the 1980s and 1990s. However, at Canada’s Centennial, Indigenous peoples were treated as a peripheral factor in the interpretation and celebration of Confederation.123 The Sesquicentennial, 2017 We have surveyed how earlier generations of scholars, citizens, and governments invested meaning in Confederation in ways that spoke to the felt needs of their own times. What, then, of 2017? Does a contemporary understanding of the Confederation era yield a point of reference that can help us navigate the future? As there is no end in sight

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to the flood of sesquicentennial publications and projects, we can offer only a provisional assessment of the current use (and occasional abuse) of the Confederation story. This assessment is perhaps best put in the form of questions rather than answers. One concerns an obvious (but often under-appreciated) historical fact, namely the longevity of Canada’s written constitution. According to data produced by a long-term, cross-national research initiative on the origins and design of written constitutions, the average life expectancy of a national constitution is approximately nineteen years.124 Canada’s British North America Act, 1867 is an impressive outlier. Where many other national constitutions have failed or have been replaced, the Canadian constitution has endured – amended and renamed to be sure, but endured all the same. Despite deep divisions and vigorous contestation – along linguistic, regional, and class lines, among others – Confederation has held. As readers take up this anthology, they may want to ask, Has Confederation endured because of, or in spite of, the constitutional design decisions made at the outset? Following the Centennial in 1967, the Canadian state entered into a protracted period of “mega constitutional” politics in response to the national unity crisis described above. By most reckonings, those initiatives very nearly ended in the collapse of the very constitutional structure they were meant to redeem. There is no comparable constitutional crisis facing Canada in 2017, but there are daunting challenges aplenty – in the form of climate change, the need to find grounds of reconciliation with Indigenous peoples, disturbing political uncertainty and public insecurity in many Western countries, and challenges to the norms of global movement and trade. Is this constitutional anniversary the appropriate moment to redouble our national commitment to meeting these and other challenges? Here, too, the Confederation story may be suggestive for, as the selections in the final section of this anthology attest, the Fathers faced their own challenges in attempting to create “a new nationality” in the context of powerful forces – imperial policy, cultural norms, ideological frames, economic structures, and harsh natural phenomena – over which they had little direct control. Ultimately, they found a pragmatic way to balance “agency” with “structure.” That is not a small lesson to take from the Confederation era. Reflecting in 2017 on the place of Canada’s Indigenous peoples, there are some grounds for cautious optimism, despite the disturbing social and economic disadvantages under which most Indigenous people are labouring. While the original constitutional design treated “Indians



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and Lands reserved for the Indians” as little more than an area of constitutional jurisdiction, section 35 of the Constitution Act, 1982, relating to the rights of the Aboriginal peoples of Canada, set the stage for several decades of progressive constitutional jurisprudence that has significantly altered the balance of power between Indigenous peoples and the state. While most of the recommendations from the 1996 Report of the Royal Commission on Aboriginal Peoples were never implemented, there are some early and tentative signs that the fate of the 2015 Truth and Reconciliation report may be different. Its call to Canadians to recognize the importance of “establishing and maintaining a mutually respectful relationship between Aboriginal and non-Aboriginal peoples” with an “awareness of the past, acknowledgement of the harm that has been inflicted, atonement for the causes, and action to change behaviour” is being taken seriously, it seems, by the Government of Canada, and by some sectors of society, such as the country’s post-secondary institutions. If we look ahead to Canada’s next anniversary, the bicentenary in 2067, we believe that there are reasonable grounds for hope that by then the Indigenous reality will be more fully woven into the Canadian story. As we reported earlier, scholars identify this as a major, inadequately explored area of research and intellectual development. There is, as well, broad recognition in the country now that repairing Canada’s relationship with its Indigenous peoples is a critical – and urgent – piece of unfinished business. We can’t know what the effect of our efforts at doing this will be, but it is possible to speculate that, by 2067, Confederation will to some degree lose its unique status in the national imagination and take its place alongside other events and processes that have contributed equally to the story of Canada.

c) Competing Perspectives on 1867 The review of Confederation anniversary research underscores the fact that scholars are more than just purveyors of knowledge. Clearly, their work provides readers with facts and figures, but it also expresses their linguistic and political identity as well as the intellectual climate of the period in which they undertake their analysis. The topic they choose to study, the methodology they adopt, and the arguments they make are influenced by the time and place in which their research is undertaken.125 In this part, we seek to briefly highlight some of the dominant explanatory approaches or lenses of analysis that generations of scholars

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have employed in their effort to better understand the nineteenth century in British North America and the meaning of 1867. Political Elites and Their Interests The dominant approach to understanding Confederation is to envision it as the work product of a number of great statesmen who provided critical leadership at an important period in time. The 1867 arrangements are thus characterized as a matter of high politics that, by and large, reflect the extraordinary efforts of a few dozen white men promoting their visions of the new country while, at the same time, protecting their interests. Historical narratives of this ilk focus on the different roles and perspectives of the Fathers of Confederation and emphasize the significance of political issues and events that led to the adoption of the British North America Act, 1867. These include several conferences, such as the Charlottetown Conference in 1864, but also fear of invasion from the United States, a desire to build a railroad coast to coast, and the inability of the province of Canada to govern itself effectively. Notable works of this general nature include P.B. Waite’s The Life and Times of Confederation, 1864–1867 (1962),126 Donald Creighton’s The Road to Confederation (1964),127 W.L. Morton’s The Critical Years: The Union of British North America 1857–1873 (1964),128 and Christopher Moore’s 1867: How the Fathers Made a Deal (1997).129 Biographies also play a critical role in emphasizing the importance of political elites in the Confederation process. There is a wealth of such publications that shed light on the important role of political leadership in the 1867 arrangements. Several focus on the country’s first Prime Minister, including works by Joseph Pope (1894),130 Donald Creighton (1952, 1955),131 Richard Gwyn (2008, 2012),132 and Patrice Dutil and Roger Hall, eds., Macdonald at 200: New Reflections and Legacies (2014).133 But there are many significant studies on other political leaders, including O.D. Skelton’s Life and Times of Sir Alexander Tilloch Galt (1920),134 Andrée Désilets’s Hector-Louis Langevin (1969),135 J.-C. Bonenfant’s entry on Sir George-Étienne Cartier in the Dictionary of Canadian Biography (1972),136 J.M.S. Careless’s Brown of the Globe (1959, 1963),137 J. Murray Beck’s Joseph Howe (1982, 1983),138 and David A. Wilson’s Thomas D’Arcy McGee (2008, 2011).139 Political Economy For political economists, significant modification to arrangements in governance is framed largely as a by-product of, or as the result of an



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interaction with, changes in the marketplace. These include shifts in the nature of resource extraction, labour mobility, industrialization, or flows of capital. Implicit in this approach to understanding historical change is an emphasis on the dynamic relationship between economic activity and two pillars of commerce: geography and technology. In “Economic Factors in Canadian History” (1923), W.A. Mackintosh focuses on the important relationships between political development, geography, and economic activity in the establishment and growth of Canada.140 Expanding upon Mackintosh’s study in 1930, Harold Innis advances the staples thesis141 (defined here by Mel Watkins): The fundamental assumption of the staple theory is that staple exports are the leading sector of the economy and set the pace for economic growth. The limited – at first possibly non-existent – domestic market, and the factor proportions – an abundance of land relative to labour and capital – create a comparative advantage in resource-intensive exports, or staples. Economic development will be a process of diversification around an export base.142

Innis argues that changes in the political arrangements of British North America in the mid-nineteenth century were based on shifts in the nature of commercial interests. Capital expenditures on canals played a significant role in 1840 legislation uniting Upper and Lower Canada, while “expenditures on railways were largely responsible for Confederation” and the Dominion’s plans to expand westward.143 Some political economists emphasize the role of capital in the 1867 arrangements. R.G. Trotter (1927),144 Alfred Dubuc (1966),145 and Stanley Ryerson (1968)146 discuss the significant role of bankers, investors, and manufacturers. Ryerson specifically framed Confederation as part of a bourgeois process of “revolution from above,” which integrated markets territorially and created a unified (though not unitary) sovereign space.147 He highlighted how the 1867 colonial ruling class also were the financial-industrial bourgeoisie involved in the new nation’s banking, railroads, and western expansion initiative.148 Andrew Smith builds on these analyses in British Business and Canadian Confederation (2008).149 Denis Monière authored Le développement des idéologies au Québec, des origines à nos jours (1977). Inspired by Michel Brunet’s famous argument about the three dominant pillars in French-Canadian political thought, Monière explained that after the 1837 rebellions in Quebec, the dominant ideologies of republicanism, secularism, liberalism, and

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emancipatory nationalism were replaced by clericalism, ultramontanism, agriculturalism, and defensive nationalism.150 For Monière, this shift entrenched the role of the Church in French-Canadian society and left the British bourgeoisie in control of the economy.151 Other political economists view Confederation as a product of shifting North American markets. For Adam Shortt (1914), the end of the Reciprocity Treaty with the United States “very materially contributed towards the union of the British North American provinces,” as it was necessary “to readjust their trade relations and commercial intercourse.” He viewed it as the only alternative to annexation for the colonies.152 Similarly, W.T. Easterbrook and Hugh G.J. Aitken (2002) emphasized how the turn toward intercolonial free trade and Confederation stemmed in large part from the need to find new markets following the end of both the American Civil War and the Reciprocity Treaty.153 More recent political economy scholarship moves away from the emphasis on the staples theory to explain historical change. Anne Legaré focuses on class relations in the context of understanding the ­relationship between federalism and the “Quebec national question.”154 David McNally emphasizes “class formation and capitalist development,”155 and Leo Panitch calls for more analysis on “historically structured relations of conflict between exploiters and exploited.”156 In this respect, class relations are the driver of state formation in relation to economic development. Settler Colonialism The concept of settler colonialism brings yet another perspective to the making of Canada and the changes to the North American landscape in the nineteenth century. In “‘Colonization Road’ and Challenging Settler Colonialism in Canada” (2016), Anne Janhunen explains that her research on settler colonialism in southern Ontario stems from her “frustration of reading histories of settlement that all too often completely overlook the other side of that equation – the necessary displacement and relocation of Indigenous peoples and communities.” She notes how the colonial narrative in Canada “starts with French explorers and fur traders and eventually centres on hardy settlers making seemingly unoccupied land productive. Indigenous people are usually peripheral to this story or entirely absent from it. How they ended up on reserves remains a mystery.”157 Understood in this context, 1867 is not an important moment in time and Confederation is not an event to be celebrated. Rather, from this perspective, the making



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of Canada reflects a process of domination and displacement imposed on Indigenous communities rather than the creation of a new political order or the emergence of nation. According to Lorenzo Veracini, settler colonialism is “a system defined by unequal relationships (like colonialism) where an exogenous collective aims to locally and permanently replace indigenous ones (unlike colonialism).”158 He emphasizes that “while settlers see themselves as founders of political orders, they also interpret their collective efforts in terms of an inherent sovereign claim that travels with them and is ultimately, if not immediately, autonomous from the colonising metropole.”159 Land, and the quest for its control, is central to this analysis. Tate A. LaFevre points out that “settler colonialism seeks to replace the original population of the colonized territory with a new society of settlers (usually from the colonial metropole),” and consequently, “settler colonialism depends primarily on access to territory.”160 The results are catastrophic. Patrick Wolfe underscores that “the question of genocide is never far from discussions of settler colonialism,” as “land is necessary for life.”161 This perspective is explored in the Canadian context in James W. Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life (2013),162 and Andrew Woolford and Jeff Benvenuto’s “Canada and Colonial Genocide” (2015).163 Confederation as a “Compact” Although many envision the 1867 arrangements as a compact or agreement, there is no consensus as to its nature. John Charles Dent (1881) argued that Confederation was a compact among political parties that ended with the establishment of the Dominion of Canada on July 1, 1867.164 In his 1905 analysis of the 1867 constitution, James Cappon focused on the “moral authority” of the “racial compact.”165 Others emphasized that Confederation was a compact among the British North American provinces. In 1930, then Ontario Premier Howard Ferguson argued that the British North America Act, 1867 constituted a “Provincial Treaty”166 based on an 1867 understanding of “equality of all the provinces,”167 though Norman McL. Rogers (1931) explained the provincial compact theory was a fallacy.168 Henri Bourassa framed Confederation as both a “national contract that declared French and English Canadians to be ‘partners with equal rights,’ and [as a] political contract that had as its goal the unification of the scattered colonies of British North America.”169

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Which vision of Confederation as a compact is correct? Was it a compact among political parties, provinces, or two nations? The issue is significant, because agreements are interpreted not only by examining the plain meaning of the text, but also by considering the intention of its drafters. The debate, therefore, has real implications for governance. If Confederation was, at least in part, a compact between two nations, then Quebec’s legislative role in issues pertaining to the French identity must be recognized as significant, if not paramount. As Gil Rémillard explains in “Les intentions des Pères de la Confédération,” French Canadians understood Confederation “as another step in their gradual emancipation.”170 Provincial autonomy over local issues was their security. And going forward, should the compact theory of Confederation be re-conceptualized to recognize the treaty arrangements entered into by the Crown and Indigenous peoples? Is it viable to frame the establishment of Canada as a compact between two nations and among several provinces when Indigenous peoples were excluded from the process in 1867? In “Empowering Treaty Federalism” (1994), James [sákéj] Youngblood Henderson reminds us that the British North America Act, 1867 was not the only important agreement on governance issues during this period. There were others that reflected nation-to-nation relationships.171 How treaty federalism and existing 1867 constitutional arrangements co-evolve will be an important issue in the decades to come. Political-Legal Scholarship While the dominant understanding of Confederation emphasizes the role of statesmen and events, other scholars think of Confederation more broadly in a political-legal context. Their analyses are largely institutional in nature, often underpinned with a rich historical analysis. For some, the 1867 arrangements are first and foremost a legal event. The British North America Act, 1867 is deemed to be the institutional embodiment of the Confederation agreement. Early scholarship, for example, by W.H.P. Clement (1892)172 and W.P.M. Kennedy (1902),173 study the 1867 legislation as the country’s constitution and analyse its objectives, nature, and implementation. Arthur Berriedale Keith (1912),174 A.H.F. Lefroy (1913),175 and Sir Ivor Jennings (1956)176 build on these types of analyses and comparatively assess the Confederation agreement in the context of the British Empire.



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Another branch of this type of research also focuses on legal issues but places a greater emphasis on the role of courts. It seeks to ascertain the relationship between the judiciary and the constitution, and more specifically, the extent to which the judiciary reflected or distorted the true nature of Confederation in interpreting the British North America Act, 1867. The O’Connor Report (1939),177 the Rowell Sirois Report (1940),178 the Tremblay Report (1956),179 and studies by F.R. Scott (1931),180 Frank H. Underhill (1938),181 Bora Laskin (1947),182 Louis-Philippe Pigeon (1951),183 Alan C. Cairns (1971),184 Patrick A. Molinari (1978),185 and Gil Rémillard (1978)186 are representative of this debate. Later scholarship considers this issue in the context of the empire more broadly, such as David B. Swinfen (1987), Krikorian (2000), and Thomas Mohr (2016).187 Others scholars focus on the relationship between law and politics by analysing constitutional arrangements and the pushes and pulls of federalism. Early studies, such as such Robert MacGregor Dawson’s Constitutional Issues in Canada, 1900–1931,188 focused on the interplay of the country’s institutions. Later political-legal scholarship emphasizes the tensions embedded in the original Confederation agreement, the conflicting visions of Quebec’s position and role in the Dominion, and the competing political ideas and principles inherent in the country’s constitutional arrangements in the 1867 settlement. Of particular note are Robert C. Vipond’s Liberty and Community (1991),189 Peter Russell’s Constitutional Odyssey (1992),190 David E. Smith’s Federalism and the Constitution of Canada (2010),191 Eugénie Brouillet, Alain-G. Gagnon, and Guy Laforest, eds., La Conférence de Québec de 1864, 150 ans plus tard: Comprendre l’émergence de la fédération canadienne (2016),192 and Jean-François Caron and Marcel Martel, eds., Le Canada français et la Confédération, Fondements et bilan critique (2016).193 Geo-Political Scholarship Another approach to studying Confederation is to examine it through the lens of broad geo-political forces and the evolving relationship of the British colonies in North America with the British Empire. Although much of this literature reflects and is closely linked to the political economy perspectives already discussed, another strand places emphasis on the political aspects of geography, particularly in relation to the United States and Great Britain. Authors including Donald F. Warner (1960) and Reginald C. Stuart (1988) have assessed the debates regarding a continental union between

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the United States and British North America.194 Some scholars emphasize that the move toward uniting the British North American colonies reflected a real concern about American invasion, annexation, and their westward expansion. Chester Martin (1937), for example, argues that the threat of American incursions into British North American territories and the desire to expand to the Pacific were two of the most significant factors in the move toward Confederation.195 John Bartlett Brebner (1945) contends that the “fear of the United States was the principal cause” of the 1867 union.196 Donald Creighton (1958) emphasizes the importance of the 1867 union in order “to provide a base broad and strong enough to support the acquisition of the north-west.”197 Another perspective emphasizes the policy choices of the imperial government that allowed for a space in which Confederation could emerge. In Colonization and Colonies (1861), Herman Merivale, the Per­ manent Under-Secretary for the Colonies between 1848 and 1859, argued that the British decision to grant responsible government to the colonies constituted a “revolution” whose “real importance and magnitude” was not fully understood until some time after it happened.198 David M.L. Farr’s study (1955) expands upon Merivale’s analysis in the Canadian context to argue that Confederation reflected a dismantling of the Old Empire and the emergence of the Commonwealth. For Farr, three British decisions led to 1867: responsible government, free trade, and an acceptance that colonies had to take responsibility for their own defence.199 Bruce A. Knox (1971)200 and Ged Martin (1984)201 emphasize that British officials had actively pursued the unification of the British North American colonies. For Martin, “the combination of defence and railways explains not why Confederation was adopted, but when.”202 In contrast, Phillip Buckner contends that it was the British North Americans who were responsible for Confederation. He explains that initiative for “Confederation did not take place because the Imperial government supported it; Confederation took place because the British North Americans wanted it.”203 Other scholars view the unification of the British North American colonies as part of a natural evolution of the British Empire’s colonial order. Colonies begin as dependents of the “mother country” and then “mature.” Early scholarship on Confederation such as Sir John G. Bourinot’s Canada under British Rule, 1760–1900 (1900), depicts the establishment of the Dominion of Canada as another form of colonial arrangement within the empire,204 while later twentieth-century



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scholarship, such as Arthur R.M. Lower’s Colony to Nation: A History of Canada (1946),205 emphasizes the maturing process of Canada in relation to the empire. Lower demonstrates Canada’s evolutionary move to greater independence over time via institutional changes such as the Statute of Westminster, 1931. Ann Curthoys notes there was a “sense of family connection” among the British colonies as they considered one another to be “sister” nations.206 The Role of Ideas Still others, however, conceptualize historical change in the context of the empire by focusing on the transnational exchange and influence of ideas as they pertain to race, gender, Indigeneity, and colonialism. Emphasis is placed on the significance of the spread of ideas through communications rather than on political elites, constitutions, elections, or other matters of high politics. Some notable works include Adele Perry’s On the Edge of Empire: Gender, Race, and the Making of British Columbia, 1849–1871 (2001),207 Edward Beasley’s Empire as the Triumph of Theory: Imperialism, Information and the Colonial Society of 1868 (2005),208 Tony Ballantyne’s Webs of Empire: Locating New Zealand’s Colonial Past (2012),209 and Kenton’s Storey’s Settler Anxiety at the Outposts of Empire: Colonial Relations, Humanitarian Discourses, and the Imperial Press (2016).210 Ideas also have played a critical role in the development of Canada in two additional ways. First, ideas shaped the way in which the British understood and determined their relationship with the colonies, politically and economically. Second, ideas played a role in how British North Americans, and later Canadians, understood and framed their political and socio-economic relations. From the British perspective, the American Civil War confirmed their confidence in conservative social approaches to governance and the liberal economic doctrine of free trade. By the 1840s and 1850s, their world view, underpinned by Edmund Burke’s notions of representation and Adam Smith’s principles of capitalism, accepted the colonies as important for commerce, but not at any cost. Britain no longer saw the need to “fight to the last man” to retain the empire as it had a century earlier. Free trade guaranteed market access around the globe. The empire remained important, but it was a new kind of empire. There was no longer a need for London to directly rule and protect colonial settlements as once assumed. Colonial governments were more selfsufficient and could provide for their own defence,211 though of course, as C.P. Stacey (1936) has explained, some British North Americans

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were “uncomfortably conscious of the growth of anti-colonialism in England” and the apparent pullback on commitments pertaining to their defence.212 It was in this intellectual context that Britain supported and endorsed the request of the colonies of British North America to unite. Even if Confederation was encouraged during this moment of British introversion, it also dovetailed perfectly with the increasing political maturity of the colonies that had, by now, developed an appetite for local governance and elite accountability. Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner introduce their collection of excerpts from the various debates about Confederation by emphasizing that “[i]t is trite to say that the founders were pragmatists” in the sense that the actors involved in making Confederation had “no strong commitment to political values, no interest in political ideas.” They reject that view as “pernicious nonsense”213 and offer their volume of political speeches about the Confederation proposal as evidence to the contrary. Issues pertaining to rights, liberty, sovereignty, representation, and federalism are deliberated upon extensively throughout the colonies prior to 1867. Samuel LaSelva’s work, the Moral Foundations of Federalism, is one of a number of examples that examines and reassesses the intellectual underpinnings of Confederation.214 Other scholars have emphasized that 1867 was not transformative. Rather, it was another step in the consolidation of the liberal order. As Ian McKay (2000) puts it, “Confederation … could be seen not so much as the ‘Birth of a Nation’ as the ‘Consolidation of a General Liberal State Program’”215 in which broader principles of governance enjoyed pride of place. In a similar vein, Fernand Dumont (1993) argues Confederation can be understood as simply another stage in the long winter of survival,216 while Paul Romney (1999) frames it “as the belated achievement of autonomy under monarchical institutions – that is, of responsible government – by Upper Canada.”217

d) A Thematic Approach: A Consideration of the Major Debates in Confederation Another way scholars approach the study of Confederation is to focus on major issues and debates in the literature. In this two-volume collection, each chapter includes scholarship pertaining to a particular theme in the field written from a range of perspectives, over time, by both Francophone and Anglophone scholars. Some of the material could



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have been included in several sections, but we tried to organize the selections so that each chapter constituted a relatively coherent whole. The first theme, “Other Voices, Other Stories” contains material pertaining to communities and issues that have been traditionally underexplored in the Confederation literature – Indigenous peoples, Acadians, and women. Much of the scholarship examining the 1867 arrangements focused on the men and governments involved in the political negotiations. This section focuses on people whose voices were not heard during the debates and who have been largely ignored in the Confederation literature. The next chapter, “The Ideas of Confederation,” examines the intellectual underpinnings of 1867. Confederation was more than just a set of constitutional provisions; it was about how the political elites of the period conceptualized the basis of their new government. Embedded in the British North America Act, 1867 are the competing principles and values of the Fathers of Confederation. How was sovereignty understood in relation to the new constitution? To what extent did liberalism influence the debates? Who had power and who was excluded? And what were the intellectual foundations of the newly created federal system? The last chapter in volume one is entitled “One New Nation, Two Founding Nations or a Compact of Provinces?” It includes material that addresses the competing explanations of the Confederation agreement. Debating the “real” nature of the country’s 1867 constitutional arrangements is practically a national sport in Canada. Was Confederation an agreement to establish one nation with one strong centralized government in Ottawa? Or was 1867 an agreement among the provincial governments or a compact between the French- and English-speaking nations? In the second volume, “From Canada East to Quebec” focuses on research pertaining to Francophones and their nation-building role both in the context of Quebec and in the larger Canadian project. Was Con­ federation widely accepted in Canada East? Did Francophones support the initiative or did they envision it as simply a pragmatic exercise to secure their linguistic and religious rights? To what extent were issues involving the federal system and linguistic minorities outside of the province significant? Next we focus on the English-speaking regions of the new nation. This chapter, entitled “The East, Ontario, and the West,” considers the perspectives from the Maritimes, Ontario, and the West. How did each

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region move toward Confederation? What was the process adopted by each government to ratify the 1867 arrangements? What were the different viewpoints, and what accounts for opposition to Confederation in some regions but not others? “The Geopolitics of Confederation” is the sixth part of the two-­ volume collection and houses scholarship that addresses the impact of political geography on the events of 1867. The articles in this section address a number of interrelated issues pertaining to changes in the British government’s perspective on its overseas colonies, the nature and effect of European and American wars on the unification of the British North American colonies, and the expansionist interests of the United States government. The last chapter, “1867: A Formative Event?” contains studies that minimize the significance of Confederation as a formative event in the development and evolution of Canada as a nation. While many scholars emphasize the constitutional or political milestones of a state, others suggest they are of limited importance. For them, more focus must be placed on the relevance of colonization, economics, gender, race, geography, and entrenched and persuasive ideologies. NOTES 1 William McDougall, Provincial Secretary (Canada), September 8, 1864, Charlottetown, in Edward Whelan, ed., A Brief Account of the Several Conferences Held in the Maritime Provinces and in Canada, in September and October, 1864, on the Proposed Confederation of the Provinces, Together with a Report of the Speeches Delivered by the Delegates from the Provinces on Important Public Occasions (Charlottetown: Haszard, 1865), 13, 14. 2 John A. Macdonald, Attorney General (Canada West), September 12, 1864, Halifax, in Whelan (1865), 43. 3 George-Étienne Cartier, Attorney General (Canada East), September 12, 1864, Halifax, in Whelan (1865), 24. 4 Dr. Charles Tupper, Leader of the Government, Nova Scotia, September 12, 1864, Halifax, in Whelan (1865), 23. 5 Samuel L. Tilley, Provincial Secretary and Leader of the Government of New Brunswick, September 12, 1864, Halifax, in Whelan (1865), 39, 40. 6 George Brown, President, Executive Council, Legislative Assembly, February 8, 1865, Parliamentary Debates on the Subject of the Confederation of



7

8 9

10

11

1 2 13 14

15 16

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the British North American Provinces, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter Rose, 1865), 86 (hereinafter referred to as Canadian Parliamentary Debates on Confederation, 1865). John A. Macdonald, Attorney General (Canada West), opening remarks at the Quebec Conference, Parliament House, Quebec, October 11, 1864, in Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell, 1895), 54, 55. Sir Étienne-Paschal Taché, Premier, Legislative Council, February 3, 1865, Canadian Parliamentary Debates on Confederation (1865), 9. For differing perspectives on the relationship of the United States to Confederation, see Chester Martin, “The United States and Canadian Nationality,” CHR, 18, 1 (1937), 1–11; D.G. Creighton, “The United States and Canadian Confederation,” CHR, 39, 3 (1958), 209–222; and Jacqueline D. Krikorian and David R. Cameron, “The 1867 Union of the British North American Colonies: A View From the United States,” in Jacqueline D. Krikorian, Marcel Martel, and Adrian Schubert, eds., Globalizing Confederation: Canada and the World in 1867 (Toronto: UTP, forthcoming). Governor Joshua Chamberlain, “Address to the Senate and House of Representatives,” undated, Acts and Resolves Passed by the Forty-Sixth Legislature of the State of Maine (Augusta: Stevens & Sayward, 1867), 153. A Memorial, from the French Canadians of the United States, in Opposition to the Scheme for the Confederation of the British Provinces of North America, to the Senate of the United States (New York, February 6, 1867), RG46, Records of the U.S. Senate, 39th Congress, Box No. 39, Committee on Foreign Relations, SEN 39A-H6.1 (December 10, 1866 to February 26, 1867), National Archives, Pennsylvania Avenue, Washington, D.C. “The Border Excitement,” New York Times (June 2, 1866), 1. Henry Raymond, House of Representatives, Congressional Globe, 39th Congress, 2nd Session (February 27, 1867), 1617. H.R. 754, A Bill for the Admission of the States of Nova Scotia, New Brunswick, Canada East, and Canada West, and for the Organization of the Territories of Selkirk, Saskatchewan, and Columbia, Article II, 39th Congress, 1st Session (July 2, 1866). “The Annexation of Canada,” The Journal (Coudersport, Pennsylvania: July 17, 1866). “Don’t Want Canada,” The Daily Clarion and Standard (Jackson, Mississippi: July 20, 1866); and “News Items,” The Free Press (Burlington, Vermont: July 27, 1866).

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1 7 “Political Romancing,” Daily Globe (Toronto: July 7, 1866), 2. 18 “Another Scheme for Trouble,” Yorkville Enquirer (Columbia, South Carolina: July 9, 1866). 19 “Canadian Annexation,” Charleston Daily News (Charleston, South Carolina: July 16, 1866). 20 First reading of A Bill for the Union of Canada, Nova Scotia, and New Brunswick, and the Government Thereof; and for Purposes Connected Therewith, presented by the Earl of Carnarvon, Secretary of State for the Colonies, House of Lords, Hansard’s Parliamentary Debates (February 12, 1867), 278. 21 Carnarvon, House of Lords, Hansard’s Parliamentary Debates (February 19, 1867), 576b. 22 Lord Monck, House of Lords, Hansard’s Parliamentary Debates (February 19, 1867), 582. 23 Mr. Adderley, House of Commons, UK, Hansard’s Parliamentary Debates (February 28, 1867), 1166. 24 Petitions presented by the Earl of Shaftesbury in debate on the bill to unite the British North American colonies, Committee of the Whole, House of Lords, Hansard’s Parliamentary Debates (February 22, 1867), 804. 25 Royal Assent, House of Lords, Hansard’s Parliamentary Debates (March 29, 1867), 804. 26 “The Dominion of Canada,” New York Times (July 2, 1867), 1. 27 “Celebration of Dominion Day,” The Gazette (Montreal: July 1, 1867), 2. 28 “The Dominion of Canada,” New York Times (July 2, 1867), 1. 29 Saint John Globe (New Brunswick: July 1, 1867), 2. 30 “The New Government of Canada,” New York Times (July 2, 1867), 4. 31 Janet Ajzenstat, Paul Romney, Ian Gentles, and William D. Gairdner, eds., Canada’s Founding Debates (Toronto: Stoddart, 1999), 1. 32 Guy Laforest, Eugénie Brouillet, Alain-G. Gagnon, and Yves Tanguay, eds., Ces constitutions qui nous ont façonnés: Anthologie historique des lois constitutionnelles antérieures à 1867 (Quebec: PUL, 2014). 33 John MacMullen, The History of Canada from Its First Discovery to the Present Time (Brockville: McMullen, 1868). 34 John Hamilton Gray, Confederation; or, The Political and Parliamentary History of Canada from the Conference at Quebec, in October 1864, to the Admission of British Columbia, in July, 1871 (Toronto: Copp, Clark, 1872). 35 Frederic G. Mather, “Confederation in Canada,” Atlantic Monthly (July 1880), 56–67. 36 L.O. David, L’Union des Deux Canadas, 1841–1865 (Montreal: Eusèbe Senécal & Cie, 1898).



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37 George M. Wrong, Sir John Willison, Z.A. Lash, and R.A. Falconer, Federation of Canada, 1867–1917, Four Lectures Delivered in the University of Toronto in March 1917, to Commemorate the Fiftieth Anniversary of the Federation (Toronto: OUP and UTP, 1917). 38 David Schneiderman, Red, White and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (Toronto: UTP, 2015). 39 Royal Commission on Bilingualism and Biculturalism, Report of the Royal Commission on Bilingualism and Biculturalism (Dunton-Laurendeau Report), Book II, Education (Ottawa: Queen’s Printer, 1968), 274. 40 Bilingualism and Biculturalism Report, Book II, Education (1968), 275. 41 Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: UTP, 1999), 3. 42 Roger Brossard, “The Working of Confederation: A French-Canadian View,” CJEPS, 3, 3 (1937), 335–345, 353–354. 43 Brossard (1937), 338. 44 Brossard (1937), 339. 45 Brossard (1937), 338. At page 337, Brossard notes that twenty-two of the forty-eight French Canadians in the Canadian legislature voted against the Quebec Resolutions in 1865. 46 Brossard (1937), 342. 47 Brossard (1937), 342. 48 Brossard (1937), 342, 343. 49 Brossard (1937), 344. 50 Brossard (1937), 345. 51 Brossard (1937), 344–345. 52 Professor F.H. Underhill, “Discussion,” in Brossard (1937), 353. 53 Professor Frank Scott, “Discussion,” in Brossard (1937), 353. 54 Professor Alexander Brady, “Discussion,” in Brossard (1937), 354. 55 Paul Martin, M.P., “Discussion,” in Brossard (1937), 354. 56 Martin in Brossard (1937), 354. 57 Brooke Claxton, “Discussion,” in Brossard (1937), 354. 58 For a discussion of this issue, see D.G. Creighton, “Sir John Macdonald and Canadian Historians,” CHR, 29, 1 (1948), 1–13. 59 David R. Cameron and Jacqueline D. Krikorian, “The Study of Federalism, 1960–99: A Content Review of Several Leading Canadian Academic Journals,” CPA, 45, 3 (2002), 328–363. 60 Cameron and Krikorian (2002), 336–338. 61 François Rocher, “The End of the ‘Two Solitudes’? The Presence (or Absence) of the Work of French-Speaking Scholars in Canadian Politics,” CJPS, 40, 4 (2007), 834.

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62 A.R.M. Lower, “Two Ways of Life: The Primary Antithesis of Canadian History,” Report of the Annual Meeting of the Canadian Historical Association, 22, 1 (1943), 5–18. 63 Benedict Anderson, Imagined Communities, Reflections on the Origin and Spread of Nationalism (New York: Verso, 2016). 64 Christopher Moore, 1867: How the Fathers Made a Deal (Toronto: McClelland & Stewart, 1997), 147. 65 Macdonald, Canadian Parliamentary Debates on Confederation (1865), 27, 28. 66 Cartier, Canadian Parliamentary Debates on Confederation (1865), 60. 67 Frank H. Underhill, The Massey Lectures, 1963: The Images of Confederation (Toronto: Hunter Rose for CBC, 1970), 1, 2. Also see F.R. Scott, “Political Nationalism and Confederation,” CJEPS 8, 3 (1942), 386–415. 68 Bernard Yack, Nationalism and the Moral Psychology of Community (Chicago: UCP, 2012), 69. 69 Yack (2012), 71. 70 Eric Hobsbawm and Terence Ranger, eds., The Invention of Tradition (Cambridge: CUP, 2012). 71 Yack (2012), 69. 72 Matthew Hayday and Raymond B. Blake, eds., Celebrating Canada: Volume 1: Holidays, National Days, and the Crafting of Identities (Toronto: UTP, 2016); Cecilia Morgan, Commemorating Canada: History, Heritage, and Memory, 1850s–1990s (Toronto: UTP, 2016). 73 Hayday and Blake (2016). 74 Hayday and Blake (2016), 25. 75 Hayday and Blake (2016), 25. 76 W.A. Mackintosh, “Economic Factors in Canadian History,” CHR, 4, 1 (1923), 12. 77 Marcel Martel, Le deuil d’un pays imaginé. Rêves, luttes et déroute du Canada français. Les rapports entre le Québec et la francophonie canadienne, 1867–1975 (Ottawa: UOP, 1997). 78 The motion, introduced on January 17, 1918, is reproduced in Quebec and Confederation, Speech of Sir Lomer Gouin, K.C.M.G., Prime Minister of the Province of Quebec on the Francœur Motion, Delivered in the Legislative Assembly of Quebec on January 23, 1918 (Montreal: Librairie Beauchemin, 1918), 8. 79 “Cinquante Ans Après,” Le Devoir (July 2, 1917), 1. 80 “Must Maintain Effort in Last Great Chapter,” The Gazette (June 30, 1917), 1; “The Message of the Prime Minister to the People of the Dominion,” Globe (June 30, 1917), 1; and “Message from the Premier: Growth of Canada in Half Century Pointed Out, Confidence in Her Destiny,” Saint John Globe (June 30, 1917), 1.



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8 1 Lionel Groulx, “Ce Cinquantenaire,” L’Action française, 1, 7 (1917), 199. 82 Groulx, (1917), 200. 83 Wrong, et al. (1917), prefatory note. 84 George M. Wrong, “The Creation of the Federal System in Canada,” Wrong, et al. (1917), 38, 39. 85 Sir John Willison, “Some Political Leaders in the Canadian Federation,” Wrong, et al. (1917), 75, 76. 86 Z.A. Lash, “The Working of Federal Institutions in Canada,” Wrong, et al. (1917), 107. 87 R.A. Falconer, “The Quality of Canadian Life,” Wrong, et al. (1917), 110. 88 Wrong in Wrong, et al. (1917), 30. 89 Willison in Wrong, et al. (1917), 47, 48. 90 Falconer in Wrong, et al. (1917), 115. 91 Adam Shortt and Arthur G. Doughty, gen. eds., Canada and Its Provinces: A History of the Canadian People and Their Institutions by One Hundred Associates (Edinburgh: T. & A. Constable, Edinburgh University Press, for the Publishers’ Association of Canada, Toronto, 1913–1917). The themes include New France 1534–1760, volumes 1, 2; British Dominion 1760–1840, volumes 3, 4; United Canada 1840–1867, volume 5; The Dominion: Political Development, volumes 6, 7, and 8; The Dominion: Industrial Development, volumes 9, 10; The Dominion: Missions; Arts and Letters, volumes 11, 12; The Atlantic Provinces, volumes 13, 14; The Province of Quebec, volumes 15, 16; The Province of Ontario, volumes 17, 18; The Prairie Provinces, volumes 19, 20; The Pacific Province, volumes 21, 22; and, the General Index, Tables, and Bibliography, volume 23. 92 Shortt and Doughty, eds., 1 (1913), viii, xii. 93 Duncan C. Scott, “Indian Affairs, 1867–1912,” in Shortt and Doughty, eds., 7 (1913), 593; and “Indian Affairs, 1763–1841,” in Shortt and Doughty, eds., 4 (1913), 695–725. 94 Duncan C. Scott, “Indian Affairs, 1840–1867,” in Shortt and Doughty, eds., 5 (1913), 331. 95 J.A. Teit, “Indian Tribes of the Interior,” 283–312; and E. Sapir, “Indian Tribes of the Coast,” 315–346, in Shortt and Doughty, eds., 21 (1914). 96 Teit in Shortt and Doughty, eds., 21 (1914), 288. 97 Sean Mills, The Empire Within: Postcolonial Thought and Political Activism in Sixties Montreal (Kingston and Montreal: MQUP, 2010); Pierre Vallières, Nègres blancs d’Amérique: Autobiographie précoce d’un “terroriste” québécois (Montreal: Éditions Partis Pris, 1968). 98 Canada, Royal Commission on Bilingualism and Biculturalism, Preliminary Report (Ottawa: Queen’s Printer, 1965), 13; and confirmed in Report of the

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Royal Commission on Bilingualism and Biculturalism, Book 1, “The Official Languages” (Ottawa: Queen’s Printer, 1967), xvii. 99 Jean-Marc Léger, “Au-delà des illusions,” Le Devoir (July 4, 1967), 4. 100 Toronto Daily Star (July 1, 1967). 101 Creighton (1948), 5. 102 D.G. Creighton, “Confederation: The Use and Abuse of History,” Journal of Canadian Studies 1, 1 (1966), 5. 103 RHAF, 21, 3a (1967). 104 Rosario Bilodeau, “Liminaire,” RHAF, 21, 3a (1967), 529. 105 Ronald Rudin, Making History in Twentieth-Century Quebec (Toronto: UTP, 1997), 123. 106 Richard Arès, “La grande pitié des minorités,” Relations (1963), 68. 107 Richard Arès, “Un siècle de vie française en dehors du Québec,” RHAF, 21, 3a (1967), 533–570. 108 Ramsay Cook, ed., Confederation (Toronto: UTP, 1966). 109 Cook, ed. (1966), x. 110 P.B. Waite, The Life and Times of Confederation, 1864–1867 (Toronto: UTP, 1962). 111 P.B. Waite, “Preface to the 3rd Edition,” The Life and Times of Confederation, 1864–1867 (Toronto: Robin Brass, 2001), vii. 112 R. Arès, S.J., Dossier sur le pacte fédératif de 1867, La Confédération: pacte ou loi? (Montreal: Les Éditions Bellarmin, 1967). 113 François Hertel, Cent ans d’injustice? Un beau rêve: le Canada (Montreal: Éditions du Jour, 1967). 114 W.L. Morton, exec. ed., D.G. Creighton, advis. ed., “The Canadian Centenary Series,” in Morton (1964), ix, x. 115 W.L. Morton, exec. ed., D.G. Creighton, advis. ed., “The Canadian Centenary Series,” in Dale Miquelon, New France 1701 to 1744: A Supplement to Europe (Toronto: McClelland & Stewart, 1987), ix. 116 Morris Zaslow, The Northward Expansion of Canada, 1914–1967 (Toronto: McClelland & Stewart, 1988). 117 Marcel Trudel, The Beginnings of New France, 1524–1663 (Toronto: McClelland & Stewart, 1973). 118 Hilda Neatby, Quebec, The Revolutionary Age, 1760-–1791 (Toronto: McClelland & Stewart, 1971). 119 Jack Granatstein, Canada 1957–1967: The Years of Uncertainty and Innovation (Toronto: McClelland & Stewart, 1986). 120 Morton and Creighton in Miquelon (1987), x. 121 Lyle Dick, “‘A Growing Necessity for Canada’: W.L. Morton’s Centenary Series and the Forms of National History, 1955–80,” CHR, 82, 2 (2001), 237.



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122 Dick (2001), 236. Perhaps to address what was clearly a significant omission, the Canadian Centenary Series published one last volume in the collection in 1988 – Morris Zaslow, The Northward Expansion of Canada 1914–1967 (Toronto: McClelland and Stewart, 1988) – which built upon his 1971 The Opening of the Canadian North, 1870–1914 (Toronto: McClelland and Stewart, 1971). 123 Myra Rutherdale and J.R. Miller, “It’s Our Country: First Nations’ Partici­ pation in the Indian Pavilion at Expo ’67,” Journal of the Canadian Historical Association, 17, 2 (2006), 148–173. 124 Zachary Elkins, Tom Ginsburg, and James Melton, The Endurance of National Constitutions (New York: CUP, 2009), 2. 125 Carl Berger, “Preface to the First Edition,” The Writing of Canadian History: Aspects of English-Canadian Historical Writing since 1900 (Toronto: UTP, 1986), ix, x. 126 Waite (2001). 127 Donald G. Creighton, The Road to Confederation: The Emergence of Canada, 1863–1867 (Don Mills: OUP, 2012). 128 W.L. Morton, The Critical Years: The Union of British North America, 1857–1873 (Toronto: McClelland and Stewart, 1964). 129 Moore (1997). 130 Joseph Pope, Memoirs of the Right Honourable Sir John Alexander Macdonald, G.C.B, First Prime Minister of the Dominion of Canada, 2 volumes (London: Edward Arnold, 1894). 131 Donald Creighton, John A. Macdonald, The Young Politician; The Old Chieftain (Toronto: UTP, 1998). 132 Richard Gwyn, John A: The Man Who Made Us (2008); Nation Maker: Sir John A. Macdonald: His Life Our Times (Toronto: Random House, 2008, 2012). 133 Patrice Dutil and Roger Hall, eds., Macdonald at 200: New Reflections and Legacies (Toronto: Dundurn, 2014). 134 Oscar Douglas Skelton, Life and Times of Sir Alexander Tilloch Galt (Toronto: OUP, 1920). 135 Andrée Désilets, Hector-Louis Langevin, un père de la Confédération canadienne (1826–1906) (Quebec: PUL, 1969). 136 J.-C. Bonenfant, “Cartier, Sir George-Étienne,” in Dictionary of Canadian Biography, 10, University of Toronto/Université Laval, 2003– , accessed May 14, 2017, http://www.biographi.ca/en/bio/cartier_george_etienne_ 10E.html. 137 J.M.S. Careless, Brown of the Globe, 2 volumes (Toronto: Macmillan, 1959, 1963).

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138 J.M. Beck, Joseph Howe, 2 volumes (Montreal and Kingston: MQUP, 1982, 1983). 139 David A. Wilson, Thomas D’Arcy McGee, 2 volumes (Montreal and Kingston: MQUP, 2008, 2011). 140 W.A. Mackintosh, “Economic Factors in Canadian History,” CHR, 4, 1 (1923), 12–25. 141 Harold A. Innis, The Fur Trade in Canada (Toronto: UTP, 1999). 142 Melville H. Watkins, “A Staple Theory of Economic Growth,” CJEPS, 29, 2 (1963), 144. 143 Innis (1999), 396, 397. 144 R.G. Trotter, “British Finance and Confederation,” Report of the Annual Meeting of the Canadian Historical Association, 6, 1 (1927), 89–96. 145 Alfred Dubuc, “Une interprétation économique de la constitution,” Socialisme, 66, 7 (1966), 5, 6. 146 Stanley B. Ryerson, Unequal Union: Confederation and the Roots of Conflict in the Canadas, 1815–1873 (New York: International Publishers, 1968). 147 The editors gratefully acknowledge David McNally, who emphasized the importance of this point. 148 Ryerson (1968), 344, 345. 149 Andrew Smith, British Businessmen and Canadian Confederation: Constitution Making in an Era of Anglo-Globalization (Montreal and Kingston: MQUP, 2008). 150 Denis Monière, Le développement des idéologies au Québec, des origines à nos jours (Montreal: Éditions Québec-Amérique, 1977), 150. 151 Monière (1977), 153. 152 Adam Shortt, “Economic History, 1840–1867,” in Shortt and Doughty, eds., 5 (1914), 257. 153 W.T. Easterbrook and Hugh G.J. Aitken, Canadian Economic History (Toronto: UTP, 2002), 350–378. 154 Anne Legaré, “Towards a Marxist Theory of Canadian Federalism,” Studies in Political Economy, 8, 1 (1982), 37–58. 155 David McNally, “Staple Theory as Commodity Fetishism: Marx, Innis and Canadian Political Economy,” Studies in Political Economy, 6 (1981), 57. 156 Leo Panitch, “Dependency and Class in Canadian Political Economy,” Studies in Political Economy, 6 (1981), 28. 157 Anne Janhunen, “‘Colonization Road’ and Challenging Settler Colonialism in Canada,” ActiveHistory.ca (2016), http://activehistory.ca/2016/11/ colonization-road-and-challenging-settler-colonialism-in-canada/. 158 Lorenzo Veracini, “Introduction: Settler Colonialism as a Distinct Mode of Domination,” in Edward Cavanagh and Lorenzo Veracini, eds.,



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The Routledge Handbook of the History of Settler Colonialism (London: Routledge, 2017), 4. 159 Lorenzo Veracini, Settler Colonialism: A Theoretical Overview (UK: Palgrave Macmillan, 2010), 53. 160 Tate A. LeFevre, “Settler Colonialism,” Oxford Bibliographies, last modified on May 29, 2015, http://www.oxfordbibliographies.com/view/ document/obo-9780199766567/obo-9780199766567-0125.xml. 161 Patrick Wolfe, “Settler Colonialism and the Elimination of the Native,” Journal of Genocide Research, 8, 4 (2006), 387. 162 James W. Daschuk, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal life. (Regina: URP, 2013). 163 Andrew Woolford and Jeff Benvenuto, “Canada and Colonial Genocide,” Journal of Genocide Research, 17, 4 (2015), 373–90. 164 John Charles Dent, The Last Forty Years: Canada since the Union of 1841, 2 (Toronto: George Virtue, 1881), 472. 165 James Cappon, “The Principle of Sectarianism in the Canadian Constitution,” Queen’s Quarterly, 12 (July 1, 1904), 440. Article dated March 22, 1905. 166 G.H. Ferguson, Premier of Ontario, Toronto Globe (September 20, 1930), in Robert MacGregor Dawson, ed., Constitutional Issues in Canada, 1900–1931 (London: Oxford University Press, 1933), 29. 167 Memo to R.B. Bennett, Prime Minister, from G.H. Ferguson, Premier of Ontario (1930), in Dawson, ed. (1933), 30. 168 Norman McL. Rogers, “The Compact Theory of Confederation,” CBR, 9, 6 (1931), 395–417. 169 Réal Bélanger, “Bourassa, Henri,” in Dictionary of Canadian Biography, 18, University of Toronto/Université Laval, 2003– , accessed May 14, 2017, http://www.biographi.ca/en/bio/bourassa_henri_18E.html. Also see George F.G. Stanley, “Act or Pact? Another Look at Confederation,” Report of the Annual Meeting of the CHA, 35, 1 (1956), 2. 170 Gil Rémillard, “Les intentions des Pères de la Confédération,” Les Cahiers de Droit, 20 (1979), 832. 171 Henderson explains, “Treaty federalism was the original Aboriginal-­ prerogative federation with Great Britain. It was an indispensable step that had to occur before the creation of colonial authority in British North America. Each treaty illustrated the spirit and intent of treaty federalism and its outline. The terms of treaty federalism were concerned with: (1) protection of inherent Aboriginal rights; (2) distribution of shared jurisdictions; (3) territorial management; (4) human liberties and rights; and (5) treaty delegations.” James [sákéj] Youngblood Henderson, “Empowering Treaty Federalism,” Saskatchewan Law Review, 58 (1994), 250, 251.

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172 W.H.P. Clement, The Law of the Canadian Constitution (Toronto: Carswell, 1892). 173 W.P.M. Kennedy, The Constitution of Canada: An Introduction to Its Development and Law (London: OUP, 1922). 174 Arthur Berriedale Keith, Responsible Government in the Dominions, 3 volumes (Oxford: Clarendon, 1912). 175 A.H.F. Lefroy, Canada’s Federal System (Toronto: Carswell, 1913). 176 Sir Ivor Jennings, The Approach to Self-Government (Cambridge: CUP, 1956). 177 Senate of Canada, Report Relating to the Enactment of the British North America Act, 1867, Any Lack of Consonance between Its Terms and Judicial Construction of Them and Cognate Matters (Ottawa: King’s Printer, 1939). 178 Royal Commission on Dominion-Provincial Relations, Report of the Royal Commission on Dominion-Provincial Relations (Rowell-Sirois Report) (Ottawa: King’s Printer, 1940). 179 Royal Commission of Inquiry on Constitutional Problems, Report of the Royal Commission of Inquiry on Constitutional Problems (Tremblay Report) (Quebec, 1956), 137–150. 180 F.R. Scott, “The Development of Canadian Federalism,” Papers and Proceedings of the Annual Meeting of the CPSA, 3 (Ottawa, 1931), 231–247. 181 Frank H. Underhill, “Edward Blake, the Supreme Court Act, and the Appeal to the Privy Council, 1875–6,” CHR, 19, 3 (1938), 245–263. 182 Bora Laskin, “‘Peace, Order and Good Government’ Re-examined,” CBR, 25 (1947), 1054–1087. 183 Louis-Philippe Pigeon, “The Meaning of Provincial Autonomy,” CBR, 29 (1951), 1126–1135. 184 Alan C. Cairns, “The Judicial Committee and Its Critics,” CJPS, 4 (1971), 301–345. 185 Patrick A. Molinari, “L’Équilibre du fédéralisme canadien dans la balance de l’interprétation judicaire,” RJT, 13, 1 (1978), 99–106. 186 Gil Rémillard, “L’interprétation par le juge des règles écrites en droit constitutionnel au Canada,” RJT, 13, 1 (1978), 59–67. 187 David B. Swinfen, Imperial Appeal: The Debate on the Appeal to the Privy Council, 1833–1986 (Manchester: MUP, 1987); Jacqueline D. Krikorian, “British Imperial Politics and Canadian Judicial Independence,” CJPS, 33, 2 (2000), 291–332; and Thomas Mohr, Guardian of the Treaty: The Privy Council Appeal and Irish Sovereignty (Dublin: Four Courts Press, 2016). 188 Dawson, ed. (1933). 189 Robert C. Vipond, Liberty & Community: Canadian Federalism and the Failure of the Constitution (Albany: SUNY Press, 1991).



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190 Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto: UTP, 2004). 191 David E. Smith, Federalism and the Constitution of Canada (Toronto: UTP, 2010). 192 Eugénie Brouillet, Alain-G. Gagnon, and Guy Laforest, eds., La Conférence de Québec de 1864, 150 ans plus tard: Comprendre l’émergence de la fédération canadienne (Quebec: PUL, 2016). 193 Jean-François Caron and Marcel Martel, eds., Le Canada français et la Confédération, Fondements et bilan critique (Québec: PUL, 2016). 194 Donald F. Warner, The Idea of Continental Union: Agitation for the Annexation of Canada to the United States, 1949–1893 (Lexington: UKP, 1960); and Reginald C. Stuart, United States Expansionism and British North America, 1775–1871 (Chapel Hill: UNC Press, 1988). 195 Martin (1937), 1–11. 196 John Bartlet Brebner, North Atlantic Triangle: The Interplay of Canada, the United States and Great Britain (New Haven: YUP, 1949), 169. 197 Creighton (1958), 218. 198 “Appendix to Lecture XXII (1861),” Herman Merivale, Lectures on Colonization and Colonies, Delivered before the University of Oxford in 1839, 1840, & 1841 (London: Longman, Green, Longman and Roberts, 1861), 637. Merivale updates some of his lectures in 1861 by including appendixes. 199 David M.L. Farr, The Colonial Office and Canada, 1867–1887 (Toronto: UTP, 1955), 3. 200 Bruce A. Knox, “The Rise of Colonial Federation as an Object of British Policy, 1850–1870,” JBS, 11, 1 (1971), 92–112. 201 Ged Martin, “Launching Canadian Confederation: Means to Ends, 1836–1864,” Historical Journal, 27, 3 (1984), 575–602. 202 Martin (1984), 576. 203 Phillip Buckner, “The Creation of the Dominion of Canada, 1860–1901,” in Phillip Buckner, ed., Canada and the British Empire (Oxford: OUP, 2010), 68. Special thanks to Kenton Storey for drawing this debate to our attention. 204 Sir John G. Bourinot, Canada under British Rule, 1760–1900 (Cambridge: CUP, 1900). 205 Arthur R.M. Lower, Colony to Nation: A History of Canada (New York: Longmans, Green), 1946. 206 Ann Curthoys, “Distant Relations: Australian Perspectives on Canadian Federation,” in Krikorian, Martel, Shubert, eds., (forthcoming). 207 Adele Perry, On the Edge of Empire: Gender, Race, and the Making of British Columbia, 1849–1871 (Toronto: UTP, 2001).

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208 Edward Beasley, Empire as the Triumph of Theory: Imperialism, Information and the Colonial Society of 1868 (London: Routledge, 2005). 209 Tony Ballantyne, Webs of Empire: Locating New Zealand’s Colonial Past (Vancouver: UBC Press, 2012). 210 Kenton Storey, Settler Anxiety at the Outposts of Empire: Colonial Relations, Humanitarian Discourses, and the Imperial Press (Vancouver: UBC Press, 2016). 211 Stanley R. Stembridge, “Disraeli and the Millstones,” JBS, 5, 1 (1965), 122–139. 212 C.P. Stacey, Canada and the British Army, 1846–1871: A Study in the Practice of Responsible Government, rev. ed. (Toronto: UTP, 1963), 170. 213 Ajzenstat, et al. (1999), 1. 214 Samuel LaSelva, The Moral Foundations of Confederation: Paradoxes, Achievements, and Tragedies of Nationhood (Montreal and Kingston: MQUP, 1996). 215 Ian McKay, “The Liberal Order Framework: A Prospectus for a Reconnaissance of Canadian History,” CHR, 81, 4 (2000), 635. 216 Fernand Dumont, Genèse de la société québécoise (Montreal: Boréal, 1993). 217 Romney (1999), 279.

“Towards Confederation for Canada, Towards Wardship for First Peoples” A Concise History of Canada’s First Nations 2015 (first edition published in 2006)

Olive Patricia Dickason and William Newbigging1

“White Man’s Burden” or Aboriginal Burden? During the 1830s, Britain held a parliamentary inquiry into the conditions of Aboriginal peoples throughout the Empire. The British widely recognized that they had deprived First Peoples, as well as other tribal peoples, of their lands. They did not, however, generally agree on what they should do about it – or even admit that they should do anything at all. The committee report was clear: unregulated frontier expansion was disastrous for Aboriginal peoples, who almost without exception lost their lands.2 Trespass was only part of the problem. Another concern was that First Peoples were losing their land, particularly through devious leasing practices, sometimes by First Peoples themselves.3 Curbing settlers was tough politically, particularly in areas where they were needed for defence. In an attempt to correct this situation, in 1839, Britain legally declared First Nations lands to be Crown lands, a decision that had consequences beyond landownership. At that time, most political rights where land was concerned extended only to property holders. First Peoples, on the other hand, held their land in common (apart from some individuals who had accepted the European way). Making the Crown the guardian of their lands, in effect, excluded most First Peoples from political rights,4 which supported the

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belief that First Peoples were like children, in need of paternal protection.5 Popular imagination during the nineteenth century romanticized this into the “white man’s burden.”6 By 1830, British Indian administration was 75 years old and desperately underfunded. Its main interest was acquiring land. In fact, the government paid so little attention to Indian affairs that the Act of Union (1840) forgot to make provision for it – or for the payment of annuities for earlier land cessions, an oversight that was not corrected until 1844. Although transferred to the civil arm in 1830, the Indian policy of the two Canadas continued to be administered from London until 1860, through the lieutenant-governor of Upper Canada, who was also superintendent-general of Indian Affairs. The superintendent-general, therefore, had to act both for the Crown and for the First Nations. Inevitably, the two roles came into conflict.7 As well, funding for Aboriginal administration came from five different sources. It was also uncertain, to say the least, reflecting the lack of importance now given to Indian affairs. This attitude would deepen until well into the twentieth century. Although Britain transferred control of Indian affairs to Canada in 1860, it was two years before a single administration was set up. Even then, unification was not complete.8 Making matters even more confusing, in the mid-1800s Britain developed the concept of regional approaches.9 This meant almost as many policies as there were colonies. In the Maritimes, it was one of “insulation”; in the Canadas, “amalgamation”; in Rupert’s Land and on the North­west Coast, support of HBC administration. In other words, centralized imperial administration was not coping very well with the many local problems of colonial government, and the voices of the First Peoples were either not being heard or were being ignored. This policy failure would have repercussions into the twenty-first century, and Native peoples were often the last to know of changes in policy and in effective authority over their affairs. Who Is an “Indian”? In the meantime, reports were pouring in from other investigations into Aboriginal affairs (there were three between 1839 and 1857). The most important was that of the Bagot Commission of 1842–4, named after Chief Commissioner Sir Charles Bagot (1781–1843).10 It described a lack of direction in Indian administration and urged centralized control for



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the British North American colonies – the opposite of what the Colonial Office was practising. It also reaffirmed the 1763 Proclamation’s position that First Peoples had rights of possession in regard to land, including the right to compensation for surrenders. These points were not always being honoured. The Commission recommended, among other things, that: • reserves be surveyed and boundaries publicly announced; • a system of timber licensing be instituted for reserves; • all title deeds be registered and considered binding; and • First Peoples be taught European techniques of land management

and provided with livestock, agricultural implements, furniture, and the like in lieu of presents.

The commissioners thought that bands should be allowed to buy and sell land, at least between themselves. This, they believed, would encourage First Peoples to adopt individual freehold ownership in place of their traditional communal ownership, which the commissioners considered “uncivilized.”11 Finally, they urged that banks be established on reserves and that more schools for First Nations be established, with the co-operation of various religious denominations. The report described First Peoples as “an untaught, unwary race among a population ready and able to take every advantage of them.”12 Identifying goals was one thing; doing something about them proved to be something else again. Easiest to achieve were the department’s reorganization and centralization under the civil secretary as superintendent-general for Indian affairs and the measures to improve the protection of Aboriginal lands. More controversial was the gradual stop to gift distributions,13 which First Peoples resisted. Budgetary considerations prevailed, however, and the gifts ended in 1858. Aboriginal opposition to individual landownership was not surprising, not only because of their entrenched customs but also because, invariably, they lost a lot of land following its imposition.14 In 1850 and 1851, the Canadian legislature approved two land acts incorporating some of Bagot’s recommendations. Passed hurriedly because loggers were invading reserved lands, these measures made it an offence for private individuals to deal with First Nations concerning their lands. However, it was still unclear what “Indian title” actually meant. In 1850, the government also created the post of commissioner of Indian lands.

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The next year, Canada East (Quebec) set aside 230,000 acres (93,079 ha) for the creation of Aboriginal reserves and acquiesced to the distribution of up to £1,000 a year. However, only 170,012 acres (68,801 ha) were actually granted.15 Furthermore, the commissioner, not the First Nations, had control over leasing and rentals.16 In the meantime, largely because of the amount of property involved, the government decided that it needed to define who, exactly, was an “Indian.” The 1851 Act for Canada East, accordingly, undertook the task – without consulting First Peoples – and came up with these criteria: • all persons of Indian blood reputed to belong to the particular body

or tribe of Indians interested in Indian lands or their descendants;

• all persons intermarried with any such Indians and living among

them, and their descendants;

• all persons residing among such Indians, whose parents on either

side were or are Indians of such body or tribe, or entitled to be considered as such; and • all persons adopted in infancy by any such Indians, and residing in the village or upon the lands of such tribes or bodies of Indians and their descendants. The administration quickly decided that this definition was too inclusive, however, and revised it, once more without Indigenous input. This time, it excluded non-Indians living among First Nations and nonIndians married to Indigenous women. It also distinguished between status Indians – those who were officially registered – and non-status Indians.17 Indigenous women married to non-Indians kept their status, but their children did not have the right to claim it. The provision allowing non-Indian women married to registered Indians to gain status and to pass it on to their children stayed in: in other words, the male line determined ancestry. This more restrictive definition would prove problematic as well. Men and women were treated unequally. Children were left vulnerable to discrimination. Status could be lost through these discriminatory provisions. Clearly, the legislation was flawed and these flaws would lead to serious problems. Inquiry followed inquiry. Concerned about charges that its “civilizing” program was not working, the Canadian government named a commission to investigate. It resulted, in 1857, in An Act to Encourage the Gradual Civilization of the Indian Tribes of the Canadas, which



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introduced the idea of giving First Peoples the vote in exchange for Indian status. The commissioners also set out a plan to achieve this, most of which would be in effect until 1960. Eligible were males 21 years of age and over, able to read English or French, minimally educated, and “of good moral character and free from debt,” who had passed a three-year probation. By those standards, many in the white community would not have been eligible.18 The successful candidate would receive 20 ha of taxable reserve land. First Peoples rallied in rejecting the Act. They correctly saw the measure as an attempt to destroy First Nations communities and their way of life. At the same time, it would break up their reserves, allotment by allotment. By 1876, only one candidate had been enfranchised.19 Two years after the 1857 Act, an Act for Civilizing and Enfranchising Indians still encouraged enfranchisement and consolidated earlier legislation pertaining to First Peoples but dodged the issue of reserves. In 1860, the United Canadas took over Aboriginal administration from Britain’s Colonial Office. The commissioner of Crown lands became chief superintendent of Indian affairs, but the deputy superintendent actually did the job. Although Indian Affairs would not become a full department until 1880, it received its first full-time head in 1862: William Prosperous Spragge, who that same year had assisted William McDougall (1822–1905, commissioner of Crown lands, 1862–4) in negotiating the Manitoulin Island surrender. Spragge held his post until his death in 1874. Obviously, First Peoples had not been consulted. More Land Surrenders Throughout the Canadas, tensions were increasing, while the resources to maintain the Indigenous way of life shrank. As overexploitation of land progressed, the concept of family hunting territories took on a new importance. What had started among First Peoples as a custom of asking permission to hunt on another’s territory became an enforced requirement. The discovery of mineral deposits north of Lake Superior led the government to permit mining without considering First Nations. Chief Shingwaukonse (Little Pine, 1773–1854) of Garden River, near Sault Ste Marie, and other Ojibwa leaders went to Toronto and demanded that the revenues from the mining leases be paid to them as the owners of the region. They got nowhere.20 Three years later, in 1849, another request,

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this time for a land settlement, again drew no response. The Ojibwa took matters into their own hands and moved to close the Quebec and Lake Superior Mining Company operation at Mica Bay by force. Within three weeks, troops were on the scene to quell the “rebellion,” sometimes called the Michipicoten War.21 One of the two commissioners sent to investigate the situation was Thomas Anderson, of the Upper Canadian model village experiments, by now chief superintendent for Indian affairs. The commissioners found the Ojibwa eager to sign a treaty with the government, and even willing to let the government decide the amount of compensation. Despite their confidence in the “wisdom and justice of their Great Father,” however, the Ojibwa were clear-sighted about their objectives. The negotiations were not simple, but out of them arose the practice of including provisions for reserves in the treaties, setting the pattern for the future. First Peoples had long had this idea, but up to now, the various colonial assemblies had not set aside lands for First Nations on a regular basis. In the Aboriginal view, reserves were not something the government granted them. They were simply lands that First Peoples had not shared with the newcomers.22 Reserves were “the cradle of the Indian civilizing effort – and the means of securing the White man’s freedom to exploit the vast riches of a young dominion.”23 For that reason, establishing large reserves in isolated areas came to be seen as counterproductive. Instead, they should be small and close to white settlements to help First Peoples to learn white ways.24 Chief negotiator for the treaties was ex–fur trader William Benjamin Robinson (1797–1873). His mandate: to obtain rights to as much land as possible for as little as possible from Penetanguishine along the north shore of Lake Huron and across to Batchawana Bay on the eastern shore of Lake Superior and down to Pigeon River. Payment was to be by annuities, and each band would be permitted to choose a site for its own reserve. Hunting and fishing rights would continue over the entire surrendered area. Furthermore, there were to be no gift distributions. (Aboriginal etiquette required an exchange of gifts on such occasions, however, so Robinson had to compromise on this.) The Lake Superior chiefs signed on 7 September 1850 and the Lake Huron chiefs two days later. Some chiefs would claim later they were pressured into signing and threatened to appeal to London. The land surrendered was twice the area of the land given up in all previous



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treaties combined in Canada West,25 extending north to the height of land separating Rupert’s Land from Canada. By now, virtually all of Canada West was clear of Aboriginal title. The two Robinson treaties confirmed the pattern that had been developing since the Proclamation: • Negotiations were at open and public meetings. • Lands were “surrendered” only to the Crown. • A schedule of reserves to be held in common was annexed to

each treaty.

• Each member of the signing band received annuities. • Finally, First Peoples retained “full and free privilege to hunt over

the territory now ceded by them and to fish in the waters thereof as they have heretofore been in the habit of doing,” except for those portions sold to private individuals or set aside by the government for specific uses.

One of the points that bothered the dissident chiefs was the small size of their annuities – £500 to £600 – compared to those being handed out in southern Ontario. Robinson replied that southern Ontario lands were good for agriculture. In northern Ontario, on the other hand, the lands were of little or no use for farming. Robinson did not refer to the ecological effects of mining in the mineral-rich region. Another point that quickly drew attention was the nature of the “surrender.” First Nations did not claim absolute ownership of the lands, only the right to their use. How could they surrender them to the Crown, or to anyone else for that matter? Yet another complication lay in the fact that since the Crown already claimed underlying title, what was it accepting from the First Nations? Questions like these would lead to a series of court cases. The influence of the Robinson treaties would soon be evident in the next major cession, that of Manitoulin Island. The region had been set aside as a reserve by the 1836 treaty with the Ojibwa, in the expectation that those living to the south would move there. But by 1860, only 1,000 people had moved in, with 3,000 acres (1,214 ha) being farmed. Under pressure to open more land for settlement, the government ended the project. The treaties notwithstanding, the question of protection for Aboriginal lands remained essentially unsolved as settler encroachments continued in agriculturally attractive areas. Legislation enacted a year before

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Confederation gave the government the sole right to sell reserved lands that the First Peoples were not using – and to do so without consulting them. Neither were First Peoples included in the Confederation created by the British North America (BNA) Act of 1867. No one even raised the question of their partnership. Wards of the State With the creation of the Dominion of Canada in 1867, Nova Scotia, New Brunswick, Quebec, and Ontario kept control of Crown lands within their borders. So did Prince Edward Island and British Columbia when they joined a few years later. Saskatchewan and Alberta, after they were created in 1905, did not gain that control until 1930. First Peoples became a federal responsibility in the section of the BNA Act on “Indians and lands reserved for Indians,” the only reference in the Act to Canada’s Aboriginal peoples. This separated their administration from that of Crown lands: First Peoples continued in a distinct legal category, that of wardship. First Peoples could, if they chose, step out of this category to attain the rights and responsibilities of other Canadians, but the price was high. According to one historian, reserves were the main institution that the Dominion inherited from colonial administrations.26 In the Indigenous view, the main inheritance was the tradition of the treaties to regulate relations between First Peoples and settlers, mainly in connection with land. Whites confidently expected that First Peoples would eventually be assimilated. As Sir John A. Macdonald (Prime Minister of Canada, 1867–73, 1878–91) observed in 1887, “The great aim of our legislation has been to do away with the tribal system and assimilate the Indian people in all respects with the other inhabitants of the Dominion as speedily as they are fit to change.”27 Canada acquired Rupert’s Land, including the present-day southern portion of Nunavut28 and the North-Western Territory (present-day Yukon, portions of today’s western and northern Northwest Territories, and parts of northern Saskatchewan, Alberta, and BC), in 1870. This vast expanse was designated the North-West Territories. Manitoba became the fifth province that same year. British Columbia joined Confederation in 1871, and Prince Edward Island became the seventh province in 1873. These expansions meant that in four years, Canada’s Aboriginal population increased from 23,000 to more than 100,000 (estimates that may be low), from 0.7 per cent of the population to 2.5 per cent.29 Each area



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had a separate history made up of a distinctive set of experiences. All of these governments, however, shared a habit of passing laws in the interests of the dominant society without consulting First Peoples. This pattern was in place in 1868, when the new Dominion formed the Department of Secretary of State and gave it responsibility for First Peoples until 1873, when the Department of the Interior took over First Nations administration. “Indian Affairs” involved control of First Nations lands and property (including resources) as well as funds. High on the department’s priority list was the consolidation of the various laws inherited from previous administrations, a comparatively simple task in the East, where the Indigenous population was too small to be an important political consideration. On the prairies and in British Columbia, however, First Peoples still were in the majority, and so could mount an effective resistance. The situation became even more diverse when Britain handed over her Arctic territories to the Dominion in 1880. The year following Confederation, Indian Affairs reaffirmed its “guardianship policy.” It also introduced a three-year elective system for bands and somewhat extended the powers of chiefs and band councils, but Indian Affairs could still override them. Cabinet could also depose chiefs or band councillors. The cabinet decided, on the recommendation of the superintendent-general, which bands were ready for the three-year elective system, a step that it could take without the band’s consent.30 Once more, it used individual landholdings carved out of reserves to reward enfranchisement, this time by means of “location tickets” that carried with them rights of inheritance.31 Those who became enfranchised lost the right to be classed as Indians under the Act, but they maintained their treaty rights (other than treaty payments) and their right to live on a reserve. This meant, among other things, that they could hold a business licence, buy liquor, and send their children to public schools. The government confidently expected that these new provisions would undermine resistance to enfranchisement. However, by 1920, only about 250 First Peoples had chosen to enfranchise.32 Later, more First Peoples accepted the vote as the government eased the Act’s requirements. Marrying Out The 1869 Act for the Gradual Enfranchisement of Indians expanded features of the 1851 legislation that treated men and women differently. If a registered Indian man married a non-Indian woman, she gained

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Indian status, which she passed on to their children. In contrast, the Indian wife of a non-Aboriginal lost her Indian status. Another provision added a “blood quantum” requirement to the definition of an Indian. To qualify, a person born after the passing of the Act must now have at least one-quarter Aboriginal blood.33 In that case, the one-­ quarter Aboriginal wife of a non-Aboriginal could claim Indian status, but her children could not. These measures aroused strong opposition. The General Council of Ontario and Quebec Indians lobbied hard for the rights of Indigenous women, but nothing came of their efforts.34 The Indian Act of 1876, essentially a consolidation of the legislation considered in this and the previous chapter, would keep this feature. The Acts of 1868 and, in particular, 1869 were designed to break down tribal forms of government on the grounds they were “irresponsible.” The elected band council would be the instrument to achieve this.35 It was hardly surprising that, with the exception of the Mohawk of the Bay of Quinte, the bands (including the Six Nations) resisted by refusing to exercise even the limited powers given to them. Meanwhile, on the other side of the continent, First Peoples were facing a threat of a different sort. The West Coast and the “Chilcotin War” If white settlement was impinging on Aboriginal power on the West Coast, the discovery of gold overwhelmed it. A precursor was the mini– gold rush in 1850–3 on the Queen Charlottes, followed by another of similar proportions on the Stikine in 1862. Fortunately for the First Nations involved (Haida and Tsimshian, respectively), both proved to be short. Even so, confrontations led Governor Douglas to assert British authority with shows of force. Soon news spread of the gold deposits of the Fraser River in 1857 and the Cariboo in 1862. This time, the strike was huge. The Salish of the Fraser had been quietly mining the placer gold for years and trading it instead of furs at HBC posts, but they were overwhelmed in 1858, when 25,000 gold-seekers flooded into Victoria. In short order, 10,000 men were panning for gold along the Fraser. Outraged at this invasion of their territory, Salish chief Spintlum confronted the miners. A hysterical press in Victoria reported the “Fraser River War” as a massacre of miners. The actual tally was 30 First Peoples and two whites killed. Again, Douglas asserted British power,



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announcing that British law applied to all, First Peoples as well as miners. He tried to win Indigenous co-operation by appointing some of their leaders as magistrates, but this did nothing to alleviate the havoc being wreaked on their way of life. The mining operations needed to extract the hard-rock gold of the Cariboo strike, deep in the interior, meant the building of roads for the transport of equipment and supplies. Proceeding with all possible haste and no consideration for the damage to the Indigenous huntingand-gathering economy, the invaders interfered with Native salmon weirs, raided villages, and even looted graves. As the First Peoples saw it, the non-Natives were destroying their subsistence base, so it was up to them to replace it, but the road gangs turned away First Peoples who asked for food. On top of all this, 1862 also saw smallpox among the Chilcotin. Matters quickly came to a head. In 1864, the Chilcotin, the main victims of these developments, sent out war parties to attack road gangs. After several bloody encounters in which 13 non-Natives died, government forces tricked eight insurgents, including chiefs Tellot, Alexis, and Klatsassin, into surrendering. Five received death sentences and were quickly hanged en masse. One was sentenced to life imprisonment.36 The judge acknowledged, however, that the treatment they had received from the usurpers had provoked them. The following year, the looting of Aboriginal graves became illegal. Despite the fears of the whites, no generalized First Nations war developed. Governor Douglas’s touch was sorely missed after he retired in 1864. Where he had accepted Indigenous requests for as much as 200 acres (81 ha) per Indigenous householder, the new chief commissioner of lands and works, Joseph Trutch, set the ceiling at 10 acres (4 ha).37 (On the prairies, First Peoples were being allowed 160 acres [65 ha]. NonNatives could pre-empt 160 acres and purchase an additional 480 acres.) Beginning in 1865, Trutch, in a program of “adjustments,” took away much of the reserve land set aside for First Nations. The following year, he issued an ordinance preventing Aboriginal people from pre-­ empting land without written permission from the governor.38 In 1870, First Peoples lost altogether the right to pre-empt. What was left was the right of individuals to purchase lands from non-Natives. Since the First Peoples saw the land as theirs already, this was not a “right” they appreciated. Predictably, resentment rose. When British Columbia entered Confederation in 1871, it kept control of its Crown lands, the only western province granted this privilege up

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to that time. This did not bode well for the First Peoples, even though the agreement gave Ottawa the responsibility for Aboriginal administration and provided for the necessary transfer of lands to the federal authority. Again, no one consulted the First Peoples, although they still outnumbered the newcomers at the time and would continue to do so until the mid-1880s.39 One of the first acts of the new member of Confederation was to deprive First Peoples of the provincial franchise, which they did not regain until 1949. With the exception of the adhesion to Treaty Eight in its northeastern corner, no post-Confederation treaties were signed in the province. British Columbia did not even create a ministry of Native Affairs until 1988. Almost immediately, Ottawa and British Columbia were locked in a battle over the size of allocations for reserves. The federal government thought that a family of five would need 80 acres (32 ha), but BC thought that 10 were enough. In 1873, the administrations worked out a compromise of 20 acres (eight ha) per family, regardless of size, but it pleased no one. In 1874, the federal government disallowed BC’s Crown Lands Act because it did not make provision for First Nations reserves, but British Columbia continued doling out lands to First Peoples in minimal lots. By the last decades of the century, the 90 reserves established for the Kwakwaka’wakw totalled 16,500 acres (6,680 ha), an average of 183 acres (74 ha) per reserve.40 The Métis Challenge Hardly had Confederation been accomplished than the federal government came face to face with a situation that had been brewing for a long time in the Northwest: the demands of the Métis for recognition. The Mats of Red River saw themselves as a “New Nation,” neither First Nations nor white but a distinctive blend of both that incorporated farming, buffalo hunting, and the fur trade. The Métis way of life developed under the economic umbrella of the trade and in the isolation of the Northwest. They built their log cabins where they fancied, usually along riverbanks without formal arrangements with the HBC – in fact, often without the company’s knowledge. At Red River, in the District of Assiniboia, a Métis sense of identity had crystallized with the troubles that developed after the coming of the Selkirk settlers in 1812 – in the clash of cultures but, above all, in the rivalries of opposing fur-trading interests. The amalgamation of the



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North West Company and Hudson’s Bay Company made the Métis the largest element in Red River’s population,41 empowering them to act decisively when things took a turn for the worse – which they soon did. First, the War of 1812 interrupted Red River’s supply lines. Two years later, food shortages led to a ban on the export of provisions without a special licence – the Pemmican Proclamation of 1814. This greatly disturbed the Métis, for whom trade in pemmican – a high-protein mixture of dried meat and berries – was an important economic activity. They reacted by conducting a series of raids against the Red River colony. In the spring of 1816, after a winter of starvation during which people died, the Métis Nor’Wester captain Cuthbert Grant (c. 1793–1854) assembled 60 buffalo hunters and attacked an HBC brigade bringing down pemmican. They then captured and ransacked Brandon House, an HBC post, and took the pemmican to Red River. At Seven Oaks, Robert Semple (1777–1816, governor-in-chief of Rupert’s Land since 1815) and 21 settlers challenged them. By the time the smoke cleared, Semple and all his men were dead. Only one Métis had been killed, and Grant’s prestige among his people soared. A gathering of Métis leaders at Qu’Appelle Valley that same year named him “Captain General of all the Half-Breeds.”42 As the buffalo herds dwindled, and farming loomed closer as an alternative to the fur trade, both the hunt and traditional communal values began to give way to those of the individual. More Métis became wage labourers, and their relative position within the fur trade hierarchy declined. Now, most were at the level of menial labour rather than at that of the officer class, where some had been earlier. The Métis saw the HBC monopoly as leading to the “utter impoverishment, if not the ruin, of the Aboriginal people.” They were also upset at the appointment in 1838 and subsequent actions of the anti-French Adam Thom (1802–90) as recorder (a judgeship) for Assiniboia. The prospect of the government encouraging white settlement spurred the Métis (particularly those who were French-speaking) to become more militant. In 1845, 977 of them signed a petition to Alexander Christie, governor of Red River and Assiniboia, 1833–9, and of Assi­ niboia, 1844–9, claiming special rights by virtue of their Indigenous blood. The governor told them that they had no more rights than those enjoyed by all British subjects. Two years later, in 1847, Alexander Kennedy Isbister (1822–83) took their petition to England. Isbister, who was one-quarter Aboriginal, had been born at Cumberland House, the grandson of Chief Factor

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Alexander Kennedy and Aggathas, a Cree.43 This time, the Métis asked that the HBC charter be declared invalid and that Red River (reorganized into the District of Assiniboia in 1836) be declared a colony. This petition gave rise to spirited exchanges in the British Parliament. Powerful forces opposed monopolies in principle, but the colonial secretary could not imagine First Nations self-government. Only those regions that had enough white settlers to ensure they would have control should have colonial status. The Métis could have appealed to the Privy Council but only at their own expense. Their meagre resources strained, they formally dropped the issue in 1850. Other petitions on other issues would follow. In 1849, the year Vancouver Island became a colony, the HBC in effect lost the power to enforce its monopoly. The Métis kept up their campaign against Thom, and in 1851 HBC Governor Sir George Simpson withdrew him from office. Simpson also gave in to demands that the Métis have a wider representation on the Assiniboia Council but managed to fudge its execution. As HBC control eroded, a Canada West group that would later call itself Canada First began a campaign to annex Red River to Canada. With Confederation, the Canada Firsters became strident, adding yet another challenge to the fundamentals of the old order of the “custom of the country” with its elements of Aboriginal law. The Métis were divided on the issue. As the Métis were waging their war of words with the HBC and London for recognition, they continued actual hostilities in the field against their traditional enemies, the Sioux.44 An 1851 confrontation, the Battle of Grand Coteau, from which they emerged victorious, proved to be even more important than Seven Oaks in encouraging their sense of identity. More problematic, however, was the international border. At first, US officials let them cross over in pursuit of buffalo by virtue of their Indigenous blood. Now, however, the American attitude was stiffening, and the Métis were finding themselves excluded from hunting south of the border. The clamour became such that the British Parliament established a select committee in 1857 to examine British policy in the Northwest and to determine if the region (particularly the prairies) had potential for anything other than the fur trade. The British Royal Geographical Society also sent out a scientific expedition under Captain John Palliser (1817– 87) to report on the region. Canada West, not to be outdone, organized its own expedition. Toronto professor Henry Youle Hind (1823–1908) and engineer S.J. Dawson (1820–1902) went out to determine the best route for transportation and communication to facilitate annexation.



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The upshot was that mainland British Columbia was separated from HBC administration and became a Crown colony in 1858. On the other hand, the government did not deem Red River, with its predominantly mixed-blood population, ready for such a status.45 The disappointment in Red River was profound. As for the First Peoples, their fears for the future had not been calmed. Already, they wanted a treaty. Confederation Brings Centralization – and Western Isolation When Confederation became a reality, four western Cree and Saulteaux chiefs agreed among themselves about the extent and limits of their land claims in preparation for the negotiations they foresaw in the nottoo-distant future.46 A Saulteaux band in Assiniboia allowed settlers onto their lands only on the condition that a permanent agreement be negotiated within three years.47 In Red River, changing social customs added to the tensions of the political scene. Victorian standards influenced those of the frontier, leading to a series of sex scandals. These, in turn, erupted into open defiance of HBC authority.48 As the whites were at each other’s throats, the balance of power fell to the Métis, the settlement’s largest armed force.49 The 1862 Sioux uprising in Minnesota also had repercussions in Red River, as ragged and starving refugees (largely Dakota) drifted in from the fighting. In the spring of 1863, 600 of them appeared, bringing the medals they had received from the British for their active alliance in the War of 1812.50 Sioux had been fleeing in small numbers into Canada since the 1820s. Now, however, the problem became acute, as the people of Red River had to provide for their former enemies. When the HBC, as a representative of the British, pledged friendship with the Sioux, Peguis (who died in 1864 at age 90) and his people felt betrayed. That same year, 1864, a group of Ojibwa attacked a refugee Sioux encampment. Amid these swirling tides of change, Red River’s isolation from Canada became more evident than ever. This was the era of railroad building, but there were no immediate plans for the Northwest, and communication was slow. It was faster and easier to communicate via the United States. Obviously, the HBC could no longer control the reins of power, but the Colonial Office steadily refused to set up a Crown colony. Prime Minister Macdonald reluctantly agreed to negotiate for the purchase of Rupert’s Land and to extinguish Aboriginal land rights once the region was under Canadian control but hoped the HBC would do this before the transfer.

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These were rough years for many reasons, not just political ones. Drought and grasshopper plagues brought crop failures. The buffalo hunt was also declining and becoming more distant. The fisheries were at low ebb. In 1868, even the rabbits were at the bottom of their cycle. That was also the year Ontario decided to build a road from the northwest angle of Lake of the Woods to Fort Garry. The project proceeded with more haste than foresight: the government did not always clear Aboriginal title, nor did it heed Aboriginal claims to fees for rights of passage and for timber used. In some cases, Aboriginals sold land that the Métis claimed. In addition, protests soon developed over wages. Métis claimed the government was paying them less than whites. Wages were paid in scrip (temporary paper currency), which they could redeem only at a store owned by the leader of the Canada Firsters. In spite of all these difficulties, a land rush was obviously developing – and settlers were staking claims to land without regard for Aboriginal rights. The rush for land threatened the settlement pattern that had developed spontaneously among the fur trade families of Red River: river frontage farms with long, thin ribbons of land stretching back into woodlots. The pattern mirrored that of the old Quebec regime. This system assured each holder of access to the river, the main transportation route. Throughout all this, there was no official effort to consider the needs of the people of Red River. The slowness of the Canadian government to act in the Northwest, however, was not lost on an interested spectator to the south. Minnesota offered $10 million for HBC lands but was refused. In 1868, the state protested the impending transfer of HBC lands to Canada without a vote of the settlers (with no mention of First Peoples, who were in the vast majority) and passed a resolution favouring annexation to the United States. That same year, Britain set up a provisional government for Rupert’s Land. William McDougall, who had negotiated the Manitoulin Island surrender of 1862 and who was now actively working for the annexation of the Northwest to Canada, became the first lieutenant-governor in 1869. His job was to “report upon the state of the Indian tribes now in the Territories” and to make suggestions as to how the tribes could best be protected and “improved.”51 Meanwhile, Ottawa continued oblivious to the situation in Red River. The new North West Council it appointed was English and Protestant in composition, without representation of the region’s French-language element. Even the English-speaking settlers protested this. In the meantime, another figure was making his voice heard: Louis Riel (1844–85),



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one-eighth Ojibwa,52 who had attended the Collège de Montréal for several years. A natural leader, with a strong sense that the Métis of Red River were, indeed, a “New Nation,” he represented the opposing force to Canada First. When in 1869 the English-speaking Métis William Pease (fl. 1855–70) organized a meeting demanding that the payment for Rupert’s Land be made to First Peoples and Métis as rightful owners of the land, not to the HBC, Riel attended as an observer. He was already a member of the Comité National des Métis, which had been organized to defend Métis rights with the active support of Abbé Joseph-Noël Ritchot (1825–1905) of St Norbert. The transfer of lands and authority from the HBC to Canada was scheduled for 1 December 1869, still without official consultation with the people of the Northwest. When word reached Red River that McDougall and his entourage were coming to the Northwest before the scheduled date of transfer, Riel and the Comité acted to defend their interests. They blocked the border on the Pembina Trail, by which the official party must travel, and on 31 October refused to let them enter Assiniboia. McDougall had been warned but had not believed that matters would come to that. The new Dominion had finally come face to face with the new nation whose existence it had steadfastly refused to acknowledge. Red River Takes a Stand The Métis were not the only ones who viewed the transfer with mistrust. Resident HBC officers, like the Métis, had not been consulted in terms of the transfer, and the government had made no provision for any claims they might have had. They resented English indifference to their fate and wondered about Canada’s ability to hold the union together, especially in view of the US purchase of Alaska in 1867. Trade was flourishing between Red River and points south of the border.53 In the American view, it was only natural that the Northwest should become part of the United States, joining it with Alaska. The Englishspeaking settlers were also unhappy at what was happening but were not prepared to go as far as the Comité National. The day after Riel and the Comité turned McDougall back, a roll call revealed 402 men, all bearing arms and prepared to support Riel. Later that day, 100 more were reported to have arrived. Discipline was strict: no alcohol. Two days later, 2 November, Louis Riel informed the HBC officer at Fort Garry that the fort was under the protection of his men,

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a move that forestalled a Canada First plan to take over. It also ensured the Comité’s control over Red River, at least until federal troops arrived, which could not be before spring. McDougall, cooling his heels in Pembina, compounded his errors. In a snowstorm on 1 December, the day originally scheduled for the formal transfer of Rupert’s Land to Canada, he crossed the border into Canada and read the proclamation of the transfer. Thus, HBC authority formally ended without any effective official authority to take its place. McDougall tried to correct this by commissioning John S. Dennis (1820–85), surveyor and militia officer, as “lieutenant and conservator of the peace,” authorizing him in the Queen’s name to put down the Métis by force. The Canada Firsters greeted this with enthusiasm, but the English-speaking settlers refused to co-operate. A group of Saulteaux at Lower Fort Garry under Chief Henry Prince (Miskoukeenew, “Red Eagle,” 1819–1907, son of Peguis) felt otherwise. They announced they were ready to fight for the Queen. Some Sioux also joined the Canada Firsters. A week later, on 8 December, Riel issued the “Declaration of the People of Rupert’s Land and the North-West,” stating that “a people, when it has no government, is free to adopt one form of Government in preference to another, to give or to refuse allegiance to that which is proposed.”54 On 10 December, residents hoisted the Métis flag. On the 27th, they established the first provisional government, with Riel elected president. Riel and his Métis were in control of Red River without having shed a drop of blood. Back in Ottawa, Prime Minister Macdonald learned on 25 November of the Métis blockade. His immediate reaction was to advise his representative in London not to complete the transaction with the HBC until Canada could be assured peaceful possession of the Northwest. He then sent a message to McDougall, warning him that he was, in effect, approaching a foreign country under HBC control and that he could not force his way in. When McDougall chose to follow the line of the Canada Firsters and to go ahead anyway, he created a political vacuum in Red River. Macdonald had seen the consequences, both nationally and internationally, all too clearly: the United States might acknowledge this provisional government.55 What followed is etched in Canadian historical lore. McDougall never did gain entry to Assiniboia and had to return to Ottawa. Riel formed a second provisional government on 8 February 1870, which was more broadly representative of Assiniboia’s community than the first had been. In the meantime, the rowdy behaviour of some Canada Firsters led to the



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execution by court martial of Orangeman Thomas Scott on 4 March.56 This inflamed racial passions between English-language Protestants and French-language Catholics. Quebec, which had remained aloof, as it had seen the Métis as “savages,” now came to their defence. Macdonald moved quickly to meet with a Red River delegation. The two parties agreed on terms, and Macdonald’s government rushed the Manitoba Act, which created the province of Manitoba, through Parliament. It obtained royal assent on 12 May. McDougall fought hard to have the bill rejected, and he was on solid legal ground. The Act had to be amended hastily to make the new province constitutional. Apart from the Selkirk Treaty, Aboriginal title to lands had not been extinguished. This pushed the federal government into negotiating the first of the numbered treaties of the West in 1871 and 1872. In a move to forestall a raid from Ontario, Macdonald sent a military expedition to Red River in 1870 under Colonel G.J. Wolseley (1833–1913). The newly appointed A.G. Archibald, lieutenant-governor, 1870–3, was supposed to arrive ahead of the troops. The Métis were counting on this. Unfortunately, it happened the other way around. Despite the unfinished state of both the Dawson Road and the transcontinental railway, and the need to negotiate rights of passage with the Ojibwa, through whose territory the expedition had to pass,57 the military expedition arrived first. Riel, forewarned, went into hiding.58 The behaviour of the troops in the settlement did more damage than all the previous months of uncertainty. During the 10 months of the resistance, the Métis had served when needed to keep the peace as volunteers, even providing their own arms and ammunition. Their conduct had been exemplary. Now, they had to endure verbal and physical abuse, in two instances to the point of being killed. Wolseley’s expedition was Britain’s last official military action in present-day Canada. Canada was divided on Riel. Ontario demanded that he be brought to justice. Quebec answered in his defence. Macdonald was able to announce in all truth that he had no idea as to the Métis leader’s whereabouts, which he hoped would calm the situation. The Fenians, who were conducting sporadic raids from across the border, hoped for Métis help, particularly as one of them, William B. O’Donoghue (d. 1878), had been one of Riel’s top aides. The Métis leader refused, however. In 1871, Archibald publicly shook his hand in thanks, a gesture that cost the lieutenant-governor his office. The Red River crisis of 1869–70 and the question of amnesty that arose out of it were the first serious racial controversies the Dominion

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faced. Although the English-French confrontation took centre stage, the underlying First Nations–Métis–non-Native division had been the major factor. Great Britain might have lobbied for the creation of an Aboriginal buffer state in the US during the negotiations for the Treaty of Ghent in 1814, but when it came to creating a Métis domain within her own colonies, she had not been up to the challenge.59 Neither the First Peoples of the North-West Territories nor the government had any reason to believe the racial issue was settled. Settlers of European descent were arriving every day in the Northwest, and the trickle was turning into a flood. Both sides could look to the south, to the violence of the American West, for a glimpse at what the future might be. Canada’s vision of a nation from sea to sea did not include disputes over who owned the land when the next wave of settlers arrived. First Peoples wanted to safeguard their rights while they still were in the majority. The answer for both lay in treaties. NOTES 1 Olive Patricia Dickason and William Newbigging, “Towards Confederation for Canada, towards Wardship for First Peoples,” A Concise History of Canada’s First Nations (Toronto, 2015), 158–178. 2 John H. Bodley, ed., Tribal Peoples and Development Issues: A Global Overview (Mountain View, Calif., 1988), 63–9. 3 Some of these problems are still continuing. For example, the community of Shannonville, Ontario, occupies lands that were leased by the Iroquois of Tyendinaga early in the nineteenth century to a certain Turton Penn for 999 years. Henderson, Canada’s Indian Reserves, 38 n. 48. 4 John Leslie and Ron Maguire, Historical Development of the Indian Act, 11. 5 A clear exposition of this position is that of Herman Merivale, “Policy of Colonial Governments towards Native Tribes, as Regards Their Protection and Their Civilization,” in Bodley, ed., Tribal Peoples, 95–104. 6 The phrase “white man’s burden” owes its origin to Rudyard Kipling, who used it in reference to colonial powers and their relationship to the Aboriginal people whose territories they took over. 7 Dennis Madill, “Band Council Powers,” in W.E. Daugherty and Madill, Indian Government under Indian Act Legislation 1868–1951 (Ottawa, 1980). 8 John E. Hodgetts, Pioneer Public Service: An Administrative History of the United Canadas, 1841–1867 (Toronto, 1955), 223.



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9 David McNab, “The Colonial Office and the Prairies in the Mid-Nineteenth Century,” Prairie Forum 3, 1 (1978): 21–38. 10 It was published in two parts, in Journals of the Legislative Assembly of the Province of Canada, 1844–5, app. EEE; and ibid., 1847, app. T. 11 Ibid., 1847, app. T. 12 Cited by Richardson, “Kind Hearts or Forked Tongues?” 23. The commissioners appear to have considered that Aboriginal loss of lands was in large part due to alienation by the First Nations themselves. Such a view would have been reinforced by the lack of Aboriginal action in launching suits against trespass or for the recovery of lost lands. See the Bagot Commission Report, Journals of the Legislative Assembly of the Province of Canada, 1844–5, app. EEE; and 1847, app. T. 13 Thomas Anderson, for example, opposed the discontinuance, arguing that it would result in serious deprivation; see Leslie and Maguire, Historical Development of the Indian Act, 21. 14 Donald B. Smith, Sacred Feathers, 184. 15 Toby Morantz, “Aboriginal Land Claims in Quebec,” in Ken Coates, ed., Aboriginal Land Claims in Canada (Toronto, 1992), 107. 16 Schedule of Indian Bands, Reserves and Settlements (Ottawa, 1987), 11–17. Aboriginal settlements, of which there are about a dozen, are not included, as they do not have lands specifically set aside for them. 17 Some reserve the term “Indian” for those who are registered. See, for example, J. Rick Ponting and Roger Gibbins, Out of Irrelevance (Toronto, 1980), xv. 18 John L. Tobias, “Protection, Civilization, Assimilation: An Outline History of Canada’s Indian Policy,” Western Canadian Journal of Anthropology 6, 2 (1976): 16. This article was reprinted in A.L. Getty and Antoine S. Lussier, eds., As Long as the Sun Shines and Water Flows (Vancouver, 1983), 39–55. 19 Peter Jones, the Mississauga chief, had warned that Amerindians must feel like full partners in the new order. He pinpointed such measures as security of ownership of reserve lands and civil rights; see Smith, Sacred Feathers, 238–9. 20 For a study of the long Ojibwa struggle with the mining companies, see Janet E. Chute, The Legacy of Shingwaukonse: A Century of Native Leadership (Toronto, 1998). 21 Douglas Leighton, “The Historical Significance of the Robinson Treaties of 1850,” paper presented to the Canadian Historical Association, Ottawa, 1982; Richardson, “Kind Hearts or Forked Tongues?” 24–7; George Brown and Ron Maguire, eds., Indian Treaties in Historical Perspective (Ottawa, 1979), 26.

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22 This view is expressed in a pamphlet issued by the Federation of Saskatchewan Indians, Indian Treaty Rights, n.d., n.p. 23 Allen G. Harper, “Canada’s Indian Administration: Basic Concepts and Objectives,” America Indigena 5, 2 (1945): 132. See also Roger Gibbins and J. Rick Ponting, “Historical Overview and Background,” in Ponting, ed., Arduous Journey: Canadian Indians and Decolonization (Toronto, 1986), 25. 24 Hodgetts, Pioneer Public Service, 209–10. 25 A rule of thumb for determining their size was to allow 80 acres (32 ha) per family; however, there was considerable variation in practice. 26 Douglas Sanders, “Government Indian Agencies,” in Washburn, ed., Handbook of North American Indians, 4: History of Indian-White Relations (1989), 279. 27 Malcolm Montgomery, “The Six Nations Indians and the Macdonald Franchise,” Ontario History 56 (1964): 13. 28 The price was $1.5 million, or about one penny for every three ha. 29 Census of Canada, 1871, I, 332–3; 1881, 1, 300–1; 1941, 684–91. 30 Wayne Daugherty, “The Elective System,” in Daugherty and Madill, Indian Government under Indian Act Legislation, 4. 31 Ibid., 3. 32 Tobias, “Protection, Civilization, Assimilation,” 17–18. 33 Ibid., 22–3. On current legal meanings of “Indian,” see Woodward, Native Law, 5–12. 34 Kathleen Jamieson, Indian Women and the Law in Canada: Citizens Minus (Ottawa, 1978), 69–73. 35 Dennis Madill, “Band Council Powers,” in Daugherty and Madill, Indian Government under Indian Act Legislation, 2. 36 N.L. Barlee, “The Chilcotin War of 1864,” Canada West Magazine 6, 4 (1976): 13–23. Another version of Klatsassin’s behaviour has it that his people had been decimated by smallpox in 1862, and when a Euro-Canadian threatened him with a return of the disease he went on his rampage. See DCB, IX, s.v. “Klatsassin.” 37 Robin Fisher, “Joseph Trutch and Indian Land Policy,” B.C. Studies 12 (1971–2): 17. See also Berger, Fragile Freedoms, 222. 38 “Ordinance further to define the law regulating acquisition of Land in British Columbia.” 39 J.E. Michael Kew, “History of Coastal British Columbia since 1849,” in Handbook of North American Indians, vol. 7, Wayne Suttles, ed., Northwest Coast (Washington, 1990), 159. 40 Report of the Royal Commission on Aboriginal Peoples, 5 vols. (Ottawa, 1996), 11, part 2, 784.



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41 The 1871 Census counted 9,800 Métis out of a total population of 11,400. Nathalie J. Kermoal, “Le ‘Temps de Cayoge’: La vie quotidienne des femmes métisses au Manitoba de 1850 à 1900,” Ph.D. thesis (University of Ottawa, 1996), xliii n23, 40. 42 For the story of Grant, see Margaret MacLeod and W.L. Morton, Cuthbert Grant of Grantown (Toronto, 1974). 43 Barry Cooper, “Alexander Kennedy Isbister: A Respectable Victorian,” Canadian Ethnic Studies 17, 2 (1985): 44–63; DCB, XI, s.v. “Isbister, Alexander Kennedy.” He had gone to England at the age of 20. 44 Most of the Métis of Red River were of Cree descent and so had inherited the animosity that existed between Cree and Sioux. 45 For some of the colonial secretary’s views, see Herman Merivale, “Policy of Colonial Governments towards Native Tribes, as Regards Their Protection and Their Civilization,” in Bodley, ed., Tribal Peoples, 95–204; David T. McNab, “Herman Merivale and Colonial Office Indian Policy in the MidNineteenth Century,” in Getty and Lussier, eds., As Long as the Sun Shines and Water Flows, 85–103. 46 Alexander Morris, The Treaties of Canada with the Indians (Toronto, 1880; reprint, 1971), 169. 47 NAC, RG 6, C-1, vol. 316, file 995, William McDougall to Secretary of State for the Provinces, 5 Nov. 1869; “Copy of the Indian Agreement,” The Globe, Toronto, 4 Sept. 1869, 3. Both references cited by Daniel, History of Native Land Claims, 3. 48 For details of these troubles, see Frits. Pannekoek, A Snug Little Flock: The Social Origins of the Riel Resistance of 1869–70 (Winnipeg, 1991). 49 Although the French language predominated among Red River Métis, in biological fact they were more mixed than that would indicate. Historian Diane Payment has illustrated this with names: MacGillis (Magillice), Bruce (Brousse), Sayer (Serre), McKay (Macaille), and McDougall (McDoub). Payment, Batoche (1870–1970) (St Boniface, Man., 1983), 1. 50 Their story is told by Elias, Dakota of the Canadian Northwest. See also James H. Howard, The Canadian Sioux (Lincoln, Neb., 1984); Roy W. Meyer, “The Canadian Sioux Refugees from Minnesota,” Minnesota History 41, 1 (1968): 13–28; George F.G. Stanley, “Displaced Red Men: The Sioux in Canada,” in Ian A.L. Getty and Donald B. Smith, eds., One Century Later: Western Canadian Reserve Indians since Treaty 7 (Vancouver, 1978), 55–81. 51 Daniel, History of Native Land Claims, 4, citing John Leonard Taylor, “The Development of an Indian Policy for the Canadian North-West, 1869–70,” Ph.D. thesis (Queen’s University, 1975), 28.

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52 Riel was the grandson of Jean-Baptiste Lagimodière (1778–1855) and Marie Anne Gaboury (1780–1875), first non-Aboriginal woman in the West. During the winter of 1816–17, Jean-Baptiste and a companion had travelled by foot from Red River to Montreal (17 Oct. 1816–10 Mar. 1817) to inform Lord Selkirk about the Battle of Seven Oaks. Riel’s parents were farmers and did not participate in either the fur trade or the buffalo hunt. 53 On the St Paul trade, see Rhoda R. Gilman, Carolyn Gilman, and Deborah M. Stultz, The Red River Trails: Oxcart Routes between St. Paul and the Selkirk Settlement 1820–1870 (St Paul, Minn., 1979). 54 “Declaration of the People of Rupert’s Land and the North-West,” 8 Dec. 1869, in E.H. Oliver, ed., The Canadian North-West: Its Early Development and Legislative Records (Ottawa, 1915), 904. The full Declaration is at www.mhs .mb.ca/docs/pageant/09/rupertslanddeclaration.shtml. 55 LAC, Macdonald Papers, vol. 516, Macdonald to McDougall, 27 Nov 1869; cited by Donald Creighton, John A. Macdonald, 2 vols. (Toronto, 1966 [1955]), II, 51. 56 Ontario was particularly enraged because the court martial that had condemned Scott had been made up of Métis and Indians. See Arthur Silver, “French Quebec and the Métis Question, 1869–1885,” in Carl Berger and Ramsay Cook, eds., The West and the Nation (Toronto, 1976), 91–113. 57 George F.G. Stanley, The Birth of Western Canada: A History of the Riel Rebellion (Toronto, 1960 [1936]), 129, 135–6. 58 In 1872 Macdonald sent $1,000, via Archbishop Taché, for both Riel and Ambroise-Dydime Lépine (1834–1923) to stay out of the country. Riel took advantage of the offer, but Lépine, who had headed the court martial that had condemned Scott, came back. 59 Ironically, an ultimate result of the confrontations was to split the Métis into two groups: those of Red River and Rupert’s Land (the “New Nation”) who had stood up for their rights, and the “others” in the rest of the country who had not made such a stand. See the Report of the RCAP, IV, ch. 5, “Métis Perspectives,” 199–384.

“Displacement and Assimilation” Report of the Royal Commission on Aboriginal Peoples 1996 Royal Commission on Aboriginal Peoples1

Extending Measures of Control and Assimilation The nation of Canada was born on 1 July 1867. Within a federal political structure, a modern transcontinental society was to be fashioned and, as empire became nation, a new beginning was to be made. Work on the Confederation project had begun as early as 1858, and as the tempo quickened between 1864 and 1866 the “Fathers” met in Charlottetown, Quebec, and London. At those meetings, in the editorial pages of the colonial press, and even on the hustings, the details of the federation and a pan-colonial consensus were hammered out. At no time, however, were First Nations included in the discussion, nor were they consulted about their concerns. Neither was their future position in the federation given any public acknowledgement or discussion. Nevertheless, the broad outlines of a new constitutional relationship, at least with the First Nations, were determined unilaterally. The first Prime Minister, Sir John A. Macdonald, soon informed Parliament that it would be Canada’s goal “to do away with the tribal system and assimilate the Indian people in all respects with the inhabitants of the Dominion.”2 Such a goal placed Canada in the vanguard of the empire-wide task of carrying the “white man’s burden,” which was at one and the same time the duty of “civilizing” Indigenous peoples, be they Maori,

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Aborigine, or Zulu. This also became the justification for the extensive annexation of the homelands and resources of Indigenous peoples in Africa, Asia, Australia, and North America. For Victorians this was a divinely ordained responsibility; for Canadians it was, at the level of rhetoric at least, a national duty. Looking forward from the western treaties, one of the principal government negotiators, Alexander Morris, prayed, Let us have Christianity and civilization among the Indian tribes … let us have a wise and paternal government … doing its utmost to help and elevate the Indian population, who have been cast upon our care … and Canada will be enabled to feel, that in a truly patriotic spirit, our country has done its duty to the red men.3

Parliament was moved to action. Though rarely consulting Aboriginal communities, it translated that duty into federal legislation such as the Indian Act and periodic amendments to it. It crafted educational systems, social policies, and economic development plans designed to extinguish Aboriginal rights and assimilate Aboriginal people. The process began with the blueprint of Confederation, the British North America Act of 1867. It provided in section 91 that the “exclusive Legislative Authority of the Parliament of Canada extends to all matters within the class of subjects next herein-after enumerated,” among which was section 24, “Indians, and Lands Reserved for the Indians.” Subsequently, the ethos of that legislative responsibility was revealed in the Enfranchisement Act of 1869. Rooted firmly in the imperial past, the act was conditioned by the Indian department’s resolute insistence on enfranchisement. It brought forward the enfranchisement provisions of the act of 1857 and added, in the service of what was then adopted as the fundamental principle of federal policy, the goal of assimilation. In the act, traditional governments were replaced by “municipal government,” giving minor and circumscribed powers to the band, while extensive control of reserves was assigned to the federal government and its representative, the Indian affairs department. In subsequent legislation – the Indian Acts of 1876 and 1880 and the Indian Advancement Act of 1884 – the federal government took for itself the power to mould, unilaterally, every aspect of life on reserves and to create whatever infrastructure it deemed necessary to achieve the desired end – assimilation through enfranchisement and, as a consequence, the eventual disappearance of Indians as distinct peoples. It



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could, for example, and did in the ensuing years, control elections and the conduct of band councils, the management of reserve resources, and the expenditure of revenues, impose individual land-holding through a “ticket of location” system, and determine the education of Indian children. This legislation early in the life of Confederation had an even more wide-ranging impact. At Confederation two paths were laid out: one for non-Aboriginal Canadians of full participation in the affairs of their communities, province, and nation; and one for the people of the First Nations, separated from provincial and national life, and henceforth to exist in communities where their traditional governments were ignored, undermined, and suppressed, and whose colonization was as profound as it would prove to be immutable over the ensuing decades. For Aboriginal people, however, there was even further division – yet more separate paths. Federal legislative responsibility was restricted to Indians. The Métis people were disavowed, and Inuit were not recognized as a federal constitutional responsibility until 1939 and then were exempted explicitly from the Indian Act in 1951.4 United perhaps in marginalization, Aboriginal communities nevertheless found themselves in separate administrative categories, forced to struggle alone and at times even against each other, to achieve any degree of de-colonization. Furthermore, the Indian Act empowered the department to decide who was an Indian on the basis of definitions determined not in consultation with communities but unilaterally by Parliament, which created more division by distinguishing between “status” and “non-status” Indians. Not surprisingly, for it was nineteenth-century legislation, the Indian Act introduced unequal treatment for men and women. While “status” Indian men could not lose their status except by enfranchisement, the act of 1869 added the proviso that “any Indian woman marrying any other than an Indian shall cease to be an Indian … nor shall the children issue of such a marriage be considered as Indians.” Over the course of Canada’s first century, therefore, an ever-growing number of Indian women and their children were lost to their communities and saw their existence as Aboriginal persons simply denied by the federal government. For the authors of this colonial system, the separate paths were to run to a single destination. Their national vision was the same for all Aboriginal people, whether men, women, or children, “status” or “non-status” Indian, and Métis or Inuit. As their homelands were engulfed by the ever-expanding Canadian nation, all Aboriginal persons

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would be expected to abandon their cherished lifeways to become “civilized” and thus to lose themselves and their culture among the mass of Canadians. This was an unchanging federal determination. The long-serving deputy superintendent general of Indian affairs, Duncan Campbell Scott, assured Parliament in 1920, “Our object is to continue until there is not a single Indian in Canada that has not been absorbed into the body politic and there is no Indian question.”5 All of this was justified, in the minds of successive generations of politicians and departmental officials like Scott, by a sincere, Christian certainty that the nation’s duty to the original people of the land was “to prepare [them] for a higher civilization by encouraging [them] to assume the privileges and responsibilities of full citizenship.” In the case of First Nations, Parliament, though it rarely provided adequate financial support, was only too willing to lend the weight of increasingly coercive legislation to the task, tightening departmental control of Indian communities in the service of economic and social change. In 1884 and 1885, the potlatch and the sundance, two of the most visible and spiritually significant aspects of coastal and plains culture respectively, were outlawed, although in practice the prohibition was not stringently enforced. The potlatch was portrayed as “the most formidable of all obstacles in the way of the Indians becoming Christian or even civilized.”6 Participation in the potlatch was made a criminal offence, and it was also illegal to appear in traditional costume or dance at festivals. In 1921, Duncan Campbell Scott issued revealing instructions to his agents: It is observed with alarm that the holding of dances by the Indians on their reserves is on the increase, and that these practices tend to disorganize the efforts which the Department is putting forth to make them self-­supporting.… You should suppress any dances which cause waste of time, interfere with the occupations of the Indians, unsettle them for serious work, injure their health, or encourage them in sloth and idleness.7

The pass system allowed the department to regulate all economic activity among communities, including adjacent non-Aboriginal ones. No one who had not obtained an agent’s leave would be allowed, on an Indian reserve, to barter, directly or indirectly, with any Indian, or sell to him any goods or supplies, cattle or other animals, without the special licence in writing.8



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The restrictive constitutional circle drawn around First Nations by the governance sections of the Indian Act was duplicated in the economic sector by this special licence and by other provisions of the act that isolated communities from normal sources of financing, making them wholly dependent on the funding whims of the government. Furthermore, communities found themselves isolated from resources, making their economic circumstances even more tenuous. At Confederation, ownership and control of Crown land and resources was assigned to the provincial partners. In the northwest, land and resources were given initially to the dominion government to enable it to sponsor settlement. That was changed in 1930, however, with passage of the natural resources transfer agreements with the three prairie provinces. In these the federal government failed to take “any precaution, apparently, to safeguard the sacred trusts which had been guaranteed to the Indians by treaty.”9 Thereafter, Aboriginal access to off-reserve resources was controlled across the country by provinces – which, of course, had no responsibility for First Nations. Outside reserves, in trapping, hunting, fishing, and such traditional activities as wild rice harvesting, Aboriginal people faced licensing systems, provincial management programs, game wardens, and all too often fines and imprisonment, as well as the restrictions of international wildfowl conventions signed by the federal government. The Indian Act further facilitated the imposition of the government’s assimilative will by insisting on conformity with Canadian social mores and providing penalties for non-compliance. Non-Aboriginal concepts of marriage and parenting were to prevail. The department could, for example, “stop the payment of the annuity and interest money of, as well as deprive of any participation in the real property of the band, any Indian who is proved, to the satisfaction of the Superintendent General, guilty of deserting his family, or of conduct justifying his wife or family in separating from him … [and] may also stop the payment of the annuity … of any Indian parent of an illegitimate child.”10 Those who failed to comply with any of the myriad social and economic regulations faced fines or imprisonment in a legal system whose integrity was undermined when Indian agents were made justices of the peace. The department then had the power to make and to enforce regulations, which had the force of law, with regard to the full spectrum of public and private life in communities. Aboriginal traditions – ritual life, social organization, and the economic practices of communities – were not only obstacles to conversion and civilization, but

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could be declared by Parliament or by departmental regulation to be criminal behaviour. Agents, appointed as magistrates, were to regulate the behaviour of their Aboriginal wards according to the Act Respecting Offences against Public Morals and Public Convenience, bringing into play the alien Victorian morality encoded in it. By far the most ambitious and tragic initiative, however, was the joint government and church residential school program. Introduced originally for Indian children, the system would eventually draw children from almost every Aboriginal community – Indian, Métis, and Inuit – across the country. Beginning in 1849, the program developed to include boarding schools, built close to the reserves for children between the ages of 8 and 14, and industrial schools, placed near non-Aboriginal urban centres to train older children in a range of trades. The schools – 80 of them at the high point – were the centrepiece of the assimilation strategy. As pupils in boarding institutions whose affairs were conducted wholly in English (or French, in some of the schools in Quebec), the children were separated “from the deleterious home influences to which [they] would be otherwise subjected” and brought into contact with “all that tends to effect a change in [their] views and habits of life.”11 Canada, through the agency of the department and the churches, presumed to take over the parenting of Aboriginal children so that they “could take their place anywhere among the people of Canada.”12 It did not discharge its self-appointed task in a manner Canadians can be proud of. From the outset, there were serious problems with residential schools. There was never enough funding, and thus the buildings, often badly designed and constructed, deteriorated quickly. Bad management, unsanitary conditions, and abuse of the children were more than occasional exceptions to the rule. Parents, and indeed many local agents, were reluctant to send children to the schools, particularly the industrial schools, which were far away and seemed to benefit neither the child nor the community. The department, unable to get adequate funding from Parliament or contributions from the churches, abandoned the ambitious industrial school model by 1920. Thereafter, the emphasis was placed on the boarding schools which, while less expensive, were judged by accepted standards of child care and education to be a dismal failure, leaving deep scars across communities and the conscience of a nation. The removal of children from their homes and the denial of their identity through attacks on their language and spiritual beliefs were cruel.



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But these practices were compounded by the too frequent lack of basic care – the failure to provide adequate food, clothing, medical services, and a healthful environment, and the failure to ensure that the children were safe from teachers and staff who abused them physically, sexually, and emotionally. In educational terms, too, the schools – day and residential – failed dramatically, with participation rates and grade achievement levels lagging far behind those for non-Aboriginal students. When a joint committee of the Senate and the House of Commons on the Indian Act met in Ottawa in 1946, the members, looking out across Aboriginal Canada, could not see the progressive results of the assimilation strategy that had been forecast so consistently by the department since Confederation. Voluntary enfranchisements were rare. But more tragically the pre-conditions for enfranchisement – social and economic change and positive community development to enable Aboriginal people to enjoy the standard of living of other Canadians – were not readily apparent. Rather, in every category – health, employment, education, and housing – the conditions endured by Aboriginal people made them what they were in constitutional affairs: second-class citizens. Across the country, communities were trapped in a colonial system that denied them any degree of self-determination, consigned them to poverty, corroded families and individuals, and made them too often the objects of social welfare agencies and penal institutions. When Duncan Campbell Scott retired from the department in 1933, he had clearly left unresolved the “Indian problem.” There it still was in 1946. But in evidence as well was the continuing determination of Aboriginal peoples not to let the government “break them to pieces,” to defend their culture, and to seek the good life on their own terms. At banned potlatches and hidden thirst dances, at Dene gatherings, in Iroquois longhouses, and on across the North and the Maritimes, the peoples had continued to gather to express and celebrate their cultures. This determination had taken new forms as well. Modern political organizations with talented leaders were developed. Such leaders were determined to become a central part of the solution – not to the “Indian problem,” but to the problem of colonialism by struggling for self-determination within Confederation on the basis of recognition of the worth of Aboriginal peoples’ contribution and of the contribution of their culture to the nation. As early as 1918, F.O. Loft declared, when organizing the League of Indians, the first attempt at a national organization,

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In politics, in the past they [Indian people in Canada] have been in the background.… As peaceable and law-abiding citizens in the past, and even in the late war, we have performed dutiful service to our King, Country and Empire, and we have the right to claim and demand more justice and fair play as recompense, for we, too, have fought for the sacred rights of justice, freedom and liberty so dear to mankind, no matter what their colour or creed. The first aim of the League then is to claim and protect the rights of all Indians in Canada by legitimate and just means; second, absolute control in retaining possession or disposition of our lands; that all questions and matters relative to individual and national wellbeing of Indians shall rest with the people and the dealings with the Government shall be by and through their respective band Councils.13

NOTES 1 Royal Commission on Aboriginal Peoples, “Stage Three: Displacement and Assimilation: 8. Extending Measures of Control and Assimilation,” Report of the Royal Commission on Aboriginal Peoples, 1, Looking Forward, Looking Back (Ottawa, 1996), 179–187. 2 Malcolm Montgomery, “The Six Nations Indians and the Macdonald Franchise,” Ontario History 57 (1965), p. 13. 3 Report from William McDougall to His Excellency the Governor General in Council, 3 November 1862, in Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (Toronto: Belfords, Clarke & Co., 1880; facsimile edition, Coles Publishing Company, 1979), pp. 296–297. 4 In practice, however, Inuit were subject to some federal policies even before 1939. 5 J. Leslie and R. Maguire, ed., The Historical Development of the Indian Act, second edition (Ottawa: Treaties and Historical Research Centre, Indian Affairs and Northern Development, 1978), p. 115. 6 William Duncan to David Laird, May 1875, quoted in Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia, 1774–1890 (Vancouver: University of British Columbia Press, 1977), p. 207. 7 Stan Cuthand, “The Native Peoples of the Prairie Provinces in the 1920s and 1930s,” in One Century Later: Western Canadian Reserve Indians since Treaty 7, ed. Ian A.L. Getty and Donald B. Smith (Vancouver: University of British Columbia Press, 1978), p. 39.



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8 Statutes of Canada 1890, chapter 29, section 134.2 (53 Victoria). 9 Special Joint Committee of the Senate and the House of Commons appointed to continue and complete the examination and consideration of the Indian Act, Minutes of Proceedings and Evidence, No. 30, 5 June 1947, p. 1593. 10 Statutes of Canada 1898, chapter 34, section 7 (61 Victoria). 11 Canada, Sessional Papers, volume 10, number 12 (1890), p. xi. 12 Special Joint Committee (cited in note 9), p. 1647. 13 Cuthand, “The Native People of the Prairie Provinces” (cited above), p. 31.

“Gender and the Confederation Debates” Canada Watch 2016 Kathryn McPherson1

The participants in the 1865 Confederation debates were divided by ethnicity, region, political opinion, and religion, but they shared class privilege, a racial identity we would now call “white,” and gender. They were all men. This last shared identity would not come as a surprise to feminist historians. The political revolutions of the late 18th and early 19th centuries may have eradicated (or eroded) the patriarchal authority of monarchs, but in turn invested political power in male heads of households – populist patriarchs who as fathers and sons united to exclude female participation from the body politic.2 In the Canadas, Bettina Bradbury has shown, property-owning women struggled for and lost their voting rights in 1830s and 1840s Montreal.3 Such processes helped consolidate the stark division between public and private that characterized 19th-century industrial societies. Elite women may have wielded considerable influence on the perspectives of husbands and sons – Gail Cuthbert Brandt argued such was the case in the 1864 Charlottetown negotiations leading up to Confederation – but influence in the social and personal realms did not translate into political power.4 As the 1865 Legislative Council and Legislative Assembly debates reveal, deciding the political future of British North America was an all-male affair. Is, then, gender a useful category of analysis for understanding the political dialogue of 1865?



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Conspicuous by Their Absence Whether reading P.B. Waite’s 1963 edited selections of The Confederation Debates in the Province of Canada or the full text of the debates, now available digitally,5 the masculine character of the political discourse is unmistakable. Real women were conspicuous by their absence. The female monarch, Queen Victoria, to whom the plan for colonial union would have to be presented, was referenced fewer than two dozen times throughout the full text. Plebeian women appear even less frequently, emerging occasionally as characters in anecdotes used to bolster particular points of debate. Langevin, for example, recounted the story of 150 emigrants who travelled from Fort Garry to British Columbia in 1862. In the party were “a woman and three little children” who were well cared for on the journey. Langevin argued that just as these vulnerable travellers could traverse the northern half of the continent, so too could the political union between east and west be possible.6 Beyond such didactic tales involving members of the female sex, participants in the Confederation debates remained oblivious to the social, economic, political, and cultural issues facing women of the day. For instance, the 1865 debates make no mention of feminist activism of the mid-century, stories of which some of the learned men might have read in the transnational press. In 1848, Elizabeth Cady Stanton and her peers at Seneca Falls, New York, had demanded rights for women. Stanton herself rewrote the Declaration of Independence to include female citizens. Closer to home, journalist Mary Ann Shadd Cary used her newspaper The Provincial Freeman (1853–1857) to demand the expansion of the franchise, the abolition of slavery, and temperance, making her the first female editor of a Canadian newspaper.7 Meanwhile, for several decades the Upper Canadian Protestant Church courts had been debating a single sexual standard, thereby challenging male sexual privilege.8 In 1865, Emily Howard Stowe applied for admission to the University of Toronto School of Medicine and was denied on the basis of her sex; she went instead to the New York Medical College and Hospital for Women.9 In 1869 the Provisional Government of Assiniboia debated whether property-owning women (especially the Grey Nuns) would have voting rights.10 None of this North American political agitation over women’s sexual, educational, property, and political rights made its way onto the tongues of the men who so loquaciously debated the merits of political union in British North America.

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Marriage as Civil Contract Marriage was the one exception. A relatively lengthy ten pages of discussion in the full version of the text – excised from Waite’s 1963 version of the Confederation debates – focused on which level of government would sanction marriage and, more importantly, whether marriages formed in one jurisdiction would be recognized across borders, and therefore be “indissoluble.” After all, argued Joseph-Édouard Cauchon, member for Montmorency, marriage “constitutes the family and breaking that tie would destroy the family and strike a mortal blow at society, because family ties are its only base, its only foundation, its only element of composition.” In a speech frequently punctuated by applause and shouts of “Hear, hear,” Cauchon shifted his discussion from that of the religious sanctity of marriage to its status in civil law: “Marriage considered as civil contract, becomes necessarily a part of these laws … all the possible consequences that can result from marriage to the contracting parties, their children and their estates. (Hear, hear).” For Cauchon and his audience, marriage was “the natural mode of transmitting property, which is the fundamental basis of society and, to go farther, society itself in its constitution.”11 In subsequent decades, as historian Sarah Carter has shown, Euro-Canadian marital systems would emerge as powerful tools of sexual and racial governance in the new nation.12 In 1865, though, it was the economic elements of marriage, and not its social practices or its cultural diversity or its profound effect on women, that animated political debate. Of course, the exclusion of women or women’s issues did not mean that gender was not at play. Cecilia Morgan’s analysis of how diverse claims to masculine legitimacy shaped political reforms in Upper Canada in the 1830s is particularly helpful here. Morgan argued that Upper Canadian reform advocates like William Lyon Mackenzie claimed for themselves the status of “true men” who earned their place in public debate through their own merit. They stood in contrast to conservative opponents who had gained appointment to public office through family – including female – networks; they thus rode into public life on the “petticoats” of kin connections. Claims to public space were, Morgan shows, predicated on claims to distinctive masculine traits.13 Honourable Gentlemen Did the 1865 debates hinge on particular kinds of masculine identities? What is striking about the Confederation debates was their civility.



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With only a few exceptions, the discourse was polite, articulate, learned. Shakespeare and Dickens were quoted. References to characters like Hercules and Mephistopheles were sprinkled throughout. Speakers consistently addressed each other as “honourable gentlemen” and applauded the “frank, bold, manly and statesmanlike manner” of their counterparts.14 Differences of opinion were respectful and interruptions were infrequent and short. On occasion, ribald comments were made. When Premier Étienne-Paschal Taché began to tell a story about meeting a “most interesting American woman,” his audience shouted “Hear, hear and Laughter.” Taché responded, “Honi soit qui mal y pense” (“Shame on whomsoever would think badly of it”), which incited – in the words of the print version – “Continued laughter.”15 More likely, though, gendered references tilted toward chivalry. The debaters sought to be “dutiful subjects of the Queen,” praised “fealty to Queen and country,” and criticized any “insult to her majesty.” Joseph-Godric Blanchet, member for Lévis, endorsed a strong central government able to assist the “Mother Country” in the face of invasion by the Americans. For some debaters, political union was an act of patriotism. This chivalry was extended not just to respect for the Crown, but also to the united territory being debated. The land was imagined as feminine, as a territorial unit often called “she.” By contrast, Canada the political unit was imagined as male. For example, Taché claimed, “Canada was, in fact, just like a farmer who might stand upon an elevated spot on his property, from which he could look around upon fertile fields, meandering streams, wood and all else that was necessary to his domestic wants, but who had no outlet to the highway” (2). In this gendered figure, the nation was likened to a household, over which male statesmen would govern, while the land itself was female, fertile, and under masculine control. Through their polite and cultured language, these “honourable gentlemen” sought to assert themselves as masculine statesmen, building what political theorist Jürgen Habermas would call a “public discourse of rationality.” Joan Landes explains that, for Habermas, the modern bourgeois public sphere came into existence when private persons joined together to exercise their reason in a public fashion. Public opinion is the end product of all the dialogues between discoursing individuals, each one of whom is capable of reflexive rational discourse.… Habermas’s individuals participate in the public sphere as speakers and readers (of novels and the press).

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From this perspective, the lengthy debates of 1865, with their repetitive references to and excessive pronouncements on (what Waite would later call “twaddle” [xlvii]) railroads, taxation, territorial boundaries, westward colonial expansion, representative government, and the threat of foreign invasion, should be understood not in terms of the substance of the debate, but rather in its form. The Confederation debates were a performance that helped produce the public sphere of rationale discourse. A Gendered Public Sphere The performance occurred once on the floor of the Legislative Assembly or Legislative Council and then again when printed as an official record in 1865 (and then again in the late 20th century when published as a historical source). In his introduction to the 1963 version, Waite claimed, “The fact that debates were being reported fully, and officially, encouraged quantities of plain drivel…. [M]embers could correct their speeches before they were printed; this meant speeches were dressed up for public consumption.”16 Dressed up for public consumption, the speeches functioned as a performance of rational discourse, which in turn legitimized the shape and membership in the public sphere. Through this theatre both the rightful actors and the subject of federal governance were defined. The absence of women and, equally importantly, the privileging of male spheres of interest defined the state as a well-run household, even while female labour, opinion, or rights in that household were ignored. The mutual constitution of “public men” and “a male public” set the political terrain on which Canadian women would fight an uphill battle for the next 150 years. State-funded child care, reproductive rights, protection from gender-based (and racialized) violence, equitable access to education, and the political valuation of care, pay equity, and equal opportunities for women at work and in political leadership are goals that Canadian feminists have demanded in different measure over the past century and a half. By and large, those goals continue to elude us. NOTES 1 Kathryn McPherson, “Gender and the Confederation Debates,” Canada Watch, Spring 2016 (Toronto: Robarts Centre, 2016), 30–32.



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2 Joan B. Landes, “The Public and the Private Sphere: A Feminist Reconsideration,” in Joan B. Landes, ed., Feminism: The Public & the Private (New York: Oxford University Press, 1988), 135–63. 3 Bettina Bradbury, Wife to Widow: Lives, Laws, and Politics in NineteenthCentury Montreal (Vancouver: University of British Columbia Press, 2011). 4 Gail Cuthbert Brandt, “National Unity and the Politics of Political History” (1992) 3:1 Journal of the Canadian Historical Association 3–11. Brandt argued that “the success of the political discussions at Charlottetown was directly related to the dazzling and exhausting round of social events filling the interstices of the formal sessions, social events at which wives of prominent politicians used their social skills to build personal and political bridges while possibly also providing strategic advice to their husbands.” 5 All page numbers for the debates are from the full-text, digital version. See Canada, Parliamentary Debates on the Subject of Confederation of the British North American Province, 3rd Session, 8th Provincial Parliament of Canada (Quebec: Hunter, Rose, 1865) (herein referred to as Debates), available at Early Canadiana Online: http://eco.canadiana.ca/view/oocihm.9_ 01461/96?r=0&s=1 (accessed April 14, 2016). 6 Debates, 382. 7 Jane Rhodes, Mary Ann Shadd Cary: The Black Press and Protest in the Nine­teenth Century (Bloomington: Indiana University Press, 1998). 8 Lynne Marks, “No Double Standard? Leisure, Sex and Sin in Upper Canadian Church Discipline Records, 1800–1860,” in K. McPherson, C. Morgan, and N. Forestell, eds., Gendered Pasts: Essays in Femininity and Masculinity in Canada (Toronto: Oxford University Press, 2003), 65–79. 9 Veronica Strong-Boag, “Canada’s Women Doctors: Feminism Constrained?” in Linda Kealey, ed., A Not Unreasonable Claim: Women and Reform in Canada, 1880s–1920s (Toronto: The Women’s Press, 1979). 10 Jean Hall, “Consideration of the Political Position of Women during the Resistance” (February 24, 2013), Provisional Government of Assiniboia, https://hallnjean2.wordpress.com/the-red-river-resistence/women-andthe-resistance/consideration-of-the-political-position-of-women-duringthe-resistance (accessed April 14, 2016). An 1870 article of Winnipeg’s newspaper the New Nation addressed “Women’s Privileges” and referenced “Mrs. Stanton.” In 1871, Stanton’s friend and ally Susan B. Anthony toured North America, including a long journey to Victoria, BC, where she gave a public lecture. See Adele Perry, On the Edge of Empire: Gender, Race, and the Making of British Columbia, 1849–1871 (Toronto: University of Toronto Press, 2001). 11 Debates, 577–78.

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12 Sarah Carter, The Importance of Being Monogamous: Marriage and Nation Building in Western Canada to 1915 (Edmonton: University of Alberta Press, 2008). 13 Cecilia Morgan, Public Men and Virtuous Women: The Gendered Language of Religion and Politics in Upper Canada, 1791–1850 (Toronto: University of Toronto Press, 1996). 14 Debates, 903. 15 Debates, 241. 16 P.B. Waite, “Introduction to the First Edition,” in The Confederation Debates in the Province of Canada, 1865 (Toronto: McClelland & Stewart, 1963), xlvi.



“French Canada and Confederation: The Acadians of New Brunswick” “Le Canada français et la Confédération: les Acadiens du Nouveau-Brunswick” (Translated by Lin Burman) 2016

Gaétan Migneault1

After a century and a half of Canadian constitutional history, now is a good time to look at the place of French Canada in Confederation and vice versa. It makes sense to examine, or re-examine, our constitutional structure from the perspective of francophones across the country. In this ambitious undertaking, I am pleased to be able to share the results of some of my research. I must, however, point out from the start that I am not a historian, sociologist, or political scientist, and that the framework of my analysis, by focussing on various legislative documents as found in official government reports, purports above all to be a legal one. My topic is also confined to the perspective of the Acadians of New Brunswick and still further to the period of Confederation, that is, 1820 to 1875. My goal, more specifically, is to ascertain whether the following interpretations of participation by the Acadians of New Brunswick in the debates leading to Confederation in 1867 are consistent with the known facts. Notably, the Premier of New Brunswick in explaining, on 28 June 1866, the reasons for the francophone vote against Confederation in the last general election, stated, Had the citizens of the Kent, Westmoreland and Gloucester Counties been literate, we would not be faced with the opposition of certain members in this House. Those members were elected on the basis of that opposition

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because Francophones do not read as much as the Anglophone population. In these counties, the press does not have the same influence as it does elsewhere.2

For present purposes, my remarks draw heavily on three published works on the Acadians of New Brunswick, and take their inspiration from them. The first, the article entitled “La reconnaissance legislative accordée aux Acadiens du Nouveau Brunswick avant la Confédération (de 1864 à 1867),”3 discusses various measures taken in the province with regard to the linguistic minority. The second, the book Les Acadiens du Nouveau-Brunswick et la Confédération,4 examines more closely the circumstances surrounding the constitutional debates of 1864 to 1867. The third work, the book La crise scolaire de 1871 à 1875 au Nouveau-Brunswick: un produit de la Confédération,5 studies the connection between the union achieved in 1867 and the events experienced in the province following the adoption in 1871 of the Common Schools Act. Together the three texts provide a perspective on the behaviour of the Acadians of New Brunswick with regard to Confederation. The main difficulty encountered in preparing a study on this topic is the almost total absence of Acadian archives on the subject. One essentially has to rely on circumstantial evidence illustrating what the francophones of New Brunswick might have thought about the project of uniting the British colonies of North America. For this reason, the approach used in this case is mostly comparative. It examines the Acadian demands of that time by comparing them with the content of the constitutional proposals. If such an approach has its weak points,6 it at least offers the possibility of filling a gap in the documentation and historical sources. It can also open up avenues for other possible research. In this way, the first section looks at the terms of the union, and the second and final section goes on to examine certain events at the time of the constitutional debates. […] Constitutional Debates from 1845 to 1867 […] The Acadians of New Brunswick were relatively active on the provincial stage from 1820 to 1867. They had no qualms about demanding specific rights, or about asking for a public institution better suited to their situation. Notably, in addition to demanding that the work of the Legislative Assembly be published in their language, they also



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raised the issue of the language of instruction in training elementary school teachers in the parish school system. In the case of poor relief, even though their grievances were directed especially at local issues, as the scheme was administered locally, they were nevertheless addressed to the colonial authority. They were aimed above all at ensuring their autonomy in matters of assistance to less fortunate members of their own community. In many respects, they even succeeded in influencing New Brunswick government policy. As a result, the idea that the linguistic minority had retreated into silence does not appear to be borne out by the preceding remarks. Other examples, such as establishing the leper colony in 1840,7 could be provided to illustrate their activism, but for the purposes of the present study, the topics of education, poor relief, and publication of the proceedings of the Legislature suffice to show the kind of concerns expressed by Acadians before Confederation. From the 1820s to the 1860s, many of the demands of the francophone minority in New Brunswick focused on the language aspect of colonial or local policy. This aspect is reflected in the three areas of law discussed. The right to use the French language in parish schools and in the proceedings of the Legislature was expressly raised. Language was also central to the demand for exemption from the local scheme of poor relief. When taken in this context, events preceding the great constitutional debates of 1864 to 1867 provide an interesting perspective for explaining the behaviour of the Acadians. Did they really act out of ignorance, as the previously cited remarks suggest, or were their actions deliberate, as the terms they were offered appeared unacceptable or insufficient to them? To answer this question, we must take a closer look at the contents of the project of union. The context is especially important in this analysis, as the Acadians of New Brunswick were not invited to take direct part in the negotiations leading to Confederation in 1867. At that time, there was one member from the community in the Legislative Assembly, but he was fairly passive in the House. Neither did the minority have any daily or weekly newspaper that would have given us a better idea of their opinions about the project. On the other hand, like all other voters in the province, they were called upon to decide on the terms of the accord on two occasions, once in the winter of 1865 and then in the spring of 1866. We already know that they were the only ones in New Brunswick to elect, on two occasions, candidates who were opposed to the union of the colonies of British North America.8

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When we examine the wording of the resolutions adopted at the Quebec Conference in the autumn of 1864 and published in the Gazette royale of 25 January 1865, some aspects stand out […]. More specifically, Resolution 43(6) dealt expressly with the area of education and applicable rights pertaining thereto. It stipulated that: 43. The Local Legislature shall have power to make laws respecting the following subjects: […] 6. Education; saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their Denominational Schools, at the time when the Union goes into operation.

Resolution 46 subsequently dealt with a topic that was especially sensitive for the linguistic minority and was debated numerous times in the colony prior to January 1865, the last being in February 1864, just before the start of the constitutional debates. The wording protected the use of French and English in the federal and Quebec parliaments as well as in the federal and Quebec courts: 46. Both the English and French languages may be employed in the General Parliament and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada.

In both cases, the text omitted New Brunswick except, of course, for the general provincial jurisdiction in education, but perhaps this detail escaped the notice of the local population. There is nothing in the recorded speeches on Confederation to support this allegation, in fact quite the opposite. On 5 June 1865, in debating the project, a member of the legislature expressly acknowledged in the House that Resolution 43(6) was not aimed at the province.9 Neither had the language issue gone unnoticed: at least three comments made in 1866 expressly refer to it. There can therefore be little doubt that the exclusion of New Brunswick from the educational and linguistic protection of the Quebec resolutions was well-known to the elected representatives and to the population in general. Although certain concessions may have been made on the school issue before the election of 1866,10 there is nothing in the record to suggest that a promise of any kind had been made in either of the provincial elections about extending the language protections to New Brunswick.



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In light of the previous section in which numerous demands by Acadians in New Brunswick were recorded, some of which were successful, the linguistic minority showed that it was sensitive to cultural matters. The gains recorded in certain areas also reveal its influence on government policy. With the constitutional proposal as published in the Royal Gazette of 25 January 1865, nothing was expressly offered to francophones to garner their support for the project. In fact, the francophones surely understood that they would be further marginalized in the proposed federal institutions, and therefore less influential than at the provincial level. Thus, on top of not offering anything positive, the accord ran the particular risk of further diluting their political powers. A vote in favour of Confederation in such circumstances would have been surprising. The only question that remains, for the purposes of our analysis, is essentially the amount of attention Acadians might have paid to the language issue in their electoral choices in 1865 and 1866. Fortunately, a petition presented to the Legislative Assembly of New Brunswick in June 1867, just before Confederation came into force, tells us two things: firstly, that the francophone minority was aware of the linguistic protection that applied at the federal and Quebec level, because it deplored the fact that its own province was excluded from such protection. The following petition is worth reproducing in its entirety: To the Honourable Members of the House of Assembly of the province of New Brunswick in session; The humble request of the undersigned inhabitants of the County of Gloucester states; 1. Whereas one sixth of the population belongs to the French race, of whom very few of this number understand the language; 2. Whereas thousands of inhabitants thus find themselves unable to learn about the debates in Parliament, in which they are nevertheless interested, as is any other inhabitant of New Brunswick; 3. Whereas the undersigned witnessed with regret, in 1864, the rejection of the motion of the member in Parliament for this county requesting that the debates of the Legislative Assembly be translated into French, that is to say: The Debates of the House of Assembly of the Province of New Brunswick and the Journal of the House of the same; 4. Whereas clause 133 of the Confederation project recognises the fairness of the measure that your petitioners hereby request, by stating that: “the Acts of the Parliament of Canada and the Quebec legislature will be printed and published in both languages”;

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5. Whereas it seems to your petitioners that the time has come for the local legislature to grant the French of this province that which the honourable delegates of the provinces of Canada, Nova Scotia and New Brunswick did not think, in their wisdom, they would have to refuse to the French of the general government; For this reason, your petitioners, trusting in your impartiality and in the fairness of their request, ask you to agree to the translation of the debates and the journal of the Legislative Assembly, as well as to the translation of public notices issued by the authority of the government. And we shall not cease in our petitions.11

Some aspects of the petition clearly stand out. The first is the reference to the attempt in February 1864 to have debates translated, confirming the observation of the previous section that the matter was of great interest to Acadians. The second is the reference to the specific constitutional provision conferring linguistic protection at the federal level and in Quebec. The francophone minority was therefore familiar with the terms of the resolutions adopted in Quebec in the autumn of 1864. Lastly, there is the expressly stated wish to be included in the protections afforded elsewhere. In light of all this, there can now be more informed discussion on the perspective of the Acadians of New Brunswick with regard to Confederation. More especially, it is hard to ignore the importance of the language issue in their electoral choices of 1865 and 1866. The absence of specific Acadian archives on the subject of uniting the colonies of British North America is circumvented by examining archives on related topics. The […] present section offers a plausible explanation for the actions observed at the time and the concerns that may have guided them. By the same token, the ignorance argument starts to look more simplistic and much less likely. This analysis also suggests that had the political parties offered to extend constitutional language protection to New Brunswick, it is possible, and even probable, that Acadians would have supported the union. The Impact of Confederation A few more observations serve to reinforce the comparative and contextual analysis proposed in the previous sections. In this regard, I have had the opportunity to publish research on the similarity observed between events leading up to and following Confederation.12



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For debates as harrowing as those on the Constitution, the aftermath can be felt long after discussions have ended. This seems to apply generally in the case of New Brunswick, and the Acadians are no exception. For example, in the first federal election of 1867, the counties of Gloucester, Victoria, and Westmorland, each with a sizeable francophone population, elected representatives who had strongly opposed Confederation.13 It is also interesting to note that a growing number of francophones were elected to the Legislative Assembly of New Brunswick at the same time that the debates on Confederation were taking place. In the election of 1866, a second Acadian, Vital Hébert, was elected to represent the north-west. He died shortly after, and was replaced by Lévite Thériault in the by-election of 1867. Even after union was achieved, Urbain Johnson joined the two others in the House following another by-election in 1869 in the county of Kent. In the first general provincial election following Confederation, in 1870, four Acadian representatives were elected, one for each of the counties of Gloucester (Théotime Blanchard), Kent (Antoine Girouard), Victoria (Lévite Thériault), and Westmorland (Pierre-Armand Landry). Although the common schools debate was already on the horizon at the time, it does not appear to have been an issue in the election of 1870.14 Tensions between the federal and provincial governments also made the climate more volatile, as evidenced by the appointment of a handful of individuals to the Executive Council of New Brunswick in 1870, despite their opposition to Confederation from 1864 to 1867.15 The dynamics fuelled a good part of the ensuing discussions on reform of the school system where the legislator decided to eliminate their denominational character. Section 93 of the Constitution Act of 1867 was intended to do just that, i.e., preserve the denominational nature of schools established prior to Confederation. The province was then sucked into what was probably the most divisive schools crisis in its history. The issue of religion in the classroom had been successfully avoided up to that point, but the wording of the constitutional protection made the subject more sensitive. Even assuming that denominational schools were not legally recognized before 1 July 1867, an issue that still had to be resolved, the fact was that a single Legislative Assembly that adopted a law to this effect was sufficient to make constitutional protection automatic and open up avenues for the Governor General and the Canadian Parliament to intervene in a provincial area of legislation. The government was well aware of the risk associated with section 93, as the resolution quoted below reveals.

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The Catholic minority, made up largely of francophones, was also well aware of the potential of section 93. Not only did it approach the legislator to demand legislative recognition of religious schools when the Common Schools Act was debated in the House in 1871,16 but as soon as the law was passed, it invoked the constitutional provision to challenge the new provincial policy. Le Moniteur acadien published a lengthy petition in its edition of 21 July 187117 to be submitted to the Governor General to request disallowance of the Act. It pleaded as follows: The petition of the undersigned Catholics of Memramcook, Dorchester, Westmorland, in the province of New Brunswick, respectfully states: Whereas the act concerning common schools passed in the last session of the local legislature of this province, if allowed to come into force, will destroy, or considerably diminish, the educational privileges which the Catholics of this province enjoyed when it [the Constitution Act of 1867] was passed and have enjoyed since. Whereas under the school law in effect in this province at the time it [the Constitution Act of 1867] was passed, and until today, Catholics could, everywhere their numbers warranted, establish schools which offered a good religious and secular education. Whereas in towns and other centres with large populations, for whose needs the law does not provide sufficiently, your petitioners have had built, at truly enormous expense compared to their resources, large and practical buildings in which they have established and maintained grade schools equal in all respects to the primary schools which exist in the province, and that they have received grants from the legislature to help maintain the schools. In most cases, they may be considered to have a prescriptive right to these grants. Whereas in districts where Catholics were too few in number to maintain separate schools they could not be forced to contribute to the maintenance of schools in which they had reasons to apprehend that something would be done to undermine the faith or weaken the religious convictions of their children; and that this offered them a safeguard and protection which the recent act will completely destroy. Whereas the schools law of the last session was neither asked nor wished for by the people of this province, but was passed because of undue influence exercised on members of the legislature; many members of the Assembly – who, when they were elected were recognized opponents of the measure – having been induced by that influence to break their promises and ignore the wishes clearly expressed by their constituents.



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Whereas, while the bill was before the legislature, Catholics, who make up more than a third of the entire population of the province, brought motions to ask that the right enjoyed by the Protestant minority in the province of Quebec to establish dissentient or separate schools be granted to them, and the request was refused. Whereas an amendment in the legislative council granting the right to establish separate schools was defeated solely on an equal ballot. Whereas the act of the last session stipulates that there will be a compulsory tax and levy to maintain schools in every county of the province, the proportion to be determined by the number of inhabitants, and that no part of the money thus raised or credits granted by the provincial government under the act for educational purposes will be given to schools where instruction is religious. Whereas in the various school districts into which counties must be divided, other sums of money must be raised for educational purposes, and the determination of the amount and the manner in which it is spent, the appointment of trustees and all matters to do with administrating schools are devolved exclusively to the majority, thereby depriving by this act your petitioners, who are in most cases in the minority, of all legal rights and protection. Whereas if these laws are allowed to come into force, your petitioners will be obliged to contribute to the support of a school system of which their conscience disapproves; and that if they do not wish to expose their children to what they see as the most serious and alarming danger, they will have to support other schools at their own expense, thereby paying twice while others pay only once; or when their number and means no longer allow to them to establish and maintain schools to which they can send their children without fear, they will be forced to let them grow up in ignorance. Whereas it would be a very grave infringement of the rights of your petitioners, a very serious denial of the educational privileges they have enjoyed until now, and a palpable violation of the spirit of [the Constitution Act of 1867]. For these reasons, your petitioners humbly request that it please Your Excellency to disallow the said Act.18

The petition rests largely on the constitutional context as established by section 93 of the Constitution Act of 1867. As well when invoking the right to dissentient schools conferred on the Protestants of Quebec, the petition is based on a lengthy analysis of the situation of the Catholic

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minority with regard to its schools and the legislative context prevailing in New Brunswick until that time. The analysis again reveals a thorough familiarity with the constitutional regime that had come into effect in 1867, an event that coincided with the crisis. As the first section has also shown, the linguistic minority was accustomed to demands concerning schools. The existence of the new federal government and its involvement in events in New Brunswick made solving the crisis considerably more complicated. The Canadian Parliament presented the Catholic minority with an additional forum for demanding its rights; it also served as a source of frustration for the provincial authorities. It thereby managed to exacerbate the tension between Catholics who favoured separate schools and Protestants who opposed them. Another piece of the puzzle was revealed by a resolution adopted in the House in 1874 in response to the numerous petitions filed demanding denominational schools: Whereas numerous petitions which have been presented before this House requesting that amendments be made to the Common Schools Act of 1871, in order that the Catholic subjects of this province may have separate schools, and; Whereas this House continues to uphold the idea that a system of education under the control and supervision of the province must guarantee equal rights to all citizens in this matter, and do so regardless of social standing, and; Whereas according under the provisions of the British North America Act, if a separate school system were to be established, it would be impossible for the province to interfere in its running or to abolish it, and; Whereas certain exclusive rights, powers and responsibilities have been granted under the British North America Act, as a condition essential to the wellbeing of its population and the smooth functioning of the constitutional order, be it resolved that: Having examined the requests of the petitioners and while recognizing that amendments may be made from time to the legislation governing education so that it may be more equitable, the House is of the opinion that no changes should be made to the act for the purpose of granting special rights and privileges to certain individuals, and; Whereas any amendment affecting the powers and responsibilities of the province should be permitted only after a vote by the population of New Brunswick.



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Accordingly, this House regrets that it is unable to comply with the requests of the petitioners, and; That this House respectfully, but firmly, notes the fact that no amendment affecting the rights, powers and responsibilities of the province should be made by the British Parliament or the Canadian Parliament without a request to this effect being clearly formulated by the provincial legislature.19

While the lengthy petition preceding the resolution explains how the constitutional context influenced the position of the Catholic minority in the debate, the resolution provides the perspective of the provincial authority on that same context. The resolution notably invoked the fact that legislative recognition of denominational schools would automatically trigger protections that restrict provincial jurisdiction in the matter of education. The wording of the Constitution therefore not only served as a basis for Catholic demands, it also justified the vigorous opposition displayed by the government of New Brunswick. With reference to the position of the Catholic minority regarding the education reform of 1871, the nature of its objection must also be noted. Until religion was excluded from schools at the very end of the debates, the Catholic minority did not oppose the reform as such except to ask that it recognizes denominational schools. Hence, it could easily accept the new mandatory tax to the extent that it financed its own schools. It should also be noted that there was nothing of a specifically linguistic nature about the reform, as it sought above all to achieve the separation of Church and State in education. In fact, numerous measures taken by the government at the time, including producing bilingual textbooks,20 increased the presence of the French language in parish schools. Neither, therefore, was it a question of protecting the linguistic integrity of the network of educational establishments discussed in the first section. People seemed to accept greater public involvement in the school system without too much difficulty, but no satisfactory explanation was advanced as to why these regulations had to be made to the exclusion of religion. This section again supports the observation of the previous sections that the minority gave great importance to the rights drawn up in the accord that led to Confederation in 1867. To the extent that New Brunswick was excluded from the protection afforded to denominational schools, it also shows the objection that might have been expressed

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in the province by those wishing to obtain the same protection. The fact of restricting its application to other provinces may have caused the population (especially the minority) to have a negative opinion of the project. Events at the time also reveal the new francophone political dynamic of electing more of their own members to the Legislative Assembly. Before union, the North American colonies were considered mere extensions of Great Britain; the advent of union proposed a new State in which Acadians demanded a place and recognition of their rights. Conclusion By dipping into some of my research, I hope I have been able to shed further light on the place of Confederation in the lives of the Acadians of New Brunswick. The comparative study of the various francophone demands at the time with the terms offered in the Quebec resolutions of 1864 provides a new perspective on their behaviour during the elections of 1865 and 1866. The failure to include their province of residence in the language and separate school protections may have been sufficient to justify their vote for those candidates who opposed the union of the British colonies of North America. Conversely, the inclusion of such protections might have led to a vote in favour of Confederation. To return to the interpretations offered at the beginning that explained the anti-confederation vote of the francophones by their illiteracy and their ignorance of the issues raised by union, the discussion and points put forward here cast serious doubt on their plausibility. On the contrary, Acadians seem to have acted knowingly to protect their interests in the province by attempting expressly to be recognized therein. The position of the Acadians seems perfectly consistent with that displayed in other circumstances, where changes to existing regimes ignored them. Since at least the 1820s, numerous measures described above reveal actions on the part of the Acadians aimed at moulding New Brunswick public policy to their own situation. They rarely challenged an existing or proposed regime outright, preferring instead to restrict themselves to specific adjustments. The petition of 1867 requesting the publication in French of the proceedings of the Legislative Assembly and those of 1871 on denominational schools are particularly revealing in this regard.



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That being said, the explanation offered here remains speculative and circumstantial, as there are no available sources to ascertain with certainty the opinion of the francophone minority of New Brunswick regarding the resolutions adopted in Quebec in October 1864. If the result of the elections in 1865 and 1866 strongly suggests that the minority was opposed, reasons for its objection are harder to find. Furthermore, presenting a synthesis of three research projects on the topic does not leave space to reproduce in detail all the information found in those studies. For a fuller analysis, it is necessary to refer to those works, but in general the allegation of ignorance is highly debatable in light of the points made in the preceding pages. NOTES 1 Gaétan Migneault, “French Canada and Confederation: The Acadians of New Brunswick,” a translation of “Le Canada français et la Confédération: les Acadiens du Nouveau-Brunswick,” Jean-François Caron and Marcel Martel, eds., Le Canada français et la Confédération, Fondements et bilan critique (Quebec: Les Presses de l’Université Laval, 2016), 9–10, 17–28. 2 Reports of the Debates of the House of Assembly of the Province of New Brunswick (28 June 1866) p. 36 (the Honourable Samuel L. Tilley). 3 Gaétan Migneault, “La reconnaissance législative accordée aux Acadiens du Nouveau-Brunswick avant la Confédération (de 1784 à 1867),” Acadiensis, vol. XLI, no. 2, été/automne, 2012, p. 109. 4 Gaétan Mignault, Les Acadiens du Nouveau-Brunswick et la Confédération (Lévis: Éditions de la Francophonie, 2009). 5 Gaétan Migneault, La crise scolaire de 1871 à 1875 au Nouveau Brunswick: un produit de la Confédération (Fredericton: Éditions du BeauBassin, 2013). 6 Notably, in a more recently published article, I show how financial questions in the province before Confederation do not seem to have been reflected in the political party that signed the accord: Gaétan Mignault, “Les relations fiscales Canada-Nouveau-Brunswick de 1867 à 1917,” McGill Law Journal, vol. 60, no. 1, 2014, pp. 6–8 and 28–29. On the other hand, such concerns clearly existed in the party that opposed Confederation. 7 Migneault, “La reconnaissance,” pp. 136–140. 8 Philippe Doucet, “La politique et les Acadiens,” in Jean D’aigle (ed.), Les Acadiens des Maritimes (Moncton: Centre d’études acadiennes, 1980), pp. 250–262; Nicolas Landry and Nicole Lang, Histoire de l’Acadie (2nd ed.)

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(Québec: Septentrion, 2014), pp. 200–202; Migneault, Les Acadiens, pp. 69, 72–73, 82. 9 Reports of the Debates of the House of Assembly of the Province of New Brunswick (5 June 1865) p. 129 (the Honourable Arthur H. Gillmore, Jr.). 10 Migneault, Les Acadiens, pp. 116–119. 11 Provincial Archives of New Brunswick, Legislative Assembly fonds, RG4– RS4, petition no. 108, 1867. The petition is also reproduced in Marie-Claire Pître, “La revendication des droits linguistiques au XIXe siècle dans la Péninsule acadienne,” Égalité: revue acadienne d’analyse politique, vol. 22, 1987–1988, pp. 97–100. 12 Migneault, La crise scolaire; Gaétan Migneault, “Les retombées de la Confédération au Nouveau-Brunswick,” Acadiensis, vol. XLIII, no. 1 hiver/ printemps 2014, p. 157; Migneault, “Les relations fiscales.” 13 Migneault, Les Acadiens, 251. 14 Migneault, La crise scolaire, pp. 143–144. 15 Migneault, La crise scolaire, p. 37. 16 Migneault, La crise scolaire, pp. 144–145. 17 Le Moniteur Acadien, vol. V, no. 3 (21 July 1871), p. 2. 18 Petition by the Catholics of the County of Westmoreland to the Governor General, reproduced in Canada, Parliament, Sessional Papers 1872, no. 36, pp. 1–2. 19 Journal of the House of the Assembly of the Province of New Brunswick (2 April 1874), p. 200. 20 Migneault, La crise scolaire, pp. 236–237.

“Confederation” Constitutional Odyssey: Can Canadians Become a Sovereign People? 2004 (first edition published in 1992)

Peter H. Russell1

There was scarcely a whisper of popular sovereignty in Canada’s Confederation movement. This was because the leading politicians in British North America at the time of Confederation were thoroughly counter-revolutionary in their political orientation. Earlier, the ideologies of both the American and French revolutions had found significant followings in Britain’s northern colonies. Papineau’s Patriotes in Lower Canada and Mackenzie’s rebels in Upper Canada were stirred by more radical conceptions of democracy.2 But the rebellions of the 1830s were totally crushed. By the 1860s the constitutional theories associated with the rebellions were in total eclipse. The political elites who put Confederation together were happy colonials. Their basic constitutional assumptions were those of Burke and the Whig constitutional settlement of 1689 rather than of Locke and the American Constitution. That is not to say that Confederation was imposed on the British North Americans in a totally undemocratic matter. The imperial legislation, the British North America Act, 1867 (BNA Act), that legally created the Dominion of Canada was, in effect, Canada’s fifth constitution. The three constitutions immediately preceding the BNA Act established essential elements of liberal democracy, but the BNA Act was the first in which the novel and creative elements were designed by the colonists themselves, not their imperial masters.

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When New France became a British possession following the Peace of Paris, its first constitution took the form of the Royal Proclamation of October 1763 and subsequent instructions to the British governor. The Proclamation “detached the old western territories of Canada, including the Ohio, from Canadian jurisdiction, and made them into a separate ‘Indian territory.’”3 While the Proclamation referred vaguely to the possibility of establishing “general assemblies” in the future, Governor Murray’s instructions made it clear that, for Quebec, with a population made up almost entirely of Roman Catholic French Canadiens, a representative assembly was “impracticable for the present.”4 Murray would govern with the assistance of an advisory council from which Roman Catholics were excluded. Far from advising respect for the culture of the conquered people, Murray’s instructions commanded him to erect Protestant schools and maintain Protestant ministers “to the end that the Church of England may be established both in principle and practice, and that the said inhabitants may by degrees be induced to embrace the protestant religion and their children be brought up in the principles of it.”5 That particular objective, forced assimilation, was dropped from the second British constitution for Canada, the Quebec Act of 1774. The Quebec Act granted the French Canadians religious freedom and the use of their traditional civil law. This measure was motivated more by imperial strategy, as a means of containing the revolution building in the American colonies, than by a conversion of the British rulers to liberal principles of toleration. Nonetheless, this recognition of two basic elements of the Canadiens’ “old national rights,”6 Catholicism and French civil law, was the foundation of a régime of cultural coexistence for the British and French in Canada. Some historians would go further and contend that the Quebec Act, by granting the liberty of non-English peoples to be themselves, established a fundamental principle for the British Commonwealth to come.7 But the Quebec Act did not establish representative institutions. That step was not taken until Canada received its third British-made constitution, the Constitutional Act of 1791. The Constitutional Act divided Quebec into two separate colonies: in the west, Upper Canada, the future Ontario, with an English-speaking, Loyalist majority; and in the east, Lower Canada, the future Quebec, with a French-speaking majority. The purpose of this division, the colonial secretary of the time explained, was to reduce “dissensions and animosities” among two “classes of men, differing in their prejudices, and perhaps in their



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interests.”8 Elected legislative assemblies, based on a wider franchise than then existed in England, were established for both Upper and Lower Canada. In acquiring representative institutions, the two Canadas were catching up to the Maritime colonies, where the dominance of British settlers had prompted the earlier establishment of British institutions. The first elected legislative body in what was to become British North America assembled in Nova Scotia in 1758. When Prince Edward Island in 1769 and New Brunswick in 1784 were carved out of Nova Scotia, they too were granted elected lower houses. But these elected legislatures were only a halfway step to representative government: executive power remained vested in a British governor advised by an executive council of his own choosing. The governors drew their advisers not from the leading politicians in the legislative assemblies but from the social upper crust, which in Lower Canada meant the urban English-speaking majority and in Upper Canada the Tory Family Compact. It was the tensions generated by this combination of quasi-aristocratic and democratic elements that gave rise to the 1837 rebellions. The British response to the rebellions was the occasion of the fourth Canadian constitution. Again, the creative initiative in constitution making was imperial, in the person of Lord Durham. Durham, an English liberal, was appointed governor general of all British North America (except Newfoundland) and instructed to analyse the causes of the rebellions in the Canadas and to recommend measures “conducive to the permanent establishment of an improved system of government in Her Majesty’s North American possessions.”9 Durham spent only five months in British North America, but the report that resulted from his trip was the basis of a new constitutional order for the non-Maritime colonies. Lord Durham’s report contained two central recommendations: to reunite Lower and Upper Canada and to make the government of the united colony responsive in all local matters to the majority in the elected assembly. The first of Durham’s recommendations was accomplished in 1840, when the British Parliament passed the Act of Union creating the United Province of Canada with a single legislature. In the elected lower house of this legislature, the two old provinces, now Canada East and Canada West, would have equal representation, regardless of their population. The long-term objective of legislative union was the assimilation of the Québécois into the culture of the emerging English-Canadian majority. “I entertain no doubts,” Durham wrote, “as to the national character which must be given to lower

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Canada; it must be that of the British Empire; that great race which must, in the lapse of no long period of time, be predominant over the whole of the North American continent.”10 There was no place for the liberal principle of cultural diversity in this constitutional plan. Durham’s second recommendation, for a more democratic form of government responsible to the majority in the elected branch of Parliament, was achieved not through a formal constitutional text but in a manner more typical of British constitutionalism: in a change in instructions given by the imperial government to its governors in British North America. Henceforth the governor was to choose as his advisers (in effect, his cabinet) a group of politicians who could command the confidence of the elected Legislative Assembly. The change was first implemented in Nova Scotia in February 1848 when Governor Harvey invited James Uniacke, a leader of the reformers who had won the recent election, to form a one-party cabinet.11 A month later, Lord Elgin gave effect to the same principle in the United Province of Canada when he asked Louis LaFontaine and Robert Baldwin to form a ministry following their election victory and the defeat of the previous government on a vote-of-confidence motion. In this way the principle of responsible government, the democratic core of British parliamentary government, entered Canada’s constitutional system. Under this principle the executive power of government legally is vested in the Crown or the Crown’s representative, the governor general or lieutenant-governor. The political rule or constitutional convention, however, is that the Crown does not act on its own initiative but on the advice (direction) of ministers who have the support of a majority in the elected house. Constitutional conventions are difficult to comprehend for those who think of a constitution as a formal legal document, yet conventions – accepted rules governing the proper use of legal powers – have always been a crucial element in both the British and the Canadian constitutional systems.12 Their efficacy obviously depends on a high degree of consensus and trust in the political community. Although responsible government is the essential democratic principle in parliamentary/cabinet government, it lends itself to a highly centralized, executive-dominated form of democracy. By requiring that the executive be directed by leaders of the majority in the legislature, it fuses executive and legislative power. In the mid-nineteenth century, when political parties were in their infancy and party discipline in the legislature was loose, the system’s potential for centralizing power in



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the hands of a few party leaders was not apparent. That tendency is all too obvious to Canadian citizens today. In practice, the United Province of Canada did not conform to the constitutional plan Lord Durham had ordained for Canada. The French Canadians made it clear they had the collective strength and will to resist assimilation. Although the Act of Union had implied a unilingual English state, bilingualism soon became a fact of parliamentary life and, in 1849, the governor general announced that French had the same status as English. Despite Durham’s intentions in establishing a single legislature, Canada East and Canada West functioned as culturally distinct provinces – the one predominantly French and Catholic, the other mainly English and Protestant. The legislature, as John A. Macdonald explained, was conducted on a quasi-federal basis: “In matters affecting Upper Canada solely, members from that section claimed and generally exercised the right of exclusive legislation, while members from Lower Canada legislated in matters affecting only their own section.”13 The trouble with this system of double majorities is that it produced constant political instability, as neither of the emerging political parties could sustain for long an overall majority. Many forces and motives coalesced to produce Confederation. Not the least of these were the economic withdrawal of one empire, the British, and the military threat of another, the American. Powerful economic incentives such as western expansion, the removal of customs barriers, and a broader basis for raising capital also played their part. But aside from these geopolitical and economic factors, the proximate cause of Confederation, the source of political energy that moved politicians to be constitutionally restless and creative, was the utter frustration of the leading Canadian politicians with the union system of government. In this sense, Confederation was first and foremost a political, not an economic project. By the early 1860s Canadian politics had reached a point of deadlock between two sectional alliances: the alliance of John A. Macdonald’s Conservatives and George-Étienne Cartier’s Bleus, with a clear majority in Canada East, was almost evenly matched by the combination of George Brown’s Reformers, a growing force in Canada West, and Antoine Dorion’s anticlerical Rouges in Canada East. English Canadians who had readily accepted equality for the two sections of Canada at the beginning of the union period, when Canada East was considerably larger than Canada West, began to embrace a different principle of political justice once the population ratios were reversed. When Canada

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West’s population came to surpass Canada East’s in the 1850s, Brown’s cause of “rep by pop” (representation by population) became increasingly popular with English Canadians and increasingly threatening to French Canadians, who, though still a majority in the eastern section of the province, were now just a third of the Canadian population. Anyone who contemplates a binational, double majority system as the solution to Canada’s present discontents should consider the frustrations and animosities generated by such a scheme during the union period. Much ink has been spilled on whether Confederation was a compact. The compact theory, as we shall see, developed after Confederation.14 Provincial premiers would base their claim that the Constitution could not be changed without their consent, on the argument that Confederation was a contract or treaty between the founding provinces. Defenders of Quebec’s right to a constitutional veto would argue that Confederation was based on a compact between the English and the French, Canada’s “two founding peoples.” Historians have had no difficulty in showing that, in a strict legal sense, Confederation could not have been a contract because, in 1867, neither the original provinces nor their people had sovereign legal power. That power rested entirely with the imperial Parliament. But this debunking of the compact theory tends to miss the point that Confederation was based on a political agreement – a deal – first between English and French political elites in the Canadas, and then between those Canadians and their Maritime counterparts. The first stage of this deal occurred in June 1864 when George Brown and his Upper Canadian Clear Grits agreed to participate in a coalition government with their bitter opponents, John A. Macdonald, GeorgeÉtienne Cartier, and their Liberal-Conservative followers.15 Since March 1864 Brown had chaired a parliamentary committee examining various approaches to constitutional reform. This committee, not unlike the Special Joint Committee of the Senate and the House of Commons on a Renewed Canada established in the Canadian Parliament in Sep­ tember 1991,16 had at best lukewarm support from the various parties. Macdonald, Cartier, and Galt, as well as some of the Reform leaders, voted against its establishment. Nonetheless, the committee completed its work and, on 14 June 1864, reported that a federal system (for the two Canadas or for all of British North America) was strongly favoured as the solution to Canada’s constitutional impasse. A few hours later the Macdonald-Taché coalition was defeated on a vote of confidence. Instead of forcing a dissolution of Parliament and yet another election, Brown, together with some other key Upper Canadian Reformers – to



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the total amazement of the political pundits of the day – agreed to join Macdonald and Cartier in a Great Coalition solely for the purpose of achieving a constitutional solution along the lines recommended by Brown’s committee. The Great Coalition represented something much more significant than a temporary agreement to set aside partisan differences. At its core was a recognition that if English Canadians and French Canadians were to continue to share a single state, the English majority could control the general or common government so long as the French were a majority in a province with exclusive jurisdiction over those matters essential to their distinct culture. This constitutional agreement was indeed a compromise. For many English Canadians (certainly for John A. Macdonald), federalism was an American abomination, a clear second choice to a unitary state. Not many English Canadians were committed to the long-term survival of French Canadians as a distinct collectivity. On the other side, many French Canadians, including the Rouge leaders, saw the proposed federation as a sell-out, the latest in a long line of attempts to bring about the “annihilation of the French race in Canada.”17 Nonetheless, acceptance of a federal solution was the only possible basis on which leaders from the two sections of Canada could work together on a constitutional accord. Brown’s committee left open the question whether a federation of the two Canadas or of British North America as a whole should be the priority. Brown himself was so anxious to obtain justice for Upper Canada that he preferred the smaller project, since it would be easier to attain. But Macdonald and the Conservatives in the coalition had their eyes set on the larger vision and insisted that it be immediately pursued. An opportunity to do just that was at hand – a forthcoming conference of Maritime leaders to discuss Maritime union. And so the stage was set for the second part of the Confederation deal when Lord Monck, the Canadian governor general, on 30 June 1864 wrote to the lieutenant-governors or administrators of the Maritime provinces asking permission for a delegation from Canada to attend the conference on Maritime union. Constitutional politics in the Maritimes had been moving in advance of events in Canada. On 28 March 1864, the Legislative Assembly of Nova Scotia adopted Charles Tupper’s motion to appoint up to five delegates to meet with representatives of New Brunswick and Prince Edward Island “for the purpose of arranging a preliminary plan for the union of the three provinces under one government and legislature.”18

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In April, similar motions were passed by the New Brunswick and Prince Edward Island assemblies. The idea of holding a conference on Maritime union did not arise from a ground swell of public opinion. As Creighton summarized the situation, “It had been strongly resisted in one province, and accepted without any enthusiasm and with a good deal of skeptical indifference in the other two.”19 Its most enthusiastic supporters were a few business-oriented politicians, who thought it would improve the prospects of an intercolonial rail link, and some imperial officials, who hoped it might be the first step to a larger union of the North American colonies. Confederation would probably not have occurred without the pushing and prodding of the British Colonial Office and its field officers, the colonial governors. At this stage in the evolution of the British Empire, imperial policy-makers had come to the sensible conclusion that Bri­ tain’s interests in the North American hemisphere could be more efficiently secured if its scattered colonies were brought together in a more self-reliant political union. Even though the imperial government possessed a full and uncontested legal sovereignty over the colonies, it was no longer willing to use this power in a coercive manner. The Duke of Newcastle, colonial secretary during these critical years, articulated the constitutional convention of the day: “The initiative in all important internal changes in the colonies must lie with the colonists themselves.”20 The colonial governors could encourage and throw the formidable weight of their office behind politicians whose ideas were in line with imperial policy; they could manipulate, but they would not dictate. Still, without the coaching, prodding, and fixing of imperial officials, Confederation would probably not have occurred. In the constitutional politics of our own time, for better or for worse, there is really no legitimate counterpart of this imperial steering force. Through the summer of 1864 the eight members of the Canadian coalition cabinet hammered out a plan for a federal union of British North America. This was the plan they would present at the conference on Maritime union, scheduled for Charlottetown in September. As it turned out, this plan contained the basic elements of the constitution of the new Canada that would come into existence three years hence. In designing the constitution for a new federation, the Canadian ministers were not starting from scratch. Schemes for uniting the central and Atlantic colonies had been floating around for years. Cartier and Galt, two of the authors of the 1858 letter quoted elsewhere, were in the



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coalition cabinet. Not surprisingly, the plan worked out by the cabinet bore a close resemblance to the proposals set out in the letter. While the politicians were debating and drafting behind the closed doors of the cabinet room, the numerous and lively newspapers of the day carried on a spirited constitutional debate.21 Among newspapers generally supportive of federation, the fundamental question concerned the division of powers. Today’s Canadians will say, Was it not always so? The politicians then, like those of today, were not above using newspaper opinion to bolster their position in constitutional bargaining. Thus, we find George Brown’s Globe insisting that in the federal system being planned, “the local governments shall be delegated governments and … the ‘sovereign’ power shall be vested in the general or federal government.”22 On the other hand, La Minerve was typical of French-Canadian Bleu papers supporting Cartier and Taché in claiming that under the new federal arrangements, “II [le Bas-Canada] aura son gouvernement particulier dont l’autorité s’étendra à tous les objets qui suivent le cours ordinaire des affaires, interéssant de la vie, la liberté et la prosperité des citoyens it sera maître chez lui en tout ce qui regarde son économie sociale, civile et religieuse.”23 At this crucial stage in constitution making, the coalition cabinet members were not prepared to disclose how they were balancing these conflicting outlooks on the structure of the new federation. They did not want to risk a public row over the details of their constitutional plan. Elite accommodation, the mechanism of consociational democracy, was the order of the day. At the public level, an attempt was made to forge stronger social links between Canadians and Maritimers. At the very time that the coalition cabinet was hammering out its proposals in the Quebec cabinet room, a delegation of about a hundred Canadians – politicians, journalists, and interested citizens – was travelling through New Brunswick and Nova Scotia. With D’Arcy McGee as their chief troubadour, the Canadians served as Confederation missionaries, mixing with Maritimers at scores of picnics, dinners, and oratorical concerts. They did not debate the constitutional details of the Confederation scheme but endeavoured to kindle Maritimers’ interest in becoming part of a larger political community. In this, they clearly had some success. When the Queen Victoria sailed into Charlottetown’s harbour on 1 September 1864 with eight members of the Canadian Coalition cabinet on board, Maritime interest in the approaching constitutional conference was beginning to match Canada’s.

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As an instrument for constitution making, the Charlottetown Confer­ ence was somewhere between a first ministers’ meeting and a constituent assembly of the kind proposed by populist critics in the post-Meech era. This was not a conference of ordinary citizens. All the delegates were politicians – indeed, most were experienced politicians. Included in their ranks were the first ministers or leaders of the largest party and, with the one exception of the Lower Canadian Rouges, “the principal leaders on both sides of politics.”24 That indeed was a key to success: co-opting political opponents into the negotiating process reduced the political vulnerability of the constitutional proposals that emerged from the conference. At this stage in their negotiations, the twenty-three delegates (five each from New Brunswick, Nova Scotia, and Prince Edward Island, plus the eight Canadians) did not expose their deliberations to public scrutiny. For five days they met behind the closed doors of Prince Edward Island’s Legislative Council chamber. From the outset the Canadians dominated the conference. Brown, Cartier, Macdonald, and the other coalition ministers laid out their plan for a federal union during the first four days. The plan had three basic elements: first, a division of legislative powers that reversed the American system, with the residual power (those powers not explicitly mentioned) assigned to the general (central) legislature; second, a two-chamber federal parliament, with an elected lower house based on rep by pop and an appointed upper house based on sectional (regional) equality, where Canada’s two sections and the Maritimes each counted as a section; and, third, a central government that would take over the debts and some of the assets of the provinces. By the fifth and final day of the Charlottetown Conference it was clear that the second part of the Confederation deal was nearly consummated. While the Maritimers had not accepted all the details of the Canadians’ scheme, they did agree to set aside the Maritime union project and to make a federal union of British North America their constitutional priority. On 10 September 1864, three days after the close of the conference, the delegates assembled again in Halifax, where they decided to hold another conference in October at Quebec. At this next meeting they would focus on the confederation of British North America, and invite a delegation from Newfoundland. The Quebec Conference was structured along the same lines as the meeting at Charlottetown. Again the delegations included both government and opposition leaders. An exception was Newfoundland, whose



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two delegates, F.B.T. Carter and Ambrose Shea, were not government members – a fact that did not help the prospects of Confederation in Newfoundland. The delegations varied in size: Nova Scotia had five members, New Brunswick and Prince Edward Island each had seven, and the Canadians were now represented by all twelve members of the coalition cabinet. Each delegation had a vote, except for Canada, which had two. So, in principle, the Atlantic colonies could outvote the Canadians two to one. The thirty-three politicians squeezed into the reading room of Quebec’s Legislative Council, where once again the entire discussion took place behind closed doors. In that stuffy chamber in Quebec City over a two-week period in October 1864, details of the new Canadian federation’s Constitution were worked out in the form of seventy-two resolutions. The Quebec Resolutions cover nearly all of what was to be contained in the BNA Act. Little was added or changed in the subsequent negotiations and enactment in London. Most of the constitutional debate at Quebec – and indeed in Canada ever since – concerned the federal aspects of the Constitution. Here is where the British North Americans had to be creative. They were departing from Britain’s unitary system and, with the United States in the throes of civil war, the only federal system they knew, the American, seemed thoroughly flawed. Their earlier decision to give the residual power to the central rather the local legislatures aimed at reversing what many regarded as the most dangerously decentralizing feature of the American Constitution. At Quebec they now spelled out in detailed lists the “exclusive” legislative powers of both the provinces and the new Canadian Parliament. This may well have muddied the waters, for even though the list of federal legislative powers was simply to be illustrative of the federal Parliament’s power “to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects … assigned exclusively to the Legislatures of the Provinces,” the listed powers would come under judicial interpretation to overshadow the general power. Among the explicit federal powers were many of what were then considered the main functions of government: defence, criminal law, trade and commerce, banking, currency, shipping, and interprovincial transportation. But the legislative powers assigned exclusively to the provinces were by no means negligible. They included “Property and Civil Rights in the Province,” a phrase meant to cover the components of Quebec’s civil law (most of the private, commercial, and family law), as well as

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education, hospitals, and other social welfare activities. The provinces were also given ownership of their lands and natural resources. Two areas, agriculture and immigration, were designated as concurrent fields of legislation, with federal law prevailing in the event of a conflict. Other features of the structure gave the new federal government a paramount role. Under the fiscal arrangements, the federal government would have access to all modes of taxation, while the provinces were confined to “direct taxation,” licence fees, and royalties. The provinces could not levy customs and excise duties, which at the time constituted 83 per cent of the colonies’ revenues.25 The constitution-makers never conceived of direct taxes on personal and corporate income becoming the milch cow of public finance. The fiscal dependency of the provinces was underlined by building in a complex set of federal subsidies “in full settlement of all future demands on Canada” – words that should make the Fathers of Confederation blush a little in their graves. The judicial system was also federally dominated. The key courts for the new federation would be the existing superior, district, and county courts of the provinces, but the judges of these courts would be appointed, paid, and subject to removal by the federal government and Parliament. As for a supreme court, the colonial politicians were happy to carry on with the highest court in the empire, the Judicial Committee of the Privy Council, as Canada’s final court of appeal, but if and when a general court of appeal was established for Canada, it would be created by the federal Parliament. Considerably more contentious was the importation of an element of imperial structure into the federal plan. Just as the British government ­appointed the Canadian governor general, the federal government would appoint the provincial lieutenant-governors. The lieutenantgovernor (in parallel with the governor general’s power over federal legislation) could reserve legislation passed by provincial legislatures for consideration by the federal government. Further, just as the British government retained the power to disallow (veto) legislation passed by the federal Parliament, the federal government could disallow provincial legislation. The federal powers of reservation and disallowance were surely the sharpest deviation from the federal principle of government. Their inclusion in the Constitution is a clear indication that many of the constitutional architects, and none more than John A. Macdonald, preferred unitary to federal government. The point of federal structure that proved most troublesome and took the most time to resolve was the federal Senate. Prince Edward Island



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and the United Province of Canada had recently shifted from the British tradition of an appointed upper house to an elected second chamber. Some delegates now pressed for a Senate that was directly elected or, as the American Senate then was, elected by the provincial legislatures. The balance of power within all the delegations lay with those who favoured the British parliamentary structure, and the Senate provided for in the Quebec Resolutions was a body appointed for life by the federal government, with full legislative powers except for the introduction of money bills. Even more contentious was the distribution of Senate seats among the provinces. With Newfoundland at the table, the Atlantic delegates now argued that their four provinces should have thirty-two senators – six more than Ontario’s and Quebec’s twenty-four. In the end, the principle of sectional equality was maintained by a resolution giving twenty-four each to Ontario, Quebec, and the three Maritime provinces (ten each for New Brunswick and Nova Scotia, and four for Prince Edward Island), with a vague promise of “additional representatives” for Newfoundland.26 The need for Senate reform was built into the very foundations of Confederation. While the Constitution drafted at Quebec covered the new federal system in detail, it was relatively silent on other matters that have become of great importance to Canadian constitutionalists. The Fathers of Confederation expressed absolutely no interest in a bill of abstract natural rights. They were prepared, however, to afford constitutional protection to rights or interests that experience had shown were necessary for the peaceable coexistence of two distinct cultural communities. First, the English were assured of the right to use their language in the legislative and judicial institutions of Quebec, where they would be a minority, and the French were given a reciprocal right to use their language in the federal legislature and courts.27 Second, the denominational schools of the Protestant minority in Quebec and the Catholic minority in Ontario would continue to function on the basis already provided for in law.28 These two provisions for minority rights were not the only manifestations of cultural dualism in the new Constitution. Another dimension of dualism was the differential treatment of Quebec. Quebec, with its distinctive civil law, was exempt from a clause that envisaged the common law provinces eventually permitting the federal Parliament to take over their jurisdiction over property and civil rights.29 Special provisions also governed the qualifications of Quebec judges and the appointment of Quebec senators.30 Quebec, however, was not the only province to have differential treatment. New

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Brunswick received a special subsidy over and beyond those provided for the other provinces.31 The Fathers of Confederation were not strict believers in the principle of provincial equality. 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. Formally, all executive power in both levels of government would “be vested in the Queen” – a system that has persisted to the present day.32 The principle of responsible government would continue to depend on unwritten constitutional convention. The only hint of responsible government in the final constitutional text is the reference in the preamble to the BNA Act to a “Constitution similar in Principle to that of the United Kingdom.”33 Aside from some minor changes that each level of government could make on its own, the new Constitution was totally silent on the question of amendment. This void was to be expected. As we saw in the opening paragraph of this book, the Fathers of Confederation assumed throughout that Canada’s Constitution would take the form of an imperial statute and, as such, would be formally amended by the British Parliament. Philosophically, this arrangement did not trouble them, nor did they see it as posing any practical problems. Canada’s founding fathers suffered even more than the usual hubris that afflicts constitution-makers. As John A. Macdonald was later to explain to Canada’s Legislative Assembly, the constitutional drafting was so thorough and detailed that “we have avoided all conflict of jurisdiction and authority.”34 Again, posthumous blushes are in order. With the signing of the Quebec Resolutions on 27 October 1864, substantive constitution making was nearly complete. There were still, however, important political and legal steps to be taken before the Constitution could be put into effect. The seventieth resolution stated that “the sanction of the imperial and local parliaments shall be sought for the Union of the Provinces on the principles adopted by the Conference.”35 Enactment of the Constitution by the imperial Parliament was the essential, final legal step. Approval by the colonial legislatures was a political, not a legal imperative. Still, for politicians living under the constraints of responsible government, it was important to secure legislative support for their constitutional plan. For some commentators of the day, approval by the legislature was not a strong enough measure of popular support. While there were no calls for a referendum or a directly elected constituent assembly, a number of newspapers in Canada West and New Brunswick insisted that



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sweeping constitutional changes should not be made until they had been tested in a general election.36 The leading politicians in Canada, including Reform leader George Brown, brushed these demands aside: “A general election on such an issue, they argued, would be nothing more or less than a plebiscite; and a plebiscite was a dreadful republican heresy, French or American in origin, which would violate all the principles of parliamentary government, without the slightest beneficial result.”37 The seventy-two resolutions were debated in both houses of the Canadian legislature. The debate extended over a period of six weeks, from early February to mid-March 1865. It was, by any standard, a brilliant debate – by far the best record of the hopes, dreams, and fears of those who supported and those who opposed Confederation. (It is a measure of Canadians’ lack of interest in their constitutional roots that the only published edition of these debates has been out of print for many years.)38 In the end, the supporters of Confederation carried the day, but only after withstanding searing criticism of flaws and inconsistencies in the constitutional plan, especially from the Rouges who, as French Canadians, viewed support of the scheme as amounting to treason. The Quebec Resolutions (like the Meech Lake Accord many years later) were a carefully negotiated package deal, so no amendments were allowed. The overall majority in favour of the resolutions was 91 to 33,39 but support was much stronger among members from Canada West, who favoured Confederation 56 to 6, as compared with members from Canada East, who voted 37 to 25 in favour. Among French-Canadian members the vote was even closer, with 27 for and 21 opposed – a clear majority, but hardly a ringing endorsement from the French component of the political elite. New Brunswick was the only colony in which Confederation was submitted to the people in an election. Indeed, New Brunswickers went to the polls twice to decide contests between confederates and anti-­confederates. In each case it was New Brunswick’s mercurial lieutenant-governor, Arthur Gordon, not the politicians, who forced the appeal to the people. Gordon did not like the Confederation plan because it did not go far enough in giving absolute paramountcy to the federal government. He threatened to dismiss the pro-Confederation administration headed by Samuel Tilley and appoint other ministers, unless Tilley agreed to hold an election before submitting the Quebec Resolutions to the legislature. Tilley agreed to a dissolution. In the ensuing election, which was conducted at the very time the Canadian

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legislature was debating Confederation, Tilley and his confederate colleagues were defeated, winning only eleven of forty-one seats. Just over a year later, Gordon, now under strict instructions from the Colonial Office to have Confederation submitted to the legislature, forced the resignation of anti-confederate ministers and dissolved the legislature. This time, the case for a stronger British North American union was bolstered by the massing of Fenians along New Brunswick’s border, and the confederates triumphed, taking all but eight of the forty-one seats. Even so, the Quebec Resolutions, although approved by New Brunswick’s appointed Legislative Council, were never submitted to its elected assembly. While Confederation was limping to victory in New Brunswick, it was being pushed off the political agenda in the two island colonies, Prince Edward Island and Newfoundland. On the last day of March  1865, Prince Edward Island’s Legislative Assembly, by a vote of 23 to 5, passed a motion rejecting the Quebec Resolutions. The motion had been moved by the premier, J.C. Pope, who had not attended the Quebec Conference.40 Earlier in that same month, Newfoundland’s Legislative Assembly adopted Premier Hugh Hoyles’s motion to postpone a decision on Confederation until after the next general election. Although many of the pro-Confederation politicians were returned in the election held later in the year, they were considerably outnumbered by those who were opposed or doubtful.41 Despite considerable pressure from the Colonial Office and the St John’s newspapers, Newfoundland’s coalition government was not prepared to proceed with Confederation. In Newfoundland and Prince Edward Island, the politics of Confed­ eration were worked out in a relatively democratic fashion – albeit with a negative outcome. This was not so in Nova Scotia, where opposition to Confederation was, if anything, more intense and articulate than in either of the island colonies. Opposition in Nova Scotia was not to the general idea of a British North American union. Indeed, for that idea, with particular emphasis on the British nature of such a union, there was considerable support. Criticism focused on the Quebec Resolutions and especially on the alleged weaknesses of any system of federal government.42 The anti-confederates found an eminent spokesman in Joseph Howe, a former premier and major force in Nova Scotian politics for over thirty years, who at the time of Confederation was serving as an imperial fisheries officer. Criticism of the Quebec Resolutions dominated a lengthy legislative debate in the Nova Scotia legislature in the



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early spring of 1865. But the premier, Charles Tupper, was able to avoid a direct test of the Confederation scheme by seeking approval only for Maritime union. A year later, when the Confederation issue was forced by the opposition, with imperial connivance, he managed to corral enough support to win approval not for the Quebec Resolutions but for sending delegates “to arrange with the imperial government a scheme of union which will effectually ensure just provision for the rights and interests of this Province.”43 The Quebec Resolutions were never approved by the Nova Scotia legislature. Indeed, the first time Nova Scotians had an opportunity to give a popular verdict on Confederation they left no doubt about where they stood. In September 1867 in the first Canadian general election, the anti-confederates took eighteen out of nineteen Nova Scotia seats and, in the provincial election, thirty-six out of thirty-eight seats in the Nova Scotia assembly. By then, however, Confederation was a fait accompli. The implication of Tupper’s motion that a new basis for British North American union could be negotiated from scratch had no basis in reali­ ty. Macdonald, Cartier, and the other members of the Canadian coalition had no intention of touching their delicate constitutional compromise. If there was any suggestion that the Quebec Resolutions were open to significant amendment, French Canada, in Creighton’s words, “would undoubtedly rise in violent protest.”44 At the same time, the Canadian politicians did not dare admit publicly that the Quebec scheme was a sealed compact for fear of undermining the cause of Confederation in the Maritimes, which in both Nova Scotia and New Brunswick depended on the credibility of negotiating a different basis for union. The lack of consensus within the Confederation movement was therefore papered over by the political elites. In December 1866 sixteen of these leaders (six from the Canadas, five each from New Brunswick and Nova Scotia) met for the third Confed­ eration conference in a London hotel room close by the Westminster Parliament. The object of this meeting was not to renegotiate the Quebec Resolutions but to consider some minor modifications and tidying up of loose ends. The only change in the division of powers was to give the federal Parliament, rather than the provinces, jurisdiction over “Sea Coast and Inland Fisheries.” The Maritime provinces gained a modest increase in their per capita subsidies. Religious minorities in all the provinces were given the right to appeal to the federal government against provincial laws affecting their denominational school rights. A final push by Ontario reformers for an elected Senate was of no avail.

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The only change made in the structure of the federal upper house was to provide for the appointment of extra senators to break a deadlock between the two houses – a constitutional provision that most Canadians did not realize existed until it was used for the first time in 1990.45 With the conclusion of the London conference, the constitution was entirely in imperial hands. Only one further significant change was made – the formal name of the new country. The Fathers of Confederation had favoured the title Kingdom of Canada, but left the final choice to Queen Victoria. It was the Americans who effectively vetoed the monarchical title of kingdom. In their ignorance of the principles of constitutional monarchy they objected to the founding of anything so blatantly non-republican on their border. The Queen then chose the British Americans’ second choice: Dominion of Canada. Although this title held out the expansive promise of the Seventy-second Psalm’s “He shall have dominion also from sea to sea,” it struck the British prime minister, Lord Derby, as “rather absurd.”46 In February 1867 the Canadian Constitution, in the form of the British North America Act, was introduced in the House of Lords by the colonial secretary, Lord Carnarvon. The attention of British politicians at the time was fastened on a major development in Britain’s constitutional politics, the Second Reform Bill. There was a desultory debate as a handful of Canadian politicians watched the BNA Act go through the two Houses of Parliament. The most vigorous attack came from the few parliamentarians moved by Joseph Howe’s petition (supposedly bearing thirty thousand signatures) to postpone further action on the Canadian Constitution until it had been submitted to the people of Nova Scotia in the approaching general election. On 8 March 1867 the BNA Act passed third reading in the House of Commons. It received royal assent on 29 March and was proclaimed in effect on 1 July 1867. The Dominion of Canada was born, but the constitutional process that brought it into existence provided a thin and uncertain foundation for the birth of a people. True, elected politicians played the leading role in putting the Constitution together, but they were elected on a restricted franchise that excluded unpropertied males and all women.47 Further, the dominant members, both English and French, showed not the slightest intention of submitting their constitutional handiwork to the people. At the elite level, the process of Confederation produced a wide-based and practical, though not philosophical accord; at the popular level, however, it did not produce a political community with a clear sense of itself. In the language of political science, Canada in 1867



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“must be viewed essentially as a political unit that had become amalgamated without necessarily achieving integration.”48 For the Aboriginal peoples affected by Confederation, the new Con­ stitution was entirely an imperial imposition. There was no thought among the constitution-makers of consulting with the native peoples living on the territory encompassed by the BNA Act, nor did any of the legislative bodies that dealt with the Constitution represent these peoples. The Royal Proclamation of 1763, British North America’s first constitution, enacted that the native peoples “should not be molested or disturbed” on their hunting grounds in the territory reserved to them until the Crown purchased “their” lands by a treaty of cession. This fundamental aboriginal right was recognized in the subsequent treaties between the British Crown and the aboriginal nations. Although the Royal Proclamation continued as part of Canadian law, the rights it recognized were not explicitly included in the BNA Act.49 In the 1867 constitution, “Indians, and Lands reserved for the Indians” were mentioned only as a subject of federal jurisdiction.50 Aboriginal peoples were treated as subjects, not citizens, of the new dominion. Not even among the small cadre of politicians who pushed through the Confederation plan was there a clear and common conception of the new nation they were building. As Eugene Forsey was tireless in pointing out, they all recognized they were establishing a new nationstate.51 Their Constitution provided for the completion of a continental state stretching from Newfoundland to British Columbia,52 and the lure of performing in this larger political arena was part of their shared vision. But while the Fathers of Confederation thought of themselves as nation-builders, they did not share a common vision of the essential nature of the nation they were building. A few like Cartier espoused the idea, daring in that day, of forming a new “political nationality” based on deep “racial” diversity – a society in which “British and French Canadians alike could appreciate and understand their position relative to each other … placed like great families beside each other.”53 As we have seen, there were marks of this dualistic view of Canada in the new Constitution. But there were just as many Fathers of Confedera­ tion, especially in English Canada, who did not share Cartier’s ideal of a culturally pluralist nation and who still harboured Lord Durham’s dream of building a British North American nation. These Fathers of Confed­eration could empathize with George Brown, who, writing to his wife at the end of the Quebec Conference, exclaimed, “Is it not wonderful? French Canadianism entirely extinguished!”54

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In 1867 there was no need to agree on the fundamental nature of the new Canadian nation because the final custodian of its Constitution was not the Canadian political community but the imperial Parlia­ ment. Imperial stewardship of Canada’s constitutional politics made it relatively easy to inaugurate Confederation. A new country could be founded without having to risk finding out if its politically active citizens agreed to the principles on which its Constitution was to be based. But if this was a gift, it was a tainted gift. The Confederation compromise was sheltered from the strain of a full public review in all sections of the country, but at the cost of not forming a political community with a clear sense of its constituent and controlling elements. Thus, 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. NOTES 1 Peter H. Russell, “Confederation,” Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 2004), 12–33. 2 For the political theory of the French-Canadian rebels, see Denis Monière, Ideologies in Quebec: The Historical Development, trans. Richard Howard (Toronto: University of Toronto Press 1981), chap. 3. For the constitutional ideas of the Upper Canadian rebels, see W.P.M. Kennedy, The Constitution of Canada, 1534–1937: An Introduction to Its Development, Law and Custom, 2nd ed. (London: Oxford University Press, 1938), chap. 11. 3 George F.G. Stanley, A Short History of the Canadian Constitution (Toronto: Ryerson, 1969), 26. 4 Ibid. 5 Kennedy, Constitution of Canada, 39. 6 The phrase is from Christian Dufour, A Canadian Challenge / Le Défi québécois (Halifax: Institute for Research on Public Policy; Lantzville, BC: Oolichan Books, 1990), 42. 7 See Stanley, Short History, 29. 8 Quoted in R. Douglas Francis, Richard Jones, and Donald B. Smith, Origins: Canadian History to Confederation (Toronto: Holt, Rinehart & Winston, 1988), 190. 9 Stanley, Short History, 47. 10 Quoted ibid., 49.



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11 For a good account of the establishment of responsible government, see Phillip Buckner, The Transition to Responsible Government: British Policy in British North America, 1815–1850 (Westport, Conn.: Greenwood Press, 1985). 12 For an account of conventions in the Canadian constitution, see Andrew Heard, Canadian Constitutional Conventions: The Marriage of Law and Politics (Oxford: Oxford University Press, 1991). 13 This quotation is from Macdonald’s speech on the Quebec Resolutions and is quoted in Stanley, Short History, 75–6. 14 For a discussion of the compact theory and its current relevance, see Robert C. Vipond, “Whatever Became of the Compact Theory? Meech Lake and the New Politics of Constitutional Amendment in Canada,” Queen’s Quarterly, 96 (1989): 793. 15 For a detailed account of the events leading to Confederation, see Creighton, Road to Confederation. 16 See chapter 10 in Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? (Toronto: University of Toronto Press, 2004). 17 The words are from the newspaper, Le Pays, and are quoted in A.I. Silver, The French-Canadian Idea of Confederation, 1864–1900 (Toronto: University of Toronto Press, 1982), 38. 18 Creighton, Road to Confederation, 32. 19 Ibid., 35. 20 Ibid., 20. 21 For an account of newspaper coverage of Confederation, see P.B. Waite, The Life and Times of Confederation, 1864–1867: Politics, Newspapers, and the Union of British North America, 2nd ed. (Toronto: University of Toronto Press, 1962). 22 Creighton, Road to Confederation, 98. 23 Waite, Life and Times of Confederation, 139. 24 Creighton, Road to Confederation, 188. 25 R. MacGregor Dawson, The Government of Canada, 4th ed., revised by Norman Ward (Toronto: University of Toronto Press, 1966), 105. 26 Creighton, Road to Confederation, 152. 27 Section 133 of the BNA Act. 28 Section 93 of the BNA Act. 29 Section 94 of the BNA Act. 30 Sections 98 and 22 of the BNA Act. 31 Section 119 of the BNA Act. That section is now spent. 32 Section 9 of the Constitution Act, 1867 (the new title of the BNA Act) states that “the Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.”

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33 Besides responsible government, the other principle incorporated in this phrase is the independence of the judiciary. 34 P.B. Waite, ed., The Confederation Debates in the Province of Canada, 1865 (Toronto: McClelland and Stewart, 1963), 44. 35 Creighton, Road to Confederation, 187. 36 Waite, Life and Times of Confederation. 37 Creighton, Road to Confederation. 38 Waite, ed., Confederation Debates. 39 For an analysis of the vote, see ibid., xviii. 40 His older brother, W.H. Pope, had attended the Quebec Conference, but in the legislature went no further than proposing that the Island put off its decision until the terms of union had been submitted to the people in a general election. 41 Waite, Life and Times of Confederation, 173. 42 For an analysis, see “The Opposition to Confederation in Nova Scotia, 1864–1868,” in Ged Martin, ed., The Causes of Confederation (Fredericton: Acadiensis Press, 1990), 114–29. 43 Creighton, Road to Confederation, 366. 44 Ibid., 381. 45 The original section 26 provided that the Queen, on the advice of the governor general, could appoint three or six senators (representing equally the three Senate divisions, Ontario, Quebec, and the Maritimes). This was amended in 1915 to provide for four or eight extra senators to accommodate a fourth Senate division consisting of the four western provinces. The Mulroney government used the provision, for the first time ever, in 1990 to ensure passage of its Goods and Services Tax Bill. 46 Creighton, Road to Confederation, 424. 47 The first federal election following Confederation was based on the provincial election laws. It is estimated that, on average, about 15 per cent of the population of the four original provinces was eligible to vote. See Reginald Whitaker, “Democracy and the Canadian Constitution,” in Keith Banting and Richard Simeon, eds., And No One Cheered: Federalism, Democracy and the Constitution Act (Toronto: Methuen 1983), 245. 48 Ralph C. Nelson, Walter C. Soderlund, Ronald H. Wagenberg, and E. Donald Briggs, “Canadian Confederation as a Case Study in Community Formation,” in Ged Martin, ed., Causes of Confederation, 85. 49 For an account of the Proclamation and its continuing relevancy in Canada’s constitutional system, see Bruce Clark, Native Liberty, Crown Sovereignty: The Existing Aboriginal Right to Self-Government in Canada (Montreal and Kingston: McGill-Queen’s University Press 1990).



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5 0 Section 91 (24) of the BNA Act. 51 See, especially, Eugene Forsey, A Life on the Fringe: The Memoirs of Eugene Forsey (Toronto: Oxford University Press 1990), chap. 11. 52 Section 146 of the BNA Act. 53 These words are from his contribution to the Confederation Debates. Waite, ed., Confederation Debates, 50–1. 54 J.M.S. Careless, Brown of the Globe (Toronto: Macmillan 1963), vol. 2, 171.

Reference re. Secession of Quebec 1998 Supreme Court of Canada1

[…] 31  There is no doubt that the questions posed in this Reference raise difficult issues and are susceptible to varying interpretations. However, rather than refusing to answer at all, the Court is guided by the approach advocated by the majority on the “conventions” issue in Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753 (Patriation Reference), at pp. 875–76: If the questions are thought to be ambiguous, this Court should not, in a constitutional reference, be in a worse position than that of a witness in a trial and feel compelled simply to answer yes or no. Should it find that a question might be misleading, or should it simply avoid the risk of misunderstanding, the Court is free either to interpret the question … or it may qualify both the question and the answer.

The Reference questions raise issues of fundamental public importance. It cannot be said that the questions are too imprecise or ambiguous to permit a proper legal answer. Nor can it be said that the Court has been provided with insufficient information regarding the present context in which the questions arise. Thus, the Court is duty bound in the circumstances to provide its answers.



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III. Reference Questions

A. Question 1 Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?

(1) Introduction 32  As we confirmed in Reference re Objection by Quebec to a Resolution to amend the Constitution, [1982] 2 S.C.R. 793, at p. 806, “The Constitution Act, 1982 is now in force. Its legality is neither challenged nor assailable.” The “Constitution of Canada” certainly includes the constitutional texts enumerated in s. 52(2) of the Constitution Act, 1982. Although these texts have a primary place in determining constitutional rules, they are not exhaustive. The Constitution also “embraces unwritten, as well as written rules,” as we recently observed in the Provincial Judges Reference, supra, at para. 92. Finally, as was said in the Patriation Reference, supra, at p. 874, the Constitution of Canada includes the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state.

These supporting principles and rules, which include constitutional conventions and the workings of Parliament, are a necessary part of our Constitution because problems or situations may arise which are not expressly dealt with by the text of the Constitution. In order to endure over time, a constitution must contain a comprehensive set of rules and principles which are capable of providing an exhaustive legal framework for our system of government. Such principles and rules emerge from an understanding of the constitutional text itself, the historical context, and previous judicial interpretations of constitutional meaning. In our view, there are four fundamental and organizing principles of the Constitution which are relevant to addressing the question before us (although this enumeration is by no means exhaustive): federalism; democracy; constitutionalism and the rule of law; and respect for minorities. The foundation and substance of these principles are

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addressed in the following paragraphs. We will then turn to their specific application to the first reference question before us.

(2) Historical Context: The Significance of Confederation 33  In our constitutional tradition, legality and legitimacy are linked. The precise nature of this link will be discussed below. However, at this stage, we wish to emphasize only that our constitutional history demonstrates that our governing institutions have adapted and changed to reflect changing social and political values. This has generally been accomplished by methods that have ensured continuity, stability and legal order. 34  Because this Reference deals with questions fundamental to the nature of Canada, it should not be surprising that it is necessary to review the context in which the Canadian union has evolved. To this end, we will briefly describe the legal evolution of the Constitution and the foundational principles governing constitutional amendments. Our purpose is not to be exhaustive, but to highlight the features most relevant in the context of this Reference. 35  Confederation was an initiative of elected representatives of the people then living in the colonies scattered across part of what is now Canada. It was not initiated by Imperial fiat. In March 1864, a select committee of the Legislative Assembly of the Province of Canada, chaired by George Brown, began to explore prospects for constitutional reform. The committee’s report, released in June 1864, recommended that a federal union encompassing Canada East and Canada West, and perhaps the other British North American colonies, be pursued. A group of Reformers from Canada West, led by Brown, joined with Étienne P. Taché and John A. Macdonald in a coalition government for the purpose of engaging in constitutional reform along the lines of the federal model proposed by the committee’s report. 36  An opening to pursue federal union soon arose. The leaders of the maritime colonies had planned to meet at Charlottetown in the fall to discuss the perennial topic of maritime union. The Province of Canada secured invitations to send a Canadian delegation. On September 1, 1864, 23 delegates (five from New Brunswick, five from Nova Scotia, five from Prince Edward Island, and eight from the Province of Canada) met in Charlottetown. After five days of discussion, the delegates reached agreement on a plan for federal union.



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37  The salient aspects of the agreement may be briefly outlined. There was to be a federal union featuring a bicameral central legislature. Representation in the Lower House was to be based on population, whereas in the Upper House it was to be based on regional equality, the regions comprising Canada East, Canada West and the Maritimes. The significance of the adoption of a federal form of government cannot be exaggerated. Without it, neither the agreement of the delegates from Canada East nor that of the delegates from the maritime colonies could have been obtained. 38  Several matters remained to be resolved, and so the Charlotte­ town delegates agreed to meet again at Quebec in October, and to invite Newfoundland to send a delegation to join them. The Quebec Con­ference began on October 10, 1864. Thirty-three delegates (two from Newfoundland, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward Island, and twelve from the Province of Canada) met over a two and a half week period. Precise consideration of each aspect of the federal structure preoccupied the political agenda. The delegates approved 72 resolutions, addressing almost all of what subsequently made its way into the final text of the Constitution Act, 1867. These included guarantees to protect French language and culture, both directly (by making French an official language in Quebec and Canada as a whole) and indirectly (by allocating jurisdiction over education and “Property and Civil Rights in the Province” to the provinces). The protection of minorities was thus reaffirmed. 39  Legally, there remained only the requirement to have the Quebec Resolutions put into proper form and passed by the Imperial Parliament in London. However, politically, it was thought that more was required. Indeed, Resolution 70 provided that “The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference.” (Cited in J. Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (1895), at p. 52 (emphasis added).) 40 Confirmation of the Quebec Resolutions was achieved more smoothly in central Canada than in the Maritimes. In February and March  1865, the Quebec Resolutions were the subject of almost six weeks of sustained debate in both houses of the Canadian legislature. The Canadian Legislative Assembly approved the Quebec Resolu­ tions in March 1865 with the support of a majority of members from both Canada East and Canada West. The governments of both Prince

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Edward Island and Newfoundland chose, in accordance with popular sentiment in both colonies, not to accede to the Quebec Resolutions. In New Brunswick, a general election was required before Premier Tilley’s pro-Confederation party prevailed. In Nova Scotia, Premier Tupper ultimately obtained a resolution from the House of Assembly favouring Confederation. 41 Sixteen delegates (five from New Brunswick, five from Nova Scotia, and six from the Province of Canada) met in London in December 1866 to finalize the plan for Confederation. To this end, they agreed to some slight modifications and additions to the Quebec Resolutions. Minor changes were made to the distribution of powers, provision was made for the appointment of extra senators in the event of a deadlock between the House of Commons and the Senate, and certain religious minorities were given the right to appeal to the federal government where their denominational school rights were adversely affected by provincial legislation. The British North America Bill was drafted after the London Conference with the assistance of the Colonial Office, and was introduced into the House of Lords in February 1867. The Act passed third reading in the House of Commons on March 8, received royal assent on March  29, and was proclaimed on July  1, 1867. The Dominion of Canada thus became a reality. 42  There was an early attempt at secession. In the first Dominion election in September 1867, Premier Tupper’s forces were decimated: members opposed to Confederation won 18 of Nova Scotia’s 19 federal seats, and in the simultaneous provincial election, 36 of the 38 seats in the provincial legislature. Newly-elected Premier Joseph Howe led a delegation to the Imperial Parliament in London in an effort to undo the new constitutional arrangements, but it was too late. The Colonial Office rejected Premier Howe’s plea to permit Nova Scotia to withdraw from Confederation. As the Colonial Secretary wrote in 1868: The neighbouring province of New Brunswick has entered into the union in reliance on having with it the sister province of Nova Scotia; and vast obligations, political and commercial, have already been contracted on the faith of a measure so long discussed and so solemnly adopted…. I trust that the Assembly and the people of Nova Scotia will not be surprised that the Queen’s government feel that they would not be warranted in advising the reversal of a great measure of state, attended by so many extensive consequences already in operation.



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(Quoted in H. Wade MacLauchlan, “Accounting for Democracy and the Rule of Law in the Quebec Secession Reference” (1997), 76 Can. Bar Rev. 155, at p. 168.)

The interdependence characterized by “vast obligations, political and commercial,” referred to by the Colonial Secretary in 1868, has, of course, multiplied immeasurably in the last 130 years. 43  Federalism was a legal response to the underlying political and cultural realities that existed at Confederation and continue to exist today. At Confederation, political leaders told their respective communities that the Canadian union would be able to reconcile diversity with unity. It is pertinent, in the context of the present Reference, to mention the words of George-Étienne Cartier (cited in the Parliamentary Debates on the Subject of the Confederation (1865), at p. 60): Now, when we [are] united together, if union [is] attained, we [shall] form a political nationality with which neither the national origin, nor the religion of any individual, [will] interfere. It was lamented by some that we had this diversity of races, and hopes were expressed that this distinctive feature would cease. The idea of unity of races [is] utopian – it [is] impossible. Distinctions of this kind [will] always exist. Dissimilarity, in fact, appear[s] to be the order of the physical world and of the moral world, as well as in the political world. But with regard to the objection based on this fact, to the effect that a great nation [can]not be formed because Lower Canada [is] in great part French and Catholic, and Upper Canada [is] British and Protestant, and the Lower Provinces [are] mixed, it [is] futile and worthless in the extreme…. In our own Federation we [will] have Catholic and Protestant, English, French, Irish and Scotch, and each by his efforts and his success [will] increase the prosperity and glory of the new Confederacy…. [W]e [are] of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.

The federal-provincial division of powers was a legal recognition of the diversity that existed among the initial members of Confederation, and manifested a concern to accommodate that diversity within a single nation by granting significant powers to provincial governments. The Constitution Act, 1867 was an act of nation-building. It was the first step in the transition from colonies separately dependent on the

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Imperial Parliament for their governance to a unified and independent political state in which different peoples could resolve their disagreements and work together toward common goals and a common interest. Federalism was the political mechanism by which diversity could be reconciled with unity. 44 A federal-provincial division of powers necessitated a written constitution which circumscribed the powers of the new Dominion and Provinces of Canada. Despite its federal structure, the new Dominion was to have “a Constitution similar in Principle to that of the United Kingdom” (Constitution Act, 1867, preamble). Allowing for the obvious differences between the governance of Canada and the United Kingdom, it was nevertheless thought important to thus emphasize the continuity of constitutional principles, including democratic institutions and the rule of law; and the continuity of the exercise of sovereign power transferred from Westminster to the federal and provincial capitals of Canada. 45  After 1867, the Canadian federation continued to evolve both territorially and politically. New territories were admitted to the union and new provinces were formed. In 1870, Rupert’s Land and the Northwest Territories were admitted and Manitoba was formed as a province. British Columbia was admitted in 1871, Prince Edward Island in 1873, and the Arctic Islands were added in 1880. In 1898, the Yukon Territory and in 1905, the provinces of Alberta and Saskatchewan were formed from the Northwest Territories. Newfoundland was admitted in 1949 by an amendment to the Constitution Act, 1867. The new territory of Nunavut was carved out of the Northwest Territories in 1993 with the partition to become effective in April 1999. NOTES 1 Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paragraphs 31–45.

“Popular Sovereignty in the Confederation Debates” The Canadian Founding, John Locke and Parliament 2007 Janet Ajzenstat1

“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.”2 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. Consider Locke on the social contract: the story asks us to image an original gathering of individuals, families, and tribes who agree, each 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.”

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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.” 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. 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.” But he does not deny the right. All legitimate government rests on the consent of the people. When the people no longer consent, the government is no longer legitimate. 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.” 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.” He continues: “[A]t 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.” 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); “The principle which lies at the foundation 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); “[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). Note Gilbert’s reference to “revolution.” All the legislators see themselves as revolutionaries of a sort. They are considering



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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.” […] 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, frontbencher or backbencher, centralist or decentralist, Con­ federate 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.” 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.” 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

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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 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. The Two “Camps” 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.” Both camps – indeed, almost everyone participating in the Confed­ eration 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



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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 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.” 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. The Letter of 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-Étienne 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.” Russell calls this statement “perhaps the most haunting … in Canadian history.” 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)

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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.” 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: “[T]he 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 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



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that Russell singles out, Carder, 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. 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. […] 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.” The assumption was the familiar one: Parliament is “the people.” 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. Newfoundland would not “come in” for another eighty years. Because our founding document, the British North America Act, is a statute of the imperial Parliament, Canadians have sometimes thought

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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 Quebec City, where the union agreement was drafted. 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. But in other provinces, they languished in old archives. Scholars knew about them but were not interested. Indeed, they seldom consulted even the Province of Canada debates. […] The Dangers of Popular Sovereignty 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.” Gilbert was acknowledging the Lockean right of revolution. It is sometimes said, despite Locke, that there is no 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



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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.” 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. 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.” Tyrannies are illegitimate, and against them we may, we 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. […] 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.” 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.

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Constitution Making as Revolution: The Referendum Camp 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 instituted deriving their just powers from the consent of the governed. This is the secret of the strength of the British Constitution.” 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.” 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.” 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?” 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.” 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.” William Lawrence agreed: “We have no right to surrender the liberties and privileges which we were appointed to guard.” 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!”



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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 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.” 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.” 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.” 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.” 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.” In New Brunswick, Andrew Wetmore made a similar 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.”

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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 that 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.” In arguing for a referendum, Cameron opposed his party leaders, Macdonald and Cartier, who 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.



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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 Confed­ eration. 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.” The Parliament That Represents All and Hears All 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.” And consider this assertion by Joseph Cauchon in the Canadian Assembly: “Each representative, although elected by one particular county, represents the whole country, and his legislative responsibility extends to the whole of it.” 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. As Waldron would have it, Parliament is the manifest footprint of our original consent. 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

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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 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 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 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 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.” 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.” 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 egalitarian, and a



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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.” 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 must be to train the majority to respect the rights of the minority, to prevent the claims of the few from being trampled underfoot by the caprice or passion of the many.” 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. 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.” 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

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up to this “rosy picture.” But no other constitutional body can convincingly make such a claim. 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. 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.



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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 popularsovereignty stricture. But 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. […] The Third Way: 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 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.” 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

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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 overwhelmingly favoured union. The situation in Nova Scotia is not as clear. There was considerable popular opposition. 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. The Enlightenment Constitution 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



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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. 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.” NOTES 1 Janet Ajzenstat, “Popular Sovereignty in the Confederation Debates,” The Canadian Founding: John Locke and Parliament (Montreal & Kingston: McGill-Queen’s University Press, 2007), 22–48. Notes omitted.



“Breaches in Radical Liberalism (1852–1867)” Social History of Ideas in Quebec, 1760–1896 2013 (originally published in French in 2000)

Yvan Lamonde1

Papineau met his parliamentary Waterloo in 1849 and did not participate in the long debates on the abolition of the seigneurial system in 1853; he retired from politics in 1854, investing his time and money in his seigneury at Montebello. In 1854, under Antoine-Aimé Dorion, its first leader, the Liberal Party adopted a comprehensive political program that included popular education, an elected Legislative Council, which would be in effect from 1856 to 1867, abolition of the Protestant clergy reserves and those of the seigneurial system, which would affect Papineau and his nephew Dessaulles, and the choice of Montreal as the seat of the government of United Canada. Program and Political Strength of the Liberal Party (1852–1858) In the election of 1854, the Liberals held on to their support. They obtained 34 per cent of the vote in the Montreal region, compared with 33 per cent in 1851, while in Montreal itself, they increased their share of the vote from 56 per cent to 62 per cent. The Patriotes’ old area remained Liberal: the counties of Iberville, Châteauguay, Beauharnois, Saint-Jean, Napierville, Chambly, Vaudreuil, Deux-Montagnes, Joliette, and L’Assomption elected Liberals, while Liberals were defeated in Richelieu, Verchères, and Rouville. In Bagot, Louis-Antoine Dessaulles lost by twenty-five votes. The political strength of the Liberals remained considerable, since the



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Montreal region, where they obtained one third of the vote, with two thirds in Montreal itself, included 50 per cent of the total population of Lower Canada and 50 per cent of the francophone population. In the following election, in 1857–58, however, the Liberals lost ground: they obtained 29 per cent of the vote in the Montreal region, and 41 per cent in Montreal itself, so that only 20 per cent of the members elected to the Legislative Assembly of United Canada were francophones from Lower Canada. Part of the challenge lay in electoral work, but the main problem was the split that was opening up between the party and doctrinal liberalism, whose proponents had to defend it tooth and nail.2 Electoral Liberalism versus Doctrinal Liberalism Dorion gave the Liberal Party a new organ in 1852: the aptly named Le Pays (The country), which succeeded L’Avenir and was more moderate. With nearly 130 agents in as many towns, the new paper had a circulation of about 1,500 copies in its first year. Dessaulles, who was coeditor for four months with Labrèche-Viger, laid his cards on the table in the first issue on 15 January 1852. The “country” envisaged would be above all a democratic country: “Democracy knows no differences of origin.” In this respect, the newspaper resembled the Institut canadien de Montréal, which, in its new constitution of 1850, had adopted the same principle for membership. Nationality was part of the spirit of democracy: “Democracy is the condition of man free to be himself in his dignity; it is the condition of the man who governs himself, subject to no law other than that of virtue and respect for others and himself; it is the conquest of equality in conditions and customs, and of popular sovereignty in government; it is the aim of human aspirations, the realization of the dreams of freedom that, although suppressed for centuries, live in the hearts of all men.” On 3 February, Joseph Cauchon’s Journal de Québec made some distinctions: “It is true that we want to be with the country, but with the real country, not Le Pays, M. Dessaulles’ paper, which will never be anything but the country of the Papineau family.” Dessaulles, who could not leave Saint-Hyacinthe, where he lived, resigned from the management of the newspaper; it is also probable that he had not conveyed the moderate line Dorion’s new team wanted. From 1852 to 1858, the membership of the Institut canadien de Mont­ réal rose from 336 to 741. In seven years, it hosted 250 meetings,

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presented 49 public lectures and 19 essays, and held 87 debates. The public lectures concerned popular education, the Patriotes (ÉdouardRaymond Fabre, de Lorimier), Poland, Kossuth and Hungary, and national feeling. The Institut’s foremost speaker, L.-A. Dessaulles, gave lectures on Lamartine, on progress, and on Galileo, in the last lecture drawing a parallel between the Peripatetic philosophers who had ostracized Galileo and the ultramontanists who denounced the liberals. In 1858, the Institut’s library contained 4,270 volumes and a periodicals room with 117 different publications; subscribers could borrow over 3,100 books.3 The radicalization of the Institut in 1848 had left some bitterness and anxiety. Clouds began to gather over the association in June 1854 when a disciplinary rule of the Concile des évêques de Quebec stipulated, “When there are constantly in a literary institute books against the faith or customs; when lectures against religion are given there; when immoral or irreligious newspapers are read there, those who belong to it must not be given the sacraments, unless there is reason to hope that, given the strength of good principles, they [these principles] will be able to continue to reform them.”4 A year later, the opposition no longer came from outside the Institut but from within it: on 28 February 1855, a proposal was made by Labrèche-Viger, the former co-editor of Le Pays, seconded by Hector Fabre, that the Institut subscribe to the Parisian ultramontanist newspaper L’Univers, edited by Louis Veuillot. It was narrowly defeated, thanks to the deciding vote of the president of the Institut, who argued that the paper in question engaged in religious polemics, a veritable “plague” in Canada. This proposal was followed by a proposal that the Institut discontinue its subscriptions to Witness, True Witness, and Le Semeur canadien, a Canadian French-language Protestant paper. Joseph Doutre counterattacked, suggesting that there could be no censorship at the Institut because it accepted members of any origin and religious or political persuasion. Doutre’s counter-proposal was defeated by 108 votes to 75. Wilfrid Dorion came to his assistance, suggesting that the proposal to discontinue the subscriptions be put off for twelve months, during which the Institut would continue to receive newspapers that were sent to it without cost, on condition that they contained no obscene or immoral material. Once again, the proposal passed (by 129 to 128), thanks to the tie-breaking vote of the president.5 The war of procedure and internal opposition had begun, and the Institut was clearly the target: “By means of intrigue, by bringing in all their associates,



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[the radicals] succeeded in obtaining almost exclusive control, making the forum of this national institution … a platform for discord, rebellion and irreligion. It is there that people like Doutre, Blanchet and Cyr go to spew their antisocial, antireligious and revolutionary doctrines at young Canadiens … It is at the Institut that all the most extreme Rouge issues are discussed.”6 Rougism was strongly criticized, and some former members of the Avenir team, hoping to relaunch the paper, which had ceased publication in 1852, were put off: We will have the conviction that L’Avenir is unwelcome in this country, and that we would be preaching in the desert if we continued trying to expose abuse and defend freedom, justice and social well-being to a people whose majority sells itself in elections like a herd of slaves, and far from wanting to leave its slavery, wants more chains … In our work, we have only the people’s interest at heart, but the people, influenced and led by its enemies and a part of the clergy that has proscribed and denounced us in the name of religion, has not wanted to understand us.7

Four years after his first warning to literary institutes, it became clear to Mgr Bourget that there was no longer any hope of reforming the Institut; the external opposition to the Institut and its internal opposition thus joined forces. On 10 March 1858, the bishop of Montreal published a pastoral letter warning literary institutes against “books that are contrary to the faith and customs” and suggesting ways to “purge” libraries of “all the impious or obscene books.” He advised the faithful, “Do not subscribe to any newspaper that is capable, by its antireligious doctrines, its passionate novels and its immoral serials, of harming the mind and the heart of your children.” On 13 April, the corresponding secretary of the Institut, Éraste d’Orsonnens, made a double proposal: that the Institut give up the principle of autonomous control of its library and that it form a committee, of which Hector Fabre would be a member, whose mandate would be to establish a list of books to remove from its library. The proposal was defeated by 110 votes to 88. Two days later, d’Orsonnens was relieved of his duties because of an article he had published in La Minerve on 6 April. On 22 April, 138 members out of 741, nearly 20 per cent, resigned from the Institut canadien de Montréal, including H. Fabre and L. Labrèche-Viger, who would cross the path of radical liberalism again later on. The resigning members went on to found the Institut canadien-français, which barely managed to survive for a few years.

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On 30 April 1858, Mgr Bourget presented his views more explicitly in a document “on the Institut canadien and against bad books.” He decried the Institut’s claim to be “the only one competent to assess the morality of its library,” which contained “far too many” books that were on the Index, as the printed catalogue of 1852 showed; he declared that only the Church was capable of leading “its flock into the green pastures of truth” and that it was “unquestionably invested with the right to govern the administration of all libraries in the world.” On 31 May 1858, a third document was published, this one concerning Le Pays, an “irreligious” newspaper that “combated the existence of God and his divine religion,” a “heretical” newspaper that “attacked the Holy Catholic Church,” an “impious” newspaper that pretended to respect religion, the better to destroy it, a “liberal” newspaper that “claimed to be free in its religious and political opinions [and] advocated the separation of church and state,” an “immoral” newspaper that “offended modesty and good morals by its impure serial stories, love stories, suggestive songs, lewd poetry, shameless novels and plays.” The bishop established a simple equation: disrespect for the clergy and the priest equals disrespect for Jesus Christ. Since the authority vested in him was that of Jesus Christ himself, any attempt to reduce the influence of the clergy constituted “an attack on that ultimate authority.” This condemnation of liberalism in both the library of the Institut canadien and Le Pays was once again based on the 1832 encyclical Mirari vos, which had condemned Lamennais’s L’Avenir. It was also influenced by the new instructions from Rome on the “errors of our time,” published in March 1858, which were the first formulation of the Syllabus of 1864, a sort of handbook of doctrinal errors of the eighteenth and nineteenth centuries.8 Henceforth, members of the Institut canadien would be refused the sacraments of the Catholic Church, including Extreme Unction and possibly the right to be buried in a Catholic cemetery. Democracy and Nationality The fact that liberalism was placed above nationality at the Institut canadien, as in the declaration by Le Pays on a democratic and liberal country with no distinction as to origins, worried conservatives and ultramontanists. This pro-democratic stance that tried to link nationality and democracy while giving priority to liberal values was a direct attack on conservative nationalism in two ways: first, in its emphasis on democracy, and second, in the effects it expected democracy to have



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on nationality. In 1857, the Sulpician Lenoir criticized “the rampant democracy that seeks to overthrow throne and altar” and recalled the history of Poland as proof of the evils sown by discord. In the ultramontanist Courrier du Canada, Cyrille Boucher, who was to become a personal enemy of Dessaulles and Rougism, began a series of articles entitled “On democracy,” in which he attributed the origin of democracy to philosophism and Protestantism, two “evils” embodied in the Institut canadien, which promoted reason, individual reflection, and the admission of Protestants as well as Catholics as members. This democracy, which, according to Boucher, toppled thrones, erected gallows, and assassinated kings, was “the sickness of nations: when they return to health, they establish themselves in the shadow of thrones and live under the paternal government of kings.” As for the sovereignty of the people, it was associated with equality, atheism, materialism, and revolutions. Boucher concluded by underlining the doctrinal orientation of liberalism, “the utterly philosophical direction that some newspapers have taken.”9 The evolution of the patron saint’s day of French Canadians, SaintJean-Baptiste Day, 24 June, and of the speeches on that day reflects these tensions. With the union, Saint-Jean-Baptiste Day had become a religious festival, whereas from 1834 on it had principally been a patriotic festival. Beginning in 1846, the celebratory speeches, in which the clergy participated, defined nationality above all in terms of religion and stressed universal “fraternity” while avoiding liberty and equality. Significantly, the Institut canadien was excluded from the Saint-JeanBaptiste Day procession in 1858 for having launched a plan for a monument to the Patriotes of 1837 and 1838. The pro-government paper La Minerve, in announcing the event, also revealed its point of view: “It is to Catholicism alone that the Canadien people owes its nationality … However, once a nation has contracted a debt so large to a religion; once a country owes its perpetuation in everyday life to its faith, its altars, it is hardly surprising that this people, this nation, this country should be religious in all its solemn proceedings … Our people and our society are such that for us, in the most natural way in the world, Catholicism and Nationality are synonyms.” In an earlier response to Le Pays, La Minerve did not beat around the bush regarding its agreement with ultramontanism: “Religion and politics come from God; they are sisters, they are great and sublime when united; but what anarchy ensues when ambition and jealousy separate them!”10 The critique of democracy and popular sovereignty and the simultaneous glorification

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of monarchy show how conservative nationalism was constructed on the counter-revolutionary, anti-republican, and anti-democratic ideas whose genealogy went back, here and elsewhere, to 1789, perpetuated by 1793, 1830, and 1848. The Establishment of a Moderate Doctrinal Liberalism Although the Liberals obtained more than half the vote in Montreal in 1854, and a third of the vote in the Montreal region, they lost ground there in the 1857–58 election. But above all, it is important to note that the political sentiment of the majority favoured La Fontaine and Cartier’s reformers and that “the country of the Papineau family,” in the words of the Journal de Québec, had yet to be built. This electoral majority was beginning to rely on a moderate doctrinal liberalism that would reach its culmination in Laurier’s speech of 1877, but that began in 1858 with the resignation of 138 members of the Institut canadien de Montréal, including Hector Fabre, the instigator of the split and the one who had proposed the abortive plan to establish a censorship committee for the library of the Institut. The doctrinal dimension of this confrontation had been identified by C. Boucher in 1857 when he wrote, in Le Courrier du Canada, of “the utterly philosophical direction that some newspapers have taken.” By situating the debate at this level, the ultramontanists and conservatives who reaped the electoral benefits of this antagonism deepened the gap between radical doctrinal liberalism and electoral liberalism and made the Rouges a distinct target for attacks and a major press war. One could now speak of philosophism, reason, and rationalism and stigmatize liberalism as Rougism. Other signs of the emergence of a moderate liberalism include the launching, in November 1858, of the newspaper L’Ordre, which was to spearhead this moderate liberalism as of June 1861, and the social marginalization of the Institut canadien de Montréal, which was excluded from the symbolic 24 June parade in 1858. A Political Knot to Untie: The Crisis of 1858 The union had created tensions not only among French Canadians but also, and especially, among their fellow citizens in Upper Canada. The political crisis that broke out in 1858 was like a Gordian knot, with its main strands being the union, in the past, and a plan for confederation, in the future (1864).



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The crisis concerned four problems: possible constitutional changes related to the question of parliamentary representation and that of the double majority, the ephemeral nature of governments, and the choice of a capital for United Canada, which could be Ottawa or Montreal. Governments had been so fragile since the union that they fell one after another; one of them had had the lifetime of a rose, surviving only forty-eight hours. This instability was linked by contemporaries to the question of the double majority: was a Cabinet supported by one majority in the House or by two, that is, by the majority of all the representatives together or a majority of each group of representatives, from Lower and Upper Canada? Was Macdonald supported only by Upper Canada, and was Cartier supported only by Lower Canada, or should Macdonald-Cartier have the majority of the votes of Upper Canada and the majority of those of Lower Canada? The problem became acute in 1856, when the Taché-Macdonald government was maintained in power exclusively by its majority in Lower Canada. But the essential challenge of the political crisis concerned parliamentary representation: in a situation where the population of Upper Canada was growing more rapidly than that of Lower Canada – 952,000 versus 891,000 in the 1851 census – it was tempting, even imperative, for the inhabitants of Upper Canada to object to equal representation between Lower and Upper Canada, which had previously served their interests, and to demand representation by population. The knot of this recurring question would be untied with Confederation. It is important to note, however, that 1858, like 1848, was a decisive year and that it too was a complex knot of politics and culture. The Italian Question (1859–1861) The new twists and turns in the formation of the kingdom of Italy brought the Italian question to the centre of liberal debate, where it had been in 1848 during the anticlerical radicalization of liberalism. In return for the cession of Nice and Savoy to France, Napoleon III supported Piedmont, which defeated Austria at Magenta on 4 June 1859 and at Solferino on 24 June, resulting in Lombardy being attached to Piedmont, while Venetia remained under Austrian rule. In 1860, events accelerated: the Italian parliament met for the first time in April, following the liberation of Tuscany, Parma, Modena, and Romagna; in September, the Kingdom of the Two Sicilies and Naples was liberated by Garibaldi and his Thousand, and the Papal Zouaves,

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a small army raised by the pope to defend his states, were defeated at Castelfidardo. The unification of Italy became an international event, as it was the first concrete realization of the principle of nationality that had been invoked since 1830, and especially since 1848. And once again, the question of the political or temporal power of the pope sparked a crisis. During the whole of 1860, Mgr Bourget, who played an increasingly dominant role in the Quebec episcopate, published document after document on the inviolability and integrity of the Papal States and the excommunication of the invaders of these states. According to the bishop of Montreal, in the Papal States, “the administration of justice is better,” financial legislation and administration were exemplary, practices that had been criticized had been corrected. He maintained that the Church was “a perfectly organized society that, by virtue of its divine constitution, enjoys all the freedom necessary to it for the exercise of its sacred role; its independence from any other power is recognized in the person of its leader as a work of divine Providence, which succeeded in forming from the debris of the Roman Empire a temporal State for its Church, so that it would be on earth the kingdom of him whom the Scriptures call the King of Kings.” For the bishop, the Italian question was also a Canadian question: “Make no mistake, the revolutionary spirit is making inroads here, as elsewhere, and there are some among us who condemn the pope and approve of Garibaldi.” These French Canadian Garibaldians were to be found at Le Pays, whose “detestable writings” showed “such contempt for papal authority” that it preoccupied the bishop “day and night.”11 One of the “Garibaldians” in question was without doubt LouisAntoine Dessaulles, who now lived in Montreal and was editor of Le Pays from March 1861 to December 1863. A follower of Lamennais who had begun keeping up with “Roman affairs” in 1839 and had published articles on the temporal power of the pope ten years later in L’Avenir, once again argued, in the pages of Le Pays, for integration of the Papal States into the national territory of Italy, and took the opportunity to once again ask the question of the preservation or abolition of the pope’s temporal power. Replying to Mgr Bourget, whose texts had been read to the faithful by parish priests, Dessaulles, armed with information from the French periodical press, criticized every aspect of the temporal administration of the Papal States: the papacy was poorly advised by the Roman Curia, reforms had not been carried



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out since 1849, there was overspending, administrative controls were inadequate, Cardinal Antonelli and his family held too much power, the Roman tribunals were unjust, audiences were not public, and there were political detentions. And to justify his comments, he explained that “it is not anti-Catholic or anti-Christian to criticize a system under which the evangelical principle ‘Do not unto others what you would not want done to you’ is constantly violated in practice.”12 No opportunity was missed to feed the crossfire of the controversy on the affairs of Rome and Italy. After a visit by the Institut canadien de Montréal to Prince Napoleon when he passed through Montreal on 13 September 1861, the conservative press heaped scorn on Dessaulles, Le Pays, the Institut, and liberalism. Prince Napoleon was the cousin of Napoleon III, emperor of the French from 1852 to 1870. In 1849, LouisNapoleon had helped restore the pope’s political power when it was threatened by the Italian liberals. From 1858 on, however, the emperor followed a prudent policy of supporting Italian unity, which went as far as taking a non-interventionist line during the invasion of the papal territories by Victor-Emmanuel, who defeated the pope’s weak army at Castelfidardo on 18 September 1860. But Prince Napoleon, who had married the daughter of King Victor-Emmanuel II of Italy in 1861, displayed an increasingly militant liberalism and anticlericalism and took a clear position in favour of Italian unity, and thus in favour of ending the temporal power of the pope. Although Cavour congratulated the prince – “The destruction of temporal power will go down in history as one of humanity’s most glorious and most enduring feats, and the name of Y.H. [Your Highness] will forever be associated with it” – the Catholic clergy of Quebec City and Montreal condemned the prince for his position and constantly expressed their antagonism. The Institut canadien made a point of going to greet this international figure, if only to convey its thanks to Napoleon III for a generous donation he had made to the Institut in 1855 as a result of efforts by Joseph-Guillaume Barthe. The Institut’s address to the prince was unequivocal: “The Institut-Canadien, which is a supporter of great causes, is pleased to communicate with its benefactors through a prince who, in his legislative work, has so eloquently developed the liberal views of the French government on the most important issues of European politics.” The prince responded by recognizing the Institut as “the most enlightened institution in the country and independent from the clergy.”13

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The Fabre-Dessaulles Controversy (January–March 1862) For four reasons, the controversy that began in 1862 was a turning point in the evolution of both radical and moderate liberalism. First, because of the participants: Dessaulles, who was becoming the scapegoat of the ultramontanists, conservatives, and moderates, and Hector Fabre, who had resigned from the Institut canadien in 1858 and was a cofounder of the Institut canadien-français and a champion of moderate liberalism. Second, because of the newspapers involved in the controversy: Le  Pays, the main target of ultramontanism, and L’Ordre, which had been established as an ultramontanist paper in 1858 but had been evolving toward moderate liberalism since June 1861, under the leadership of none other than Fabre, who wrote on 1 July 1861, “We are Catholic and we belong to the nation,” in that order. Third, because of the issues: Was a liberalism without anticlericalism conceivable, and why should nationalism be linked with Catholicism rather than with liberalism? And finally, because of the pretext: Montalembert, a repentant former supporter of Lamennais, was a symbol of the stubborn desire to find a Catholicism that could seem liberal without being the Catholic liberalism of Lamennais. On 7 January 1862, L’Ordre published a letter from Count de Monta­ lembert, who wrote to Fabre as follows: “I was terribly wounded by the address delivered to this prince [Napoleon] by some Institut-Canadien in Montreal or Quebec. I asked myself how there could have come to be, in this population of French origin that has been described to us as attached to religion and to its memories of old France, men so misguided as to pay a public homage of respect and sympathy to a man who did not shrink from insulting the Sovereign Pontiff along with all the opinions and traditions dear to respectable people.” On 20 January, Fabre explained to his correspondent, “The behaviour of the Institut-Canadien toward Prince Napoleon was condemned by the whole population here with the exception of a small number of freethinking democrats. The Institut itself was excommunicated four years ago by the bishop of Montreal, after an effort to reform it by my friends and myself.” In the 14 January issue of Le Pays, Dessaulles stressed the “little thoughtlessnesses” and contradictions displayed by the former friend of Lamennais: “M. de Montalembert has always managed to have a handy pretext for not putting into practice the fine and sonorous declarations he makes when he is making speeches. He is essentially the man



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of pretexts of the past twenty years of European history.” To the editor of Le Pays, the visit to Prince Napoleon was clearly a pretext for attempting  to crush the Institut: “The publication of M. de Montalembert’s letter was certainly an attack on us, because it was followed by the incredible faux pas of admitting to us that they expected that we would ‘bow’ before this great name”; Dessaulles considered that L’Ordre had an “aggressive attitude toward the Insitut-Canadien,” which it sought to present as essentially unrepresentative of the Catholic and francophone French Canadian people. In early January 1862, L’Ordre described the Institut canadien as an “evil and pernicious organization,” to which Dessaulles replied that it had not been a sign of intolerance in 1858, when they had refused to establish an investigating committee on the library – in which Fabre would have participated – for the simple reason that the fact had been assumed before it had even been established. And to Dessaulles, they would not succeed today any more than they had four years earlier in proving that there were irreligious books in the library of the Institut. This just set the stage. Next came the pièces de résistance: four articles by Fabre in L’Ordre on 3, 5, 7, and 12 February 1862, and four replies by Dessaulles in Le Pays on 22 February and 1, 11, and 13 March, entitled “To the detractors, great and small, of the Institut-Canadien,” “great” referring to Montalembert and Mgr Bourget and “small” to Fabre. For the latter, “The hour of full and decisive explanations” had arrived. Determined not to allow himself “to be dragged into debates about minor details and quarrels about words, in which the winner [would be] the most patient and the most given to procedural nitpicking,” Fabre intimated that the Institut canadien’s cause was hopeless because its condemnation “was formulated by him who is responsible for our conscience.” He then defined the guiding principles of the Institut canadien: “absolute freedom without taking into account any limits, duties or religious, moral or national principles” and a principle of universality that “admits of no distinction and makes no religious or national exceptions regarding members, books or speeches.” To Fabre, this had social consequences: “In a Catholic society, if you create a forum in which the influence of religion may be combated directly or indirectly, you are striking a blow against that society.” A “collective endeavour in our country” could not be neutral: it could only be Catholic and national. Fabre went on to formulate both his own very moderate liberalism and the credo of “real” nationalism, which could only be liberal: “Here more than anywhere else, the national interest is inseparable from

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the religious interest, and if liberalism disassociates itself from either one, it automatically becomes the enemy of the other.” In his opinion, what the members of the Institut canadien wanted was “the fusion of the races; they have shaped the Institut in the image of the society of their dreams, without any religious or national distinctions.” This antinational goal would be the ruin of nationality: “They would lead the new generations off the Christian path, where they would encounter infallible geniuses who would expose them to all the adventures of the mind and all the dangers of study, delivering them to moral uncertainty and intellectual disorder.” Le Pays denounced Fabre’s new crusade. Using the minutes of the Institut’s meetings, the newspaper established a historical overview of the activities and ideological positions of the editor of L’Ordre, slyly pointing out the contradictions in his thinking and depicting him as “the man of good principles” whose positions today were the opposite of those he had held before. Dessaulles also observed that the members of this “evil” Institut were nonetheless accepted within families, greeted fifty times a day on the street, asked to make offerings for the poor. The pressure was clearly rising: “Your influence is doubtless very great, and it takes courage to disagree with you even regarding a merely temporal subject. Nonetheless, you would not believe how much impact your harassment has on certain people who understand that once the Institut has been destroyed, if you succeed, others will be destroyed in turn. Many of these people are beginning to say that the pressure is too strong and that a reaction is becoming inevitable.” To those who “slandered [the Institut] because they could not burn it at the stake,” Dessaulles explained that the Institut had only 44 nonFrench Canadian members and between 25 and 30 Protestant members out of a total of 480. But did this enumeration resolve the question of principle? He challenged the accusation that the Institut’s teachings were sometimes nationalist and sometimes anti-nationalist or that they sometimes promoted Catholicism and sometimes Protestantism, denying that it did any official “teaching.” He stressed this point and suggested that the institution could be neutral without its members being “indifferent to all religion, morality and nationality.” The library of the Institut was not that of a college; it was the shared property of free and responsible men. Dessaulles confronted the conservatives with the implications of their system: “The more educated the people is, the less manageable it is … Your system is rife with this idea. To the ignorant,



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you say that a little education is a dangerous thing; to the educated man, that nine-tenths of the books that contain the elements of human intelligence are dangerous. Who has the right to censor?” He ended his cry of anguish to the detractors by recalling the chronology of the events of 1858: on 13 April, a discussion at the Institut on the contents of the library; on the 22nd, the resignation of 138 members; on the 30th, publication of the first of Mgr Bourget’s three letters condemning the Institut. This sequence of events “convinced the Institut that this whole movement was caused by an external influence that had become hostile to the Institut,” that is, Mgr Bourget. With a rare premonitory sense of the stakes involved, Dessaulles wrote, “If the Institut were to succumb before you, partisans of intolerance and general mindlessness, the political and social future of the country would suffer greatly, because that would demonstrate that the spirit of persecution can still smother individual free will.”14 Seven Letters from Mgr Bourget to Le Pays (February 1862) On 24 February 1862, while Dessaulles was defending the Institut canadien against its detractors, Mgr Bourget concluded his seventh and final letter to Le Pays, and the secretary of the bishopric, Canon Paré, asked the editors to publish the letters. Dessaulles read the documents and noted that once again, the affairs of Rome were extremely relevant to the affairs of Canada. After the censure of L’Avenir in 1849, and of Le Pays in 1858, the bishop of Montreal had attacked again in a pastoral letter issued on 31 May 1860, to which he had appended a “First supplement concerning the newspapers that have attacked the Bull issued by His Holiness Pius IX.” This document contained the first formulation of the accusations he now brought against the newspaper edited by Dessaulles. In this correspondence of about fifty pages, written between 12 and 24 February 1862, Mgr Bourget described Le Pays as anti-Christian because it had no religious principles, anti-Catholic because it showed little respect for the Church, antisocial because it was in favour of the overthrow of legitimate governments, immoral because it promoted the theatre and the novel, which presented marriage in a questionable light. The second letter observed that the liberal newspaper presented the Italian “revolution” and its heroes too favourably and suggested that a “similar revolution might be desirable in Canada.” The bishop then aligned declarations by the pope that might convince Le Pays of the

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reforms carried out in the Papal States and asked the owners and the editor of the newspaper, “Are you not surprised now, Sirs, that Le Pays got on such a high horse to try to spit in the face of the Sovereign Pontiff, the Cardinals who surround him and, indirectly, 200,000,000 Christians?” As Chiniquy had in 1849, the bishop also suggested to the readers of Le Pays that they cease supporting the newspaper. Mgr Bourget next tried to refute Le Pays’s statements concerning the financial and legal administration of the Papal States by saying that its sole information source was documents published by Piedmont. The bishop drew attention to Le Pays’s harsh treatment of the pope and Cardinal Antonelli and its praise for Prince Napoleon. To the bishop, who had censured the Institut canadien in 1858, its library remained “a stinking bilge that infects our city.” Dessaulles read and reread the letters; ever the polemicist, he thought they should be published. But the owners of Le Pays, “Dorion et Cie,” decided otherwise and wrote to Mgr Bourget on 4 March, It is to protect the boundary between things belonging to the spiritual order and those that God left open to disputes of the world that we wish to avoid a discussion with Your Highness on matters that are not, in reality, directly related to dogma and faith but to which Your Highness brings the dignity and authority of a Pontiff of the Church. We say we do not wish to discuss this for it cannot have occurred to Your Highness that Le Pays would publish, without intending to defend itself, seven long letters filled with accusations against it that are as serious as they are unjustified.

The editors then claimed not to recognize the distinction the bishop had made between the managers and the editors of Le Pays, and concluded, with remarkable serenity, “Finally, we ask Your Highness to believe that, whatever may be the consequences of the position we have seen fit to take, we will find in our conscience, in the traditions left by the most distinguished men of our history and in the approval of our fellow citizens the strength necessary to protect freedom of discussion, the rights of the press and our own dignity.” Dessaulles considered the letters “as being addressed to me” and responded, on 7 March, to Mgr Bourget, accusing him, to start with, of a “sovereign injustice.” He listed the retractions the conservative European press had had to make regarding the question of Rome and explained to the bishop that his main source of information was not Le



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Siècle but rather the yearbook of the Revue des deux mondes. Concerning the revolutionary outlook of Le Pays, Dessaulles reminded him, “There is a very simple reason why Le Pays does not want a revolution here; it is that we have political institutions that, although still imperfect, allow for their own modification without revolution … In such a country, Monsignor, there is no need for revolutions. It is only governments that seek to suppress public opinion that are overthrown. Those that work with [the people] never are, which shows that the people is the true sovereign.” Dessaulles noted the bishop’s “instinctive hostility” to “anything that resembles a popular right, to the participation of the people in the government.” True to form, he admitted frankly to this man who had become an enemy, “Absolutism is indeed much more convenient for those who do not want other nations to think and read, and who have always placed human thought on the Index.” His conclusion traced the path that ideas would follow in the coming decades. The most general conclusion that we can reach, Monsignor, is that Y.H. [Your Highness], without stating it explicitly, maintains and wishes to apply in practice the idea that there is no order of thought that cannot have some point of contact with the religious idea, and in consequence, there is no order of ideas that should not be judged in absolute terms of the idea of the supremacy of religion; and thus, since there is no social or political principle that cannot affect religion, directly or indirectly, for good or for ill, there is no social or political principle whose application and practical operation should not be subordinated to Church censure, and thus to supervision by the Clergy. Your Highness wishes to bring into close interaction the spiritual and temporal domains in order to lead and dominate the latter by the former, [whereas] we lay people (even those who flatter Y.H. today to satisfy political ambitions and their own egoism), want to avoid confusion between these two orders of ideas and want the spiritual order to be entirely distinct from the temporal order. In short, Monsignor, in the purely social and political order, we demand our complete independence from ecclesiastical power.

Dessaulles saw this as a fundamental issue, inasmuch as it eased or heightened antagonism between the liberals and the ultramontanist conservatives. This was the dividing line of ideas and rights. Distinction or confusion, separation or alliance.15

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A New Offensive against the Institut canadien de Montréal (1862–1867) By electing Louis-Antoine Dessaulles president of the association from May 1862 to November 1863, the Institut canadien de Montréal indicated in the clearest possible way its intention to pursue its work and its approach. The new president did not disappoint the five hundred–odd members of the Institut in his speech of 23 December 1862, on the occasion of the eighteenth anniversary of the Institut. Taking as his starting point the bishop’s censure in 1858, he recalled the Institut’s principles (tolerance, freedom of thought, and non-confessionality) and defended the contents of the library, while noting the irony that no bishop of Lower Canada had ever asked the members of the Legislative Assembly of United Canada to “purge” that library, which contained books considered unacceptable in the Institut’s library. The president explained that the Institut had been condemned without proof and without the right to defend itself, and that the strategy of its opponents was based on “making people believe” their views. He attacked those who disparaged reason, suggesting that it is not by denying our capacity to reason that they can give us a very high impression of theirs. Nor it is by challenging our right to judge that they can make us admit their right to judge us. Nor is it by advising us to abandon our own reason that they can persuade us of the superiority of theirs over ours … Nor, finally, is it by carrying out persistent moral persecution against us – in fact, we almost have reason to believe that if they could practice legal persecution they would be overjoyed – that they can convince us of their spirit of conciliation and charity.16

This was obviously not the time of conciliation. In an announcement to all parish priests in the diocese on 18 January 1863, Mgr Bourget proposed, “Let us therefore pray that this terrible monster, rationalism, which has once again shown its hideous head in the Institut and which seeks to spread its venom in a pamphlet that repeats the blasphemies delivered from that stinking lectern, can harm no one.” There was no doubt: it was Dessaulles’s speech, published as a pamphlet, that was being targeted. It was also in the spirit of opposition rather than that of conciliation that Abbé Louis-Herménégilde Huot decided to publish a series of articles on “Rougism in Canada” in Le Courrier du Canada in the summer



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of 1863; the articles were also published as a pamphlet in 1864. Under the pseudonym “An observer,” Abbé Huot attacked Dessaulles directly on almost every page, calling him one of “the strongest supporters of Rougism.” He had been studying Dessaulles’s articles and speeches since 1848 in order to define what a Rouge was and to stigmatize the religious ideas, social principles, and anti-Canadian tendencies of Rougism. Concerning the popular sovereignty so dear to Dessaulles and the liberals, he wrote, “The axiom of the Rouges, Vox Populi, Vox Dei, which Mr. Dessaulles interprets as ‘kings are subjects and subjects are kings!’ weakens all respect for authority and seeks to destroy the balance of the social scale, which is the creation of God and not man.”17 Not to be outdone, the tireless Cyrille Boucher dug up Dessaulles’s 1858 speech on progress, eager to keep a topic with such inexhaustible potential for controversy from being forgotten. His aim was clear: as it had been with Papineau in 1848, it was to undermine the credibility of the president of the Institut canadien and editor of Le Pays.18 In October 1863, the Institut canadien, aware of the rising tensions and ready to try a conciliatory approach, created a committee made up of Dr Joseph Emery-Coderre, Joseph Doutre, Wilfrid Laurier, and LouisAntoine Dessaulles to “enquire into ways to iron out the difficulties that have arisen between His Highness the Bishop of Montreal and the Institut.” But a cordial meeting with the bishop on 27 October produced no results. It was L’Ordre’s turn to strike, and it did so by borrowing an idea pressed by Cyrille Boucher in 1857 concerning “the utterly philosophical direction that some newspapers have taken.” Replacing Hector Fabre, who was now at Le Canadien in Quebec City, Louis LabrècheViger, who had been co-editor of Le Pays with Dessaulles at its start in 1852, wrote on the front page of the 27 November 1863 issue of L’Ordre, We feel obliged, in the interest of the Ministerial Party, to express our sincere regret that the editors of Le Pays have embarked on philosophical dissertations that do little to advance the interests of the Liberal Party in Canada. The small satisfaction that may result from success in an abstract discussion that has no political impact whatsoever should not outweigh, in the eyes of our colleague, the harm that it may do to the cause he serves…. However strong his philosophical convictions may be, the editor of Le Pays is no doubt aware that his opinions are not shared by everyone; that maybe even the majority of the Ministerial Party does not share his views.

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Why then do you make a point of insulting the convictions, playing on the sensibilities, the prejudices, if you will, of your political allies, who know that these outdated discussions in our population have been the trap that has ensnared the Liberal Party?

L’Ordre thus repeated the reference to the philosophical direction of Dessaulles’s “dissertations” in Le Pays and at the Institut canadien, but it went one step further than Boucher had in 1857: it blamed this radicalism for the damage to the Liberal Party. This was an idea with a future. The next day, Dessaulles invoked his “right of defence” to explain that defending reason against religion in a moderate way and without hostility could not harm the Liberal Party: “Is allowing the Institut or any other association of a liberal nature to be crushed going to make the Liberal Party stronger?” L’Ordre hid neither its intentions nor its interests: “The Liberal Party is in no way identified with the Institut-Canadien,” and “neither supporting philosophical theses nor discussing the Inquisition are part of its mandate.” The gap was widening and the radicals were being pushed to the margins. In an article with an almost desperate title – “Do Our Articles Serve Any Purpose at All?” – Dessaulles put all his cards on the table: “There are nonetheless some who share our colleague’s views, and see as a purely philosophical debate the great discussion on whether liberalism is the calamity for peoples that the reactionaries claim it is, and whether despotism is the greatest blessing they can receive. Nothing seems more mistaken to us.”19 He had no illusions about this new “crusade” against liberalism and Le Pays, this “fire trained on the Institut by La Minerve, Le Canadien, Le Courrier du Canada, Le Journal de Québec and Le Courrier de SaintHyacinthe.” The situation at least allowed him to recall clearly the aims of the liberals: “We demand the independence of the human spirit in the legal domain, the political domain and the social domain! In the religious domain, we leave it to the conscience of each person: we want nothing to do with it!”20 In re-electing Dessaulles president from May 1865 to May 1867, the Institut canadien endorsed its leaders’ new strategy; having failed to find a local solution with Mgr Bourget, they decided not to wait to deal with his eventual successor, but to submit an appeal to Rome, which had authority over the bishop. On 16 October, a petition was



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submitted to Pope Pius IX in the name of the Catholic members of the Institut by eighteen of their number, asking the pope to overturn the 1858 censure of the Institut. Among the signatories were three names that would go down in history: Wilfrid Laurier, a typographer named Joseph Guibord, and Dessaulles, who, in a brief accompanying the petition, drew the attention of Cardinal Barnabo, the prefect of the Sacred Congregation for the Propagation of the Faith, to the existence “here of a school, made up mainly of young people, recent graduates of the colleges, who seem to be expected to be much more Catholic than the Pope and his Councils.” Rome sought the opinion of Bishop Bourget, who replied in a brief on 21 September 1866 that it was not he but the Church that had censured the Institut in 1858. He added some details on Dessaulles’s positions on the Italian question and the temporal power of the pope and, characteristically, appended the articles Fabre had written against the Institut in 1862,21 so that their true importance and significance could be understood. On 17 December 1866, its twenty-second anniversary, the Institut canadien de Montréal inaugurated its new building on Notre-Dame Street. The story was not over. Philosophia Contra Rationalismum, Democratiam Aliaque Rationalism was frequently denounced in the mid-nineteenth century. Mgr Bourget identified the Institut canadien with this intellectual attitude and La Minerve went further: “You are the representatives of the philosophical spirit and rationalism; that is what you are. You fly the flag of impiety; freedom of inquiry and of thought, that is your motto. That is why we repudiate you. You believe that reason is all-powerful, you claim that thought and philosophy promote regeneration and civilization, whereas we claim that reason alone produces only error and leads societies to the abyss.” The bishop of Saint-Hyacinthe, acting as a referee in the controversy between Boucher and Dessaulles on progress, wrote to Dessaulles, “But since human reason alone cannot enable humanity to develop, because it cannot tell us enough about either our origin or our destiny, it follows that progress that is based entirely on the principle of human reason cannot, of course, be progress of humankind.” Abbé Huot had said the same thing: the “dogma” of Rougism was “independence of thought in the moral and religious realm.”22 Rationalism came in for a lot of blame: it allegedly encompassed everything

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from Protestant private judgment to “philosophism,” from the “philosophical direction” of debates to democracy. Ever since the 1833 controversy on Cartesian reason and Lamennais’s common sense, the teaching of philosophy in the colleges had been seeking its path. In 1864, the debate on the views of Gaume on the elimination of pagan authors in favour of Christian authors in the classical colleges did not have any concrete results, but it gives a sense of a conservative milieu seeking to imbue every aspect of French Canadian culture with religion.23 This desire to “Catholicize” everything included philosophy, which was seen as inconceivable separately from religion and was taught in a way that placed reason under faith. In search of a Catholic philosophy, textbooks, which were handwritten, copied from those of the teacher, and generally in philosophical Latin, taught students in the two final years of classical college that the “philosophy of St Thomas shows us that truth is entirely revealed, and there is need only to look for the relationships, reasons and causes of truths … Thus, the philosopher must first believe, but after that he can seek to deepen his understanding of truths.” Moral education taught a hierarchy of human “ends” and “duties” and established the primacy of spiritual ends over temporal ends. This moral teaching was not merely abstract; the system of ends justified the Church’s claim to responsibility in “mixed” questions, including that of schools: “Civil society can build schools, it does not enter them.” Thousands of students were taught that the state was in the Church, and not the Church in the state, that neither “absolute” liberalism (primacy of the state) nor “moderate” liberalism (danger of “indifference”) nor “Catholic” liberalism (inconsistent) was acceptable, that Omnis potestas a Deo (All authority comes from God), that only monarchy was capable of maintaining the alliance of throne and altar, and that popular sovereignty was a “sophism.” The Church was moving toward a Catholic philosophy capable of serving as the foundation for ultramontanism, and toward the restoration of the philosophy of St Thomas Aquinas. In 1865, Abbé Isaac Désaulniers of the Séminaire de Saint-Hyacinthe acknowledged: “As for me, I know; I taught the likes of Descartes and Mallebranche [sic] for twenty years, and I can attest that this long study of false philosophy never satisfied the desires of my intelligence. But since I have been studying St Thomas, everything seems luminous, and I profoundly admire the marvelous harmony of all the principles in this philosophy,



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which is as broad as it is deep. Pius V was right to say that the philosophy of St Thomas is capable of refuting the errors of the past, present and future.” This was also the period when the encyclical Quanta cura was issued, accompanied by the famous Syllabus, a sort of manual of errors of doctrine since the revolutionary period, to which religious authorities referred throughout the second half of the nineteenth century. Mgr Bourget noted: “You understand, as I do, that the arrival of the letters was opportune, because it is evident that many of the false principles criticized in them have already infiltrated even into our happy and peaceful countryside by means of the evil newspapers and speeches of our liberals.”24 Toward Confederation (1864–1867) During this period of increasing anticlerical tensions and efforts to marginalize radical liberalism, a new constitutional change began that was to have repercussions as far-reaching as those of 1791 and 1840. The crisis of 1858 had deepened, above all, because of demographic evolution and its political repercussions.25 With Upper Canada’s repeated demands for the replacement of equal representation with proportional representation, constitutional change became unavoidable and urgent because it took only a majority in the House – instead of the two thirds required by the constitution of 1840 – to make this change. An alliance of Liberals from Upper and Lower Canada and then the Brown-Dorion government were unsuccessful in this, partly because of religious and conservative opposition to the school system that Brown wanted to establish, and partly because of the difficulty the Liberals from Lower Canada had in formulating their positions regarding the crisis. The October 1859 report of the Liberal members from Lower Canada suggested elements of a solution: a federal union of the two Canadas (East and West), and not of the British provinces of North America; limited responsibilities for the central government, with the more important responsibilities going to the provincial governments; and guarantees for French Canadian institutions. While the crisis was institutional and constitutional, it was also a crisis of identity. How would one define a Canadien in 1860? Le Pays had an answer. It must be understood that we have attained a state of society considerable enough to consider ourselves a distinct people, politically, socially, and even morally, in many cases, from England as from France.

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Certainly our traditions, customs, religion, laws, language, etc., are influenced by both. We should not forget this; indeed, we cannot. But in order that an equitable social and patriotic balance be maintained, we must at least divide our affections between our two common mother countries and our true homeland, that is, the Canadian homeland. We must appear, and above all be, first and foremost Canadians.26

In the 1861 election, the liberals maintained their popular support. Although they increased their share of the vote in the Montreal region relative to 1857 (38 per cent compared with 29 per cent), they obtained only 36 per cent of the vote in their stronghold of Montréal-Est, versus 64 per cent for the Conservatives, who were beginning to be called the “Bleus.” Elsewhere in Lower Canada, the Conservatives obtained 59 per cent of the vote, the Liberals 6 per cent, and the Moderate Liberals 27 per cent, whereas the last received only 17 per cent in the Montreal region. Behind the Conservatives, the Liberals and Moderate Liberals were neck-and-neck.27 The process of constitutional change really began in 1864 with the fall of another government – the tenth to fall in ten years – and the formation in June of a coalition government united around a plan for ending the crisis: a confederation. The liberal press immediately signalled its opposition to the plan. Le Pays, without proposing any alternative, denounced George-Étienne Cartier for putting Lower Canada “on the path to a confederation based on the calamitous principle … of representation based on population.” In July, Charles Daoust, who had succeeded Dessaulles at the head of the newspaper, published a series of articles recalling the metropolis’s previous plans for union and showing Britain’s step-by-step plan: 1811, 1822, 1824, 1840, and the present plan for a federal union. Le journal de Saint-Hyacinthe expected that confederation would confront French Canadians with not just two anglophone colonies but seven. One after another, Jean-Baptiste-Éric Dorion’s Le Défricheur in Arthabaska, the young Félix-Gabriel Marchand’s Le Franco-Canadien in Saint-Jean-surRichelieu, and Médéric Lanctôt’s Union nationale came out against the plan for confederation, situating themselves above the parties. As for L’Ordre, the voice of the Moderate Liberals, for the moment, it was politically opposed to the project but its moderation would lead it to accept confederation for religious reasons. In September 1864, the Charlottetown Conference gave the representatives of United Canada an opportunity to form an alliance with their



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colleagues from the “Gulf countries,” who were meeting precisely to discuss a plan for the federation of the colonies. The conference was followed, from 10 to 22 October, by the Quebec Conference, in which all the political parties in the colony participated, except the Liberals of Lower Canada, who were excluded. This served as another reason for Antoine-Aimé Dorion, the leader of the Lower Canada Liberals, to publish a manifesto on 7 November criticizing the “secret sessions” and the negotiations among the ministers “within their cabinet.” He noted that “the absence of any official communication of the proceedings of the conference, the complete silence of the ministers from Lower Canada concerning the details of this planned confederation, suggest that they want to rush this measure, without consulting the people.” Dorian expressed concern about the number of representatives envisaged for Quebec (26 of 76 Council members appointed for life; a fixed number of 65 elected members out of 194), the responsibilities of each level of government, the division of the debt, and above all, the fact that the plan was not for confederation but for legislative union.28 The Principle of Nationality in 1864 Gonzalve Doutre’s lecture on the principle of nationality at the Institut canadien de Montréal on 1 December 1864 revealed two important dimensions of the intellectual and political issues at this turning point: first, the liberals’ emphasis on democracy, their insistence on placing their liberalism above nationality in confronting the clergy and the Con­ servative Party, who identified religion with nationality; and second, a novel element in the Americanity of Lower Canada, the phenomenon of international immigration. Doutre’s words represented a shift in relation to the right of peoples to self-determination from the views of the 1830s and 1848, at the time of the Italian question. While stating that he did not support the plan for confederation, Doutre observed “the phenomenon of universal immigration” and sought to demonstrate that Lower Canada was “not in a position to speak of nationality as France and England are; Canada, or rather, the New World, being open to the migration of all peoples, should not form distinct Nationalities for all the fractions of peoples within it, but rather one single Nationality based on the identical interests and needs of its inhabitants.” He feared the consequences of these migratory movements: “What good will it do to have all these nationalities, which will lead only to internal divisions and not to the centralization of strength

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and power?” And he even foresaw the emergence in the New World of a quasi-universal nationality that “would unite all these distinct parts of nationalities to form a single nation.” A law professor at McGill University, he refused to define nationality in terms of language, religion, blood, or skin colour. He rejected religious specificity and felt “that religious tolerance is everywhere” and “that there is only one God above us and all the differences of opinion ultimately concern the best way to adore him.” To Doutre, “the fundamental principle of nationality is that of best interest … which links all the inhabitants of a country; it is the very simple way to facilitate moral and social relations; it is based on the highly logical calculation that everyone has an interest in maintaining domestic harmony and in cultivating the same feelings of conservation and shared well-being and prosperity.” This concept of nationality resembles the much-criticized membership of the Institut canadien de Montréal, which welcomed members of all origins and all religious and political beliefs and which was a sort of microcosm of the “universal nationality” Doutre envisaged. Doutre expanded on his ideas in a reply to Laurent-Olivier David, who had published an article in Union nationale entitled “Rationalism and Confederation”: “I did not say that national distinctions should disappear, but only that one nationality should not have supremacy over others; that in Canada, all these distinct nationalities should combine into one general nationality.” He added, “In saying that it was absurd to claim that language and religion constitute nationality, I was basing my assertion on facts that are undeniable because they are historical: the United States of America, the German Confederation, etc., etc., form nationalities that are not based on language and religion.” Modifying his liberalism for a moment, he admitted having “condemned these fragments of nations that, refusing to accept the fate that Providence assigned them, to make a nation of Canada, seek to separate, to grow weaker, under the ridiculous pretext that they must remain just as they were in the place they left.” And this self-image as a Canadian prompted him to situate himself with regard to France: “I love my country, Canada, first; before France, which no longer means much to us … [which] is foreign to us.” In reality, this concept of nationality was not new among liberals; it had been circulating at the Institut canadien for the past ten years. In 1852, Charles Laberge had asked, “Is it not time to understand that whatever language an individual speaks, whatever religion he professes, he is a man first and a Canadian after that, and that he shares these characteristics with all the others; that these internal divisions cause



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suffering among people of all origins; that the country will not progress until people of every origin express an enlightened respect for others, allowing them complete freedom in their spheres and joining hands with each other on neutral terrain: the love of their common homeland.” The following year, Charles Daoust, too, foresaw the possibility of “a citizen of the world”: What is this nationality to which the people clings as if by instinct? Is it the French language? No! Religion? No! The old laws, disfigured and abridged by the statutes? No! Is it the blue wool cap, cowhide shoes and a coat made of the local cloth? Is it the old-fashioned sleigh, the pipe and the parish priest, as a newspaper from Upper Canada recently suggested? Certainly not! So what is it? … It is neither the language nor the religion nor the laws nor the institutions considered individually; it is the essence, the abstraction, the ineffable form of all this, it is the cult of the homeland, the religion of the tombs.

In May 1854, Francis Cassidy, the Irish president of the Institut, for whom it had modified its constitution in 1850, also stated that “language and religion are not components of nationality.” In December, PierreRichard Lafrenaye had anticipated Doutre, describing “this movement of populations that is occurring on our continent and that, in the nature of institutions, is leading toward the fusion of nationalities and the homogeneity of races.” But there was one exception to this radical liberal conception of nationality among the members of the Institut canadien, and that was Arthur Buies, the only French Canadian to have worn the red shirt of the Garibaldians. In an 1862 lecture on “the future of the French race in Canada,” Buies took a very different position: “We are in a century in which there are no battles left save that for nationality.” “[F]urthermore,” he continued, a distinctive characteristic of our period is the fusion of the ideas and trends of different peoples, and while it may seem strange to the unobservant, it is in the context of such fusion that each people tends increasingly to reinforce and confirm its identity, its nationality, its own government and its autonomy. The reason for this is simple: the word fusion does not mean confusion: as they come closer together, peoples do not want to disappear, but to enjoy closer, more friendly relations, they need a strong and sure independence (there is no union between the strong and the weak).29

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The Great Debate on the Plan for Confederation (February 1865) The questions of parliamentary representation, an elected Legislative Council, and the rights of religious minorities were among the causes of Confederation and were central to the discussions. But references to the dangers of annexationism and the need to build a railway that could create a country from east to west indicate that, in this period at the end of the Civil War, the United States and its power of attraction worried Canadians. The address of the terribly British Cartier to the Legislative Assembly of United Canada in February 1865 reflects this concern. We, who had the benefit of being able to contemplate republicanism in action during a period of eighty years, saw its defects and felt convinced that purely democratic institutions could not be conducive to the peace and prosperity of nations…. Our attempt was for the purpose of forming a Federation with a view of perpetuating the monarchical element. The distinction, therefore, between ourselves and our neighbours was just this: In our Federation the monarchical principle would form the leading feature, while on the other side of the lines, judging by the past history and present condition of the country, the ruling power was the will of the mob, the rule of the populace. Every person who has conversed with the most intelligent American statesmen and writers must have learned that they all admitted that the government powers had become too extended, owing to the introduction of universal suffrage, and mob rule had consequently supplanted legitimate authority.

Like A.-A. Dorion, the Liberals countered Cartier’s monarchism and conservatism with the democratic principle of the future elected Senate, the decentralization of powers toward the base, and assent to the plan by the people. Maurice Laframboise, Dessaulles’s brother-inlaw, underscored the anti-democratic behaviour of Upper Canada with regard to the system of proportional representation: “But I maintain that as they refused the application of it when the population of Lower Canada was in a majority, it is unjust of them to demand it now because they are in a majority, and I cannot see by what right they wish to obtain it now. I say that if the application of that principle was unjust twenty years ago, it is also unjust today, and that if it is just today, it was equally just twenty years ago.”



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Jean Baptiste-Éric Dorion attacked the formula for constitutional change passed in 1854 in a clearly undemocratic move by the imperial Parliament, which had reduced the two-thirds majority required by the constitutional law of 1840 to a simple majority in order to facilitate an eventual vote on parliamentary representation. He denied “that the House has power to change the political constitution of the country … without appealing to the people” and referred to the American model of constitutional change recently applied to the question of slavery. Interest in annexation had not disappeared, as is shown by his reference to Louisiana. He felt that Louisiana had not become lost in the American Union and that its situation was not comparable to that of Lower Canada because its white population had initially consisted of both French and Spanish people and it was the Louisianans themselves who had abolished the use of French in their legislature “to mark their dissatisfaction at having been sold by France.” Fearing the numerical marginalization of the French Canadians, Dorion recalled the scenario of a Lower Canada similar to Louisiana: it “would be as independent as any of the other states of the union” because it “would possess, like all the other states, full and entire sovereignty in all matters specially relating to [its] own interests…. With regard to local matters, [it] would be perfectly sovereign in [its] own country, and [it] could make all the laws [it] thought proper, provided such laws were not hostile to the other states.” Dorion preferred Lower Canada to take the form of an American state rather than that of a Canadian province.30 On 10 March  1865 in the Legislative Assembly of United Canada, ninety-one members voted in favour of the plan for Confederation, and thirty-three against; the anglophones of Upper and Lower Canada and the Conservative and moderate francophones gave the plan its majority. Of the members from Lower Canada, thirty-seven voted for Confederation, twenty-five against. Among the forty-nine French Canadian members, twenty-seven voted for it, and among the fortynine representatives of predominantly francophone counties, twentyfive voted for it, twenty-four against. On 13 March, Le Pays wrote, “On this memorable night, the most unjust act was committed, the most degrading act the parliamentary system has witnessed since the betrayal of the Irish members who sold their country to England for positions, honours and gold.”31 The Confederation plan received imperial and royal assent on 1 March 1867 and came into force on 1 July of the same year.

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The Bishops, Confederation, and Catholic, Rather Than French-Language, Education Since 1858, the Catholic Church of Lower Canada had fought Rougism and its stress on the separation of church and state, but it had not since 1864 expressed itself publicly regarding the plan for Confederation. Conservatives knew, even before the period of parliamentary debate on the question in February 1865, that the Catholic Church would be in favour of Confederation. It had not succeeded in blocking the law on divorce or preventing responsibility for it from being given to the federal government, but it had managed to make its view felt on the rights of religious minorities, especially with regard to schools. The question of religion had been raised not by the Catholic Church but by the anglophone Protestants of Lower Canada. Since the Quebec Conference of 1864 had already proposed to give the provinces responsibility for education, the Protestants, as a minority in Lower Canada, feared for their educational institutions, and it was in this context that the question of the reciprocal rights of the Catholic minorities in Upper Canada, New Brunswick, and Nova Scotia was posed. At the time of the London Conference, in late 1866 and early 1867, where the draft of the Constitution was to be approved, Alexander Galt, the member for Sherbrooke, had a clause added stipulating that in places where schools of religious minorities existed by law at the time of the conference, it would be possible to appeal to the federal government if their rights were threatened or were not respected, and the federal government could pass remedial legislation. Meanwhile, Section 133 of the constitutional bill provided for the right of the provinces to decide on the language of instruction in public schools. The Canadian education system was thus confessional rather than cultural or linguistic: schools were Catholic or Protestant and not francophone or anglophone. This suited Lower Canada for two reasons: the Protestants, who were the majority in Canada and North America, feared not for their language, but rather for their religion; and the loyalist Catholic Church – which had succeeded in making Lower Canada’s schools confessional between 1841 and 1846, and whose ultramontanism had led it to promote an alliance of the religious and political spheres and the primacy of the Church in so-called mixed issues – defended its spiritual and temporal interests by making school children Catholics first, and francophones at the same time.32



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It was in this context of both vigilance against doctrinal and electoral liberalism and a campaign for the rights of Catholic minorities that, shortly before the election of 1867, the Catholic hierarchy intervened publicly in the political debate. The election scheduled for September 1867 was not referendary, that is, it did not concern Confederation, which had come into effect on 1 July. But it was clear that if a Liberal government was elected, it could re-open the question. At the suggestion of the ultramontanist coadjutor bishop of Trois-Rivières, Mgr Louis-François Laflèche, the bishops of five Lower Canada dioceses intervened in the summer of 1867. Mgr Bourget did not join them because of his dispute with the archbishop of Quebec City concerning the dismembering of the Sulpician parish of Notre-Dame de Montréal and the Catholic university obtained by Quebec City with support from Rome. Mgr Bourget did, however, publish a circular letter to the clergy on 5 May, recommending that the Church submit in the present as it had in the past (1791, 1840), and that it make all voters understand the importance of their votes: “I know that I will one day answer for my vote to the tribunal of my Sovereign Judge.” The old bishop of TroisRivières, Mgr Cooke, published a pastoral letter on 8 June, saying that Confederation was “decided and obligatory”; the only thing that mattered now was the right candidate and the right vote: “You will have occasion to fulfill this duty in the coming elections, making sure that the men you choose to represent you in the parliaments are moved by that spirit of conciliation and goodwill that is indispensable in order to derive from the new constitution all the good we must expect of it.” Mgr Baillargeon of Quebec City made the same recommendation regarding Confederation on 12 June: “Make sure that you do not cast your votes for men who intend to combat it or create obstacles to its operation.” The bishop of Rimouski, Mgr Jean Langevin, the former editor of Les Mélanges religieux and Le Courrier du Canada and the brother of LouisHector, Cartier’s right-hand man, went further: “The new constitution … is given to you as the expression of the supreme will of the legislator of the legitimate Authority, and thus of God himself.” His 13 June pastoral letter added that the vote would be decisive for “the preservation of all that is dear to us as a nation, our Religion, our Language, our Institutions.” Finally, in a sixteen-page document dated 18 June, Mgr Charles Larocque of Saint-Hyacinthe attacked any remaining annexationist aims: “Republican institutions would not suit us better than they did the great people from which we descend, the French! And our

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fate, if ever God permitted that we enter the great American republic, would be exactly comparable to that of the various tributaries that flow into the deep, broad St Lawrence River, where they disappear without a trace.”33 The Elections of September 1867: “Heaven is Blue and Hell is Red” The Liberals fought one last battle of honour when the bishops took a public position. Wilfrid Laurier, who had been vice-president of the Institut canadien de Montréal in 1865 and 1866, showed his propensity for conciliation in participating in the committee responsible for resolving the problems with Mgr Bourget and by signing the Petition to Rome in October 1865 with other Catholic members of the Institut. The young lawyer, who had been opposed to constitutional change without popular consultation since 1864 and was a partisan of “union without fusion,” succeeded J.-B.-É. Dorton at Le Défricheur in the village of L’Avenir from November 1866 to late March 1867. On 27 December 1866, he wrote in Le Défricheur that Confederation would be “the tomb of the French race and the ruin of Lower Canada.” On 7 March 1867, his tone was even more strident. When the charter of 1841 was imposed on us … we had only two possible options, and we had to choose one or the other. We could either follow Mr. Papineau’s program … or accept the new constitution, take advantage of the exemptions it allowed, and protect ourselves as best we could from the dangers it posed. The new leader [La Fontaine] chose the latter option, in the hope that with the help of the good aspects of the charter, the bad aspects would be paralyzed. Everyone followed him. In vain did Mr. Papineau later cry: “Responsible government is nothing but a trap.” The opposite side cried, “Although the Union was made to destroy us, it has saved us.” Now that the Union is due to end, where are those who will still dare to say, “Although the Union was made to destroy us it has saved us.” No, the Union made to destroy us has not failed in its aim. Today [the French nationality] is larger and more numerous, but it bears the seeds of its own dissolution: it has no strength, it is divided, it is not yet anglicized, but it is well on the way there…. We are being handed over to the English majority…. We must return fully and directly to Mr. Papineau’s policy. We must protest with all our strength against the new



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situation that has been imposed on us and use the influence we still have to demand and obtain a free and separate government.

In order to be married in the Catholic Church and satisfy the requirements of the diocese of Montreal, Laurier resigned from the Institut canadien on 13 May 1867. The path of moderation opened up ahead of him.34 At Le Pays, Alphonse Lusignan continued to oppose Confederation even after its promulgation, hoping that the election of the Liberals in September might reverse the situation. He even published an anonymous pamphlet describing Confederation as the “culmination of ten years of bad administration,” to which Joseph-Alfred Mousseau replied in a pamphlet that spoke of Confederation as “the salvation of Lower Canada.”35 But Confederation would survive: the results of the September 1867 elections in Canada and Quebec left no room for doubt. The Conserva­ tives won 101 out of 181 seats in the new House of Commons of the new Canada, and in the Legislative Assembly of Quebec, they won 45 out of the 65 seats, with more than half of the members – 23 members, 20 of them Conservatives – elected by acclamation. The cumulative Liberal vote in Ottawa and Quebec was 12 per cent. In the Montreal region, the Liberals received 18 per cent of the vote, compared with 33 per cent in 1863, and in Montreal itself, 8 per cent, compared with 42 per cent in 1863. They maintained their support with 41 per cent of the vote in Verchères, Richelieu, Saint-Hyacinthe, Rouville, Bagot, and Shefford; they lost half their votes (22 per cent) in Chambly, La Prairie, Châteauguay, Beauharnois, Napierville, Saint-Jean, and Iberville, and they obtained four times fewer votes (5 per cent) in Joliette, L’Assomp­ tion, Berthier, and Montcalm. Liberalism remained alive in Kamou­ raska, L’Avenir, and Drummond-Arthabaska, and it showed signs of life briefly in Trois-Rivières.36 Le journal de Saint-Hyacinthe of 9 September 1867 was right “that the real struggle [had been] between the clergy and the Rouges.” On 15 August, Le Pays predicted the strategies of the coming period: “The effort organized on such a large scale by the religious authority to influence the election is an abnormal phenomenon which must, in the interest of religion, disappear from future election contests.” The Liberal press would have to wage these battles with reduced forces: of seven newspapers (Le Pays and L’Union nationale in Montreal, Le Journal de

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Saint-Hyacinthe, Le Franco-Canadien in Saint-Jean-sur-Richelieu, L’Élec­ teur in Quebec City, Le Journal de Lévis, to which the liberal poet Louis Fréchette was a contributor, and Le Défricheur in L’Avenir), four disappeared after 1866, while the Conservative press (La Minerve in Montreal; Le Canadien, Le Journal de Québec and Le Courrier du Canada in Quebec City; and Le Courrier de Saint-Hyacinthe) was joined by four new papers after 1866: the highly ultramontanist Nouveau Monde in Montreal, L’Événement, founded in Quebec by Hector Fabre, the Union des Cantons de l’Est in Arthabaska, and La Voix du golfe in Rimouski. Le Pays barely waited for the election results to be published to undertake a campaign denouncing the electoral alliance of the Conservatives and the clergy. Dessaulles – who had been “placed,” according to La Minerve, in a job as court clerk and who had just finished a dispute of six months’ duration on the alliance of throne, altar, and college with Abbé Joseph-Sabin Raymond, the superior of the Séminaire de SaintHyacinthe, who had declared that “every political question contains a theological question” – resumed duty at Le Pays, carrying out an anonymous investigation of the clergy’s intervention in the election campaign from September 1867 to February 1868. The Liberal paper showed how, following the bishops’ pastoral letters, parish priests had used the Sunday announcements on temporal aspects of parish life, the pulpit, the confessional, and in some places even political patronage to discourage the Liberal vote against Confederation. In one place, the priest had made it an obligation of conscience to vote in favour of Confederation; elsewhere, women whose husbands were readers of the Rouge Le Pays or who refused to send the paper back were denied absolution in the confessional. At the Séminaire de Sainte-Thérèse, students were encouraged to write their parents asking them not to vote for the Liberals. Still elsewhere, a parish priest threatened to deny the Rouges the sacraments and Catholic burial, and preached from the pulpit that “Heaven is blue and Hell is red” or asked parishioners to vote for Lemieux (literally, “the best”) and not for the worst. There were beginning to be accusations of “undue” influence by the Church and clergy in politics. Ultramontanism was no longer a politico-religious theory; it was involved in the civil process itself. And the Catholic Church had the means to implement its policy: the number of priests in Quebec had risen from 225 in 1830 to 464 in 1840, to 620 in 1850, to 948 in 1860, and to 1,412 in 1870, and the number of the faithful per priest had gone down from 1,835 in 1830 to 1,185 in 1840, to 1,080 in 1850, to 893 in 1860, and to 658 in 1870.



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In December 1867, four years before his death, Louis-Joseph Papineau briefly left his manor at Montebello to present a lecture at the Institut canadien de Montréal, a sort of political overview and testament, in which he denounced the new constitutional system “prepared in the dark,” its religious and confessional choices regarding education, and the monarchism of the Senate, which was appointed, not elected. In July  1868, Étienne Parent, who had been busy with the tasks of a senior civil servant, also stepped back into the political arena, celebrating Confederation, one of “those providential events,” in whose preparation he had, he said, played a role thirty years earlier, in 1838.37 Conclusion Antoine-Aimé Dorion’s efforts to keep liberalism alive after Papineau’s defeat in 1849 were not as successful as he had hoped. Not only did political and ideological conservatism become stronger, but moderate liberalism did as well as radical liberalism in the election of 1861. The conservatives and ultramontanists sought to neutralize radical liberalism, or Rougism, by establishing an association between radical liberalism and the Liberal party, while the moderate liberals dissociated doctrinal liberalism and electoral liberalism. This two-pronged process was in a sense facilitated by the constant radicalization of the liberals at Le Pays and the Institut canadien de Montréal during the period when the most radical of them, LouisAntoine Dessaulles, was their leader. The liberals’ affirmation of the priority of liberal values and democracy over nationality found its fullest expression at the Institut canadien, in both its constitution and its position on nationality and the principle of nationality. Indeed, its belief in democracy led to the Institut’s censure by the bishop of Montreal in 1858. At Le Pays, it was the paper’s position on the Italian question and the pope’s temporal power that aroused the wrath of Mgr Bourget and L’Ordre. After Cyrille Boucher’s allusions in 1857 to the “the utterly philosophical direction” of some newspapers and after the split in the Institut canadien de Montréal and its exclusion from the Saint-Jean-Baptiste parade in 1858, the 1862 dispute between L’Ordre and Le Pays enabled the moderate liberals, who, after the conservatives, had as much electoral support as the Rouge liberals, to widen the gap between doctrinal liberalism and partisan electoral liberalism. Their criticism of Le Pays’s “philosophical dissertations” on the temporal power of the pope or on

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reason had only one purpose: to show the damage they did to the party. Five years later, Wilfrid Laurier resigned from the Institut canadien and undertook to develop what could be a viable moderate liberalism, that is, a liberalism that was not anticlerical. The breach that opened within radical liberalism in 1858 widened in 1862. Soon it would cripple it. The political crisis over proportional representation in 1858 also challenged the liberals. The most insightful among them noted the emergence of a new factor: immigration, which was changing the face of North America, including Canada, altered the problem of nationalities and their relations. The liberals rejected the solution proposed to resolve the crisis – a Confederation of the provinces of British America – pleading repeatedly for democracy, and particularly for a new constitution that would be ratified by the people, but to no avail, as Confederation was decided in the back rooms. Opposing Confederation thus meant opposing the conservatives, the moderates, and the clergy of Lower Canada and Upper Canada, to say the least. The Catholic Church, which denounced democracy and popular sovereignty and supported monarchy, was now more ultramontanist than ever. It defended Rome and the pope, argued for an alliance of religious power and political power, and, with the Protestant churches, gained control over the schools, which were defined more in confessional than linguistic terms. This demand, which was granted by conservative political power, was perfectly consistent with the Church’s conception of the destiny of French Canada: Catholic first, and French after that. The Church, in return, made this concession to the state: it intervened in the non-referendary but crucial election of 1867, which placed it in a delicate position. What was beginning to be called “the undue influence” of the Church threatened to spill over into plans for a theocracy. NOTES 1 Yvan Lamonde, “Breaches in Radical Liberalism (1852–1867),” The Social History of Ideas in Quebec, 1760–1896, translated by Phyllis Aronoff and Howard Scott (Montreal and Kingston: McGill-Queen’s University Press, 2013), 276–308. 2 Julie Papineau, Une femme patriote, 426, 432, on Papineau’s attachment to Montebello; Bernard, Les Rouges, 114–20, 150.



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3 Prospectus of Le Pays reproduced in Dessaulles, Écrits, 128–33; Dessaulles, “Galilée, ses travaux scientifiques et sa condamnation,” public lecture at the Institut canadien de Montréal on 11 March 1856, ibid., 134–84; Lamonde, Gens de parole, passim, and Les bibliothèques de collectivités, passim. 4 MEM, June 1854, II:466. 5 Le Pays, 27 February, 6, 20, 24 March and 10 April 1855; the minutes (PV) of the Institut canadien de Montréal from 1855 on are at the BANQ, Montreal centre. 6 Alfred Rambaud in La Patrie, 10 July 1855, quoted in Sylvain, “Libéralisme et ultramontanisme au Canada français,” 131. 7 L’Avenir, 22 December 1857, quoted in Bernard, Les Rouges, 144–5. 8 Letters of Mgr Bourget: 10 March 1858, MEM, III: 367–71; 30 April; MEM, VI:24–38; 31 May, MEM, III:380–411; resignations from the Institut canadien, Minutes of the Institut canadien de Montréal, II, 25 March, 12 and 22 April 1858, BANQ or Le Pays, 22 April 1858; Mgr Bourget, “Lettre pastorale … contre les erreurs du temps,” MEM, III:356–76; Simard and Vaugeois, “Fabre, Hector,” DCB. 9 [Speech of the Sulpician Lenoir], Le Pays, 25 June 1857; see also 9 July for the beginning of a debate that continued until August; C. Boucher, “De la démocratie,” Courrier du Canada, 4, 7, 9, 11 September 1857, and “Où allons-nous?” Courrier du Canada, 6–16 August 1858; see also on democracy, Le Courrier de Saint-Hyacinthe, October 1857, and La Minerve, 18 January 1858; E. de Bellefeuille, “Essai sur le rougisme,” L’Ordre, 13–27 May 1859. 10 Guay, “La fête de la Saint-Jean-Baptiste à Montréal”; La Minerve, 23 June 1858; Le Pays, 24 June 1857; La Minerve, 27 June 1857; see also Achille Belle, “La nationalité canadienne-française,” Écho du cabinet de lecture paroissial, 3 August 1861: 243–5. 11 “Lettre pastorale … sur l’inviolabilité du pouvoir temporel du St Siège,” MEM, IV:24–42; “Instructions pastorales de Mgr l’Évêque de Montréal sur l’indépendance et l’inviolabilité des États Pontificaux,” 31 May 1860: ibid., 42–152; “Premier supplément au mandement du 31 May 1860,” [n.d.], ibid., VIII:208–14; between 1860 and 1870, the bishops of Quebec and Montreal published forty documents on the Roman question alone. 12 Dessaulles, “La France, Rome et l’Italie,” Le Pays, 16 and 21 March 1861; “Encore les marchands de religion,” Le Pays, 12 November 1861; “De l’administration des états romains,” Le Pays, 14 November 1861; “Un nouveau libelle,” Le Pays, 16 November 1861; “De l’administration des états romains. Justice et tribunaux,” Le Pays, 19 November 1861;

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“Nos adversaires sur la question du pouvoir temporel,” Le Pays, 26 November, 3, 7, 10, 14 December 1861; the editors, “Le Pays nous accuse,” La Minerve, 14 November 1861; see also Dessaulles’s debate with Maximilien Bibaud: “M. Bibaud et le droit romain,” Le Pays, 23 November 1861; “Le bataillon sacré,” Le Pays, 5 December 1861; “Une séance à l’école de droit du Professeur Bibaud” and “M. Bibaud,” Le Pays, 17 December 1861; Bibaud, L’Honorable L.A. Dessaulles; Dessaulles, “M. Bibaud,” Le Pays, 8 February 1862. 13 Le Pays, 14 September 1861; Sylvain, “La visite du prince Napoléon au Canada (1861).” 14 Dessaulles, “L’Ordre,” Le Pays, 18 and 25 January 1862; “L’InstitutCanadien,” Le Pays, 28 January 1862; “Une dernière croisade,” Le Pays, 6 February 1862; “Plus sensible pour lui-même que pour autrui,” Le Pays, 8 February 1862; A friend of Le Pays, “L’Institut-Canadien. Les détracteurs,” Le Pays, 15 February 1861; H. Fabre, “Institut-Canadien,” Le Pays, 20 February 1862; Dessaulles, “Un mot à certains calomniateurs,” Le Pays, 1 March 1862; the editors, “Lettre de Montalembert,” L’Ordre, 7 and 15 January 1862; the editors, “Nous répondrons,” L’Ordre, 20 January 1862; see also L’Ordre, 22 and 24 January 1862. 15 Lamonde and Nolin, “Des documents cruciaux du débat libéralultramontain.” 16 Text of the 18 January 1863 announcement by Mgr Bourget in Dessaulles, “L’Index,” 55; Dessaulles, Discours sur l’Institut-Canadien, reproduced in Dessaulles, Écrits, 218. 17 [Louis-Herménégilde Huot], Le Rougisme en Canada. 18 Dessaulles, Écrits, 145–52. 19 Dessaulles, “Un dernier mot,” Le Pays, 28 November 1863; the editors, “Dans son article de samedi,” L’Ordre, 30 November 1863; Dessaulles, “Nos articles n’ont-ils aucune acutualité?” Le Pays, 1 December 1863, reproduced in Dessaulles, Écrits, 236–42. 20 Dessaulles, “Encore une croisade,” Le Pays, 21 November 1863; “Une dernière croisade,” Le Pays, 24 November 1863; “L’Institut-Canadienfrançais et les mauvaises tendances du siècle,” Le Pays, 26 November 1863; “Encore une croisade,” Le Pays, 28 November 1863; see the letter from Dessaulles to Mgr Bourget, 16 November 1864, which made the break between them definitive, in Dessaulles, Écrits, 251–63. 21 Petition to Pius IX, 16 October 1865, Bibiliothèque de la Ville de Montréal (now at BANQ), Institut canadien de Montréal Collection, document no. 1; brief from Dessaulles to Cardinal Barnabo, ibid., no. 2, and reproduced in Pouliot, Mgr Bourget et son temps, IV:116–39; Dessaulles to Cardinal



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Barnabo, 30 October 1865, Insitut canadien collection, unnumbered document, 96–116, and no. 24; LAD, Dernière correspondance entre S.E. le Cardinal Barnabo et l’Hon. M. Dessaulles, 7–8; brief by Mgr Bourget on the Institut canadien, 21 September 1866, ACAM, RLB, 16:39–54. 22 Laurent-Olivier David, in La Minerve, quoted in Bernard, Les Rouges, 241–2; Mgr Larocque to L.-A. Dessaulles, 28 December 1863, ACAM, 901.135, 863–4; [L.-H. Huot], Le Rougisme en Canada, 32. 23 Charland, “Un gaumiste canadien: l’abbé Alexis Pelletier”: 195–236, 463–8; Voisine, “Pelletier, Alexis,” DCB; Lamonde, “Chandonnet, Thomas-Aimé,” DCB. 24 Lamonde, La philosophie et son enseignement, 130–5, 157–75, quotations, 158 and 163; on the encyclical Quanta cura and the Syllabus and Mgr Bourget’s pastoral letter of 1 January 1865 introducing the papal publications, MEM, V:42–77; Catholic newspapers of the time reproduced the papal encyclicals. 25 Taché, Des provinces de l’Amérique du nord et d’une union fédérale, 73–5. 26 On the report on this convention, Le Pays, 29 October 1859; Le Pays, 6 October 1860; Bernard, Les Rouges, 165–85. 27 Bernard, Les Rouges, 188–91. 28 A.-A. Dorion’s manifesto, published in Le Pays and L’Ordre, is reproduced in Chapais, Cours, 8:224–36; and in Bonenfant, La naissance de la Confédération, 82–90. 29 G. Doutre, “Le principe des nationalités,” Le Pays, 15, 17, 20 December 1864, reprinted as a pamphlet, quotations 60, 51–2, 45, 62–3, 50, 57, 73; Doutre, “Le Rationalisme et la Confédération,” Le Pays, 17 December 1864; Lamonde, Gens de parole, 59–66; Rioux, “Doutre, Gonzalve,” DCB; Buies, “L’avenir de la race française en Canada,” Le Pays, 27, 29, 31 January 1863. 30 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces: Cartier: 53–62, quotation from 59; A.-A. Dorion: 248–78; Laframboise: 843–58, quotation from 854; J.-B.-E. Dorion: 858–73, quotations 864, 870; In memoriam. Sir A.A. Dorion. On Cartier’s monarchism, Bonenfant, “Les idées politiques de George-Étienne Cartier.” Other plans for federation had already been formulated: from 7 July to 23  October 1857, Joseph-Charles Taché published thirty-three articles in Le Courrier du Canada, which were reprinted as a pamphlet, Des provinces de l’Amérique du Nord et d’une union fédérale; in 1858, Joseph Cauchon published Étude sur l’union projetée des provinces britanniques de l’Amérique du Nord; he took the opposite position in 1865 in L’union des provinces de l’Amérique britannique du Nord, which was first published in Le Journal de Québec from 30 January 1865 on, and then reprinted as a pamphlet.

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3 1 Bernard, Les Rouges, 265. 32 Audet, Histoire de l’enseignement, II:69–80, 81-98; Carignan, “La raison d’être de l’article 93 de la loi constitutionnelle de 1867”; Carignan, “L’incubation de la crise politique soulevée en août 1866: I: Les remous au Bas-Canada.” 33 MEM, 5 May 1867, V:212–14; Mandements des évêques de Trois-Rivières, 8 June 1867, or La Minerve, 12 June 1867; MEQ, 12 June 1867, IV:579–82; Mandements des évêques de Rimouski, 13 June 1867, 137–41, or Le Courrier du Canada, 26 June 1867; Mandements des évêques de Saint-Hyacinthe, 18 June 1867, II:421–37. On 29 July 1867, Mgr Bourget published a pastoral letter contradicting the Liberals, who had pointed out divisions among the bishops: MEM, V:236–44. The bishops’ letters and pastoral letters are reproduced in Nouvelle Constitution du Canada; Bellavance, Le Québec et la Confédération: Un choix libre?, 72–5. 34 Bélanger, Wilfrid Laurier. Quand la politique devient passion, 43–65; BANQ, Montreal’s Centre, PV, Institut canadien de Montréal, II:331. 35 [A. Lusignan], La Confédération, couronnement de dix années de mauvaise administration; [Joseph-Alfred Mousseau], Contre-poison. La Confédération c’est le salut du Bas-Canada; see also [Boucher de la Bruère], Réponses aux censeurs de la Confédération; and Berenard, “Boucher de la Bruère, Pierre,” DCB. 36 Bernard, Les Rouges, 298–310, 324; on Kamouraska, Rumilly, Histoire de la province de Québec, II:105–10, and ACSAP, Gauvreau collection; on L’Avenir, archives of the diocese of Nicolet, parish of Saint-Pierre de Durham; de L’Isle, “Arthabaska et son élite”; Verrette, “Le libéralisme en région.” 37 On the Dessaulles-Raymond polemic and the post-election inquiry, Lamonde, Louis-Antoine Dessaulles, un seigneur libéral et anticlérical, 182–90 and 191–4; Bellavance, Le Québec et la Confédération, 89–90, 123, 127, 129–32; Louis-Edmond Hamelin and Colette Hamelin, “Évolution numérique séculaire de clergé catholique dans le Québec,” 189–241; LJP, Un demi-siècle, 603–6; “Discours de M. Étienne Parent,” La Voix du golfe, 14 July 1868, in Étienne Parent, Discours.

“Federalism as a Way of Life: Reflections on the Canadian Experiment” Canadian Journal of Political Science 1993 Samuel V. LaSelva1

Canadian federalism, Pierre Trudeau told the United States Congress, was “a brilliant prototype for the moulding of tomorrow’s civilization.”2 Canada was the kind of society in which different nations could live within the same state, and such a combination was “as necessary a condition of civilized life as the combination of men in society.”3 A society is not simply made up of individuals, as the great social contract theorists of the seventeenth century had imagined. An obvious fact about any society is that it also consists of groups with distinctive ways of life. The Canadian constitutional settlement of 1867 had responded to this fact, and the Charter of Rights and Freedoms acknowledges that group rights are no less important than the rights of individuals. In this way, the Canadian constitution not only rejects the atomizing individualism of the American constitution but also envisages a different type of society. But there are difficulties inherent in the Canadian constitutional experiment, and virtually the whole of the Western political tradition appears to be against it. Reflecting on the cultural diversity of mankind, Kenneth McRae has noted that Western political thought has shown little respect for it, preferring instead to adopt universalistic, integrationist, or assimilationist principles.4 Nationalist thinkers did, of course, challenge the belief in universalism, but even they denied that the state could embrace more than one way of life. For them,

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the only legitimate states were nation states. In the history of political thought, the Canadian constitutional experiment appears to be caught between universalism and particularism. Even in Canada itself, many scholars either envisage the evolution of Canadian federalism into a unitary state, or predict its disintegration in response to particularistic demands for local autonomy. Canadians have available to them, however, an understanding of federalism that mediates the destructive demands of universalism and particularism. To recapture that understanding of Canadian federalism, it is necessary to explore its moral foundations and to think of federalism as a way of life. When federalism is understood in this way, it ceases to be a political or economic expedient and becomes a fundamental moral value. Moreover, the value that federalism as a way of life is most intimately connected with is not freedom or diversity, but fraternity. Federalism as fraternity responds to universalism and particularism by incorporating and transcending the very forces that are set against it. By so doing, federalism as fraternity not only provides a moral foundation for the Canadian experiment, but challenges some of the most pervasive images of federalism and responds to the inadequacies of the theory and practice of consociational federalism. The Crisis of Canadian Federalism Federalism is almost never equated with fraternity or described as a way of life. It is more commonly depicted, in Canada and elsewhere, as a political expedient, or as a constitutional arrangement, or as a sociological characteristic of some societies.5 In fact, Canadian federalism has even been described as an affair of governments, in which the most important issues are resolved by judicial, political, and bureaucratic elites. So long as Canadian federalism was understood in this way, it could be regarded as a form of political and constitutional pragmatism devoid of moral principle and preconception. However, with the adoption of the Charter in 1982 and the failure of the Meech Lake Constitutional Accord in 1990 and the Charlottetown Consensus Report on the Constitution in 1992, such an image of federalism has become increasingly unrealistic. Canadian federalism, as Alan Cairns has observed, is no longer an affair of governments; it now includes citizens and groups who have acquired a new constitutional status through the Charter.6 Not only do these new actors compete with politicians and judges to shape



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the constitutional order; they have also transformed the language of constitutional discourse. Canadian federalism is now discussed in terms of conflicting constitutional images and competing ways of life.7 Constitutional discourse has ceased to be a language of political expediency and political compromise and is increasingly becoming a branch of moral philosophy. Virtually no one was able to predict that the Charter would effect such a radical transformation of the constitutional order. When the Charter was adopted, some constitutional scholars even speculated that it would have no effect at all.8 Others saw the Charter as an attack on the sovereignty of the legislators; their concern was that judges would displace legislators as policy makers. Still others feared that the Charter was part of the increasing Americanization of Canadian society; they supposed that the Charter would bring increased “bureaucratization, centralization and atomization.”9 Those who supported the Charter saw it both as a way of protecting the rights of the people, and as a device for promoting national unity in the face of provincializing tendencies.10 What the Charter has not yet produced is greater national unity. Even as the Charter was being adopted, some critics warned of its “limited capacities” for furthering national unity. Donald Smiley, for example, objected to the Charter because it was adopted without Quebec’s consent and would fuel Quebec nationalism; because it did nothing to satisfy the demands for intrastate federalism or to alleviate western alienation; because it spoke of rights as the common possession of Canadians, yet it encouraged individuals and groups to assert special claims and defend particular interests.11 Smiley’s last point might be stated differently. What the Charter has effected is a transfer of sovereignty from government to the people. Moreover, the transfer has been real and not merely symbolic. The Charter has brought the citizenry into the constitutional order and has created a tension between citizens and governments.12 Jealous of their rights, individuals and groups now compete with governments to control the constitution. Governments can no longer treat the constitution as their possession and modify it as they please. In a sense, the Charter represents a victory for Canadian democracy, because governments are now more responsive to the people. What may be of even greater significance is that the Charter has also brought about the demise of executive federalism, at least with respect to constitutional matters. The Charter has produced a crisis of federalism precisely because it has undermined the legitimacy of executive federalism. Executive federalism

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or federalism by elites (judicial, political, and bureaucratic) is virtually the only kind of federalism that Canadians have known. Moreover, federalism by elites is more than a political arrangement; it also makes crucial moral assumptions. Not only does executive federalism require elites to practise accommodation and to be committed to national unity, it also supposes that Canada will continue to flourish only if the French and English subcultures are kept separate. “Consociational federalism,” S.J.R. Noel has written, “works best when the ‘two solitudes’ are preserved.” “‘National’ policies aimed at promoting bilingualism and biculturalism,” Noel goes on to say, “may be misguided in the sense that they may increase friction between separate communities which previously had little direct contact with one another.”13 Because the Charter has undermined federalism by elites or consociational federalism, some scholars suppose that the Charter has displaced federalism. They suppose that Canadians must choose either the Charter or federalism.14 But there may be more to federalism than elite accommodation and the two solitudes. The Charter may not be antagonistic to all forms of federalism, although it requires some rethinking of the moral dimensions of federalism. Universalists and Particularists The current crisis of Canadian federalism is not simply a political and constitutional crisis. It is also a moral crisis. By undermining consociational federalism, the Charter has forced Canadians to seek alternative foundations for federalism. But such a task is enormously problematic, because Canadians have frequently justified their existence as a nation by appealing to ideals that are ultimately uncongenial to federalism. Put differently, many Canadians have not been federalists. Moral philosophers have not been federalists either. In fact, most moral philosophers have embraced either universalistic or particularistic principles, and such principles are ultimately antagonistic to the way of life that federalism presupposes.15 “The sentiment which creates a federal state,” wrote A.V. Dicey, “is the prevalence throughout the citizens of … two feelings which are to a certain extent inconsistent.” The citizens of a federal state must have both “the desire for national unity and the determination to maintain the independence of each man’s separate State.”16 Many Canadians have possessed one or the other of these two feelings but not both. If Canadians are to rethink federalism, they will have to take Dicey’s insight seriously and discard some of their most prized self-images as well as a good deal of contemporary moral philosophy.



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The problem that confronts Canadians begins with Confederation. Confederation has failed Canadians, because it has not provided them either with a foundation myth or with a moral ideal that can sustain them during their times of trouble. It was once supposed that Confed­ eration could not generate these things because it was the work of pragmatic politicians who avoided issues of principle in order to achieve political consensus. Sir John A. Macdonald, for example, has been described as someone who “did not attempt to plumb the depths of political theory or speculate on the rights of man.” Rather, he is said to have been concerned “with the intricate details of concrete complexities” and to have believed that the politician should never aspire to the “alien role of prophet, philosopher or engineer.”17 Such an assessment of Macdonald and of Confederation captures only part of the truth. Macdonald may not have been a philosopher, but he did have a vision. And Confederation was much more than a series of pragmatic compromises. In fact, Confederation was inspired by several conflicting visions, and most of them were incompatible with federalism. That Macdonald was no federalist hardly needs emphasis.18 Mac­ donald explicitly stated that his own preference was for a unitary state, so as to avoid the turmoils that had plagued American federalism. But there was more to Macdonald’s view of Canada than a strong central government. Macdonald was a believer in empire, of the commercial kind. He saw himself as the custodian of the idea of the St. Lawrence empire. Moreover, the idea of empire appealed to others as well. “The big, unexpressed ‘theory of Confederation,’” A.R.M. Lower wrote, “… was the one that lay behind all the arguments for the new union: build a new state, and BUILD! Build the state, shove out its boundaries as far as possible, build railways, build industries and cities!”19 Many of those who supported Confederation, as Frank Scott said, had tired of “the pettiness of the politics and of public life in the individual provinces, the inefficiency of their local economies, the scant opportunity they offered to men of ability and ambition.”20 Such an understanding of the purpose of Confederation lends support to the French-Canadian complaint that it was engineered by men who cared little about the local cultures and provincial particularisms that form a crucial part of a federal state.21 Many French Canadians are not federalists either. They support the Confederation settlement only to the extent that it enables them to flourish according to their own culture, to control their own destiny, and to create a society in their own image.22 French Canadians have a

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home, and it is Quebec.23 Their relationships with the rest of Canada are instrumental. This is why the economic benefits of unity are so often relied on to counter Quebec separatism and to re-establish a modus vivendi between Quebec and the rest of Canada. But even instrumental federalism can come at too high a price. “The two majorities,” René Lévesque predicted, “will inevitably collide with one another…, causing hurts that finally will be irreparable.”24 Moreover, federalism is regarded as a mistaken and dangerous ideal, since it divides the self and requires an individual (both human and collective) to be two things at once. “To divide one’s allegiance, affiliation, or identity,” it has been said, “is to court disaster.”25 Opposition to federalism is not uniquely Canadian. A recent study of Confederation has attempted to show that Macdonald’s views were rooted in the Scottish Enlightenment and its commercial ideology.26 That ideology, it has been frequently suggested, is destructive of local cultures and looks ultimately to a homogeneous, universal state. This kind of state can enhance its appeal enormously by drawing on moral universalism, the belief that there must be a single scale of values for all people. Such a belief is the old theory of natural law in a new form. As opponents of universalism, Quebec separatists can draw on equally respectable and potent philosophical ideas. Behind the separatists are the nationalists and romantics who revolted against the Enlightenment. Few changes, Arthur Lovejoy observed, have been more profound or more momentous than that revolt. Those thinkers came to believe “that diversity itself was of the essence of excellence”; they coupled a strong antipathy to standardization with the cultivation of individual, national, and racial peculiarities.27 The current crisis of Canadian federalism is, in one of its dimensions, little more than an instance of the crisis that has repeatedly plagued philosophical thought, a crisis that has occurred whenever universalism and particularism have dominated an epoch and set themselves against each other. Federalism and Fraternity The real challenge is to find a way of embracing both the universal and the particular. That challenge also forms a key problem of Canadian federalism. In the context of Canadian federalism, however, the terms of discourse have changed and the problem has become how citizens can have two identities and two sets of loyalties. Many Canadians, David Elkins and Richard Simeon have written, have strong ties to their



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local communities and equally strong ties to the national community. They want more freedom of action for their provincial communities as well as a centre that can speak for all of Canada. “The imaginative feat required,” according to Elkins and Simeon, “is to find a way to reconcile and harmonize what may on the surface appear to be irreconcilable images.”28 The simplest answer is to say that federalism is predicated on the existence of multiple loyalties. There is also a more complex answer. Behind Canadian federalism is George Cartier’s intriguing idea of a Canadian political nationality, which has roots in the ideal of fraternity. Canadian federalism has moral foundations precisely because of its connection with the powerful ideal of fraternity. Moreover, the concept of fraternity contains within it the very identities and loyalties that federalism presupposes. The most vigorous defender of federalism in Canada was not Mac­ donald but George-Étienne Cartier. Unlike Macdonald, who desired a unitary state and did what he could to secure it, Cartier was an unequivocal federalist. He was also the virtual equal of Macdonald in the accomplishment of Confederation. Yet Cartier’s view of Confederation remains something of a mystery. His most recent biographers have attempted to dispel the mystery but have arrived at conflicting conclusions. In one account, Cartier is presented as a leader who had the good sense to abandon the destructive French-Canadian nationalism of his youth and become in his mature years a liberal constitutionalist and a great Canadian nation-builder.29 In the other account, Cartier is viewed as a Montreal bourgeois who served the economic interests of his class and regarded Confederation as a means for the accomplishment of his bourgeois objectives.30 Despite their opposing assessments, Cartier’s biographers are agreed that he was a man of action rather than a political thinker. In one of the few systematic studies of Cartier’s political ideas, it is even suggested that “Cartier was not the man to whom abstractions appealed.”31 In fact, Cartier liked to point out that a man could read twenty books on national policy, and remain a political blunderer. But Cartier made at least one important exception to his own rule of political prudence. His great speech in support of Confederation, delivered in Quebec in 1865, contains the very abstractions that Cartier claimed to abhor. In it, Cartier addressed the vital issues of Confederation in a language more suited to the political theorist than to the practical politician. He spoke of justice and injustice, of democracy and mob rule, of national greatness, of assimilation and cultural pluralism.32 Cartier’s speech is not

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the work of an accomplished political thinker, yet students of Canadian federalism have turned to it as a crucial statement of the ideals and objectives of Confederation. For no student of Canadian federalism has Cartier’s speech had more significance than Donald Smiley. In his last book, Smiley spoke of “Cartier’s noble vision.”33 In an earlier work, Smiley relied on Cartier to establish that Canada must be one political community rather than two, otherwise “it is not worth preserving.”34 Smiley understood the core of Cartier’s position to be the rejection of assimilationist nationalism coupled with the belief that political allegiance should be uninfluenced by linguistic and cultural affiliation.35 Put differently, Canada is sometimes said to be a country based on “limited identities”; it is a country based on political allegiance alone, or a country that does not impose a single way of life on its citizens.36 Canada may be the kind of country that Cartier wished it to become, but what still needs to be made explicit is the foundational value that unites Canadians. If Canadians are so different among themselves, what moral value keeps them together? Cartier himself provided no simple or direct answer to this question. Those who have come after him, however, have been more explicit. Pierre Trudeau once argued that Canadian federalism was incompatible with emotional appeals and should base itself on reason. For Trudeau, federalism rejected the emotionalism of separatists and nationalists and based itself on the rational consensus that held Canadians together.37 William Morton pinned his hopes on the Canadian belief in mutual accommodation and tolerance. And A.R.M. Lower would not allow himself to believe that “we [have] lived together for [so long] merely to see the Canadian experiment fail.”38 These answers may be satisfactory in themselves, but they are feeble responses to the kind of challenge that federalists must meet. Nationalists and separatists, after all, do not appeal solely to emotion. Their strongest appeal is to community. They insist that there is a common bond and natural identity among those who share a language or a culture. If Canadian federalism is to be regarded as more than a political or economic expedient, then it must draw on a value that can rival the moral appeal of nationalism. The value required appears to be implicit in Cartier’s vision of Confederation and his corresponding idea of a Canadian political nationality. For Cartier, Confederation had three great objectives, one of which was shared by virtually all those who supported it. Confederation, Cartier said, “was necessary for our commercial interests, prosperity and efficient defense.”39 But Cartier was also devoted to the French



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nationality, and he believed that the union of French and English in a British North American Confederation was the best assurance of the survival of the French race.40 Having said that Confederation provided economic advantages as well as guarantees for the survival of the French race, Cartier might have concluded his speech. Yet he went on to say that Confederation would bring into existence a new kind of nationality. Confederation would be unacceptable if French and English had come together merely to war with each other; it would be equally unacceptable if it created an all-inclusive Canadian nationalism.41 If Confederation was to succeed, it had to create a new kind of nationality, which Cartier called a political nationality. By advocating the creation of such a nationality, Cartier did not simply reject assimilationist nationalism; he also envisaged a new kind of relation between people with different languages and cultures. “We were of different races,” Cartier said, “not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.”42 Cartier was not appealing merely to the economic advantages of co-operation. Cartier did have a great vision of national development, but even his vision of national development, as John Cooper observed, “had an importance beyond the strategic or the commercial.” For Cartier, projects of national development presupposed a degree of co-operation that would join all British America “in the bond of common endeavour” and produce “a common, or national pride.”43 Cartier also believed that French and English shared an identity. “We had,” Cartier said, “the same sympathies and we all desired to live under the British Crown.”44 For Cartier, Canada was to be a country in which different ways of life flourished, but whose peoples had come together to promote the good of all and were united by a political nationality with which “neither the national origin, nor the religion of any individual would interfere.”45 By joining in Confederation, French and English agreed both to live apart and to live together. Canada would stand for a new kind of nationality and a new kind of fraternity. Cartier did not himself use the word fraternity, yet his discussion of a Canadian political nationality appears to presuppose it, at least in some measure. Of course, the Canadian political nationality could be only a partial fraternity; it could not require intense emotional bonds between French and English or demand a complete identity of sentiments and interests. What the Canadian fraternity did suppose was that peoples with distinctive ways of life could possess good will towards each other, participate in common endeavours,

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develop and sustain common allegiances and common sentiments, and operate political institutions for the welfare of all. Cartier spoke of such things, but left them nameless. There is, however, a tradition of Canadian federalism – to which Cartier appears to belong – that explicitly connects federalism and fraternity. “The fatherland, for us,” wrote Henri Bourassa, “is the whole of Canada, that is a federation of distinct cultures and provinces.” French and English are separated by language and religion, Bourassa added, “but united in a sense of brotherhood.”46 If Cartier’s political nationality as well as a tradition of Canadian federalist thought contain within them an appeal to fraternity, then federalists can respond to the separatist challenge by appealing to a value that nationalists themselves embrace. When nationalists and separatists describe their country as their “fatherland,” they imply that citizens should treat each other as brothers and sisters. The value that nationalists appeal to is fraternity. It is the imagining of fraternity, as Benedict Anderson has observed, that gives meaning to the nationalist’s idea of the nation and motivates citizens willingly to die for it.47 The fraternity of nationalism unites a strong emotional content with the sentiments of kinship, friendship, and love in the heightened atmosphere of something like religion.48 Nationalists embrace a primordial idea of fraternity, attach it to the nation, and use it to characterize the type of relation that exists between those who share a culture or a language or a way of life. But the concept of fraternity is more complex than nationalists appear willing to allow. What nationalists fail to notice is that the idea of fraternity looks two ways. Fraternity looks to those who share a way of life; it also looks to those who have adopted alternative ways of life. There is no greater fraternity than the brotherhood and sisterhood of all people.49 Moreover, it may not be possible to confine fraternity in the way that the nationalist programme presupposes. “If fellowship,” it has been asked, “is morally compelling in part because it connotes respect and concern for others…, is it not compromised when confined in expression to a particular group of people?”50 Nationalists want to confine fraternity; federalists want to expand it. Moreover, the fraternity of federalism does not necessarily exclude the fraternity that nationalists seek to realize, since federalism divides the identities and loyalties of citizens and assumes that each citizen will be a member of two communities. Henri Bourassa appealed to such an idea when he insisted that French-Canadian patriotism must include all Canadians. “Our duties,” he wrote, extend not only “toward ourselves and our nationality” but also “toward Canada and our fellow citizens of



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a foreign origin.”51 Duties to other Canadians may sometimes conflict with the duties towards the French-Canadian nationality, but both can be duties of citizenship and fraternity. Of course, fraternity is too important an ideal to be confined only to other Canadians. This is why federalists can envisage the disappearance of Canada.52 Federalists turn not to Aristotle but to Thucydides: Aristotle was unable to imagine a world without Athens; Thucydides could see a world in which Athens was no more. Federalism as a Way of Life Federalism is not simply a moral ideal. It is also a constitutional device that has crucial implications for the kind of life that citizens can live. Politicians and ordinary Canadians understand as much. That is why some Canadians complain that the constitution is not federal enough, while others believe that federalism is inhospitable to their way of life. Canadian constitutional scholars, however, normally prefer to analyze federalism formally with almost no regard to its substantive moral content. Not only does formal federalism leave the most important issues to the political process, but it transforms federalism into another form of politics. As a form of politics, federalism may fail to realize the way of life presupposed by it. Even political theorists do not give sufficient attention to the moral dimensions of federalism. Political theorists almost always connect federalism with the political virtues. Federalism, it is often said, is a form of pluralism; and pluralism implies diversity and freedom.53 The Constitution of the United States is often considered the most famous example of such an understanding of federalism. Federalism has also been connected with civic humanism and the republican tradition, both in Europe and America.54 In European political thought, it was Pierre Joseph Proudhon who most closely linked federalism with democracy and civic humanism. For Proudhon, federalism was a device for enhancing citizen participation in atomized societies.55 Others, like Lord Acton, regard federalism as the solution to the problem of totalitarian nationalism; by dividing loyalties, federalism prevents the all-inclusive politics that such nationalism presupposes.56 When federalism is taken to be a political virtue, it is almost always connected with one of the dimensions of freedom, and, as such, either neglects or undervalues the moral importance of community. As a political virtue, federalism appears to express no more than “agnosticism

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about community.”57 But federalism can also be a moral virtue. As a moral virtue, federalism rejects agnosticism and affirms the moral importance of community. Moreover, the moral virtue of federalism is such that it aims to realize the two types of fraternity together with the communities they imply. American and European federalists appear to give primacy to the political virtues, but Canadians can ground federalism in the moral value of fraternity. The fraternity of Canadian federalism is expressed not only through regional equalization schemes, but also through the welfare state. These features of Canadian federalism, Pierre Trudeau has written, “give Canadians a sense of belonging to one nation.”58 National social and economic programmes, Deborah Coyne has written, contribute “to our sense, however fragile, of shared national community.” They express “our commitment to promoting greater social justice and a fairer, more compassionate society.”59 The Charter of Rights and Freedoms was directed at a similar objective. It aimed, however imperfectly, at creating a common identity and fellowship among all Canadians. Canada, it is sometimes suggested, is superior to the United States because it is a more humane and fraternal society.60 If Canada is such a society, the reason is that fraternity has been a concern not only of Canadian socialists but also of Canadian federalists. Unlike socialists, however, federalists value diversity. Moreover, the diversity that federalists value is itself a type of fraternity. There is a kind of fraternity that can be realized only in local and regional communities, or only by those who share a culture or a language. Individuals who are deprived of their culture or local community cannot sustain themselves. Outside my community or culture, Charles Taylor has written, “I wouldn’t know who I was as a human subject … I would be unable to function as a full human subject.”61 Federalists are not universalists, precisely because they value local communities and local cultures. But federalists are not particularists either. The imaginative feat of federalism is that it uses the complex concept of fraternity to accommodate both the universal and the particular within the same state. Why Federalism Matters Academics spend endless amounts of time studying federalism, William Riker has complained, even though federalism makes “hardly any difference at all” in the way people are governed.62 But Riker was



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writing as a political theorist and behavioural political scientist, rather than as a moral philosopher. Federalism can matter morally because it can seek to realize fraternity. Some Canadian students of federalism have understood as much, although they have not always expressed themselves adequately. They have said that Canada is a tolerant society, or based on mutual accommodation, or allows many ways of life to coexist. But there is more to the Canadian experiment. Canada is a country in which many ways of life flourish, but it is also a country that has attempted to create a single way of life. Canadians have diverse ways of life and a common way of life precisely because they have sought to realize the complex but powerful ideal of fraternity. Fraternity, however, is a difficult ideal to realize. Not only has Canada sometimes failed to realize fraternal relations between French and English Canadians, but Aboriginal Canadians have not been treated fraternally at all. Their treatment has been paternalistic, and their demand for native self-government within Canada can be interpreted as a demand that the ideal of fraternity should apply to them as well. Federalism can facilitate the realization of such a demand because it enables each citizen to have two loyalties and two identities. As federal citizens, Aboriginal Canadians would retain their distinctive way of life and share in a way of life that is common to other Canadians. But there are limits to what federalism can accomplish. The very divisions of federalism can also frustrate the realization of fraternity, since they do not preclude conflict between the ways of life that are constitutive of Canada. When such a conflict occurs, it not only turns Canadians against each other, but often creates a tension within each citizen. To eliminate the conflict completely, it would be necessary to abandon federalism and embrace either particularism or universalism.63 To embrace particularism or universalism, however, is to reject the Canadian experiment and to give up a way of life. There are, of course, ways of thinking about federalism that do not give prominence to fraternity. Federalism can be regarded as a political and economic expedient with almost no moral content. When federalism is viewed in this way, it is an institutional arrangement that divides powers between national and local governments but makes no attempt to develop a common way of life among all citizens. Canadians are familiar with such an understanding of federalism and have come to know it as consociational federalism. A key assumption of consociational federalism, as Arend Lijphart has observed, is that social peace

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is possible in culturally heterogeneous societies only if the subcultures are kept separate. “Close contacts,” Lijphart has written, “are likely to lead to strain and hostility.”64 Canadians also have available to them an image of federalism that disputes Lijphart’s assumption. The beginnings of the alternative image can be traced to Confederation and to Cartier’s idea of a Canadian political nationality. Henri Bourassa contributed to the alternative image, as did Pierre Trudeau. Trudeau illuminated one dimension of the alternative image when he said that British Columbians could “go it alone” but agreed to pay taxes to the federal government so that some of the money could be used “to help the less fortunate provinces.” Regional economic inequities, Trudeau added, can lead to disunity “if we are not willing to consider that we are our brother’s keeper in all of Canada.”65 The alternative image sees federalism as the means that enables different nationalities both to live together and to live apart. “Federalism,” K. C. Wheare wrote, “has provided a device through which differing nationalities could unite, and while retaining their own distinctive national existence, attempt to create in addition a new sense of common nationality.”66 There is a tradition of Canadian federalist thought that shares K.C. Wheare’s idea of federalism, links it to the two faces of fraternity, and makes moral demands both on citizens and governments. NOTES 1 Samuel V. LaSelva, “Federalism as a Way of Life: Reflections on the Canadian Experiment,” Canadian Journal of Political Science, 26, 2 (1993), 219–234. 2 Pierre Trudeau, Federalism and the French Canadians (Toronto: Macmillan, 1968), 179. 3 Lord Acton, Essays on Freedom and Power (New York: Meridian, 1955), 160. 4 Kenneth McRae, “The Plural Society and the Western Political Tradition,” Canadian Journal of Political Science, 12 (1979), 676. 5 See, for example, William Livingston, Federalism and Constitutional Change (Oxford: Clarendon Press, 1956), 1–15. 6 Alan Cairns, Disruptions: Constitutional Struggles, from the Charter to Meech Lake, ed. Douglas E. Williams (Toronto: McClelland and Stewart, 1991), 108. 7 See K.E. Swinton and C.J. Rogerson, eds., Competing Constitutional Visions (Toronto: Carswell, 1988).



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8 Berend Hovius and Robert Martin, “The Canadian Charter of Rights and Freedoms in the Supreme Court of Canada,” Canadian Bar Review 61 (1983), 354. 9 Charles Taylor, “Alternative Futures: Legitimacy, Identity and Alienation in Late Twentieth Century Canada,” in A. Cairns and C. Williams, eds., Constitutionalism, Citizenship and Society in Canada (Toronto: University of Toronto Press for Supply and Services Canada, 1985), 225. 10 Cairns, Disruptions, 43. 11 Donald Smiley, “A Dangerous Deed: The Constitution Act, 1982,” in K. Banting and R. Simeon, eds., And No One Cheered (Toronto: Methuen, 1983), 78–81. 12 Cairns, Disruptions, 108. 13 S.J.R. Noel, “Consociational Democracy and Canadian Federalism,” in Kenneth McRae, ed., Consociational Democracy (Toronto: McClelland and Stewart, 1974), 267. See also J.A. Laponce, Languages and Their Territories (Toronto: University of Toronto Press, 1987). 14 Alan C. Cairns, Charter versus Federalism (Montreal and Kingston: McGillQueen’s University Press, 1992), 3–10. 15 See, for example, W.H. Walsh, “Open and Closed Morality,” in B. Parekh and R.N. Berki, eds., The Morality of Politics (London: George Allen, 1972), 17. 16 A.V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1959), 142–143. See also Richard Vernon, “The Federal Citizen,” in M. Westmacott and R. Oiling, eds., Perspectives on Canadian Federalism (Scarborough: Prentice-Hall, 1988), 4. 17 Carl Berger, The Writing of Canadian History (Toronto: Oxford University Press, 1976), 232–233. 18 For a compelling critique of Macdonald’s views, see Robert Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991). 19 A.R.M. Lower, Evolving Canadian Federalism (Durham: Duke University Press, 1958), 25–26. 20 Frank Scott, Essays on the Constitution (Toronto: University of Toronto Press, 1977), 5. 21 For a discussion of the tensions between commercial empire and cultural particularisms, see George Grant, Lament for a Nation (Toronto: McClelland and Stewart, 1970), 40–41, 54–55, 76. 22 A.I. Silver, The French-Canadian Idea of Confederation 1864–1900 (Toronto: University of Toronto Press, 1982).

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23 Michel Brunet, “The French Canadians’ Search for a Fatherland,” in Peter Russell, ed., Nationalism in Canada (Toronto: McGraw Hill, 1966), 56–60. 24 René Lévesque, An Option for Quebec (Toronto: McClelland and Stewart, 1968), 26. 25 Richard Handler, Nationalism and the Politics of Culture in Quebec (Madison: University of Wisconsin Press, 1988), 49. 26 Peter J. Smith, “The Ideological Origins of Canadian Confederation,” this Journal 20 (1987), 3. 27 A. Lovejoy, The Great Chain of Being (Cambridge: Harvard University Press, 1964), 292. 28 David J. Elkins and Richard Simeon, Small Worlds: Provinces and Parties in Canadian Political Life (Toronto: Methuen, 1980), 286–287. 29 Alastair Sweeny, George-Étienne Cartier (Toronto: McClelland and Stewart, 1976), 11, 104, 327. 30 “Business, church and ethnic leaders used Cartier,” Brian Young has written, “as their agent and intermediary in imposing their largely harmonious class interests.” See Brian Young, George-Étienne Cartier: Montreal Bourgeois (Montreal and Kingston: McGill-Queen’s University Press, 1981), 135, xi. 31 John Cooper, “The Political Ideas of George Étienne Cartier,” Canadian Historical Review 23 (1942), 286. 32 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose, 1865), 53–62. Henceforth cited as Confederation Debates. 33 D.V. Smiley, The Federal Condition in Canada (Toronto: McGraw-Hill Ryerson, 1987), 143. 34 Donald V. Smiley, The Canadian Political Nationality (Toronto: Methuen, 1967), 128. 35 Donald Smiley, “Reflections on Cultural Nationhood and Political ­Community in Canada,” in K. Carty and P. Ward, eds., Entering the Eighties: Canada in Crisis (Toronto: Oxford University Press, 1980), 28. 36 J.M.S. Careless, “‘Limited Identities’ in Canada,” Canadian Historical Review 50 (1969), 1. See also W.L. Morton, The Canadian Identity (Toronto: University of Toronto Press, 1972), 85, 111. 37 Trudeau, Federalism and the French Canadians, 194–197. 38 A.R.M. Lower, “Two Ways of Life: The Primary Antithesis of Canadian History,” in Carl Berger, ed., Approaches to Canadian History (Toronto: University of Toronto Press, 1967), 28. 39 Confederation Debates, 56, 55, 59. 40 Ibid., 57.



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4 1 Ibid., 60. 42 Ibid. By joining in the larger union, wrote A.R.M. Lower, “the two races surely tacitly agreed to bury the hatchet and to try to live amicably together” (Evolving Canadian Federalism, 16). 43 Cooper, “The Political Ideas of George-Etienne Cartier,” 291. 44 Confederation Debates, 59. 45 Ibid., 60. 46 Cited in Ramsay Cook, Canada, Quebec and the Uses of Nationalism (Toronto: McClelland and Stewart, 1986), 190. 47 Benedict Anderson, Imagined Communities (London: Verso, 1991), 7. See also Anthony Smith, National Identity (Harmondsworth: Penguin, 1991), 76. 48 E.J. Hobsbawn, “Fraternity,” New Society 3 (1975), 472. 49 See W.W. Tarn, “Alexander the Great and the Unity of Mankind,” Proceedings of the British Academy 19 (1933), 137, 146. Tarn discusses a type of fraternity that rejects assimilation and takes account of diversity. See also Henri Bergson, The Two Sources of Morality and Religion (New York: Anchor Books, 1935), 77–78; James Fitzjames Stephen, Liberty, Equality, Fraternity (Cambridge: Cambridge University Press, 1967), 221; and Nathan Glazer, “Liberty, Equality, Fraternity – and Ethnicity,” in his Ethnic Dilemmas 1964–1982 (Cambridge: Harvard University Press, 1983), 228–229. 50 Caroline McCulloch, “The Problem of Fellowship in Communitarian Theory,” Political Studies 32 (1984), 447. 51 Henri Bourassa, “French-Canadian Patriotism,” in R. Cook, ed., FrenchCanadian Nationalism (Toronto: Macmillan, 1969), 119. 52 Trudeau, Federalism and the French Canadians, 177. See also Smiley, The Canadian Political Nationality, 132–134. 53 Preston King, “Against Federalism,” in R. Benewick, ed., Knowledge and Belief in Politics (London: George Allen, 1973), 152. 54 For a discussion of the complexities of American federalism and its connection with civil humanism, see Isaac Kramnick, “The ‘Great National Discussion’: The Discourse of Politics in 1787,” William and Mary Quarterly 45 (1988), 15–23. See also Thomas Pangle, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988), 28–39. 55 Richard Vernon, “Freedom and Corruption: Proudhon’s Federal Principle,” Canadian Journal of Political Science, 14 (1981), 775. 56 Vernon, “The Federal Citizen,” 11. 57 R. Whitaker, Federalism and Democratic Theory (Kingston: Institute of Inter­­ governmental Relations, 1983), 45, 32. 58 Donald Johnston, ed., Pierre Trudeau Speaks Out on Meech Lake (Toronto: General Paperbacks, 1990), 30–31.

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59 Deborah Coyne, “The Meech Lake Accord and the Spending Power Proposals: Fundamentally Flawed,” in Michael Behiels, ed., The Meech Lake Primer (Ottawa: University of Ottawa Press, 1989), 246. 60 Gad Horowitz, “Tories, Socialists and the Demise of Canada,” in H.D. Forbes, ed., Canadian Political Thought (Toronto: Oxford University Press, 1985), 353–59. 61 Charles Taylor, “Why Do Nations Have to Become States?” in S. French, ed., Philosophers Look at Confederation (Montreal: Canadian Philosophical Association, 1979), 22–23. 62 W. Riker, “Six Books in Search of a Subject or Does Federalism Exist and Does It Matter?” Comparative Politics 2 (1969–1970), 135, 145. 63 Compare Glazer, Ethnic Dilemmas, 228–229. 64 Arend Lijphart, “Consociational Democracy,” in McRae, ed., Consociational Democracy, 83. 65 Pierre Elliott Trudeau, Conversation with Canadians (Toronto: University of Toronto Press, 1972), 207–208. 66 Kenneth Wheare, “Federalism and the Making of Nations,” in Arthur Macmahom, ed., Federalism Mature and Emergent (New York: Russell & Russell, 1962), 35.

“1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered” Canadian Journal of Political Science 1989 Robert C. Vipond1

Introduction As cultures are created, so they are also imitated, reproduced, and replicated. The culture of the United States constitution is a case in point. A great deal has been said recently about the creation of an American constitutional culture in 1787. For non-Americans, however, what is perhaps more intriguing than the endless debates about “the Founders’ intentions” is the way in which that distinctively American constitutional culture has influenced the creation of their own fundamental laws. I propose here to consider one such case of cultural transmission by trying to disentangle some of the ways in which the US federal constitution of 1787 served as a model for the establishment of the Canadian federal constitution of 1867. The conventional wisdom among Canadian constitutional historians is that the American constitution was influential in Canada principally in that it served as a negative model. If the Canadian Fathers of Confederation held any truth to be self-evident, it was that the Americans had made a fundamental constitutional mistake in 1787, the terrible consequences of which were being played out at that very moment – the mid-1860s – on the battlefield. Thus the Canadians took care to say that theirs was to be a “constitution similar in principle to

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that of the United Kingdom”;2 that is, parliamentary and responsible rather than presidential and republican. And it is usually said that the Canadians, in designing a federal system, explicitly rejected the American model and the “federal principle” on which it is based. Peter B. Waite argues bluntly in this connection that “no understanding of Confederation is possible unless it be recognized that its founders, many of its supporters, and as many of its opponents were all animated by a powerful antipathy to the whole federal principle.”3 They were hostile, that is, to the idea that in a federal system the “general and regional governments [are] co-ordinate and independent in their respective sphere.”4 The Canadians drew their inspiration instead, as Ramsay Cook has reminded us, from the British Empire. “As has frequently been pointed out,” Cook notes, “the constitution-makers of 1867 took as their pattern not the American federal system, but rather the British Empire in which Ottawa replaced London and the provinces assumed the role of colonies.”5 The purpose of this article is to challenge this long-standing interpretation of the origins of the Canadian Confederation. The fundamental problem with this conventional view, I will argue, is that it underestimates the extent to which the meaning of the federal principle was in flux during the period 1864–1867. It is true that the Canadian political elite was horrified by the Civil War, and it is true, as Waite, Cook, and others say, that many of the Confederationists inferred from their reading of the causes of the war that the federal principle as traditionally understood was inherently unstable. But for a significant number of Confederationists – drawn especially from the ranks of the Reform party of Upper Canada and the conservative Bleus of Lower Canada – the Civil War did not discredit the federal principle so much as it issued a challenge to place federalism on a more secure constitutional footing. The irony is that in their efforts to reconceptualize federalism to overcome the weaknesses of John Calhoun’s states’ rights understanding of the American constitution, these other Confederationists ultimately defended their proposal in terms that were strongly reminiscent of the Federalists’ classic exposition of constitutional federalism. They usually did not acknowledge the similarity explicitly; indeed, it is by no means clear that these Confederationists understood that they were indebted to the likes of James Madison and James Wilson. The parallel is nonetheless striking, and it suggests that the roots of constitutional federalism in Canada were put down somewhat earlier than is usually thought. Having rejected one model of American federalism, these



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Canadian reformers came in their own way and on their own terms to imitate the other, now authoritative model of American constitutional federalism. The creation of the Canadian federal constitution thus provides another example of one of the deepest patterns of Canadian political culture: the habit of accepting things American while claiming to reject them. Political Federalism Macdonald, Cartier, and Brown are as central to the Canadian creation myth as Publius, the collective author of The Federalist, is to the American.6 These were the “Fathers” who, at a decisive moment, joined together to seize the opportunity of “founding a great nation” by giving it a “Constitution.”7 However, as mythic figures the Fathers of Confederation have never been as successful as their American counterparts. Despite their best efforts to portray themselves as heroic legislators, they have never been idolized and revered in the way Madison, Hamilton, Jefferson, and others have been in the United States. One reason for the difference is that the Canadians were engaged in an enterprise that was simply less amenable to myth-making. Notwithstanding their own conceits, the Fathers of Confederation were not “founding” a political state in the way it is often said the American constitution-­ makers were “Founders.” In the Canadian case there was no self-­ conscious break with the past; indeed, the Fathers of Confederation went out of their way to emphasize that Confederation represented continuity and had been achieved “under the fostering care of Great Britain, and our Sovereign Lady, Queen Victoria.”8 There was, therefore, no need to expound first political principles or to weave together a set of authoritative public values in the way Publius did. It was enough to say that as Canadians they wanted to inherit a “constitution similar in principle to that of the United Kingdom.”9 For much the same reason, there was no need to develop a new approach to understanding politics, a new political science, if you will, to provide a new perspective on these first principles. Fundamental questions about the purposes and organization of government, with which Publius had concerned himself and on which his mythic reputation is based, simply were not raised in the debate leading to Confederation. The fundamental political choices had already been made, and with those implicit decisions went the best opportunity for the Fathers of Confederation to establish themselves as self-conscious, deliberate founders.

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Yet as a number of the critics of the Confederation proposal noted, the Confederation coalition was even reluctant to explain and clarify the features of the plan that were novel – especially those concerning federalism.10 This reluctance was in part strategic. Macdonald, Cartier, and Brown understood perfectly well that their coalition ran clearly against the grain of Canadian politics, and they knew that their opponents were waiting for an opportunity to rekindle the rivalries that had been set aside temporarily. They therefore went out of their way to exaggerate what they had in common and to abstract from or simply ignore their differences. Given the imperative to maintain the unity of the coalition, it was crucial to confine the discussion as much as possible to the most general level where agreement could be assured, rather than descending to a detailed examination of the proposals, where disagreement almost certainly would have surfaced. Moreover, since the Quebec Resolutions were presented to the Canadian assembly as a fait accompli to be voted up or down, it was doubly necessary to create the impression of unity. Had the Quebec Resolutions been placed before the electorate for ratification, it might well have been in the coalition’s interest to stress that this was a collaborative effort that was democratically heterogeneous and that invited a wide variety of views and interpretations. As it was, the Resolutions were placed before the Canadian Legislative Assembly more in the form of a governmental measure in which differences had to be suppressed in favour of cabinet solidarity. The debates on the Confederation proposal that were held in the Canadian Legislative Assembly in 1865 betray this strategic circumspection particularly clearly. At the most general level, the tripartite coalition agreed that federalism was the only acceptable constitutional remedy for the various ills besetting British North America. They agreed, further, that federalism meant dividing legislative jurisdiction between a national Parliament, which would legislate on those matters of “general” or “national” interest, and several provincial legislatures, which would have the authority to pass laws on matters of “local” significance. But most supporters of the Confederation proposal did their best to avoid giving these general propositions substance. Most speakers were little inclined to explain how precisely the local was to be distinguished from the general; how conflicts of jurisdiction were to be resolved; and whether federalism was compatible with the protection of minority rights, or other crucial matters of substance in a federation. In some cases the dogged refusal to examine the substance of the Confederation proposals became comical. C.B. de Niverville, a



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Bleu (or Conservative) member from Trois-Rivières, spoke in favour of Confederation even though he had not read the resolutions and even though, lacking English, he had been unable to follow the debate in the Assembly.11 Nor was the flight from substance confined to the backbenches. John A. Macdonald himself avoided speaking to the question of conflict of jurisdiction by stating unequivocally (and quite absurdly) that the constitutional architects had managed to avoid “all conflict of jurisdiction and authority.”12 It is not as if the Confederation proposal was crystal clear. The coalition’s unwillingness to discuss matters of substance in any detail was especially noticeable and unsatisfying because the text of the proposal seemed to contradict the very federal principles that it was meant to embody. The coalition agreed, for instance, that in the proposed federation the provincial legislatures would enjoy full, indeed “exclusive,” control over local affairs.13 Yet the text that, read one way, seemed to guarantee local self-government could be read with equal ease as a massive hedge against local control. The federal government was given a general, residual power to legislate for the “peace, order and good government” of the country, a potentially vast power illustrated, but apparently not limited, by an additional enumerated list of legislative powers.14 The provinces were not given the fiscal capacity to match their constitutional responsibilities; from the start they depended on federal subsidies.15 The federal government was given the power to claim jurisdiction over “local works and undertakings” by declaring them to be “for the general advantage of Canada.”16 The power of disallowance gave the federal government the right to veto any act of a provincial legislature as long as it did so within one year of the act’s passage.17 The federal government was to appoint a lieutenant-governor in each province who had the power to reserve assent from (or effectively prevent the passage of) provincial legislation.18 Even in the crucial area of sectarian education, the constitutional settlement deviated from the principle of complete provincial control. By Section 93 of the BNA Act, the federal government was given the power to oversee minority educational rights in any province in which a system of separate schools existed by law at the time the province entered Confederation. Section 93 further provided that, if necessary, the federal government may impose remedial legislation upon an offending province.19 None of these provisions could be reconciled easily with the official claim that under the terms of the Confederation settlement each province would be free to legislate on all matters of peculiar importance to

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it – something the many critics of Confederation repeatedly pointed out. The most perceptive of these critics were Antoine-Aimé and Jean Baptiste Eric Dorion, Rouge representatives from Lower Canada, who insisted that Confederation would become for all intents and purposes a unitary government because the provinces would be both too weak and too vulnerable to defend themselves against the imperious and meddlesome designs of the federal government. What the Dorions had wanted was a “real Federal system” in which the member states “retain their full sovereignty in everything that immediately concerns them, but submitting to the General Government questions of peace, of war, of foreign relations, foreign trade, customs and postal service.”20 What had been proposed instead was “a Legislative Union in disguise” in which “the Federal Parliament will exercise sovereign power inasmuch as it can always trespass upon the rights of the local governments without there being any authority to prevent it.”21 The great force of the Dorions’ criticism was that it related the new and unfamiliar proposals for Confederation to one of the basic concepts of Anglo-American political discourse – sovereignty. Gordon Wood has shown how the debate leading to the ratification of the American constitution was informed by Blackstone’s axiom that there must be in every political system “a supreme, irresistible, absolute, uncontrolled authority, in which … the rights of sovereignty reside.”22 And he has described brilliantly how this assumption that sovereignty is indivisible became “the most powerful obstacle” to the acceptance of the federal Constitution.23 Blackstone’s axiom was no less important in the debate leading to Confederation and no less powerful an obstacle to its coherent defence. For the Dorions, as apparently for most educated Canadians, the idea of sovereignty was the anchor for virtually all political analysis, even if they were typically less inclined than Americans to identify this foundation explicitly.24 In making sovereignty the focus of their analysis of the Confederation scheme, the Dorions immediately clarified the choices and hardened the alternatives. For if Blackstone was right that sovereignty is indivisible, then, as the Dorions showed, there could really be only two ways of forming a broader political association in British North America. At the one extreme, sovereignty could be lodged in some central authority that had the legislative power to make laws for all the colonies or provinces; this was what was meant by a legislative union. At the other extreme, each member of the association could remain sovereign or supreme; this was the legal description of what the Dorions called a federal



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union. In either case the sovereign power could “delegate” law-making authority to some “subordinate” body. In a legislative union, authority could be delegated to provincial legislatures in much the same way that authority was traditionally delegated to municipal or county councils or in the way that the imperial Parliament “delegated” power to the colonial legislatures. Conversely, in a federal union, authority could be delegated in various ways from the individual sovereign states to a common congress. But in either case the delegated power ultimately existed at the sufferance of the sovereign. Power could be withdrawn, supervised, influenced, and controlled by the one supreme authority. Judged by the criterion of sovereignty, it was clear to the Dorions that the Confederation proposal was misnamed. This was not a “real confederation, giving the largest powers to the local governments, and merely a delegated authority to the General Government.”25 Rather, the various elements of the Confederation plan, taken together, established a clear pattern of national hegemony. The extraordinary, potentially limitless power to legislate for the peace, order, and good government of the country; the veto powers lodged in the federal government; the creation of federally appointed governors in each province; the power to declare local works in the national interest – all of this was incontrovertible evidence that the provincial legislatures would have no real control over local affairs because they were not sovereign. In the Confederation plan “all the sovereignty is vested in the General Government”;26 conversely, “all is weakness, insignificance, annihilation in the Local Government.”27 As another member put it, under the Confederation scheme local governments would be “nothing more than municipal councils,” which, in the case of jurisdictional collision, would be “completely at the mercy of the hostile Federal majority.”28 What was yet more damning was that the supporters of Confederation co-operated in their own indictment. Macdonald was particularly vulnerable to the charge of false advertising. He candidly admitted that he had only grudgingly accepted the proposal to create a specifically federal union, and even then his conversion was half-hearted. Federalism was a practical or political necessity for Macdonald, not something desirable in itself, and he did his best to limit this concession by ensuring that the federal government would always be able to judge and control precisely how much “individuality”29 the provinces should be allowed to display. For Macdonald the constitutional model from which the Canadian proposal was derived was not the American federation (which, after all, had been discredited by the Civil War)30 but the British

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Empire. Expressed in the language of sovereignty, Macdonald quite frankly admitted that the relation between Ottawa and the provinces would replicate the relation between the sovereign imperial Parliament and the colonial legislatures. “All the powers incident to sovereignty,” he argued, would be vested in the federal government, while “the local governments and legislatures” would be “subordinate to the General Government and Legislature.”31 The extent of provincial autonomy or liberty would depend on the judgment of the federal government, just as the extent of colonial freedom depended on the judgment of the imperial authorities. The provinces, like the colonies, might be allowed considerable room to legislate freely on those matters local in nature. But there could be no mistake, according to Macdonald, that in the final analysis the federal government was sovereign over the provinces just as the imperial Parliament was sovereign over Canada. Thus it is no coincidence that much of the apparatus of imperial supervision – the vetoes of reservation and disallowance and the office of lieutenant-­ governor, for example – found their way into the constitution of Canada as tools of federal supervision. This was to be federalism on the imperial model; this is what I will call “political federalism.” The position of the Upper Canadian Reformers32 is rather more difficult to categorize and describe, but here too there was considerable grist for the Dorions’ mill. The Reformers were well aware of the advantages of a strong central government. They were eager to develop the West, build industry, and promote trade. They realized that such development would require greater central co-ordination than a weak, statecentred federation could provide, and they understood perfectly well that Upper Canada, by virtue of its greater political and economic power, would be able to dominate national affairs. Moreover, the Reformers appreciated the disadvantages associated with traditional state-centred federalism. For most of the Upper Canadian Confederationists, traditional federalism was synonymous with American federalism – a model that in 1864 hardly invited imitation. In light of the Civil War, most Reformers simply concluded that to confer sovereignty on the states was tantamount to sowing the seeds of national dissolution. The Toronto Globe, George Brown’s newspaper, put it this way: The civil war … has afforded an excellent opportunity of judging of the weak points and defects in the United States constitution. It has especially shown the evil which the “States-rights” doctrine involves. The idea of the United States constitution is that the central government is a delegated



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government, deriving its powers from the “sovereign” States which go to make up the Union. The constitution provides that the President and Congress shall have certain powers which the States have covenanted to give up to it. All others are vested in the States. This idea, pushed to the extreme, lies at the basis of what is known as the Calhoun doctrine, and was held thirty years ago, to justify the attempt of South Carolina to “nullify” a certain Act of Congress. The same thing is now relied upon by the secessionists to justify their efforts to withdraw their States from the federal compact.33

The Globe recognized that the Civil War could not be explained in terms of these constitutional defects alone. But it had to admit that Calhoun’s radicalization of the constitutional principle of state sovereignty had “served to weaken the authority of the general Government at Washington” and had furnished “the secession leaders with an exceedingly plausible argument.”34 This was not, therefore, an example to be followed. The Reformers’ aversion to state sovereignty forced most of them to concede that the only alternative to this state-centred federalism was to vest sovereignty squarely in the hands of the central government. As long as they remained loyal to the language of Blackstone, they had no choice but to think of federalism as “an extension of our municipal system” in which the provincial legislatures would be “subordinate” to the federal government, their powers “delegated” by the federal government.35 Indeed, lacking the attributes of sovereignty, George Brown’s Globe argued that it would be advisable to keep “the local governments as simple and inexpensive as possible.”36 It clearly would be unnecessary to have two legislative chambers in each province, and the Globe even cast doubt on the necessity of bothering with a truly responsible government. After all, the Globe said, the federally appointed “Governor” of each province would probably have a veto on the legislature’s acts, and “a responsible ministry in each province would certainly not be the cheapest system which could be adopted.”37 The Reformers put the best possible face on this situation. They argued valiantly that the federal government would understand that it was not in its interest to become embroiled in local affairs, and they maintained that the Senate would protect the smaller provinces from being bullied.38 Yet at base these were guarantees, like Macdonald’s, that depended on the good graces of a central government that was sovereign over provincial governments that were legally subordinate. The

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critics of Confederation could see no difference between the Reformers’ understanding of “political federalism” and Macdonald’s, and this remains the conventional scholarly view of the Confederation settlement as well. It seems fair to say that most scholars agree with J.C. Morrison’s conclusion that the Reformers “recognized the true nature of the system which it was proposed to establish”; that they “committed their party to the support of such a Government”; and that therefore “[t] here seems no basis whatsoever for the subsequent cry, raised first in Ontario, that the intention of the Fathers of Confederation” was to create “a truly federal system.”39 What this view ignores, however, is that the Reformers were themselves clearly uncomfortable with this conception of federalism because they, too, realized that it offered insufficient protection for the autonomy of local governments. The Reformers, after all, were committed by ideology and tradition to local control of local affairs. The roots of that tradition can be traced at least as far back as the 1820s, and it had been given special force in the 1860s by their perception that under the existing constitutional system Upper Canada had been “dominated” by French Canada. Indeed, since at least 1859 some form of federal system in which separate Upper and Lower Canadian legislatures would control local affairs had been one element of the Reformers’ official constitutional response to the problem of political deadlock in Canada.40 Thus while it is perfectly true that the Reformers wanted a strong central government, especially one in which Ontario would dominate by virtue of its greater population, they simply did not see that the achievement of “Rep. by Pop.” and strength at the centre were in any way incompatible with their traditional goal of local control. What the Reformers really wanted to create was a federal system that would provide both strong, united direction at the centre together with clear constitutional protection for local government at the periphery. As the Globe put it, “We desire local self-government in order that the separate nationalities of which the population is composed may not quarrel. We desire at the same time a strong central authority. Is there anything incompatible in these two things? Cannot we have both? What is the difficulty?”41 The difficulty was with the traditional understanding of federalism, and as long as the Reformers accepted the doctrine of undivided sovereignty, these desiderata – central power and provincial autonomy – were indeed incompatible. But as the Reformers were pressed, especially by Lower Canadians, to provide a more solid constitutional foundation for provincial government, they began to wonder aloud whether their



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choices were quite as limited as traditional federal principles seemed to suggest. The Reform supporters of Confederation were neither sufficiently presumptuous nor sufficiently sophisticated simply to reject the traditional doctrine of sovereignty outright. But in the period preceding Confederation they did begin, albeit tentatively, to offer a second description of Confederation that differed in subtle but important ways from Macdonald’s conception of “political federalism” that I have already described. While on the one hand the Reformers cleaved to the traditional language of legislative and federal union, they asserted on the other that they were creating a new form of political organization that could be described neither as legislative nor as a federal union but was a “happy medium” between them, a “compromise” that would allow both for a powerful central government and legally secure provincial legislatures.42 This is what I will call “constitutional federalism.” Constitutional Federalism: The American Precedent The Reformers’ attempt to reach an acceptable constitutional compromise can best be understood in light of the American precedent that anticipated both their problem and their solution. To be sure, there is little evidence that the Confederationists explicitly patterned their understanding of federalism on the American model, and I do not mean to suggest that they did. What is nonetheless striking is that the Reformers defended a constitutional position in 1865 that was in many ways similar to the Federalists’ defence of the American constitution some eighty years before, and it will prove helpful for understanding the pre-­Confederation debate to bear in mind the American model. Like the Reformers, the Federalists were accused of creating a constitutional system that pretended to reserve an important place for the states but in fact would lead ineluctably to their annihilation. Like the Reformers, the Federalists were told that there could be no middle ground between the loosest form of confederation and outright consolidation. And like the Reformers, only more forcefully and clearly, the Federalists attempted to demonstrate that it was possible to dissolve the tension between these two forms of political organization, to create a constitution that was a defensible, principled compromise between them. In James Madison’s famous phrase, the United States Constitution was “in strictness neither a national nor a federal constitution; but a composition of both.”43 Madison’s explanation of this constitutional compromise is now taken to be the first and authoritative definition of modern, “classical,”

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or constitutional federalism.44 This definition turned on a reformulation of the idea of sovereignty and a qualified rejection of Blackstone’s authoritative teaching. For Blackstone the two great threats to liberty were anarchy on the one hand and kingly prerogative on the other. By defining sovereignty as the power to make laws, Blackstone provided an alternative to the traditional identification between sovereignty and the monarch’s will. By locating this sovereign law-making power in one body, even if that body was as complex as Parliament, he provided some final, ultimate political authority that would thereby foreclose the possibility of anarchy.45 For both reasons the British Parliament, which could make laws, delegate limited authority to other bodies (or rescind that authority), and enforce the laws became for Blackstone (and those who followed him) the central institution of British politics. For the Federalists (as indeed for the revolutionary generation of 1776), this identification of sovereignty with legislative will was inadequate either to protect liberty or maintain stability. Put bluntly, the pre-Revolution experience with Parliament suggested to the Americans that they could hardly count on Parliament to protect their liberties. Indeed, as authors of the Declaration of Independence understood very well, Parliament had actually co-operated in the oppression of America. Nor was this all. American experience under the Articles of Confederation suggested the still more sobering lesson that even indigenous, democratically representative legislatures could not be counted on to protect liberty, especially, but by no means exclusively, the right to accumulate and dispose of property. If Parliament or representative assemblies more generally threatened liberty, it would not do to allow them to be sovereign, and it was this more than anything that persuaded many Americans to rethink and ultimately to relocate the locus of sovereignty outside of government altogether – in the people-at-large. The Federalists were particularly quick to seize on this novel understanding of sovereignty because it helped them to see how they could create a constitutional system that would purge the “ill humours” they associated with excessively democratic government without actually abandoning democratic principles.46 Thus, while a state legislature or the Congress might be called sovereign in some “lower” or “secondary” sense of legislative power, the source of this power, sovereignty in the “higher” sense, rested with “the people.” The people, Publius argued, are “the only legitimate fountain of power.” They are the “ultimate authority” by which governments are constituted and “the common superior” to which all duly constituted governments are answerable.47



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This transfer of sovereignty from law-making bodies to the peopleat-large had enormous implications for the theory and practice of American politics because it made possible the conception of a government that was derived from, but not in any immediate way controlled by, the people. As Judith Shklar has pointed out, the effect of this transfer of sovereignty was to make the people the only legitimate source of authority; but the effect was also to replace the unmediated will of the people – their sovereignty – with a complex set of political and legal processes, federalism included.48 This transformation of the locus (and understanding) of sovereignty was especially important in the case of federalism because it made it possible to contemplate what had previously been unthinkable – the existence of two independent, fully constituted, sovereign governments within the same political system. The people, acting in their original, primal, constituent capacity could create two levels of government, empowered and limited by a constitution. It was no longer necessary to ensure that one level could control, and if necessary destroy, the other because both would be controlled by their “common superior,” the people or the constitution framed by the people. Sovereignty remained indivisible. It was vested, in this constituent sense, in the people. But at the same time, federal and state governments could be understood to be “coequal sovereignties,” as legally equal, independent, co-ordinate governments that derived their authority from and were protected by a constitution; governments that were sovereign in the sense that they had full or supreme power to act within the sphere defined by the fundamental law.49 Constitutional Federalism and Canada Madison described this new understanding as a compromise between outright nationalization and confederalism, and although it was later challenged, we recognize it quite clearly as the first description of classical or constitutional federalism. The members of the Canadian Confederation elite, however, did not recognize the Federalists’ project this way. They interpreted the federal provisions of the American constitution largely in the manner of John Calhoun, and to that extent they continued to believe that the American understanding of federalism, based on the sovereignty of individual states, was misguided beyond remedy. Yet while the Canadians were doing their best to distance themselves from Calhoun’s doctrine of state-based confederalism, they

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were simultaneously groping towards something that in crucial ways resembled the Madisonian understanding of constitutional federalism; and, as with Madison, this search began with a reconsideration of the idea of sovereignty. The Canadians of the 1860s took Blackstone’s understanding of sovereignty as their base. For them, as for Blackstone, sovereignty meant parliamentary sovereignty, and they therefore typically identified sovereignty with legislation or the power to make laws. Yet as the citizens of a largely self-governing colony, the Canadians came in their own way and through their own experience to appreciate the ambiguity of Blackstonian sovereignty. For while the imperial Parliament was sovereign over Canada, the Canadians well understood that this sovereignty did not express itself as directly or with the same bite as in Britain. At least since the time of Lord Durham, it was understood to be in the interest both of the colonies and of Britain to leave British North America to govern itself on matters that did not directly compromise or conflict with imperial interests. By 1864 Durham’s suggestion had become the basis of a well-established, if informal, proto-federal arrangement. To be sure, Parliament passed the basic laws by which the various colonial legislatures governed; it served as the ultimate appeal from colonial legislation; and it reserved the right to involve itself in Canadian affairs when its own interests – as it defined them – were at issue. Still, by 1864 the Canadian colonists had come to expect that Britain would not as a rule interfere in colonial politics. The Canadians thus understood quite well that sovereignty and legislative power, the source of legitimacy and actual governance, need not be identical. The Toronto Globe insisted, as Madison had, that it would be a mistake in framing or interpreting a constitution to assume that sovereignty and legislative power were simply synonymous. As the Globe noted, one could easily conceive of a government that was sovereign but that exercised little legislative power, having delegated “a very wide range of duties” to some other authority.50 Conversely, one could imagine a local government that legislated on a host of subjects even though it was not nominally sovereign. This was, after all, basically how the empire worked, and in Canadian eyes it provided a useful model. The conceptual wedge having been driven between sovereignty and legislative power, the debate over Confederation allowed (or perhaps forced) the supporters of the proposal to push the distinction still further so as to defend the Confederation proposal against those who believed it would lead to the destruction of local governments. In this



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respect the distinction between constituent sovereignty and legislative power was important to the Globe for much the same reason that it was important to Madison: it allowed the supporters of Confederation to break out of the familiar pattern of federal thinking, to find a “middle ground” that would secure a firm constitutional foundation for provincial legislation without sacrificing vigorous central leadership. The Dorions, to recall, had argued that under the terms of the Con­ federation proposal the federal government would be able to legislate on virtually any matter, no matter how local, and to override any provincial legislation, no matter how innocuous. Armed with the distinction between sovereignty and power, the advocates of Confederation were able to respond that this misrepresented the sovereign basis of Confederation and therefore underestimated the extent of provincial security. True, the federal government would be a powerful government, but it would not be a sovereign government in the full Blackstonian sense of the term. It did not create the provincial governments and could not destroy them; it could not unilaterally change the terms of the agreement and was not the final authority to which an aggrieved party could turn for redress. Only the imperial Parliament would be sovereign in this fundamental, constituent sense of the term. In the Canadian scheme, therefore, the imperial Parliament performed much the same function and was sovereign in much the same way that the people were sovereign in the United States; it would be the source and ultimate authority over the legitimate exercise of political power. By precisely the same reasoning, the BNA Act would do in Canada what the constitution did in the United States: it would legitimize, empower, and limit the various governments by law. Of course the substance of the Reformers’ understanding of sovereignty was not identical to the American, and they did not intend it to be. The Reform view maintained a world of difference between vesting ultimate sovereignty in the people and vesting it in the imperial Parliament, and guarded the difference jealously. The real beauty of the Reformers’ argument, therefore, was that it allowed them to adapt their comfortable loyalty to British imperialism to the new categories of American political science, to combine the substance of their British political culture with the forms of American government. Thus did the Reformers use their experience of British colonial politics to create a legal structure that in this crucial way resembled American constitutional federalism. Already by 1864 the Reform press (and even a few Conservative papers) had begun to put together the pieces of this novel federal

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understanding. A month before the Quebec Conference was convened, the Globe attempted to reassure its public, especially in Quebec, that if a federal union were created in British North America it would provide adequate protection for the integrity of local government: “When we speak of local provinces under a federal form of government, we do not mean mere County Councils, but legislatures empowered by the Imperial Legislature and the Crown to deal with specified matters, and enjoying a prescribed authority, with which ‘Congress’ will not be allowed to interfere. Such legislatures would be beyond the control of the central power, set apart from it, untouchable by it.”51 Untouchable, the Globe pointed out, because provincial jurisdiction would be protected by what Americans – and increasingly Canadians52 – called a constitution, a fundamental law over which neither federal nor provincial governments would have control: “The Lower Canadians who have been apprehensive that their rights would not be fully secured will be glad to see the proposition that the distribution of power between the local and general governments shall be clearly fixed by an act of the Imperial Legislature, and shall not be the work of the federal Parliament. This removes all fear of local privileges being tampered with.”53 Reporting on the Conference itself, the Hamilton Weekly Times concluded that “the functions of the general and local governments, and the subjects delegated to each, must be clearly defined in the constitution, so as to prevent collision and leave security for local interests, the whole to be embodied in an act of the Imperial Parliament.”54 For its part, the Toronto Leader noted that while the powers of the local governments would be “defined and limited,” they would be “conferred by Imperial authority” and so “practically” would not be “subject to recall.”55 The imperial Parliament, being the source of governmental power in Canada, was thus truly sovereign in the constituent sense of the term, and the BNA Act was, as in the United States, a fundamental law by which federal and provincial governments were both empowered and limited. So conceived, the Globe could conclude that under the Confederation scheme the federal government would be “precluded from any interference with the legislation of the local bodies, so long as they keep within constitutional limits, and we shall all be quite safe.”56 By 1867, the view that under the Confederation scheme the provinces would be able to legislate without interference from the federal government had become a standard part of Reform rhetoric. At the Reform convention held only days before the BNA Act came into effect, the first resolution recorded the delegates’ “high gratification that



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the long and earnest contest of the Reform party for the great principles of Representation by Population and local control over local affairs, [had] at last been crowned with triumphant success.”57 Several of the delegates, in speaking to the resolution, seized on the importance of constitutionally protected non-interference. Aemilius Irving reminded the delegates of the editorialist who at the time of the 1859 Reform Convention had called for the creation of a federal system that would give the local legislatures “entire control over every public interest, except those and those only that are necessarily common to all parties.” The BNA Act, Irving concluded, represented “the most satisfactory fulfillment of that prophecy.”58 George Brown reiterated his now well-worn view that “this Constitution gives us entire control over our own local affairs.”59 The St. Thomas Journal came to the same conclusion in its pre-Confederation analysis.60 And the Toronto Globe, in a preConvention exhortation to Reform delegates, interpreted the impending constitutional change thus: “The people of Ontario have got the absolute control of their local affairs, and they have a just representation in the Parliament which deals with the affairs of the Dominion. So far as these cardinal points in the Constitution are concerned, we have all that we asked or could ask.”61 Many of the Quebec supporters of Confederation arrived at much the same conclusion and drew out the implications more clearly. A.I. Silver has shown through an exhaustive analysis of Bleu pamphlets and newspapers that “the moderate majority was firm in maintaining that the provinces would be in no way inferior or subordinate to the federal government, that they would be at least its equal, and that each government would be sovereign and untouchable in its own sphere of action.”62 As Joseph Blanchet put it to the Canadian Legislative Assembly, “I consider that under the present plan of Confederation the local legislatures are supreme in respect of the powers which are attributed to them, that is to say, in respect of local matters.”63 Stung by the Dorions’ criticism that the provincial legislatures would have no protection against a central government holding supervisory powers, several of the Bleus were finally moved towards the end of the Confederation Debates to demonstrate that Lower Canada would in fact have nothing to fear. Cartier interrupted A.A. Dorion’s attack on the Confederation plan to explain that in the case of jurisdictional collisions the federal government would not be able to run roughshod over the provinces, but that disputes would be resolved by a third party – although he was not quite sure whether this responsibility would

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devolve upon the imperial authorities or the courts.64 His colleague Paul Denis argued that the federal government would not have the unilateral power to abolish the use of French by noting that “the Imperial Act will guarantee to us the use of our language.”65 The clearest defence of the plan, however, was provided by Joseph Cauchon. By the time of Confederation Cauchon was one of the most powerful Conservative figures in Quebec. He had been in public life for about twenty years, having first been elected to the combined Legisla­ tive Assembly in 1844. He had held various governmental posts in the intervening years, most notably minister of public works, and enjoyed a high public profile as editor of the Quebec daily Le Journal. Cauchon’s views on federalism were complicated. When the idea of a British North American union was first discussed during the late 1850s, he opposed the proposal because he saw no reason to threaten the stability of the established order. By 1864, he had reached the conclusion that something had to be done to meet the challenge presented by American expansionism on the one hand and Anglo-Saxon preponderance on the other. The difficulty, from Cauchon’s perspective, was that these threats required quite different reactions. To meet the American threat, Cauchon argued, unity was absolutely necessary; to preserve the French-Canadian nation, some form of separation was required. The solution, therefore, was to create a centralized federation that also respected the autonomy of the provinces, and it was on this understanding that Cauchon became one of the most vigorous supporters of the Confederation proposal. The Dorions maintained that the central government would have “sovereign power … over the legislatures of the provinces.” Cauchon denied it: “There will be no absolute sovereign power, each legislature having its distinct and independent attributes, not proceeding from one or the other by delegation, either from above or from below. The Federal Parliament will have legislative sovereign power in all questions submitted to its control in the Constitution. So also the local legislatures will be sovereign in all matters which are specifically assigned to them.”66 In the case of conflict, matters would be settled by “the judicial tribunals, … charged by the very nature of their functions to declare whether such a law of the Federal Parliament or of the local legislatures does or does not affect the Constitution.”67 And he understood that, as the ultimate source of both federal and provincial power, the imperial Parliament – not one of the constituted governments



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– would have the final authority to adjudicate questions pertaining to the Canadian constitution.68 This was pure Madisonian logic applied to the Canadian case. Conclusion To be sure, the Reform and Bleu understanding of federalism as it was expressed in the years 1864–1867 was inchoate, often expedient, and frequently confused. Grappling with a new way to think about federalism yet unable to jettison the older conception altogether, they would often move casually from the older to the newer discourse without fully realizing their incompatibility. Yet it would be wrong to dismiss their contribution to the Confederation debate simply because their thought was often obscure, self-interested, or even contradictory. For one thing, if these supporters sometimes described federalism in a way that was more compatible with John A. Macdonald’s vision, so Macdonald conceded something to them and, in so doing, rendered his own conception deeply ambiguous. It is an indication of the force of the new constitutional conception of federalism that despite all of the centralizing mechanisms even Macdonald was forced to accept its core principle: the principle that, within its sphere of jurisdiction, each province has the “exclusive” power to legislate. That is how he presented the proposal publicly, and that is how the BNA Act was drafted and passed.69 The notion that jurisdiction could be divided so as to allow each legislature the autonomy to legislate according to its will had been the sine qua non of the classical theory of federalism outlined by the Federalists in 1787. Some eighty years later, it became the basis of the Canadian federal experiment as well. Moreover, however imperfectly the federal principle was understood in 1865, it provided a foundation on which to build a more impressive and coherent constitutional doctrine. And, indeed, it did not take long before the language of constitutional federalism – of inviolable spheres of legislative autonomy – became the lingua franca of constitutional discourse in Canada. In episode after episode in the years following Confederation, the provincial rights movement based its strategy on the premise that the constitution embodied the federal principle and that Macdonald’s centralizing mechanisms should therefore be treated as impurities to be removed from the constitutional system. The argument that the provincial legislatures were intended to have the same

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legal status as the national parliament played a part in the dispute over Ontario’s attempt to grant members of its legislature parliamentary privileges and immunities.70 The argument that in a federation each government is constitutionally independent and sovereign within its sphere was used to discredit the institution of dual representation.71 The argument from the federal principle suffused the debate over the veto power of disallowance; here, too, it was highly effective.72 And the principle of provincial autonomy was given positive political force by the Judicial Committee of the Privy Council; by the Judicial Committee’s interpretation, autonomy acted both as a shield against federal meddling and as a positive claim to power.73 The irony is that the language of constitutional federalism has remained a respectable, indeed dominant form of constitutional discourse in Canada, while in the United States the model of dual federalism struggles for political and intellectual respectability against heavy odds. The task of explaining this difference is daunting, but it ought to be slightly less mystifying once it is clearly understood that, like it or not, the idea of constitutional federalism in Canada has been here from the start. NOTES 1 Robert C. Vipond, “1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered,” Canadian Journal of Political Science, 22, 1 (1989), 3–25. 2 Constitution Act, 1867, Preamble. The Constitution Act, 1867 was formerly known as the British North America Act. For reasons of historical accuracy, I will refer to it in the text as the Fathers of Confederation themselves knew and referred to it, as the BNA Act. 3 Peter B. Waite, The Life and Times of Confederation, 1864–1867 (Toronto: University of Toronto Press, 1962), 33. See also Donald Creighton’s classic exposition of this view, summarized in Canada’s First Century (Toronto: Macmillan, 1970), 10: “The ‘federal principle,’ as British Americans called it then, was usually regarded as a highly potent political drug, which might prove efficacious in the cure of certain constitutions, but which must be administered in small doses, with great precautions, and never without a readily available antidote.” See also Kenneth McNaught (The Pelican History of Canada [Harmondsworth: Penguin, 1969], 134), who concludes that while the Canadians examined “the sorely tested United States federal



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experiment” closely, they used it “more as a warning than as a model.” Bruce Hodgins makes a similar point in arguing that “the Fathers … distrusted pure coordinate or classical federalism,” which “[t]hey saw as too American and too republican; empirically it was too fraught with potential for civil strife” (“The Canadian Political Elite’s Attitudes toward the Nature of the Plan of Union,” in Bruce W. Hodgins, Don Wright, and W. H. Heick [eds.], Federalism in Canada and Australia: The Early Years [Waterloo: Wilfrid Laurier University Press, 1978], 43). Norman Ward argues along the same lines that “the structure outlined in the [Quebec] Resolutions was clearly not a pure federal system in which the component parts would be of equal or co-ordinate rank with the central government” (Norman Ward, Dawson’s The Government of Canada [6th ed.; Toronto: University of Toronto Press, 1987], 284). 4 K.C. Wheare, Federal Government (4th ed.; London: Oxford University Press, 1963), 4–5. 5 Ramsay Cook, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921 (Ottawa: Queen’s Printer, 1969), 8. Cook draws out the British comparison more fully in Ramsay Cook (with John T. Saywell and John C. Ricker), Canada: A Modern Study (Toronto: Clark Irwin, 1963), 96–99. See also Donald Creighton, The Road to Confederation (Boston: Houghton Mifflin, 1965), 176–77; J.C. Morrison, “Oliver Mowat and the Development of Provincial Rights in Ontario: A Study in Dominion-Provincial Relations, 1867–1896,” in Three History Theses (Toronto: Ontario Department of Public Records and Archives, 1961), 177; W.L. Morton, “Confederation, 1870– 1896,” in A.B. McKillop (ed.), Contexts of Canada’s Past (Toronto: Macmillan, 1980), 211; John T. Saywell, The Office of Lieutenant-Governor (Toronto: University of Toronto Press, 1957), 4; J.R. Mallory, “The Five Faces of Federalism,” in P.-A. Crépeau and C.B. Macpherson (eds.), The Future of Canadian Federalism (Toronto: University of Toronto Press, 1965), 3–5; and Robert Bothwell, A Short History of Ontario (Edmonton: Hurtig, 1986), 81. 6 On The Federalist and the founding myth, see Judith N. Shklar, “The Federalist as Myth,” Yale Law Journal 90 (1981), 942–53. 7 Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose and Company, 1865), 45 (Macdonald). Hereafter cited as Confederation Debates. 8 Ibid. 9 Constitution Act, 1867, Preamble. 10 See, for instance, the comments of M.C. Cameron and Christopher Dunkin, Confederation Debates, 459, 482.

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11 Ibid., 947–50. 12 Ibid., 33. 13 Quebec Resolutions, sec. 29:37, reprinted in G.P. Browne (ed.), Documents on the Confederation of British North America, 154–65. Macdonald referred to the exclusivity of provincial jurisdiction twice in his speech to the Canadian Legislative Assembly. The first came in the context of explaining how the prevailing double majority system worked “in fact” like a federal union, such that “in matters affecting Upper Canada solely, members from that section claimed and generally exercised the right of exclusive legislation” (Confederation Debates, 30). The second occurred backhandedly in his summary of federal powers, when he noted that “all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be conferred upon the General Government and Legislature” (ibid., 33). More importantly, the Constitution Act, 1867 itself enshrines the exclusivity of provincial jurisdiction. See Section 92 (Preamble) and Section 93 where the provincial legislatures are given the power “exclusively: to make laws in the matters listed therein.” 14 Constitution Act, 1867, sec. 91 (Preamble). It should be noted that this grant of power to legislate for the “peace, order and good government” of the country was meant, as Macdonald said, to avoid the errors of the American Constitution. He put it thus: “[The Americans] commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the Constitution, were conferred upon the General Government and Congress. Here we have adopted a different system” (Confederation Debates, 33). 15 See J.A. Maxwell, Federal Subsidies to the Provincial Governments in Canada (Cambridge: Harvard University Press, 1937). 16 Constitution Act, 1867, sec. 92:10(c). 17 Ibid., sec. 56, 90. 18 Ibid., sec. 55, 58, 90. 19 Ibid., sec. 93:4. 20 Confederation Debates, 859, 858 (J.B.E. Dorion). 21 Ibid., 858 (J.B.E. Dorion); 690 (A.A. Dorion). 22 William Blackstone, Commentaries on the Laws of England, I:ii:7. 23 Gordon S. Wood, The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), 529. 24 See Blaine Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire,” Law and History Review 3 (1985), 255, who argues that “divergent Upper Canadian and republican social premises



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shared a somewhat unlikely meeting ground in such near-treatises as Blackstone’s Commentaries. The Commentaries were widely read and thus absorbed into the political consciousness of both traditions, but for apparently different reasons.” See especially Baker’s references at note 116. Peter Waite suggests that a similar understanding of sovereignty informed Joseph Howe’s opposition to Confederation. For Howe, the most prominent anti-Confederationist from Nova Scotia, “[o]ne government or another had to be supreme. Apparently both could not be.” See Peter B. Waite, “Halifax Newspapers and the Federal Principle, 1864–1865,” in J.M. Bumsted (ed.), Canadian History before Confederation (2nd ed.; Georgetown: Irwin-Dorsey, 1979), 505. 25 Confederation Debates, 250 (A.A. Dorion). 26 Ibid., 689 (A.A. Dorion). 27 Ibid., 858 (J.B.E. Dorion). 28 Ibid., 623–24 (Perrault). 29 Ibid., 33. 30 Ibid., 33, 41. 31 Ibid., 42, 33. 32 Like the Fathers of Confederation themselves, the Reform party was not monolithic. Not all Reformers supported Confederation, and a few prominent members of the party, among them John Sandfield Macdonald, were openly critical of the settlement. Most, however, did support it, and most of the Reform press rallied behind it. On the participation of the Reform press, see Waite, Life and Times of Confederation, 126–33. 33 Toronto Globe, August 1, 1864. See also Confederation Debates, 674 (Hope Mackenzie), and 807 (Walsh), for a similar line of argument based on a similar reading of the American Constitution. 34 Toronto Globe, August 1, 1864. See also Ottawa Union, November 1, 1864. 35 Toronto Globe, August 1, 1864; August 29, 1864; and October 15, 1864; St. Catharine’s Journal, September 27, 1864; Ottawa Union, September 12, 1864; Confederation Debates, 433 (Alexander Mackenzie). 36 Toronto Globe, October 4, 1864. 37 Ibid. 38 Toronto Globe, October 8, 1864. 39 J.C. Morrison, “Oliver Mowat and Provincial Rights in Ontario,” 11, 1. Also see Waite (Life and Times of Confederation, 133), who argues that the Reformers “did not in fact concern themselves much about local government.” W.L. Morton goes further when he argues, “The provinces were not, in fact, expected to be self-supporting as they were not thought sovereign even in their spheres of exclusive jurisdiction. They were

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subordinate governments both in appearance and in fact. They had no great tasks to perform and were given no great powers” (W.L. Morton, “Confederation, 1870–1896,” in McKillop [ed.], Contexts, 209). See also Frederick Vaughan, “Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation,” this JOURNAL 19 (1986), 505; Christopher Armstrong, The Politics of Federalism (Toronto: University of Toronto Press, 1981), chap. 1; and the citations in footnotes 2 and 4 above. 40 See Elwood H. Jones, “Localism and Federalism in Upper Canada to 1865,” in Hodgins, Wright, and Heick (eds.), Federalism in Canada and Australia, 19–41. See also Oliver Mowat’s speech to the Reform Convention of 1859, in which he set out both the problem and the proposed solution, reprinted in R.W. Biggar, Sir Oliver Mowat, vol. 1 (Toronto: Warwick Bro’s and Rutter, 1905), 93–95; and Toronto Globe, “Federation,” May 24, 1859. 41 Toronto Globe, September 17, 1864. 42 Toronto Globe, August 29, 1864; September 3, 1864; October 4, 1864; and October 15, 1864. See also Confederation Debates, 108 (Brown). 43 Alexander Hamilton, James Madison and John Jay, The Federalist Papers (New York: Bantam, 1982), 195. 44 Wheare, Federal Government, chap. 1. 45 For a useful analysis of the effect Blackstone’s doctrine of parliamentary sovereignty had in pre-Revolution America, see Thomas Grey, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978), 865–93. 46 Hamilton, Madison, and Jay, The Federalist Papers, No. 78 (397). 47 These images are taken from Hamilton, Madison, and Jay, The Federalist Papers, No. 49 (255) and No. 46 (237) respectively. My debt to Gordon Wood’s presentation of the question should be obvious. See Wood, Creation, 372–83. 48 Shklar, “The Federalist as Myth,” 950. 49 See Wood, Creation, 529; and Hamilton, Madison, and Jay, The Federalist Papers, No. 39 (194). To be sure, Madison did not rest the protection of state interests wholly on a judicially patrolled division of powers. Jennifer Smith is quite right to point out that Madison’s theory of federalism “extends beyond that to encompass” representation in national institutions. See Jennifer Smith, “Canadian Confederation and the Influence of American Federalism,” Canadian Journal of Political Science, 21 (1988), 446. Interestingly, the debate over the meaning of Madison’s federal theory has recently resurfaced in the United States Supreme Court, dividing those justices who believe that the judicial protection of state sovereignty is imperative from those who argue that representational protection



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in Congress is all the states need. Both sides cite Madison as their authority. See Garcia v. San Antonio Metropolitan Transit Authority 105 S.Ct. 1005 (1985). 50 Toronto Globe, August 1, 1864; see also the edition of August 30, 1864. 51 Ibid., August 30, 1864. 52 For references to a constitution in this “American” sense of a written, fundamental law, see Toronto Globe, October 15, 1864 (“Surely we can safely put into our constitution …”); and also Toronto Globe, June 20, 1867 (“The constitution excludes local and sectional questions from the federal Parliament…. The people of Ontario have got the absolute control of their local affairs, and they have a just representation in the Parliament which deals with the affairs of the Dominion. So far as these cardinal points in the Constitution are concerned, we have all that we asked or could ask”). 53 Toronto Globe, October 4, 1864. 54 Hamilton Weekly Times, September 30, 1864. 55 Toronto Leader, September 27, 1864. The Leader was in fact a Conservative newspaper, but as Peter Waite has pointed out, it had a “liberal Conservative” slant on the Confederation proposal that brought it closer to Reform doctrine (Life and Times of Confederation, 126). 56 Toronto Globe, August 30, 1864. 57 Toronto Globe, June 28, 1867. 58 Ibid. 59 Ibid. See also Confederation Debates, 446–47 (Burwell). 60 Cited and reproduced in the Toronto Globe, June 22, 1867. 61 Toronto Globe, June 20, 1867. 62 A.I. Silver, The French-Canadian Idea of Confederation, 1864–1900 (Toronto: University of Toronto Press, 1982), 43. 63 Confederation Debates, 547. 64 Ibid., 690. 65 Ibid., 876. 66 Ibid., 697 (Cauchon). 67 Ibid. 68 Confederation Debates, 575–76 (Cauchon); see also Joseph Cauchon, L’Union des provinces de l’Amérique britannique du Nord (Quebec: A. Coté, 1865), 40. 69 See footnote 12 above. It should be noted as well that Macdonald adopted the Reform image that emphasized the novelty of the Confederation proposal, calling it a “happy medium” between a legislative and a federal Union. See Confederation Debates, 33; and Toronto Globe, October 15, 1864. Compare that with Madison’s characterization of the American Constitution as a “composition” of national and confederal elements.

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  Macdonald was by no means blind to the implications of this concession of “exclusive” jurisdiction. As the minister of justice responsible for the exercise of the veto power of disallowance, Macdonald went to some trouble in the first years of Confederation to develop a set of rules for using the veto that would satisfy the federal government’s need to keep the provincial governments at bay while not violating the federal principle. His solution, at least for the first fifteen years of Confederation, was to conceive of disallowance as a jurisdictional veto; that is, as a veto to be used only against provincial legislation that exceeded provincial jurisdiction or impinged on national policy. In the course of the debate over the New Brunswick schools question in 1873, he explained that any broader conception of disallowance would turn Parliament into a “court of appeal to try whether the Provincial Legislatures were right or wrong in the conclusions that they came to.” And that, Macdonald argued, “would destroy the independence of the Provincial Legislatures” and violate their “rights” (Canada, House of Commons, Debates, May 14, 1873, 178). For an elaboration of this interpretation, see Robert C. Vipond, “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” Canadian Journal of Political Science, 18 (1985), 267–91. 70 The story is told briefly in Bruce W. Hodgins and Robert C. Edwards, “Federalism and the Politics of Ontario, 1867–80,” in Hodgins, Wright, and Heick (eds.), Federalism in Canada and Australia, 63–64. 71 The parliamentary speeches of David Mills, Liberal MP and constitutional critic, are especially good examples of the way in which the federal principle was used to discredit the institution of dual representation. See Canada, House of Commons, Debates, November 28, 1867, 149, 154, and April 28, 1869, 96–98. 72 See Vipond, “Constitutional Politics,” 275–88. 73 See especially the comments of Lord Watson in the Local Prohibition case, A.G. (Ont.) v. A.G. (Canada) 1896 A.C. 348, 361, in which the Judicial Committee rejected the federal government’s broad reading of the “peace, order and good government” clause of Section 91 of the BNA Act. A broad construction of the clause, Lord Watson argued, would permit the federal government to legislate on almost any subject ostensibly within provincial jurisdiction, and this “would practically destroy the autonomy of the provinces.”

“Conservatism and National Unity” 1939 D.G. Creighton1

I It is a commonplace that Canadian political parties have grown more alike as they have grown older. With the approach of comfortable maturity, they began to take on an appearance so similar as to suggest even a family relationship. But, for all that, their origins were distinct enough and, in the days of their hot-blooded youth, they differed violently on most subjects of any importance. This period of primitive simplicity and directness in political action coincided roughly with the age of the old colonial system. When British North America was a collection of separate and dependent provinces, the colonial parties could voice the purposes of a particular class and the interests of a particular section with all the concentration of an extreme parochialism and all the happy irresponsibility of dependence. The coming of local autonomy in government, the achievement of Confederation, and the transcontinental extension of the new Dominion brought an end to this idyllic state of affairs. The parties were now forced to assume responsibility; they were obliged to cultivate the appearance of truly national organizations. In a country as vast as Canada, with so many sectional, occupational, and racial interests, it was impossible to rely upon the strength of one locality and the adherence of a particular class. The parties were forced to find a broader basis of support. Inevitably they tended to become more

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composite in character, more comprehensive in interests, more popular in appeal.2 Rebellions and civil wars over race or political principle were forsaken as the excesses of an exuberant but misguided youth; and the parties soon came to develop a genial neutrality of views and a prudent indisposition to action. Professing to be everything in general, they came almost to stand for nothing in particular. Almost, but not quite. In peace and prosperity, Canadian political parties were apparently accepted for what they claimed to be – all things to all men. But, in moments of national crisis, they occasionally returned to the harsh and uncompromising doctrines of their remote ancestors; and, in times of party adversity, they were sometimes driven back to the homeland from which they set forth to conquer a continent, supported only by that body of loyal adherents which formed the original nucleus of their national army. The various stages in this political pilgrimage are amply illustrated by the history of the Canadian Conservative party. The main and dominating branch of Canadian Conservatism had its ancestral homeland in the valley of the St. Lawrence and the lower lakes: here the party acquired its hereditary allies and made its most solemn affirmations of policy. These loyalties and commitments were a natural product of the region; in the St. Lawrence valley geography and humanity co-­ operated to produce an enduring pattern of thought and action. Nature evoked to the full the dominant impulses of men, and men were quick to realize the illimitable possibilities of nature. The merchant adventurers who established themselves in Quebec and Montreal on the eve of the Treaty of 1763 and the Loyalists who settled on the shores of Lake Ontario at the close of the American Revolution were the first two groups of English-speaking migrants to inhabit central Canada; and the commercial ambitions of the one and the political convictions of the other were, in many ways, simply two aspects of the same purposeful philosophy – the defence and extension of British interests in North America. In the congenial atmosphere of the St. Lawrence, this philosophy grew and flourished. The river was a stream which fired the ambitions and formed the policies of men. It was the water boulevard which connected the political and commercial metropolis of the empire with the vast interior of the North American continent. It seemed the destined highway of a great imperial trade route by which the natural products of North America would be exchanged for the manufactures of Europe; and from the river there rose the grandiose vision of an inland empire of trade and settlement which would find its focus



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in the river cities of Quebec and Montreal. The inward pull of the St. Lawrence system would be strengthened by the tariff preferences and political power of England; its outward thrust would inevitably provoke the rivalry of the United States. The river invited imperialist expansion; it suggested the unified control by which expansion might be achieved. And it was in these inspiring surroundings that the doctrines of primitive Conservatism first took shape. The old Tories became committed to the conception of British North America as a competitive and expansionist entity in the new continent. They accepted the United States as their inevitable rival and Great Britain as their natural ally. They foresaw an imperialist struggle for the riches of the continent in which unity of purpose and action would be of decisive importance. And, in consequence, their fundamental political principle was unification and centralization of control.3 It quickly became apparent, however, that other people did not take the St. Lawrence so seriously as the Canadian commercial imperialists. The empire of the river was partitioned by the Treaty of 1783 and repartitioned by the Constitutional Act of 1791. The control of the commercial system was divided between the two independent provinces of Upper and Lower Canada, and its vast southwestern hinterland was lost politically to the United States. Where the Canadian merchants and their supporters had once sought to attain a political dominion, they now struggled to establish an international commercial empire. In the first decades of the nineteenth century, the old West of Indians and furtraders was in retreat before the irrepressible advance of settlers and frontiersmen; and the Canadian imperialists now fought to make the St. Lawrence the highway for the traffic in wheat and flour and other staple products, just as it had once been the outlet for the trade in furs. It was an objective which could only be realized by the most energetic and decisive measures. In the new and more difficult circumstances, the old scheme of inward unity was more than ever vital to success. It was only through the building of canals and ship channels, the construction of harbours, the attraction of capital and immigrants, the formulation of carefully designed fiscal policies, and the attainment of imperial preferences overseas that the St. Lawrence could win the prize which was the object of its continental strategy. The whole commercial and political system of the St. Lawrence must be organized and integrated for the supreme struggle of its existence; and the first essential prerequisite of this integration was the political union of the two provinces of Upper and Lower Canada. Even under the most favourable

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circumstances, it would have been difficult for the two provinces to cooperate; it was apparently impossible under the existing circumstance of French Canadian control of the popular assembly in the lower province. The French Canadians, whom the old Tories regarded as the unprogressive and “anti-commercial” members of a moribund feudal society, clung to their old pursuits and customs with the same stubborn tenacity as they opposed large-scale public enterprises and big loans. This conflict between the conservative predilections of a self-sufficient peasantry and the expansionist ambitions of the commercial group could only be ended, in the opinion of the old Tories of Montreal and Toronto, by the submergence of French Canada in a political union of the two provinces. This was the first form of the Tory doctrine of material expansion through political unity. It did not survive the revolutionary changes of the 1840’s. In the light of these changes, it became apparent that some of the old methods were obsolete and some of the old objectives forever unattainable. The union of the two provinces was indeed effected, as Lord Durham and the Canadian merchants had advocated; the canals and the ship channels were completed from Lake Erie to the ocean. These measures, difficult enough as they were for a small, poor, and racially divided people to carry out, were clearly defective or insufficient for the purpose. The old age of wood, wind, and water was changing into the new era of steel, steam, and rail; and the American railways clinched the victory which the New York route had won already over the St. Lawrence system. Economically, the Tory imperialists were relying upon techniques which had been heavily supplemented or largely superseded by more novel methods. Politically, they were dependent upon connections which even then were breaking, and upon policies which were becoming more antiquated and impracticable. By 1850, Great Britain had surrendered the chief political controls of empire in exchange for relief from its undoubted fiscal disabilities. She had declared for free trade at home and accepted responsible government in the colonies; and, with these changes, the old Tory conception of a united and British Canada in perfect adjustment with the old colonial system of Great Britain was left unsupported to collapse. The repeal of the Corn Laws destroyed the imperial preferences which Canada had obtained in the British market; the grant of responsible government permitted a French-supported Reform ministry to pass such insupportable, “anti-British” measures as the Rebellion Losses Bill. The frenzy of desperation to which the old Tories were driven is apparent



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in the Montreal riots of 1849, the burning of the provincial parliament buildings, and the publication of the manifesto which advocated the annexation of Canada to the United States. The very foundations of old Toryism had been swept away. It remained to be seen whether the party could be rebuilt with new materials and yet with the old ambitious unity of design. II During the next thirty years, British North America passed through what was undoubtedly its most critical transitional period. Political nationalism and industrial capitalism were the forces which were remaking the modern world; and the northern colonies were subject to ominous and strangely novel pressures from Great Britain and the United States. Great Britain, which was apparently far more interested in the conquest of world markets than in the retention of its territorial empire, was anxious to reduce its American political commitments and to withdraw its legions from the new continent. The United States, which was rapidly becoming a great military and industrial power in its own right, was using the techniques of railways and the free homestead system for the exploitation of a continent. The colonies, flung suddenly out of what now appeared to have been the peaceful security of mercantilism and political dependence, had to discover an answer to the one central question into which all their perplexities were compacted. Where was the best substitute for the political and economic connection with Great Britain to be found? Was it to be found in the union of the provinces among themselves, or in the closer association of each of them with the United States? Could the loyalties of nationalism and the techniques of industrialism be used to unite the provinces, or were they to remain separate and tributary to the triumphant success of these forces in the United States? During the thirty years which separated the British repeal of the Corn Laws in 1846 from the inauguration of the Canadian National Policy of protection in 1879, the answers to these questions were found. These answers became the accepted, the orthodox, and finally the sacrosanct decisions of British North American life. And in their discovery the Conservative party played a large, if not a predominant, part. The new Tories helped to create a new and different variant of the old conception of the St. Lawrence as a unified and competitive entity in North America. They became the sponsors of a revised programme of

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expansion through unity, in which all the dominant economic interests of British North America were represented. They substituted economic nationalism for international commercialism; they replaced the old colonial system by a federal union of the provinces. But their economy was still expansionist and anti-American in spirit, and their federal system was centralist in purpose. This work of party reorganization and reorientation was a long and difficult business in which Tilley, Tupper, Galt, Cartier, and others all played parts of some prominence and distinction. But undoubtedly the contribution of John A. Macdonald was of supreme importance. By character, temperament, and training, Macdonald was fitted to lead his country and his party through the adjustments of a critical transitional period. His deepest prejudices, his most profound and emotional convictions were probably derived from the Toryism of the old colonial period; but his ability as a manager of men, his dexterity as a party tactician, and his instinct for compromise and conciliation were typical attributes of modern American democracy. He believed in Canada as a separate, British, and competitive entity in North America. His devotion to unity was as great as that of the old Tories; he had all their veneration for Great Britain and all their jealous suspicion of the United States. He was like them, and yet very different. He realized that the old relationship with Great Britain was ended forever; and he looked with cool detachment at the schemes of the imperial federationists.4 He accepted the French as a permanent and important part of Canadian national life. “If a British Canadian desires to conquer,” he wrote, “he must ‘stoop to conquer.’ He must make friends of the French without sacrificing the status of his race or his religion. He must respect their nationality.”5 Macdonald was a better Canadian than any of his predecessors. He was more truly a nationalist; and his work was essentially a great effort in political and economic nationalism. This reorientation of Tory policy lay in the logic of things; but it was effected slowly by successive, tentative steps. Of the two historic purposes of the party, political and economic expansion and political and economic unity, it was the conception of unity which underwent the first serious alterations. For a while yet the province struggled, with the aid of the techniques of an industrial age, to realize its dream of an international commercial empire in the heart of the American West. It gave heavy financial assistance to the construction of the Grand Trunk Railway, which was intended to supplement and strengthen the St. Lawrence route. It negotiated with the United States the Reciprocity



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Treaty of 1854, which had as one of its objectives the old idea of encouraging the export of American commodities via Quebec and Montreal. The new Tories were at one with the leading business men of the St. Lawrence region in their support of these schemes for provincial development and prosperity. Through Cartier, Galt, Ross, and others, the party was linked with the fortunes of the Grand Trunk Railway in much the same way as the old Tories had been identified with the construction of the St. Lawrence canals; and in the columns of the Toronto Globe George Brown used to denounce the Grand Trunk as a sinister force for corruption and extravagance which in effect governed the Province of Canada.6 The real novelty of the British Conservatives’ position lay not in their business connections but in their relations with the French. With the creation of the Liberal-Conservative party in 1854, the Tories abandoned their old conviction that the submergence of French Canada was essential to the development of the St. Lawrence as a political and commercial system. In their view, Canada must still be regarded as one in its political allegiance and material interests; but it must be accepted as dual in its cultural loyalties. The generosity of this surrender did not go unrequited; and the two parties to the compact made each other handsome concessions. While the English Canadians agreed to respect the cultural traits and distinctive institutions of French Canada, the French Canadians prepared to support the objects of English material ambitions and the important organizations of business life. John A. Macdonald and George Étienne Cartier were the principal authors of the Liberal-Conservative coalition and best typified its spirit. Macdonald, with his easy-going tolerance and his superb talent for combining men of diametrically opposed opinions, was ready enough to accept the cultural preferences of French Canadian priests and habitants. In 1855–6, when he introduced his separate school bill, he declared that he would prefer to see all children going to the common schools but that “we should respect the opinions of others who differed from us.”7 Cartier, who had shown his interest in railway schemes as early as the 1840’s, became solicitor for the Grand Trunk Railway in Canada East; and it was he who declared, during the debates on Confederation in the Canadian Assembly, that he had never approved of Papineau’s attitude “with reference to commercial matters, and in opposition to measures for the improvement of the country.”8 This was a momentous change; but it speedily became clear that other and equally revolutionary changes were necessary. In the past,

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the St. Lawrence commercial system had been based far more upon overseas and foreign markets than upon Canadian or British North American trade; and Canadian merchants and politicians had used their best efforts to improve these markets by special tariff arrangements with Great Britain and the United States. But Great Britain had destroyed its mercantile system by 1850; and the Reciprocity Treaty was destined to be abrogated by the United States in 1866. Worst of all, the St. Lawrence never gained the vast carrying trade which these special commercial privileges were expected to promote. The Grand Trunk Railway failed where the St. Lawrence canals had failed before it, and for much the same reasons; and thus the long struggle, which had begun far back in the days of the fur-trade, ended finally in the defeat of Montreal. The irrepressible urge to territorial expansion and material conquest, which the St. Lawrence had planted in successive generations of its sons, had thus been frustrated in its original course; but was there not another direction in which the fundamental impulse might find almost equal scope? The lands of the Hudson’s Bay Company offered a territorial empire not unequal to that lost commercial dominion in the United States. The free-trade area of a united British North America would provide at least a partial substitute for the protected markets which had been lost in Great Britain and were soon to be lost in the United States. “If we have reason to fear,” said A.T. Galt during the Confederation debates, “that one door is about to be closed against our trade, it is the duty of the House to endeavor to open another; to provide against a coming evil of the kind feared by timely expansion in another direction; to seek by free trade with our own fellow-colonists for a continued and uninterrupted commerce which will not be liable to be disturbed at the capricious will of any foreign country.”9 Along with these potent incentives went others, more purely political in character. It had always been the conviction of the Conservatives that the St. Lawrence must remain British – British certainly in allegiance, if not wholly so in language and race; and now this political identity of Canada was threatened by the same power which had frustrated its commercial ambitions.10 The retreat of Great Britain and the advance of the United States had their political as well as their commercial aspects; and the shock of civil war was making the American republic a great military power which seemed destined to take the place of the mother country as the arbiter of the political future of the continent. From the days of the Civil War until the Washington Treaty of 1871, the



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annexation of all or part of British North America was not only advocated in the Press and on the platforms of the Republic, but it was also discussed in the American Congress and Cabinet. And in the Trent affair, the Alabama claims, the St. Albans Raid, and the Fenian incursions there were plenty of pretexts for an Anglo-American dispute which might end in the cession of one or more of the colonies. The danger was serious enough for Canada and the Maritime Provinces; it was desperately acute for the weak Pacific colonies, and for the unsettled lands of the Hudson’s Bay Company. American railways were the agencies which seemed to promise the triumph of “Manifest Destiny” throughout the whole West; and in 1864, the year of the Quebec Conference, the Northern Pacific was chartered to build westward from St. Paul. “It is quite evident to me …,” wrote Macdonald to Brydges of the Grand Trunk Railway, “that the United States Government are resolved to do all they can, short of war, to get possession of the western territory and we must take immediate and vigorous steps to counteract them.”11 Now at last the long confusion of the middle decades of the nineteenth century had resolved itself into an ominous clarity. There were certain decisions which it appeared must soon be made, certain actions which must speedily be taken; and among these the Conservative party made its almost inevitable choice. The Tories already had a philosophy which fitted the situation, or which, with a few adaptations, could be made to fit. They had already changed their original conception of union; they now prepared to modify their old design of economic and political expansion. In place of the international commercial empire of the St. Lawrence, which had been lost irretrievably to the United States, the Conservatives proposed to establish a national transcontinental system in British North America. The new dominion, like the old, would find its financial and commercial focus in the cities of the St. Lawrence and the Lower Lakes; and railways, settlement, and finally tariffs were the three agencies adopted to weld it into a robust integration. Po­ litically, the new transcontinental union would have to be federal in character. Legislative union might be preferable in theory, but it was difficult, if not impossible, in practice. Even if a single British North American Government could be established, against the protests of the Maritime Provinces and of Canada East, it might conceivably function much as the Province of Canada had done since the Union Act of 1841; and the political deadlock into which Canada had drifted during the fifties and sixties convinced the Conservatives that a strongly centralized

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federalism might even be preferable to a distracted unitary state. Federal union would permit the separation of those two categories of interest, those two sets of values, which had been brought into unnecessary and paralysing conflict ever since the days of the British conquest. Local and cultural matters could be confided to the provincial governments; but the great affairs which from the first had been associated with the St. Lawrence, the projects of territorial expansion and material development, would be entrusted to the new national administration. From the time of the Quebec Conference down to the inauguration of the “National Policy,” the various steps in this politico-economic programme were successively carried out. The establishment and rounding out of Confederation were not, of course, the work of one provincial government and one political party; but no elaborate discussion is needed to prove the importance of the contribution made by the Conservative party of the old Province of Canada. The part played by the Canadian Tories was in accordance with the philosophy they had professed so long. If they were not alone in their desire for a strongly centralized union, they were at least extremely whole-hearted and prominent in the struggle to attain it. Macdonald made no secret of his preference for legislative union and his abhorrence of “states’ rights.” It was his intention to “make the Confederation one people and one government, instead of five peoples and five governments, with merely a point of authority connecting us to a limited and insufficient extent.”12 The central legislature was to be given “all the great subjects of legislation”; the central executive was to be empowered to regulate and control the legislation of governments inferior to it. “The General Government,” said Macdonald, “assumes towards the local governments precisely the same position as the Imperial Government holds with respect to each of the colonies now.”13 The lieutenant-governors were to be appointed by the Canadian Government instead of by the imperial authorities; and, as Sir John explained in a report of August 25, 1873, the lieutenant-governors were not to be regarded as independent local sovereigns, but as officers of the Dominion, charged with the execution of Dominion orders and the protection of Dominion interests.14 Provincial bills were to be reserved by the lieutenant-governors, and provincial statutes could be disallowed by the federal executive, if they conflicted with Dominion policies or Dominion conceptions of equity; and, as Macdonald was careful to point out in a report of June 8, 1868, it was expected that “the general government will be called upon to



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consider the propriety of allowance or disallowance of provincial acts much more frequently than Her Majesty’s government has been with respect to colonial enactments.”15 The legislative inferiority and subordination of the provinces was such that Macdonald, during the midsummer debate of 1866 on the constitutions of Quebec and Ontario, openly referred to these governments as municipal in character.16 The Conservatives believed that they had attained their ideal of political unity in the British North America Act. And in the expansion and integration of the new Dominion, they saw a not unworthy substitute for the commercial empire which had been lost to the United States. By 1873, when Prince Edward Island entered Confederation, the new Dominion stretched from ocean to ocean; and this entire effort at nation building had been carried through by the coalition Government of Confederation which became steadily more Tory in character as time progressed. The party was associated with the foundation and the territorial extension of the Dominion; it was identified even more closely with the basic national policies which were devised to bind the Dominion together and to promote its material welfare. The acquisition of the territories of the Hudson’s Bay Company, the creation of Manitoba, the agreement with British Columbia, the development of the plans for the exploitation and settlement of the West, were largely the work of Conservative leaders. They took over and completely nationalized the design of a transcontinental railway through British North America which Edward Watkin of the Grand Trunk had been one of the first to advocate; and, both for good and ill, the party became linked with the Canadian Pacific in much the same way as it had been with the Grand Trunk and the St. Lawrence canals. A protective tariff had not been envisaged at Confederation; but it lay logically in the programme of political and economic nationalism which the Conservatives were developing. The advent of the depression in 1873 and the failure to secure a new reciprocity agreement with the United States provoked a growing interest in protection; and the Tory party, as if inspired, seized upon this novel and somewhat questionable doctrine and glorified it by the resounding title of the “National Policy.” “The word ‘protection’ itself,” Macdonald had written as early as 1872, “must be taboo, but we can ring the changes on National Policy, paying U.S. in their own coin, etc.”17 The party had identified itself, as closely as in the past, with the dominant interests in the new pattern of activities in British North America.

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III From 1878 until 1896, the Conservative party governed Canada. It was a testing time for the party and its programme; and both emerged somewhat battered and altered by the struggle. The party was committed to certain definite national policies; but to implement these, it required political power, and to maintain political power, it needed a national party organization. Thus the Tory chieftains were compelled to unite in one political association a number of different groups whose sectional, occupational, and racial interests still remained to be integrated in a national system.18 Party loyalties were precarious enough in central Canada; and the members from the Maritimes and the West knew practically nothing about Canadian politics, and – what was still worse – showed a regrettable indisposition to learn. “We are all yet mere provincial politicians,” said Macdonald;19 and it was obvious that a semblance of unity could be achieved only by the application of the federal principle to parties, programmes, and cabinets. This complex process of balancing interests, of reconciling loyalties, of giving compensations here for concessions elsewhere, habituated the parties to the wary maintenance of neutrality. Gradually a set of principles was replaced by a mass of inhibition. Political leaders stood steadfast in indecision and performed prodigies of inactivity. This growth of political maturity and sophistication early became conspicuous in the Conservative party. Saddled with the responsibilities of office, the Tories could not indulge, in the intemperate and care-free fashion of the Liberals, in the expensive luxury of political principles. They tried, under a leader who was a genius at political finesse, to satisfy a multitude of interests; but, at the same time, they contrived to exclude from this elaborate bargaining process certain main essentials of the historic Conservative programme. They kept their original conception of a strong Dominion, which would be economically integrated and politically united. They stood by their national policies, political and economic. They maintained the tariff and they completed and defended the national east-west transport system. They were prepared to use the powers and the controls which the Dominion possessed to advance and to protect its interests. Sixty-five provincial statutes were disallowed during the period 1867–1895;20 and the great majority of these disallowances were effected by Conservative administrations. The Tories, in this period, assumed the pre-eminence of the Dominion and the inferiority of the provinces. “My own opinion,” wrote Macdonald, “is that the



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General Government or Parliament should pay no more regard to the status or position of the Local Governments than they would to the prospects of the ruling party in the corporation of Quebec or Montreal.”21 A struggle for the national interest was to be expected as inevitable; but it was Sir John’s firm conviction that the Dominion must win. This prediction was only imperfectly fulfilled. Part of the Conservative programme was not realized until after the party had retired from its first long tenure of office; and part of it was apparently destined never to be realized at all. In the circumstances, the original Tory conception of Confederation became untenable. The external pressures, which had exerted a centralizing influence upon the federation movement, declined in strength; and the new nationality failed to achieve a solid economic and constitutional foundation. Economically, the integration of the Dominion was dependent upon the successful settlement of the West and the prosperous operation of the great east-west trade route which had its focus in the St. Lawrence and the Canadian Pacific Railway; but, in the conditions of the time, neither of these two basic essentials could be realized. The great depression, which, with a few brief intervals, ruled over the West-European and American world from 1873 to 1896, was a major disaster in Canadian national integration. The national policies of railways, settlement, and tariffs, from which so much had been hoped, seemed pitiful in their ineffectuality. The elaborate and costly machinery of political and economic life lay inert; and whereas prosperity would have helped to create a new unity in British North America, depression brought about a renaissance of its old sectional and racial animosities. From the failures and disappointments of nationality, men turned back to the more familiar interests and substantial loyalties of provincialism; and this disintegrating movement was most generously encouraged by the Judicial Committee of the Privy Council. “The object of the Act (the British North America Act),” said Lord Watson in a famous judgment of 1892, “was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority.”22 The fact that this statement constituted a complete inversion of Macdonald’s original definition of the purpose of Confederation does not appear to have disturbed the equanimity of the committee; and it was already proceeding to interpret the British North America Act in favour of the provinces with a thoroughness which Macdonald could never have anticipated in 1867. In these circumstances, there developed a strong revival of economic and political sectionalism. It seemed for a while, during the late eighties

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and early nineties, that the new nationality was about to dissolve into its component parts. The failure of the national economic policies led to widespread dissatisfaction within the country; and the efforts of the Dominion to assert its supremacy and to defend its policies by the exercise of disallowance provoked the furious opposition of several of the provinces. In the West, the Dominion had endeavored to protect the monopoly of the C.P.R. by repeatedly disallowing the statutes which were passed by Manitoba to charter competing railway lines to the American border; and when, in 1887, the agents of the C.P.R. resorted to obstruction by force, this acrimonious dispute threatened to degenerate into open warfare. In the east, the Maritime Provinces were openly dissatisfied with their position under the protective system; and in 1886 W.S. Fielding introduced, in the Nova Scotian legislature, a series of resolutions advocating the secession of the province from the union, on the ground that its commercial and financial interests had been vitally injured by the operation of Dominion policies. In Quebec, Honoré Mercier was lifted into power as the embodiment of French Canadian nationalism, revived and intensified by the execution of Louis Riel. In Ontario, Oliver Mowat had been carrying on a series of engagements with the Dominion over the location of the provincial boundary and the federal exercise of the power of disallowance. These provincial forays against the various policies and methods of the Dominion were serious enough; but, what was worse, they were accompanied by general attacks upon the Conservative fundamentals of economic and political nationalism. In 1887, there began a vigorous campaign for some form of close economic relationship with the United States; and in the following year the Liberal party officially adopted the policy of unrestricted reciprocity. The representatives of the provincial governments met in conference in 1887 to draft a number of suggested amendments to the British North America Act; and these amendments, if they had been carried out, would have deprived the Dominion of its right of disallowance and of other powers which even the Judicial Committee of the Privy Council had been unable to touch.23 These were the years of profound gloom, of widespread, if secret, annexationist sentiment; and the original conception of the Dominion appeared to have become an absurdly untenable hypothesis. As it turned out, the Liberal party and the provincial conference had overplayed their hands. There was to be no formal revision of the constitution and no complete abandonment of the protective tariff; but the disintegrating conditions which had provoked these demands



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remained to embarrass the Conservatives and to discredit their national policies. The party tried valiantly to save itself from disaster by abandoning some policies and modifying others; but the decline which set in after the death of Macdonald was irremediable. In the end, the party was defeated on an issue which directly involved those superintending powers which Macdonald had claimed for the Dominion. The Conservatives were jockeyed into an attempt to protect the claims of the Roman Catholics in Manitoba by remedial legislation in respect of separate schools; and the Liberal party rode into power at Ottawa as the champion of provincial rights. In this decline and temporary disintegration of Conservatism could be read the discredit of the original conception of Confederation. The party leaders had put their faith in an economic nationalism and a political nationalism which would mutually support and strengthen each other. And the battle for this programme had been lost. Yet it had not been entirely lost. The Conservative policies were not all fatally involved in the defeat of the party, or irremediably discredited by unfavourable circumstances. The Macdonald design of a strongly centralized Dominion had, of course, been permanently wrecked by the Judicial Committee of the Privy Council; but it was beyond the power of even the Judicial Committee to reverse the business cycle, and, even as the Conservative party was defeated, the return of good times was already giving validity to its national economic policies. The West was filling up, the Eastern factories were humming, the national transport system was soon to be overtaxed with freight. Through fifteen years of unexampled prosperity, the Liberals presided over the triumphant success of policies whose inevitable failure they had so often predicted in the past. In the very first years of the boom, they had quietly but definitely changed their views about the main national policies and the material interests which they were intended to promote. In office, they laid no irreverent hands upon the tariff; they sanctioned the construction of two new national transcontinental railways, where one had contented the Conservatives. The Liberal party had ceased to be “continental” and had become national in character; it had endorsed the conception of a separate and integrated Canadian economy on the North American continent. At the same time, the Conservatives proceeded to apply to their own problems the methods which had served the Liberals so well. They took over much of the Liberal view of national political unity, just as the Liberals had adopted their design of national economic integration.

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They learnt to treat sectional loyalties and provincial rights with the same respect which the Liberals had come to accord to protected industries and national railways. Both parties had learnt a lot about the art of political survival in a continental federalism. They had become more flexible, more adaptive, more wary. They borrowed each other’s successful policies and unostentatiously abandoned their own failures; and, in this process of adaptation by imitation, they not unnaturally developed a striking similarity of appearance. If some ineradicable traits of their old individualities still lingered, they could be prudently checked, at least in normal times; and their tendency in future was to burst out only in unusual times, at times of crisis, when the whole country seemed gripped by a common political purpose or oppressed by a common economic disaster. NOTES 1 D.G. Creighton, “Conservatism and National Unity,” R. Flenley, ed., Essays in Canadian History Presented to George MacKinnon Wrong for His Eightieth Birthday (Toronto: Macmillan, 1939), 154–77. 2 R.A. MacKay, “The Nature of Canadian Politics” (Proceedings of the Conference on Canadian-American Diaries, 1935, 191–208); F.H. Underhill, “The Party System in Canada” (Proceedings of the Canadian Political Science Association, 1932, 201–12). 3 D.G. Creighton, The Commercial Empire of the St. Lawrence, 1760–1850 (Toronto and New York, 1937). 4 Sir Joseph Pope, ed., Correspondence of Sir John Macdonald (Toronto, 1921), 422–3. 5 Quoted in A.D. Lockhart, “The Contribution of Macdonald Conservatism to National Unity, 1854–78” (Report of the Canadian Historical Association, 1939, 124–32). 6 F.H. Underhill. “Some Aspects of Upper Canadian Radical Opinion in the Decade before Confederation” (Report of the Canadian Historical Association, 1927, 46–61). 7 T.W.L. MacDermot, “The Political Ideas of John A. Macdonald” (Canadian Historical Review, XIV, September 1933, 247–64). 8 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec, 1865), 61. 9 Ibid., 64–5.



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10 Chester Martin, “The United States and Canadian Nationality” (Canadian Historical Review, XVIII, March, 1937, 1–11). 11 Pope, Macdonald Correspondence, 124. 12 Confederation Debates, 41. 13 Ibid., 42. 14 Dominion and Provincial Legislation, 1867–1893, 105. 15 Ibid., 61. 16 The Globe, July 14, 1866. 17 Quoted in Lockhart, “Macdonald Conservatism and National Unity,” 131. 18 E.M. Reid, “The Rise of National Parties in Canada” (Proceedings of the Canadian Political Science Association, 1932, 187–200). 19 Quoted in N.M. Rogers, “The Genesis of Provincial Rights” (Canadian Historical Review, XIV, March, 1933, 9–28). 20 Dominion and Provincial Legislation, 1867–1895. 21 Pope, Macdonald Correspondence, 75. 22 Report Pursuant to a Resolution at the Senate to the Honourable the Speaker by the Parliamentary Counsel Relating to the Enactment of the British North America Act, 1867 (Ottawa, 1939), Annex 9, 29. 23 The Globe, November 11, 1887.

“The Genesis of Provincial Rights” Canadian Historical Review 1933 Norman McL. Rogers1

The history of every community and every constitution may be regarded as a struggle between the action of these two forces, that which draws together and that which pushes apart, that which unites and that which dissevers.2

In the study of federal government, the constitutional lawyer and the political theorist must sit often at the feet of the historian. Especially is this true of that central problem of federalism which is suggested by the phrase “provincial rights.” A federal constitution, as Dicey observed, owes its existence to a peculiar state of feeling among the inhabitants of the several communities which have been brought together under its authority. They desire union, but do not desire unity.3 Thus from the moment of its birth a federal state is put in a posture of competition with the states or provinces of which it is composed. If the provinces are secure in the attachment of their citizens and jealous of the letter of their rights, the federal agencies of government may be compelled to withdraw their services to the minimum permitted by a strict interpretation of the constitution. If, on the other hand, the provincial governments are lacking in the support of local sentiment, and are willing to regard themselves as subordinate partners in the business of government, the federal institutions tend to grow in influence and power with



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the growth of national sentiment and the diminishing importance of the provinces. The tide of the struggle may shift now this way and now that. Sometimes the federal state is in the ascendancy. At other times the provinces may win back what they have lost and even penetrate the defences of the federal power. Always, beneath the noise and clamour of particular controversies, there are changes in political consciousness and sentiment which decide the trend of the conflict. Statesmen, as they come and go, may have their influence on events. But the area within which their influence is effective is predetermined by social forces over which their power is transient and partial. The facts which alone can illumine and explain constitutional tendencies over long periods of time must be sought in the material of history. Although the controversy over provincial rights is inherent in every federal constitution, it was the proud boast of Sir John Macdonald that, by the wise provisions of the Quebec Conference, Canada had received a permanent immunity from this common affliction of federations. In the course of his speech on the Quebec Resolutions in the Canadian parliament, he made particular reference to the conflict over “states rights” in the United States and to the unhappy culmination of that struggle in the Civil War: We have thus avoided that great source of weakness which has been the cause of the disruption of the United States. We have avoided all conflict of jurisdiction and authority, and if this Constitution is carried out, as it will be in full detail in the Imperial Act to be passed if the colonies adopt the scheme, we will have in fact, all the advantages of a legislative union under one administration, with, at the same time, the guarantees for local institutions and for local laws which are insisted upon by so many in the provinces now, I hope, to be united.4

Macdonald’s optimism on this point was shared by not a few of his colleagues at the Quebec Conference. The feeling seemed to be that the origin of “states rights” in the United States lay in the wide residuary powers left to the individual states under the constitution, giving them in their own right some of the important attributes of sovereignty and thus encouraging the belief that they were the substance, and the president and Congress but the pale shadows, of sovereign authority in the nation. The expedient adopted by Canada to prevent a similar conflict between federal and provincial governments over their

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respective shares of jurisdiction was the simple operation of inverting the scheme of distribution of powers adopted by Canada’s neighbour. As Macdonald put it in the speech just quoted (p. 35), The United States began at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to sovereignty belonged to each state, except those powers which by the Constitution were conferred upon the General Government and Congress. Here we have adopted a different system. We have strengthened the General Government. We have given the General Legislature all the great subjects of legislation. We have conferred upon them not only specifically and in detail all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local government and local legislatures, shall be conferred upon the General Government and Legislature.5

Thus, as viewed by Macdonald and his associates, the bulwark against “provincial rights” in Canada was made up of those provisions in the proposed constitution which strengthened the federal government and parliament at the expense of the provincial establishments. While Macdonald may have had some grounds for his simple faith in constitutional formulae as a safeguard against a movement for provincial rights in Canada at the close of the Quebec Conference, the events of the next two years gave little support to his evident belief that the provinces would accept voluntarily and cheerfully the subordinate position they had been destined to occupy under the proposed federal constitution. Even as the debate on the Quebec Resolutions proceeded in the Canadian parliament, there were ominous rumblings of dissent in Lower Canada, while among the English-speaking representatives such shrewd observers as Dunkin, Holton, and Huntington expressed ironical doubts regarding the supposed spirit of harmony which would prevail over the relations between the federal and provincial governments. It is significant that the resolutions which were seized upon as the chief targets for opposition were precisely those which were eulogized by Macdonald and other Canadian delegates at the Quebec Conference as safeguards against the undue assertion of provincial rights. Dorion, the leader of the opposing forces in Lower Canada, did not mince words in protesting against the wide powers granted to the dominion authorities under the Quebec scheme:



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Sir, if a legislative union of the British American Provinces is attempted, there will be such an agitation in this portion of the province as was never witnessed before – you will see the whole people of Lower Canada clinging together to resist by all legal and constitutional means, such an attempt at wresting from them those institutions that they now enjoy.6

The point of this reference is not, of course, that legislative union was contemplated by the Quebec Resolutions, but that some of the leaders of the delegation from Upper Canada were avowedly in favour of this form of union, and having failed to secure it were assumed to have sought its partial realization through those resolutions of the Conference which favoured the central authority at the expense of the provinces. The power given to the dominion government to disallow provincial legislation was especially obnoxious to the opponents of the Quebec scheme. Both Dunkin and Dorion condemned it in outspoken terms, the former stating that it meant the disallowance of all autonomy to the provinces, and the latter complaining that it placed the provincial legislatures wholly at the mercy of the federal government.7 The Confederation debates abound with similar protests on behalf of provincial autonomy and the rights of racial and religious minorities. It was evident that even in the united provinces, where the federal scheme commanded the most general support, there was no lack of potential opposition to the centralizing features of the federal constitution proposed by the Quebec Conference. In the Maritime Provinces the political situation was even less favourable to Macdonald’s sanguine expectations. There the original opposition to the Quebec scheme came not from a minority but from the great majority of the inhabitants. The agitation, moreover, was not centred merely upon particular features of the proposals but extended also, especially in Nova Scotia, to the bare project of uniting the several provinces of British North America into one federal state. The Quebec Resolutions were never submitted to the legislature of this province for approval. In New Brunswick the government supporting them was defeated in a general election. In Prince Edward Island they were rejected as an unsuitable basis for union. It is doubtful if the events of the ensuing two years indicated any widespread change in the attitude of the people of these provinces towards the proposals for union. It is true that the verdict of the New Brunswick electorate was reversed at a subsequent election. It is also true that the legislatures of New Brunswick and Nova Scotia passed resolutions authorizing delegates to formulate

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a plan of union in co-operation with the imperial government and delegates from Upper and Lower Canada. Behind these apparent changes in opinion, however, there is the shadow of imperial influence amounting almost to coercion. The British government had committed itself definitely to a federal union of the British North American colonies and spared no effort of diplomacy and indirect pressure to overcome the opposition which had developed in the Maritime Provinces. The official correspondence of the period, especially the communications which passed between Lord Monck, the Colonial Office, and the governors of New Brunswick, Nova Scotia, and Prince Edward Island, makes it abundantly clear that the recalcitrant provinces were induced to enter the union in deference to considerations of imperial policy.8 In Nova Scotia, at least, this influence was not without its effect upon members of the legislature. But as events soon proved, the people of that province had not altered their attitude towards the proposals for federation. The Maritime Provinces, indeed, entered the union with halting and reluctant steps. In such a situation there was every prospect of a jealous assertion of provincial autonomy as against the wide powers entrusted to the new dominion under the terms of the federal constitution. The final stages of the negotiations for union did little to allay the fears or compose the irritation of the opponents of federation in the various provinces. George Brown, the Liberal leader in the coalition which had brought about the Quebec Conference, was absent from the London Conference which formulated the definitive proposals which served as a basis for the British North America Act.9 The Nova Scotia delegation did not represent the opinion of the majority of the inhabitants of that province. The New Brunswick delegates were pledged to insist on the Intercolonial Railway and hoped to obtain a revision of the financial terms of the Quebec scheme.10 Cartier, it may be assumed, was fully aware that he must take account of the misgivings of many of his compatriots regarding the potential dangers which were latent in the powers assigned to the federal authority under the terms of the original Quebec Resolutions.11 In due course the differences which divided the several provincial delegations were reconciled, but only through the revision of the Quebec scheme in several of its important features. These changes were not authorized by the legislature of the united provinces, and Macdonald took special precautions to have the British North America bill hurried through the British parliament before the details could become the subject of controversy at home.12 Such a manoeuvre, however it may have been recommended by considerations



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of immediate expediency, was little calculated to commend itself to the opponents of the federal proposals in Canada. It also aroused the wrath of George Brown and weakened his advocacy of the new constitution in the years when the federal machinery was receiving the first test of practice.13 From beginning to end the negotiations for union reflected the lack of any strong and sustained support of sentiment and opinion. Federation was essentially the work of a few master-builders. Opposition to the proposals was organized and vocal in all the provinces. The mass of the population was probably indifferent to the outcome. Certain sections of it were hostile from the outset, and their hostility was not likely to cease when the new dominion came into being. With a background in which the high hopes of its founders were mingled with the disappointment and misgivings of its opponents, the Canadian federation entered upon its career under the direction of the statesmen who had taken a foremost part in its creation. If Sir John Macdonald had any prevision of the path which lay before him, he kept his thoughts discreetly to himself. Doubtless he had few illusions regarding the difficulties that would confront the first dominion government in establishing and maintaining harmonious relations with the provinces. But difficulties had never daunted his spirit, and it would have been strange indeed if he had been unwilling to lend himself to an enterprise in which he had invested so much of his mind and strength during the preceding years. He had taken a major part in fashioning the instrument of federal government. Now he was given the opportunity to test its utility by experience. Writing to the Honourable Ambrose Shea, one of Newfoundland’s delegates at the Quebec Conference, a month before the formation of the first dominion administration, he expressed a modest faith in the outcome of the experiment: In thirty days, for weal or woe, the Confederate Government will be inaugurated. By the exercise of common sense and a limited amount of that patriotism which goes by the name of self-interest, I have no doubt that the Union will be for the common weal.14

Both common sense and patriotism were required in large measure if the new dominion at the commencement of its voyage was to chart a course which would enable it to avoid the hidden reefs of racial antagonism and provincial rights. When the first dominion government entered upon its responsibilities, the plan of Macdonald and others of his associates who had favoured

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legislative union seemed simple in execution and by no means impossible of achievement. They believed that the success of federalism in Canada required the subordination of the provinces to the general authority of the dominion. This did not mean that the provinces were to be legislated out of existence. It simply meant that the wide constitutional powers apparently given to the dominion government and parliament under the British North America Act were to be utilized to the utmost to secure the recognition by the provinces themselves that their proper status was one of subordination, and that, in any conflict of jurisdiction with the dominion in matters which were not covered explicitly by constitutional enactment, they must give way gracefully to the supreme authority. This doctrine of a paramount authority residing in the dominion was not regarded as a forced interpretation of the constitution. It was possible to refer to certain clauses of the British North America Act as expressly supporting such a position, as, for example, the residuary legislative authority given to the dominion parliament, the unqualified power conferred upon the dominion government to disallow provincial legislation, and the authority to appoint and presumably to instruct the lieutenant-governors of the provinces.15 Lord Monck, the first governorgeneral, was known to be a vigorous advocate of legislative union, and might be expected to lend his support to any policy within the letter of the constitution which would strengthen the central government.16 In the power of disallowance, Macdonald possessed the effective means whereby the provincial legislatures could be kept within the channels of jurisdiction which had been assigned to them by the British North America Act. The powers given to the lieutenant-governors of the provinces were so indefinite as to permit an interpretation of the status and functions of those officials which would accord with the policy of centralizing authority in the dominion.17 These instruments and favouring conditions had for the most part a constitutional sanction behind them. It was only natural that Macdonald should take advantage of them to secure the realization of his purpose. The important object in the early years of the dominion was to habituate the provinces to a status of subordination. Once they had accepted the new regime by successive submissions to the federal authority, there was reason to believe that custom would supply the want of explicit constitutional provisions to this end. To a statesman so thoroughly practised in the arts of political strategy as Sir John Macdonald, the best method of carrying forward a policy of centralization was to secure the election to both the dominion parliament and the provincial legislatures of men who had the cause of



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union at heart and would be prepared to work together in the service of a common cause. In the attainment of this object he was singularly favoured by fortune in every province except Nova Scotia. In that province the elections of 1867 returned a legislature which was overwhelmingly opposed to federation, and committed to make every effort to secure the repeal of the British North America Act in its application to Nova Scotia. In dealing with this difficult situation Macdonald was obliged to call upon all his resources of diplomacy and manipulation. Aided by the co-operation of the British government, he succeeded at length in persuading the Nova Scotian government that it must make the most of hard necessity, providing that necessity could be rendered less harsh by a revision of the financial terms of union to the advantage of the provincial treasury. The procedure by which these “better terms” were granted to Nova Scotia was at least open to question, and aroused strong opposition in Ontario.18 Macdonald, however, could still rely on the support of the imperial government, and was able to produce an opinion from the law officers of the crown approving of a variation of the financial conditions of union by an ordinary act of the dominion parliament.19 With the admission of Joseph Howe to the dominion Cabinet, the opposition in Nova Scotia was reduced to modest proportions. Elsewhere the provincial administrations were in friendly hands. Sandfield Macdonald, as premier of Ontario, was willing to put his shoulder to the provincial wheel of the federal coach despite the verbal castigations he received occasionally from George Brown and the Globe.20 At Quebec, Chauveau was in command with a safe majority of confederate supporters behind him. In that province Sir George Cartier could also be relied upon to deal with any embarrassing situation that might arise. In New Brunswick a favourable revision of financial terms and the influence of Tilley were effective safeguards against friction. On the whole, as the first dominion administration entered upon its task, the external evidence afforded some confirmation of Macdonald’s earlier hope that the evil spirit of “provincial rights” had been exorcised from the Canadian constitution by the wise provisions of its founders. It is a commentary on the vanity of political calculations that before two years had elapsed Macdonald was compelled to acknowledge the failure of the precautions so carefully taken to avoid an issue on the question of provincial rights. In a letter written from Macdonald to Sir John Young shortly after his arrival in Canada as successor to Lord Monck, there is a significant reference to the antagonism towards the federal government which had become evident in some of the provinces:

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It is difficult to make the local Legislatures understand that their powers are not so great as they were before the Union. In fact, the question that convulsed the United States and ended in Civil War, commonly known as the “States Rights” question, has already made its appearance in Canada!21

Although there is nothing in this letter to indicate precisely the causes of misunderstanding with the provinces, the official communications and newspapers of the period suggest that the chief source of friction was the use made by the dominion government of its power of disallowance. As provided by the British North America Act, the power of disallowance was subject to no reservations. The dominion government was given the authority to nullify provincial legislation within a period of one year after its enactment.22 Designed to serve as an instrument by which the provincial legislatures were to be kept to their proper channels of jurisdiction, its employment in practice depended wholly on the policy of the dominion administration. This was its inherent weakness. The provinces would have submitted to judicial decisions affecting their jurisdiction without serious protest. Any misgivings they might have entertained on this score would have been lulled by the comfortable fiction that judges interpret but do not make the law. But the dominion authorities could not escape a full measure of responsibility for every exercise of the power of disallowance. No matter how justifiable their action might be from a strict legal standpoint, every threat to disallow a provincial statute conveyed the impression of a deliberate interference with provincial autonomy. Macdonald was not long in realizing that the usefulness of his instrument would be enhanced if he could reassure the provinces that it would not be employed arbitrarily as a means of curtailing their proper legislative jurisdiction. Accordingly, on June 8, 1868, in his capacity as minister of justice, he prepared a memorandum which was designed to regularize the procedure of disallowance, and to relieve the dominion government of some of its burden of responsibility in the exercise of its powers. The memorandum expressed the view that “it is of importance that the course of Local Legislation should be interfered with as little as possible, and the power of disallowance exercised with great caution, and only in cases where the law and the general interests of the Dominion imperatively demand it.”23 The memorandum then went on to propose a definite procedure for the examination of provincial legislation by the minister of justice at Ottawa. Under this procedure it was recommended that objectionable



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acts of the provincial legislatures should be classified under four distinct heads: (1) as being altogether illegal or unconstitutional; (2) as illegal or unconstitutional in part; (3) in cases of concurrent jurisdiction, as clashing with the legislation of the general parliament; (4) as affecting the interests of the dominion generally. As a concession to provincial susceptibilities, it was proposed that where a measure is considered only partially defective, or where objectionable, as being prejudicial to the general interests of the Dominion, or as clashing with its legislation, communication should be had with the Provincial Government with respect to such measures, and that in such cases, the Act should not be disallowed, if the general interests permit such a course, until the Local Government has an opportunity of considering and discussing the objection taken, and the Local Legislature has also an opportunity of remedying the defects found to exist.24

This procedure, as adopted by the dominion government and announced to the provinces in a circular despatch, appeared to go a long way towards removing the dangers of friction. Nevertheless, it did not dispel suspicion and it failed to avoid resentment even in cases where the power of disallowance was invoked against provincial legislation which was evidently illegal or unconstitutional. Ontario became the chief battleground in the contest over the power of disallowance. It so happened that its legislation fell under the special displeasure of the federal Department of Justice in the early years of federation. This may have been unavoidable, but the political consequences were unfortunate for the federalist party at Ottawa and ought to have been more clearly foreseen. In Ontario the opposition had a powerful newspaper organ in the Globe under the able editorship of George Brown. As the self-appointed guardian of provincial autonomy, it kept a vigilant watch over the provincial administration and seldom lost an opportunity to berate Sandfield Macdonald for his mistakes of judgment and his submissive attitude towards the federal authority. Its general attitude is well illustrated by the controversy over the pardoning power. In the Quebec Resolutions this power had been assigned to the lieutenant-governors of the provinces, but it was not so provided in the British North America Act.25 When Ontario assumed the power of pardon under Sandfield Macdonald, the dominion authorities referred the question to the imperial government and received an opinion from

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Lord Granville that the power lay solely with the governor-general as the deputy of the queen.26 The Globe took strong exception to this opinion, arguing that if the imperial authorities had been asked to assign the pardoning power to the lieutenant-governors of the provinces as provided for in the Quebec Resolutions, they would not have hesitated to do so.27 Thus the responsibility which Macdonald had hoped to thrust on the law officers of the crown in England was brought back and laid on the doorstep of the federal administration at Ottawa. Whenever a centralizing tendency was evident in the policies of the Ottawa government the Globe was prepared to enter the lists on behalf of the provinces. Its position is summed up concisely in a brief paragraph from one of its characteristic editorials of the period: The danger most to be feared is that men who really don’t believe in Confederation at all should so seek to extend and consolidate the Federal legislative and executive power that the Local Governments and Legislatures shall be in danger of becoming mere shadows and shams, and that the recoil from such a danger may lead to the opposite extreme of ignoring national unity, and in zeal for mere local interests and specialties, the breaking up of Confederation altogether.28

This was a shrewd if not wholly accurate statement of the case for the provinces. It acquitted the agitation for provincial rights of any subversive efforts against the union, and even claimed for it the superior virtue of seeking to save the union from the treachery of its apparent friends. The constant reiteration of such protests could not fail to have an influence on public opinion throughout the province. The weakness of the federalist programme lay in the fact that it presupposed a general sentiment in the country which would support the dominion government in a dispute with a province. This assumption was not correct. The manner in which federation had been accomplished, and the bitter opposition it aroused in certain sections of the dominion deprived the federal government of the support of any widespread feeling of patriotic attachment. The provinces were old and familiar friends. The dominion was as yet a new and untried entity. That Macdonald himself soon came to realize this handicap of the federal authority is suggested by a passage in the letter to Sir John Young already referred to in another connection. Warning the governor-general that he might have some day a body of advisers composed of “states rights” men who would look more to sectional than to general interests, he went on to say,



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The natural tendency of public men is in that direction. Each member of your Government holds his position from his supposed influence in his own province, and he will be disinclined to lessen that influence by acting for the Dominion against his province should these interests come in conflict. This is more especially the case now, when the General Government is new, and the Dominion has no associations, political or historical, connected with it. We are all yet mere provincial politicians – Bye and bye, it is hoped that some of us may rise to the level of National Statesmen.29

At the close of Macdonald’s first administration all that was needed to create an organized agitation for the assertion of provincial rights was the presence of a strong and aggressive premier in one of the provinces who would be willing to accept the leadership in a movement for the defence of provincial autonomy. Such a leader was found in the person of Oliver Mowat. A former Cabinet minister of the united provinces, a member of the Canadian delegation at the Quebec Conference, a skillful lawyer with a mind well trained in constitutional precedents, he had occupied for some years following the federation of the provinces the high judicial post of vice-chancellor for Ontario.30 The circumstances which induced him to accept the leadership of the Liberal party in Ontario are significant. The Sandfield Macdonald government, following the example of the first federal administration at Ottawa, was intended to be a non-party government composed of the friends of union. It included both Conservatives and Reformers in its ranks, but the preponderance lay with the Conservatives, and the tendency as time passed was to regard it as a Conservative administration.31 In the legislature the opposition was led by Edward Blake and Alexander Mackenzie, both of whom held seats also in the dominion parliament under the rule of dual representation which prevailed at the time. The Ontario elections of 1871 gave a hostile verdict against the Sandfield Macdonald government, and when the legislature met in December of that year, Mr. Blake was called upon to form the first Liberal ministry of Ontario. When, however, the act abolishing dual representation was passed by the dominion parliament in the session of 1872, Blake and Alexander Mackenzie, the provincial treasurer, were obliged to choose between the dominion parliament and the provincial legislature. The situation in the dominion parliament following the general election of 1872 was such that the Liberal opposition had a reasonable hope of forming an administration at Ottawa within a short period.32 If Mowat could be persuaded to accept the leadership of the Liberal party in

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Ontario, Blake and Mackenzie would be free to lead the forces of the party in the dominion parliament. This consideration undoubtedly had its weight in Mowat’s decision, but the real reasons which impelled him to resign his judgeship for the precarious life of politics were the convictions which influenced his policy during the remainder of his public life. He was strongly of the opinion that provincial autonomy was threatened by the centralizing tendencies which he observed in the conduct of the federal administration. Holding this opinion, he was resolved to champion the cause of provincial rights as head of the government of the largest and most influential province of the dominion.33 The appearance of Oliver Mowat on the Canadian political scene at this juncture was the signal which opened the active conflict over provincial rights. It was an event of which Sir John Macdonald understood the full significance. In their exchange of letters after Mowat had tendered his resignation as vice-chancellor there is a note of challenge beneath the courteous phrases of congratulation and acknowledgment. I hope [wrote Macdonald] that the relations between the Dominion Government and that of Ontario will be pleasant. There is no reason why they should not be so. Blake announced, on taking office, that he was going to pursue that course; but I fear that he allowed his double position under the dual system to affect his mind prejudicially. We all profess to have, and I have no doubt, sincerely, have the same object in view – the government of the country. We must therefore try to work the new machine, with the construction of which we have had so much to do, with as little friction as possible.34

To which Mowat replied, I have ever felt greatly interested in the success of Confederation, and I agree with you that its success will be aided by proper relations being maintained between the Dominion and Local Governments as such, even when these are not in the hands of the same political party.35

From this common devotion to the success of Confederation, one might conclude that the relations between the dominion and Ontario were assured of harmony in the years ahead. Exactly the reverse was true. The explanation lies in the fact that Macdonald and Mowat, though equally pledged to the success of the new federation, had widely different views regarding the means and methods by which that object might be



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attained. Macdonald held with all sincerity that the provinces must be relegated to a position of subordination in the federal scheme. Mowat, with equal sincerity, believed that the autonomy of the provinces must be safeguarded against federal encroachment, and that this was the only basis upon which the union could endure. Around the theories and personalities of these two men the struggle over provincial rights was to continue for twenty years. The changing tide of the conflict determined in large measure the development of the Canadian constitution in its internal aspects during this period of Canadian history. NOTES 1 Norman McL. Rogers, “The genesis of provincial rights,” Canadian Historical Review, 14, 1 (1933), 9–23. 2 James Bryce, Studies in history and jurisprudence (London, 1901), I, 218. 3 A.V. Dicey, Introduction to the study of the law of the constitution (London, 8th ed., 1914), 137. 4 Debates in the parliament of Canada on the Confederation of British North America (Quebec, 1865), 33. 5 Ibid., 35. 6 Ibid., 264. 7 “We shall be – I speak as a Lower Canadian – we shall be at its mercy, because it may exercise its right of veto on all the legislation of the local parliaments, and there again we shall have no remedy” (Dorion in ibid., 690). “It further allows of no real autonomy; in fact, the only trace of uniformity it can be said to have about it consists in its disallowance of all autonomy to the provinces” (Dunkin in ibid., 502). 8 On this subject see the very illuminating study by Chester Martin, “British policy in Canadian Confederation” (Canadian Historical Review, March, 1932, 3–19). The negotiations of the period for reciprocity were also utilized by the Colonial Office as a means of inducing the dissentient provinces to accept the proposals for federation (Journals of the Legislative Council, Prince Edward Island, 1866, appendix no. 7, 180). 9 George Brown had resigned from the coalition government in December, 1865, the cause of his resignation being a sharp difference of opinion regarding the negotiations for reciprocity with the United States. He was not, therefore, a member of the Canadian delegation which proceeded to London in 1866 to conclude the negotiations for union (A. Mackenzie, The life and speeches of the Hon. George Brown, Toronto, 1882, 105).

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1 0 Journals of the Legislative Assembly of New Brunswick, 1866, 153. 11 “It is generally believed that the most serious estrangement between [Sir John Macdonald and Sir George Cartier] occurred in London while the British North America Act was before Parliament. John A. Macdonald desired, it is said, to have it so modified that a legislative union should be substituted for the proposed federation. To this Cartier objected strongly, and made no mystery of his intention to return to Canada if his colleague persisted in his determination to alter the Constitution as it had been adopted in Quebec” (A.D. DeCelles, Papineau Cartier, Makers of Canada, Toronto, 1910, 102 of section on Cartier). 12 Sir J. Pope, Memoirs of Sir John A. Macdonald (Ottawa, 1895), I, 307–8. 13 The Globe, June 9, 1869. In a leading editorial in this issue, it is stated that the changes in the financial clauses made by the London Conference were manifestly unfair to Ontario and Quebec. 14 Public Archives of Canada, Macdonald letter book, X, 575. 15 B.N.A. Act, sec. 58. 16 As late as September 7, 1866, Monck proposed to Carnarvon that important changes should be made in any bill founded on the Quebec Resolutions which would have greatly strengthened the central authority in its relation to the provinces. “I am persuaded both from the internal evidence afforded by the resolutions which they drew up – and from intimate personal knowledge of most of the able men who composed the Quebec Convention, that their intention was to form out of these Provinces a solid and lasting political consolidation with a supreme central authority managing all the general interests of the people of the Union, and which would attract to itself the – so to speak – national sentiment and aspirations of the entire population” (Public Archives of Canada, Series G, 180 B. G, 221 A, 1856–66, Secret and confidential despatches, 212–220). 17 Note Dufferin’s opinion in 1873: “It seems to me that the true policy of the Dominion will be to subordinate the prestige and jurisdiction both of the local legislatures and their chief executive Officer, to the supreme authority of the Canadian Parliament and the Governor-General” (Public Archives of Canada, Macdonald papers, Governor-general’s correspondence, Dufferin, V, 1872–73, 178). 18 A resolution was passed by the Legislative Assembly of Ontario in the following terms: “That an humble Address be presented to Her Majesty praying that she may be graciously pleased to cause a measure to be submitted to the Imperial Parliament for the purpose of removing all colour for the assumption by the Parliament of Canada of the power to disturb the financial relations established by the B.N.A. Act (1867) as



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between Canada and the several Provinces” (Journals of the Legislative Assembly of Ontario, 1869, III, 33–36, 54–56). 19 Sessional papers, Canada, 1870, III, no. 25. 20 Pope, Memoirs of Sir John A. Macdonald, II, 20. 21 Macdonald letter book, no. 12, 443–447. 22 B.N.A. Act, sec. 90. 23 Sessional papers, Canada, 1869, no. 18. 24 Ibid. 25 Resolution 44 of the Quebec Conference was in the following terms: “The power of respiting, reprieving, and pardoning prisoners convicted of crimes, and of commuting and remitting sentences in whole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant-Governor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament.” 26 Sessional papers, Canada, 1869, no. 16. 27 The Globe, July 3, 1869. 28 Ibid., April 2, 1870. 29 Macdonald letter book, no. 12, 443–447. 30 C.R.W. Biggar, Sir Oliver Mowat (Toronto, 1905), I, 134. 31 Ibid., 148. 32 At the general election of 1872, Sir John Macdonald’s majority in the House of Commons was reduced from 68 to 6. 33 Biggar, Sir Oliver Mowat, I, 152. 34 Macdonald papers, Correspondence with Sir Oliver Mowat, 1852–1881, folio, 327. 35 Ibid., folio, 329.

“Confederation: A Pact or a Law?” “La Confédération: Pacte ou Loi?” (Translated by Nicole Anichini, Anna Bandyk, Jillian Castelltort, Jessica Domingues, Wendy Duff, Chris Haggertay, Kim Tran, and Sally Vusi) L’Action Nationale 1949 Richard Arès1

To move beyond the impasse in which all amendment proposals to the Canadian Constitution have become mired, Mr. St. Laurent has chosen to rush things as well as men by presenting the provinces with a fait accompli. He has gotten London to grant Ottawa the authority to amend the Constitution in all matters subject to the exclusive jurisdiction of the central government. Once this is done, the Provinces must follow suit. The distinction is clever, the move bold; however, this strategy has done nothing to preclude the inevitable question: what is the nature of the British North America Act? Today, as ten years ago, and as it has been each time an attempt was made to amend this Act in the last few years, the same debate has arisen between the partisans of centralized power and the defenders of provincial autonomy. Is this Act only a law under the jurisdiction of the Parliament in London, or can it and should it be seen also as the legalization of a compact, of a prior pact among the Provinces? Some have already taken a stand. “In our opinion,” wrote Mr. Duplessis in a letter to the Prime Minister of Canada dated 21 Septem­ ber, “the Canadian constitution is a pact that cannot be amended unilaterally.”2 Two days later, in the House of Commons, Mr. St. Laurent declared, “That theory is in diametric opposition to our opinion.” In his 28 September response to Mr. Duplessis’ letter, the Prime Minister of Canada sought to minimize the importance of the debate. It matters



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not, he essentially said, whether it is a pact or a law; in practice, when the central power wishes to make changes to its constitutional powers, it need only consider the authority that made the final determination, that is, the Parliament at Westminster.3 But is this pragmatic attitude not founded precisely on the prior and theoretical acknowledgement that our Constitution is only a law of the Imperial Parliament? To help the readers of L’Action nationale make sense of this constitutional debate, we wish to present here, as objectively as possible, the principal arguments in favour of each of the two theories. We will do so concisely, referring readers who might want further details to our Dossier sur le Pacte fédératif, published in 1941. Let us begin by saying that there are two essential and complementary points of view to consider in this debate: the historical and the legal. In order to be objective and impartial, it is necessary to remain conscious of these two perspectives, even if this blurs the picture somewhat. Historical and Traditional Evidence It is obvious that one must turn to historical and traditional evidence. Our task is to understand the nature of an event that took place over eighty years ago, an event that has been analyzed, criticized, and judged by a considerable number of people in the intervening years. How can we be completely objective if, from the start, we set aside historical evidence? Both sides invoke this evidence, but for different purposes; while the centralists attempt to minimize it, the provincialists use it almost exclusively as the basis for their argument. I – The Centralist Theory and Historical Evidence For the centralists,4 the British North America Act is a law, pure and simple; it is in no way a compact or a pact. The opposing theory, they insist, is a recent invention for which there is neither legal nor historical evidence.5 Thus, in order to demonstrate their point of view, they present three arguments: that in the drafting of the Constitution, the provinces played but an insignificant role compared to that of London; that several times, over the course of its eighty years of existence, the Act has been amended without the consent of the provinces; that most Canadian legal experts do not accept the compact theory. Therefore, the idea of it being a compact or pact is out of the question.

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A. The Roles of the Provinces and That of London This argument has been developed primarily by J.S. Ewart6 and William Francis O’Connor7 in the following terms: 1. The 1867 Act is not a reproduction of the Quebec Resolutions: a) The Quebec Resolutions were discussed and considerably modified at a meeting of provincial delegates in London. For example, the initial Quebec Resolutions consisted of 72 paragraphs, the London version contained 69, and the Act itself contains 147. b) The Act was the result of long negotiations between the delegates and the Colonial Office. The delegates undertook the first draft consisting of 68 sections. The British advisors wrote the second draft, which is very different from the first. The third draft consisted of 83 sections, and the fourth comprised 129 sections produced by the delegates. The fifth draft containing 143 sections was the result of collaboration. The Act itself has 147 sections. c) The provincial delegates had no authority to consent to amendments to the Quebec Resolutions. The testimony of John A. Macdonald is clear on this point: the Resolutions had to be approved as a whole, otherwise another conference would be necessary. Additionally, the amendments to the Quebec Resolutions were never brought before the provincial legislatures for approval. 2. Only the London Conference was a true constituent assembly. The earlier conferences in Charlottetown and Quebec City were merely review meetings, consultative assemblies, not constituent assemblies having the authority to enact into law a constitution. 3. The case of Nova Scotia. The Quebec Resolutions were not submitted to the Nova Scotia legislature. Tupper succeeded only in naming delegates to London to discuss the bases of the federation. The people had not been consulted, and when they were, the federalists were defeated. Howe set off to London to request the withdrawal of the Province from Confederation; the Imperial Parliament refused to vote on such a request. 4. The machinations of the federalists. All procedures were undertaken in the utmost secrecy for fear of arousing popular opposition in the Provinces; Macdonald himself admitted this in writing and in public.



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B. The Precedents Since 1867, the Act has been amended ten times or so without the consent of the Provinces, and most did not even protest, which they could and should have done had the Act been a compact or a pact.8

C. The Opinion of the Majority In addition to the foregoing, most Canadian legal experts today reject the constitution-compact theory as completely lacking in foundation, from both a historical and a legal point of view. That is, in any case, what emerged in the reports of two commissions of inquiry instituted by Ottawa, the first in 19359 and the second in 1939,10 to determine the nature of the Canadian Constitution and the methods used to amend the 1867 Act. These two commissions concluded that “the so-called compact of the Confederation is non-existent.”11 Historical evidence and tradition thus contradicts the Confederationcompact theory, and the British North America Act must be considered as nothing more than a law enacted by the Imperial Parliament in 1867. II – The Provincialist Theory and History This is exactly what the provincialists reject. While they acknowledge the legal nature of the 1867 Act, they claim that this Act emerged from a pre-existing treaty, and that it was merely the legalization of a pact concluded between the provinces and the two main ethnic groups. First there was a pact, and it was later sanctioned and legalized by London. Thus, to make substantive amendments to this Act requires more than the intervention of London; the provinces that were parties to the original pact must also give their consent. Here is how the provincialists respond to the arguments of their opponents.

A. Response to the Arguments of the Centralists First Argument: The Role of the Provinces and That of London 1. In response to the centralists who state that the British North America Act is merely a reproduction of the Quebec Resolutions, the provincialists reply: although the Act is not an exact replica of the Quebec Resolutions, it does nevertheless reproduce the spirit

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and essence of the document. This is clearly illustrated by the following:12 a) There is no doubt that amendments were made to the Resolutions, but these were changes of little importance in relation to the entirety of the document. In Quebec City, three essential elements that are the cornerstones of any constitutional Act were agreed upon: 1) the establishment of a “federal union” instead of a legislative union, 2) respect for the autonomy of the Provinces, and 3) respect for all institutions specific to and of Quebec. Yet not one of these three essential elements was touched upon in London. All of our historians agree on this.13 Secondary points were developed, and details were added, but the essence of the original treaty, as expressed in the Resolutions,14 was not changed. Furthermore, the Canadian delegates in London initially worked alone to draft the new resolutions. When the resolutions were completed, the delegates informed the Colonial Secretary that they had come to an agreement and would submit a series of resolutions on which they agreed unanimously.15 Therefore, if amendments were made to the Quebec Resolutions at the London Conference, it is the representatives of the provinces that should, first and foremost, be held responsible. b) There is no doubt that British legal experts intervened. However, they did so more as advisors than as Fathers of Confederation,16 and above all, they did so to assist the Canadian delegates in drafting the resolutions as legislation.17 There were a number of drafts of the bill, but only the second is the work of the British legal experts, the others were penned by the Canadian delegates. The final draft – the bill that was accepted – was the collective work of the Conference and its advisors. In order to understand what occurred in London, Cartier’s testimony is invaluable. Before his departing for London, he stated that the delegates would accept from the Imperial Government “only an act that was based on the resolutions adopted by this Chamber, and no other.”18 Upon his return, he delivered a lengthy address to demonstrate that this had indeed been the case. Confederation was a compromise which, today, retains its character … Some even stated that we could not



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know what to expect of England; that a good constitution could have been drafted at the Quebec Conferences, but that the Imperial authorities would change it, distort it as they wished. Well, you know what happened. We went to England, and we were treated fairly, generously. All of our requests were considered. The Canadians, noted the English ministers, come to us with a fully drafted constitution, the result of an amicable agreement made between them, of a careful discussion of their interests and needs. They are the best judges of what suits them, let us not change what they have done, let us sanction their Confederation. Indeed, it was in this spirit that England received our request. We required her sanction, which she granted to us without hesitation, not wanting to intervene in our work … the Constitutional Act that we succeeded in having enacted in England.19 Might one not say that Mr. Cartier sought to refute in advance a good number of the objections made by the centralists? Did he not speak of a “fully drafted constitution” that the Canadians had pre­ sented in London? Of a constitution that was “the result of an amicable agreement made between them,” of a “Constitutional Act that we succeeded in having enacted in England,” one that the British Parliament did nothing but “sanction”? How, after such a testimo­ nial, could the centralists honestly continue to claim that the com­ pact theory is of recent invention? c) Some maintain that the provincial delegates in London had no authority to consent to amendments to the Quebec Resolutions, claiming that the statement by Macdonald supports this. Unfor­ tunately, as historically recorded, this statement does not apply to the provincial delegates in London but to the legislatures. Macdonald wanted the legislatures to adopt the Quebec Resolutions in their entirety in order to avoid convening another conference and starting again from the beginning. Moreover, is it really true that the delegates in London had no authority to consent to amendments? Mr. Dorion, who tried to deny them this power at the Ottawa session, saw his motion defeated by a vote of 55 to 7, as Mr. Thomas Chapais points out.20

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Ultimately, considering the superficial nature of the amendments made in London, it is easy to understand that it was not necessary to have them approved by the provincial legislatures. 2. Some claim that the Canadian conferences were merely preliminary meetings. The answer is simple. In the face of historical facts, it cannot be argued that the Quebec Conference was only a review meeting or a consultative meeting. On the contrary, historians unanimously agree that it was in Quebec City that the groundwork for Confederation was laid. It was in Quebec City that all the essential elements (federal union, provincial autonomy, respect for the interests of Quebec) were established and affirmed. The Quebec Conference is indeed where our Confederation was born. 3. The case of Nova Scotia, which the centralists raise, does not disprove the compact theory in any way. This case simply illustrates the difficulties that are encountered by all new unions or federations of states. Consider, for example, the Council of Europe, or even the union of Newfoundland with Canada in recent years. It is certain that the delegates of Nova Scotia were granted full authority by their government to negotiate.21 Furthermore, if the British government refused to grant Howe’s request – that his province leave Confederation – it was because his province had already entered into a type of treaty under the Quebec Resolutions. This is evident because Newfoundland and Prince Edward Island had both refused to subscribe to these Resolutions and were both free to adhere to Confederation or not. 4. There seems to be little doubt that the federalists had a certain reluctance to consult the people, at least prior to enacting the bill. They did so afterwards, but through “methods unacceptable in parliamentary countries.”22 Again, let us consider what recently happened when Newfoundland entered into Confederation. The federalists’ machinations did not undermine the solidity of the compact theory. In fact, once the Act had been passed in London, it was submitted to the provincial legislatures and the public. Charles Tupper had it adopted by a large majority in the General Assembly of Nova Scotia, and in the province of Quebec support for Confederation was nearly unanimous. Thus, the centralists have been unable to disprove, based on historical evidence, that a pact leading to Confederation was non-existent and impossible. All assertions to the contrary tend to underline the obstacles to the making of such a pact rather than negate its existence.



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Second Argument: The Precedents And so the centralists fall back on another argument: since the Act has been amended several times without the consent of the Provinces, it cannot possibly be a pact. An appropriate response would require a lengthy incursion into legal territory, and it cannot be fully formulated without considering the following four points: the nature of the Dominion of Canada, the role of the British Parliament, the nature of amendments enacted since 1867, and the special situation of Quebec. The Dominion of Canada is a federal union, that is, a state where legislative authority is shared between a central power and its constituent members. It is, however, the central power alone that exercises external sovereignty, specifically the right to engage with foreign states. It then follows that, in our relations with Great Britain, Ottawa is the regular channel of communication and responsible for delivering all requests. Hence, because of this role as main liaison with London, the central government might be tempted to believe that it acts in the name of the whole Dominion when it is, in fact, just one part of the latter, with the true constituents being the Provinces. Having this exclusive right to submit to London amendments to the Canadian Constitution, the central government has a tendency to believe that these amendments are of its jurisdiction alone and that it can act without the consent of the Provinces. For its part, the British Parliament, wishing to avoid trouble and, above all, to avoid accusations of having intervened in matters that did not concern it, especially after the Statute of Westminster, simply passed the amendments submitted by Ottawa, without much inquiry into their constitutional legitimacy with regard to the Provinces. It should have, in fact, played the role of arbitrator between the various bodies of the Dominion of Canada and should not have limited itself to listening only to the voice of the central government.23 One must also consider the nature of the amendments passed since 1867. They can be grouped into three categories: those which clarified the powers granted by the British North America Act, those which were only temporary, and finally, those which enacted substantial changes in the Constitution. Evidently, however, those in the last category are the most significant and, therefore, were of most concern for the Provinces. There is historical evidence that the central government did indeed request and obtain provincial consent for the two most significant amendments in this category in 1907 and 1940.

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In 1907, Section 118 of the Act was to be amended in order to increase federal subsidies to the Provinces. After consultation, each Province accepted independently. However, as it was proposed to make the new regulation “final and unalterable,” British Columbia objected to this last provision. The “final and unalterable” provision was thus withdrawn from the new bill, which, as Mr. Churchill stated in the British House of Commons, was “in deference to the representations of British Columbia.”24 Similarly, the Provinces were consulted on the amendment of 1940 concerning unemployment insurance. Ottawa even waited for Quebec’s approval before acting. It was not until Ottawa had obtained unanimous support that the request to amend the Constitution was sent to London.25 It is therefore incorrect to claim, as some have done recently, that the Provinces have never been consulted or never contributed to any amendments since 1867. While it is true that the central government has proceeded with constitutional amendments without always considering the views of the Provinces, this way of doing things has always deeply troubled Quebec, if not the other Provinces.26 It is important to understand Quebec’s situation as one that is quite particular. What are at stake, for Quebec, are not only economic interests and vague ideas of social well-being, but the very fate of French-Canadian culture. This explains Quebec’s sensitivity, alarm, and protests the moment anyone proposes amendments to the Canadian Constitution without its authorization. Let us not forget the many letters of protest addressed by Mr. Duplessis to Ottawa concerning unemployment insurance in 1937, the redistribution of electoral districts in 1943 and 1946, and regarding current reforms. The Premier of Quebec always reiterates the same argument, stating that to proceed with constitutional amendments without the consent of Quebec violates the original and fundamental compact that gave rise to the 1867 Act. In response to the claim that Ottawa repeatedly amended the Con­ stitution without consulting the Provinces, defenders of provincial autonomy state that, by acting as it did, the central government forgot that it was merely one part of the Dominion of Canada and that it, like the Provinces, is bound by the 1867 Act. Furthermore, by automatically granting most of the amendments requested by Ottawa, the British Parliament failed to fulfill its customary role as arbitrator between the various parties of the Dominion of Canada. Finally, whenever the



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central government proposed significant amendments to the Act without consultation, there were protests from the Provinces, the most vigorous from Quebec.27 Though the central government thought it wise to carry on despite protests, this in no way legitimizes its past actions, and even less so its claims to the exclusive right to amend certain parts of the Constitution, if it is indeed the result of a preliminary pact among provinces. However, for the provincialists, there is no doubt of the existence of such a compact, as their argument will demonstrate. Third Argument: Current Views of Canadian Legal Experts The third argument of the centralists is that a majority of Canadian legal experts currently reject the compact theory of Confederation. In response, the provincialists argue that it is only the current majority of English Canadian legal experts who refuse to accept this theory. Only a quarter of a century ago, no one dared question the existence of a compact having led to Confederation. There were a few dissenting voices, and those are discussed below. As for the French-Canadian legal experts, they always have advocated unanimously for provincial autonomy until recently. It is not helpful to invoke the authority of the 1935 Special Board of Inquiry, as it refused to adjudicate the matter and even advised the federal government to consult the provinces before amending the Constitution: The committee recognizes that there is a divergence of opinion with respect to the question of whether or not the British North America Act is a statutory recognition of a compact among the four original provinces of the dominion and as to the necessity or otherwise of provincial concurrence in amendments. Without expressing any opinion upon that question, the committee feels that in the present case and at the present time it is advisable in the interest of harmony and unity that there should be consultation with the provinces …28

The findings of the O’Connor Report, on the other hand, are decidedly anti-provincialist, as is the tone of the entire report. From the second page, O’Connor’s position is clear: “The so-called compact of confederation is non-existent.” As proof, he attempts to trivialize the constitutional importance of the Quebec Conference and show the lack of coherence in the decisions of the Privy Council.

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However, all of Mr. O’Connor’s erudite arguments cannot negate the historically proven and traditionally accepted fact that the London Resolutions were but a reprint of the Quebec Resolutions. Nearly sixty paragraphs from the latter were incorporated verbatim into those of the former. The rest, with the exception of one or two, underwent only minor changes. Let us recall the words of Lord Carnarvon on this subject: “The Quebec Resolutions, with some slight changes, form the basis of a measure that I have now the honour to submit to Parliament.” The Privy Council declared that Canadian Confederation was founded on “a union treaty between the provinces” (1914), on “a compact” (1932), on “an interprovincial pact” (1937), which embarrassed Mr. O’Connor, who now attempts to show that these decisions lacked coherence and somehow went against the spirit of Confederation.29 His is merely a personal opinion, and in no way changes the authority of these decisions. One is not obliged to subscribe to his position, especially when tradition bears out the historical presence of a compact among the provinces.

B. The Compact between the Provinces The provincialists take two approaches to support their theory. Some begin with a definition of “pact,” “treaty,” or “compact,” stating that this definition is embodied in our Constitution and, therefore, the Constitution must be viewed as the result of a pact.30 Others, setting aside all definitions, strive to prove that the compact theory is grounded in historical and traditional fact. As the first approach gives rise to a host of legal problems, we will limit ourselves to a discussion of the second, as would a provincialist. To determine whether there was originally a pact and whether the Canadian Constitution was considered to be founded upon a treaty, one need only consult the main actors and the proper authorities on the subject. Their testimonial is compelling, be they British or Canadian “Fathers” of Confederation, legal experts or statesmen. 1. – The Fathers of Confederation Of all the parties that we might turn to for answers on this issue, the most obvious are authors and the founders of Confederation. They must know what they sought to accomplish, what they asked of London, and, above all, what they did. Yet the chief actors among them have



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consistently maintained that their work is a treaty, a pact, a compact, and must be considered as such. None sees it as merely a British law. They have already been cited countless times, and to repeat their words here in full would be redundant. However, as some continue to insist that the compact theory has no historical basis, it might be useful, even necessary here to briefly recall what the “Fathers” thought of their own work. On at least three occasions John A. Macdonald stated that it was indeed a treaty among the provinces. On 3 February 1865, he declared to the Chamber: … the scheme … was in the nature of a treaty settled between the different colonies, each clause of which had been fully discussed, and which had been agreed to by a system of mutual compromise … These resolutions were in the nature of a treaty …31

Three days later, he made the same assertion: If any important changes are made, every one of the colonies will feel itself absolved from the implied obligation to deal with it as a Treaty, each province will feel itself at liberty to amend it … and we will have to renew our negotiations with all the colonies for the purpose of establishing some new scheme.32

On 7 March of the same year, once again addressing the House, he declared that a vote must be taken without delay, … in order that we might be able to tell the sister provinces and inform Her Majesty that the contract we made with them, the arrangement we entered into with the governments of those provinces …33

The same opinion was expressed on the same day by the FrenchCanadian leader, George-Étienne Cartier, as the Maritime Provinces threatened to withdraw from Confederation: … enable the Imperial Government to offer their counsel to the governments of the provinces, who have backed out from their agreement … the other contracting provinces have failed to fulfill the treaty into which they had entered. … Our whole intention is to lay before the Government of the

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Mother Country our position, as it now is, in consequence of the breaking of the treaty by the Maritime Provinces … the government will be in no way bound to abide by that Constitution, unless the other contracting parties shall accept it.34

We can then add to the testimonials of these two attorneys general that of Sir Étienne-Paschal Taché, then Prime Minister of Canada East. In presenting the project of Confederation, he stated that it was not an act of the government of Canada, but a joint effort of the delegates of all the provinces presented in the form of a treaty.35 For him, “liberties are assured to the provinces and ratified under solemn agreements.”36 George Brown, in turn, declared, “We had full power to sign this contract …,”37 adding, “We have made the formal commitment to propose at the next session a bill that complies with the conditions of our pact …”38 The same opinion was expressed by William McDougall and particularly by Thomas D’Arcy McGee.39 The latter spoke at length, arguing that Confederation should be considered a compact, a treaty among the different provinces. Below is an excerpt: Sir, by this combination of great abilities … the treaty was concluded and signed by us all … the result of our proceedings is the document that has been submitted to the imperial Government as well as to this House, and which we speak of here as a treaty…. That document we say, question it you may, reject it you may, or accept it you may but alter it you may not…. It is beyond your power, or our power, to alter it … for one party to alter a treaty, is, of course, to destroy it.40

That is what the “Fathers” of Canadian Confederation have said of their work. On what grounds can one openly contradict them and maintain that the compact theory is a recent invention with no historical basis? 2. – British Legal Experts and Statesmen British legal scholars and statesmen make similar statements, whether in Parliament, the 1930 Imperial Conference, or the Privy Council. a. – In the Imperial Parliament In 1867, the Imperial Parliament passed an act, the content of which was based on the Quebec Resolutions. When the members wanted to speak to the substance of the issue, the sponsor



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of the bill responded that it was the responsibility of the provinces: “We are to accept or reject the propositions that the Provinces have made.”41 The role of the Imperial Parliament in this circumstance was to sanction, to legalize the treaty between the provinces. Mr. Cartier, UnderSecretary Adderley, and Lord Carnarvon all emphatically affirmed this. On his return from London, Cartier stated, “The Canadians,” noted the British ministers, “come to us with a fully drafted constitution … Let us not change what they have done, let us sanction their Confederation….” We required the sanction of the English government, which it granted to us without hesitation, not wanting to involve itself in our work.42

In the British House of Commons, Mr. Adderley declared, If, again, federation has in this case specially been a matter of most delicate treaty and compact between the provinces…, it is clearly necessary that there should be a third party ab extra to give sanction to the treaty made between them.43

And Lord Carnarvon, during the second reading of the bill in the House of Lords: The Quebec Resolutions, with some slight changes, form the basis of a measure that I now have the honour to submit to Parliament. To those resolutions all the British Provinces in North America were, as I have said, consenting parties, and the measure founded upon them must be accepted as a treaty of union.44

And so it comes to pass that some people today maintain that the notion of a treaty predating the constitutional Act is simply a myth, a recent invention, a product of French-Canadian sentimentality! Yet this opinion had been expressed at least once before, in the Imperial Parliament in 1907, by none other than the Colonial Secretary at the time, Mr. Winston Churchill. The issue under discussion was federal subsidies to the Provinces, and British Columbia had lodged an objection, which the Imperial Parliament discussed and to which it later partially conceded. It was on this subject that Mr. Churchill declared,

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The British North America Act is the fundamental act governing the constitution of the Dominion of Canada, and different prime ministers of Canada voluntarily entered into that union. Adherence to the union was something in the nature of a treaty, and when an alteration in the basis of the treaty is made … it was felt desirable by all the prime ministers in conference that such a matter should be ratified by the Imperial Parliament in the most formal way.45

According to a specialist in constitutional law, the attitude of the British Parliament thus officially sanctions the compact theory: It was most expressly recognized in 1907 by the Imperial Government that the federal constitution is a compact which cannot be altered save with the assent both of the Dominion and the provinces….46

b. – The Imperial Conference of 1930 This same theory was once again officially recognized during the Imperial Conference of 1930 when, at the request of the Provinces, the Canadian Parliament was denied the right to directly amend the Constitution. The Conference sought to guarantee the express consent of the provinces of Ontario and Quebec regarding the repeal of the Colonial Laws Validity Act of 1865: “This decision of the Imperial Conference,” wrote Mr. Ollivier, “recognized that Confederation is based on a pact between the Provinces, who must be consulted in regards to any amendment to the Constitution that concerns them.”47

c. – The Privy Council In cases where it had to decide between the powers of the central government and those of the provinces, the Privy Council has time and time again expressed its support of the compact theory. Here are three examples. In 1914, Viscount Haldane stated that the British North America Act “must be accepted as a treaty of union amongst the provinces.”48 In 1932, in issuing a judgment on the control of aeronautics in Canada, Lord Sankey stated, Inasmuch as the Act embodies a compromise under which the original provinces agreed to federate…, the process of interpretation as the years go on ought not to be allowed to dim or whittle down the provisions of the original contract upon which the federation was founded, nor is it



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legitimate that any judicial construction of the provisions of sections 91 and 92 should impose a new and different contract upon the federating bodies.49

In 1937, Lord Atkin rendered the decision of the Judicial Committee of the Privy Council concerning the social legislation adopted by the federal government in 1935. He recalled the distribution of powers between the federal parliament and the provincial legislatures under the 1867 Act, adding, No one can doubt that this distribution is one of the most essential conditions, probably the most essential condition, in the interprovincial compact to which the B.N.A. Act gives effect.50

Is it the French-Canadians or the Lords of the Privy Council who speak of a pact, a treaty, and a compact with respect to our constitution? Who, then, is truly appealing to sentimentality? Those who are in agreement with the Privy Council or those who disdainfully reject this opinion, claiming that it has no historical or legal foundation? 3. – Canadian Legal Experts and Statesmen The centralists have made much of the fact that the majority of current English-speaking Canadian legal experts appear to reject the compact theory. Without denying this, it must be said that this clearly contradicts the entire preceding tradition, which has been maintained by Canadian Prime Ministers, by members of Parliament in 1925, by the Minister of Justice, Ernest Lapointe, as well as by the nearly unanimous opinion of French-Canadians. a. – The Opinion of Canadian Prime Ministers From John A. Macdonald to William Lyon Mackenzie King, all of Canada’s leading Prime Ministers have declared in one form or another their support for the compact theory. Macdonald’s opinion is already known. In 1907, regarding the right of the federal parliament to amend the Constitution, Sir Wilfrid Laurier similarly stated, Confederation is a compact made originally by four provinces, but adhered to by all the nine provinces who have entered it, and I submit to the judgment of this house and to the best consideration of its members, that this compact should not be lightly altered. It should be altered only for adequate

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cause, and after the provinces themselves have had an opportunity to pass judgment on the same.51

Sir Robert Borden, then the leader of the Opposition, spoke in the same manner: I agree with what has been said by the right hon. gentleman regarding the undesirability of lightly amending the terms of our constitution and am inclined to agree with him on the necessity of some consultation with the provinces … Insomuch as this is a federal compact which we are asked to vary, it is only right that each province should be consulted and its decision given, in the right of its separate entity.52

The Hon. Arthur Meighen declared in 1925, Undoubtedly, the pact of confederation is a contract and there are rights involved therein not represented by the Parliament of Canada. We could not put ourselves in the position of asking that rights so secured should be disturbed on our motion alone.53

The same opinion was expressed by the Hon. R.B. Bennett in 1930: The British North America Act is a treaty, a pact made between four provinces.54

Even the Hon. Mackenzie King, Prime Minister in 1925, did not hesitate to employ the word “compact”: This House, I believe, it is practically unanimously of the view that if an amendment of the kind is to be sought, due regard should be had to the view that a compact was made at the time of confederation, and that an amendment of the importance that such an amendment certainly would have, ought only to be proposed after there had been a conference and agreement between the dominion and the provinces.55

Can the centralists attribute this consensus of Canadian Prime Ministers to sentimentality that lacks any historical basis? b. – The Opinion of Members of Parliament of 1925 In 1925, while the Liberal Party was in power, a Conservative member gave an address aimed at granting Parliament the right to amend the Constitution. This proposal launched a debate that lasted two full days. Opposition from



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both the Conservative Party and the Liberal Party was nearly unanimous. It is impossible, the members declared, to grant Parliament the right to modify the Constitution without the prior consent of the provinces, and this because the Confederation was a pact, a compact, and a treaty. At the time, not one member of Parliament openly rejected this theory, nor even expressed doubt as to its historic foundation. The Hon. Mackenzie King, Prime Minister at the time, the Hon. Arthur Meighen, leader of the Opposition, the Hon. Ernest Lapointe, Minister of Justice, members of Parliament J.S. Woodsworth, Thomas Vien, T.A. Crerar, René Morin, Lewis Herbert Martell, etc. all rose in turn to affirm and recognize it. There was such unanimity that the Hon. Edmund James Bristol commenced his speech in this fashion: I think everyone here must agree with the remarks of the Minister of Justice (Mr. Lapointe) when he says that the British North America Act is really a treaty in which every province took part and that no important or serious changes can be made in that act except with the consent of every province interested.56

Centralists seriously maintain that the compact theory is of recent invention and rejected by most Canadian legal experts, even though the facts demonstrate that, in 1925, the theory of Confederation as a pact was not just the official theory of the government, it was the only one in the Chamber.57 c. – The Personal Opinion of Ernest Lapointe The Hon. Ernest Lapointe merits special mention because, in his role as Minister of Justice, he always championed the rights of the provinces. It would take too long to cite all his speeches on the subject,58 but at least two must be mentioned: one in 1925 and one in 1937. In 1925, Ernest Lapointe opposed the proposal to grant the federal Parliament the right to amend the Constitution. On what grounds? He stated that since Confederation was the result of a pact among the Provinces, Parliament did not have the right to alter this pact without their consent. His address merits citing in its entirety, for never has the provincialist theory been so vigorously presented: If confederation was a pact, an agreement, is it possible … for the body which resulted from the agreement, to amend, to alter the conditions of that pact without consulting and without securing the consent of the parties

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to the original agreement? … If it is to be considered as a treaty, surely we cannot alter its provisions without at least seeking the consent of the other parties to that treaty.59 Now, has it been considered as a treaty? I heard it suggested some time ago that this idea at confederation of a treaty is an antiquated idea. Maybe it is. But, Mr. Speaker, truth does not cease to be truth when it gets old; an old truth is always true. You cannot prevent facts from being facts whether you like them or not.60

The Minister of Justice then called upon the authority of those in favour of the compact theory, John A. Macdonald, George-Étienne Cartier, Thomas D’Arcy McGee, Wilfrid Laurier, Robert Borden, Winston Churchill, etc., and added, If the British North America Act is the charter of the provinces as well as the charter of the Dominion, I ask again, how can we alter it without communicating with the provinces? … To those who want changes … I would say that the only way to get them is the constitutional way, to ask the consent of the various parties to confederation … they cannot be made arbitrarily; they cannot be made only at the will and at the request of the Dominion parliament….61

Speaking of certain writers of constitutional law, he then made the following remark, which directly contradicts one of the centralists’ affirmations on the position of Canadian legal experts: He [C. Sifton] admits, as does Mr. Kennedy of Toronto university, and all the constitutional writers, that the British North America Act is a pact and must be treated as such.62

In response to a member of Parliament who asked whether there was not a new party to the pact in addition to the original provinces, namely, the Dominion of Canada, the Minister of Justice responded curtly, “It is the child of the provinces: it is not their father.”63 He presented this same theory again in 1937, when a proposal was brought before the Chamber to amend the Constitution with the intention of improving the economic and social conditions in the country: Canada is a confederation … Unless those powers had been left to the provinces they would never have agreed to come into confederation…. The Dominion is the child of the provinces; it is not their father…. They would



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never have come in and formed this Canada as it is had there not been agreement at the conference which took place and which resulted in the British North America act, a statute which was passed in England, that those provincial powers should remain within the sphere of authority of the provinces.64

d. – The French-Canadian Opinion There is no use in adding to the citations on this point. Apart from a few writers currently living in Ottawa – four or five at the most – French-Canadian opinion has always been unanimously in favour of the compact theory. Two names will suffice to represent this opinion, those of Judges Thomas-Jean-Jacques Loranger and P.B. Mignault. In 1883, only sixteen years after Confederation, the former wrote, The British North America Act was not, as the constitutional acts which preceded it, a law made by the Sovereign authority of England imposing a constitution upon its colonies. It contained a simple ratification by the Mother Country of the agreement entered into by the provinces, which in confirming its provisions rendered them obligatory by giving them the authority of an Imperial act … The confederation of the British Provinces was the result of a compact entered into by the provinces and the Imperial Parliament, which, in enacting the British North America Act, simply ratified it.65

The same opinion was expressed six years later by the Hon. P.-B. Mignault, who would later become a Supreme Court judge: The B.N.A. Act was only the legalization of a pact concluded among the provinces. It is founded on their expressed desire to found a federal union.66

Will it be said, after these two statements made more than sixty years ago, that the theory of the federating pact is a recent invention? Would it not be instead the other theory that was invented in the last few years in order to find a means to grant the central power the right to change the constitution on its own? The provincialists, in any case, do not hesitate to make this claim,67 citing the entire tradition up to 1925 as supporting their point of view, a tradition that is not only favourable, but exclusive and unique, as the constitutional debate of that year demonstrates.68 And as for us, we have yet to find a response from the centralists to this historical fact.

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NOTES 1 Richard Arès, “Confederation: A Pact or a Law?” a translation of “La Confédération: Pacte ou Loi?” L’Action Nationale, 34, 3 (1949), 194–230. 2 Our translation. Original French: “À notre avis, la constitution canadienne est un pacte qui ne peut être amendé de façon unilatérale.” 3 St. Laurent reiterated the same opinion in his address to the Jeunes Libéraux du Canada (Young Liberals of Canada) in Montreal, on 13 October, 1949: “It matters very little whether the British North America Act was a contract or only a law, provided that the federal government respects the powers and rights of the Provinces, and Provinces respect the federal rights and powers” (cf. La Presse, October 15, 1949). Our translation. Original French: “Il importe très peu que l’Acte de l’Amérique britannique du Nord soit un contrat ou une simple loi, pourvu que le gouvernement fédéral respecte les pouvoirs et les droits des provinces, et que les provinces respectent les droits et pouvoirs fédéraux.” 4 As this debate involves the partisans of the central power and the defenders of provincial autonomy, we shall call the first group “centralists” and the second “provincialists.” This seems to us more fair than using the term “federalist,” as the Canadian federal state contains and is composed of the central power and the provinces. The debate is thus not between the federal state itself and the provinces, but between two constituent parts of this federal state. 5 “A principle has been discovered known as the ‘compact theory’ of Confederation…. The theory, while plausible, is constructed on sheer invention which has been subsequently propped up by an occasional precedent. It has no legal foundation; it has no historical foundation.” R.M. Dawson: The Government of Canada, 1947, p. 143. 6 Cf. The Independence Papers, vol. 2: Is the Constitution a Contract? pp. 172–175. 7 Cf. O’Connor’s Report on the British North America Act, Ottawa 1939. 8 “That is not only our theory. That has been the theory followed in practice since the earliest days of Confederation. Not less than ten times from 1871 to 1949, amendments to the constitution have been proposed and made without consultation with the provincial governments or the members of the provincial legislatures. That has been the practice, and in the responsible position we occupy we feel that we have no right to recognize that the provincial legislatures or provincial governments have any control whatsoever over those matters of public interest and national sovereignty allocated to the federal authority.” Mr. Louis Saint-Laurent, House of Commons Debates, 21st Parliament, 1st Session, Vol. 1., 23 September 1949, p. 196.



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9 Special Investigation Committee, The British North America Act: Official report and testimonies, Ottawa 1935. Maurice Ollivier cited long excerpts from this report in his book L’Avenir constitutionnel du Canada, pp. 70–82. 10 O’Connor’s Report on the B.N.A. Act, presented to the Canadian Senate in 1939. 11 Ibid., p. 2. 12 “The British North America Act is a treaty because it both entrenches and reproduces the substance of the 72 Resolutions – the resolutions being the formal treaty…. And not only does the content of the Act reproduce the substance of the 72 Resolutions, it equally establishes the substance of the Act itself. This sufficiently allows us to say that the Act is a treaty.” Our translation. Original French: “La Loi de l’Amérique britannique de [sic] Nord est un traité, parce qu’elle reproduit, reconnaît la substance des 72 Résolutions qui, elles, étaient le traité formel…. Et non seulement la substance des 72 Résolutions est reproduite dans la Loi, mais elle constitue également la substance de la Loi, ce qui nous autorise amplement à dire que la Loi est un traité” (P.P. Langis, Nature juridique de la constitution canadienne, in La Revue du Droit, May 1939, p. 535). 13 Cf. Chapais, Cours d’histoire du Canada, t/ VIII, p. 210; Groulx, La Confédération canadienne, pp. 80–81. “The main substance of the British North America Act was made by Canadians themselves in conference at Quebec in 1864. The Act was passed by the (Imperial) British Parliament as the only authority that could pass it. But it was passed formally and without alteration…. The only touch that they (the British authorities) put in – or rather kept out – was to prevent Canada being called the ‘Kingdom of Canada’” (S. Leacock, “What’s Ahead for Canada,” The Financial Post, December 25, 1943). 14 See Mr. Pierre-Paul Langis’s article, “La Nature juridique de la Constitution canadienne,” La Revue du Droit, May 1939, pp. 536–538. 15 Cf. Chapais, op. cit. p. 209. 16 Cf. Chapais, op. cit., p. 210. 17 Cf. Groulx, op. cit., p. 127. 18 Our translation. Original French: “qu’un acte basé sur les résolutions adoptées par cette Chambre et pas d’autre.” G.-E. Cartier, Recueil de Discours, 1865, p. 443. Address of 7 February 1865. 19 Our translation. Original French: “La Confédération, dit-il, a été un compromis, elle conserve aujourd’hui son caractère…. Plusieurs même disaient que l’on ne savait à quoi s’attendre de l’Angleterre; que l’on avait pu élaborer une bonne constitution dans les conférences de Québec, mais que les autorités impériales la changeraient, l’altéraient à leur guise.

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“Eh bien, vous savez ce qui est arrivé: nous sommes allés en Angleterre, et nous y avons été traités justement, généreusement. On a eu égard à toutes nos représentations. Les Canadiens, ont dit les ministres anglais, viennent nous trouver avec une constitution toute faite, résultant d’une entente cordiale entre eux, d’une discussion mûre de leurs intérêts et de leurs besoins. Ils sont les meilleurs juges de ce qui leur convient, ne changeons point ce qu’ils ont fait, sanctionnons leur Confédération. “Oui, c’est dans cet esprit que l’Angleterre a accueilli notre demande. Nous avions besoin de sa sanction, elle l’a donnée sans hésiter, sans vouloir intervenir dans notre œuvre … L’Acte constitutionnel que nous avons fait adopter en Angleterre….” G.-E. Cartier, Recueil de Discours, 1867, pp. 523–524. Address of 17 May 1867. Cours d’histoire du Canada, t. VIII, p. 202. Chapais, op. cit., p. 202. Groulx, op. cit., p. 93. Our translation. Original French: “des procédés inadmissibles en pays parlementaires.” “All these provisions [of the Statute of Westminster] would no longer have any effect if London, at the request of the central government, were to enact a new provision that could diminish the authority of the provinces. For this reason, we recognize the British Parliament as an arbitrator. If it receives a request from Ottawa asking for some amendments, it must ensure that the opinions and consent of the Dominion are represented in the request. The term ‘Dominion’ applies to the entire State, and includes all State bodies working collaboratively. If the request is granted without this inquiry or despite the refusal of the provinces to subscribe to it, there is abuse of power and the arbitrator has overstepped its jurisdiction…. When Westminster passes a law for us at our request, it no longer exerts its prerogatives, but rather exercises those of an arbitrator acting between the various parties of Canada. It is not free to act as it pleases, but is bound by the terms and spirit of the Statute that it has solemnly granted us” (Irénée Lagarde, “Aperçus sur la constitution canadienne,” Revue du Barreau, January 1947, p. 23). Our translation. Original French: “Toutes ces dispositions (du Statut Westminster) n’auraient plus d’effets si Londres, à la seule réquisition de l’État central, promulguait une nouvelle disposition de choses qui pourrait amoindrir l’autorité des provinces. C’est pour cette raison que nous reconnaissons un arbitre dans le parlement anglais. Reçoit-il d’Ottawa une adresse le priant d’effectuer certaines modifications, il doit s’assurer si la requête représente la pensée et l’assentiment du Dominion. Or … le vocable ‘Dominion’ désigne l’État complet, c’est-à-dire



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tous les rouages ‘étatiques’ agissant en collaboration. Si la demande est accordée sans cette enquête ou malgré le refus des provinces d’y souscrire, il y a abus de pouvoir et l’arbitre outrepasse sa juridiction…. Quand Westminster vote une loi pour nous et à notre demande, il n’exerce plus ses prérogatives suprêmes, mais celles d’un arbitre entre les diverses parties ’étatiques’ du Canada. Il n’a plus alors ses coudées franches, mais il est lié par les termes et l’esprit du Statut qu’il nous a solennellement octroyé.” Cited by Pierre-Paul Langis, art. cit., p. 618. Mr. Mackenzie King, then Prime Minister, prided himself on this unanimity: “We have avoided anything in the nature of coercion of any of the provinces. Moreover, we have avoided the raising of a very critical constitutional question, namely, whether or not in amending the British North America Act it is absolutely necessary to secure the consent of all the provinces, or whether the consent of a certain number of provinces would of itself be sufficient…. For the present at any rate we have escaped any pitfall in that direction” (House of Commons Debates, 19th Parliament, 1st Session, Vol. 2., June 25, 1940, pp. 1117–1118). Quebec was not the only province that protested. While he was Premier of Ontario, the Honourable (George Howard) Ferguson sent a letter of protest to Ottawa on the following subject: “The result of these precedents has been to undermine the constitutional right of the provinces to be consulted regarding amendments to the B.N.A. Act. The province of Ontario holds strongly to the view that this agreement should not be altered without the consent of the parties of it …” (cf. Report on the B.N.A. Act, Ottawa 1939, annex 4, p. 138). During the constitutional debate of 1925 in the House of Commons on the subject, the Hon. Ernest Lapointe stated the following: “… every time an important amendment was made it was first submitted to the provinces. I do not think there are many cases in which an amendment has been asked to the British North America Act without communicating with the provinces. If it was done it was only in cases where there could have been no possible objection on the part of the provinces” (House of Commons Debates, 14th Parliament, 4th Session: Vol 1, p. 300). On January 28, 1935, he also stated that “… it is a little queer that one party to the agreement should study the methods of changing the agreement by itself without inviting the other parties to participate in the discussion” (House of Commons Debates, 17th Parliament, 6th Session: Vol. 1, p. 229). On February 1, he added, “As I have stated in other circumstances, the fact of saying that

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we have jurisdiction does not give it. The assumption of powers which we do not have, does not give those powers to us” (House of Commons Debates, 18th Parliament, 2nd Session: Vol. 1, p. 434). House of Commons Debates, 21st Parliament, 1st Session, Vol. 1, 17 October 1949, p. 837. On the role of the Privy Council, see Rapport de la Commission Royale des Relations entre le Dominion et les Provinces, vol. I, pp. 58–63. “The B.N.A. is a treaty because it reproduces the 72 Resolutions which, in themselves, are a formal treaty. This treaty was freely agreed to by the able parties, has a lawful purpose, and was negotiated, drafted and ratified like all treaties” (P.-P. Langis, art. cit., p. 538). The author expands on each and every one of the affirmations in this statement. Our translation. Original French: “La Loi de l’A.B.N. est un traité, parce qu’elle reproduit les 72 Réso­ lutions qui, elles, sont un traité formel, conclu par des parties capables, avec leur libre consentement, portant sur un objet licite, négocié, rédigé et ratifié comme tout traité.” The Confederation Debates, Quebec 1865, pp. 16–17. Ibid., p. 32. Ibid., p. 731. Ibid., pp. 717–718. “This resolution … now comes before you, not as an act of Government of Canada, but as the mixed work of the Delegates from all the Provinces in the form, as it were, of a treaty” (cited in Report on B.N.A. Act, annex 4, p. 148). Cited by M. Ollivier in L’avenir constitutionnel du Canada, p. 69. Our translation. Original French: “Les libertés sont assurées aux provinces et ratifiées dans des traités solennels.” Op. cit., p. 69. Our translation. Original French: “Nous avions pleins pouvoirs pour signer ce contrat …” Cited by M. Chapais in Cours d’histoire du Canada, t. VIII, p. 138. Our translation. Original French: “Nous avons pris l’engagement officiel de proposer à la prochaine session un bill conforme aux conditions de notre pacte….” “We cannot get around the fact that it is in the nature of a treaty” (cited in Report on B.N.A. Act, annex 4, p. 149). The Confederation Debates, pp. 137–138, speech from 9 February 1865. Groulx: La Confédération canadienne, p. 129. Our translation. Original French: “Nous avons à accepter ou à rejeter les propositions que les provinces nous ont faites.”



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42 G.-E. Cartier, Recueil de discours, p. 524. Our translation. Original French: “Les Canadiens, ont dit les ministres anglais, viennent nous trouver avec une constitution toute faite…. Ne changeons pas ce qu’ils ont fait, sanctionnons leur Confédération…. Nous avions besoin de sa sanction (à l’Angleterre), elle l’a donnée sans hésiter, sans vouloir intervenir dans notre œuvre.” 43 Cited in Report on the B.N.A. Act, annex 4, p. 149. 44 Report on the B.N.A. Act, annex 4, p. 149. 45 Cited by Ernest Lapointe, House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 300. In saying these words, the Minister of Justice stated that he was citing the opinion of Mr. Churchill, “just to show that the interpretation given to the confederation pact by the public men of the Dominion was also the interpretation given to it by imperial public men.” He then added, “That was the interpretation that was accepted by every interested person in Canada … it is even today the interpretation that is given by the public men of Canada in the provinces” (ibid.). 46 A.B. Keith, Responsible Government and the Dominions, p. 256. The same author wrote in 1924, “The Dominion, on the other hand, has extremely limited powers, because the federation was a compact between the provinces, and it is held to be illegitimate for the federal parliament to change the terms of that compact, unless with general assent from the Provinces” (The Constitution, Administration, and Laws of the Empire, p. 22). 47 M. Ollivier, Le Canada, pays souverain, p. 108. Our translation. Original French: “Cette décision de la Conférence impériale, écrit M. Ollivier, était une reconnaissance que la Confédération est basée sur un pacte entre les Provinces, qui doivent être consultées lorsqu’il s’agit d’apporter à la Constitution une modification qui les intéresse.” Likewise, M.R. Dawson writes, “On one very important occasion, the compact theory had enough vitality to prevent the Canadian Parliament acquiring for itself the explicit power of direct amendment, for one section of the Statute of Westminster (inserted as a result of provincial pressure on the Dominion) provided that the B.N.A. Act and its amendments were excepted from those British statutes which could be amended or repealed by Dominion legislation” (The Government of Canada, p. 144). 48 Cited in Report on the B.N.A., annex 4, p. 150. 49 Privy Council Appeal no. 38 of 1931 (22 October 1931) Judgement p. 7. 50 Cited by A. Perrault, Le Devoir, 16 January 1939. 51 House of Commons Debates, 21st Parliament, 1st session, Vol. I, 1907, p. 849. 52 Cited by Ernest Lapointe, House of Commons Debates, 21st Parliament, 4th Session, Vol. 1, 1925, p. 229.

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House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 335. House of Commons Debates, 16th Parliament, 4th Session, Vol. 1, p. 24. House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 332. House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 329. “We have been assured by the authorities on constitutional law – and I think this is the attitude they take so far as they have spoken in this House – that the British North America Act is a sacred compact and that it cannot be altered by this parliament alone …” (Mr. Irvine, ibid., p. 323). 58 As early as 1924, the Hon. E. Lapointe stated, “Now this treaty cannot be changed, it has been the contention of many constitutional authorities, and I think it is only fair that no change should be accepted, without the consent of all those who were parties to it. It is a sacred treaty just as is any other treaty; it is no ‘scrap of paper’” (House of Commons Debates, 14th Parliament, 3rd Session, Vol. 1, 24 March 1924, p. 520). 59 House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 298. 60 House of Commons Debates, 14th Parliament, 4th Session, Vol. 1, p. 298. 61 House of Commons Debates, 14th Parliament, 4th session, Vol. 1, p. 301. 62 Ibid. 63 Ibid. 64 House of Commons Debates, 18th Parliament, 2nd Session, Vol. 1, p. 436. See also his January 28, 1935, speech to the Chamber. It is debated, he says, in order to know whether it is a pact or a treaty: “At any rate everyone will agree that it was an understanding, an agreement as between various legislative bodies in North America and that nothing should be done which changes the terms of that agreement without a new understanding, a new consultation, a new conference and, I would add, a new agreement” (House of Commons Debates, 17th Parliament, 6th Session, Vol. 1, p. 228). 65 Letters upon the interpretation of the federal constitution known as the British North America Act, 1867, first letter, pp. 61 and 63. 66 Manuel de droit parlementaire, Montréal 1889, p. 227. Our translation. Original French: “L’Acte de l’A.B.d.N. n’est que la légalisation d’un pacte conclu entre les provinces. Il est fondé sur le désir qu’elles ‘ont exprimé de fonder une union fédérale.’” 67 The theory of the constitution as law “is a new theory, invented a few years ago, by English Canadian legal experts and publicists, – and which some French Canadians have adopted, – a theory refuted by history and a long tradition” (Léo Pelland in L’Action catholique, March 18, 1936). Our translation. Original French: “C’est une théorie nouvelle, inventée, il y a quelques années, par des juristes et des publicistes anglo-canadiens,



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– et que quelques Canadiens français ont prise à leur compte, – une théorie démentie par l’histoire et par une longue tradition.” 68 “We have always considered, until the present at least, that the B.N.A. Act of 1867 was a pact, a contract, a compromise, a treaty …” Our translation. Original French: “L’on a toujours considéré chez nous, jusqu’à présent du moins, que l’Acte de l’A.B.d.N. de 1867 constituait un pacte, un contrat, un compromise, un traité …” “This conception of the British North America Act was also accepted by the most distinguished statesmen of both parties, Liberal and Conservative…. Some university teachers, as we all know, have strongly opposed what they call the ‘contractual theory.’ It must be acknowledged that their views are in perfect accord with a certain attitude of mind easy to detect here and there in the political and the official world. When there is a desire for any modification, whatever it may be, the contractual theory is felt to be an obstacle…. I have no hesitation whatever in rejecting the thesis so skillfully presented by such distinguished professors. I even go so far as to declare that this thesis is dangerous. In my opinion it is contrary to the spirit of Confederation and conflicts with certain statements of the greatest importance” (Charles Bourgeois, senator: Senate Debates June 2, 1936, pp. 406–408, d’après L’Action catholique June 3, 1936. Translator’s note: We have translated the first line because the English translation that appears in the Senate Debates bears little resemblance to the original text published in L’Action catholique. The rest of the translation is reproduced from the Senate Debates).

“Nature of Confederation” Report of the Royal Commission of Inquiry on Constitutional Problems (Tremblay Report) 1956 Royal Commission of Inquiry on Constitutional Problems1

We may start by taking as wide a view as possible of Confederation, for that will help us obtain and present a right idea of it. At the very outset, one point has to be noted – Confederation is not a single fact but something extremely complex, which the historian, sociologist, politician, and legalist can each study in turn, but which none of them can wholly explain by looking at it solely from his special angle. Seeking, therefore, to obtain an over-all view of it, we might describe Confederation as that complex aggregate of events, principally historical, political, and legal, which culminated in and gave birth to the union of the British North American provinces in 1867. Considered in this light, Confederation appears as an essentially Canadian project which, however, was consummated only in Great Britain as a project sponsored by men who spoke, not in their personal names, but as representatives of already existing national groups and political units. Consequently, whoever seeks to obtain a right idea of the nature of Confederation cannot and should not overlook any one of the Canadian, Imperial, national and political aspects of the work carried on between 1864 and 1867. […] [W]e believe these four aspects deserve to be here summarized.



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Confederation: An Essentially Canadian Work It is well-established historical fact that, in its origins and salient characteristics, Confederation was the work of Canadians themselves, that is, if the word “Canadian” is taken in the wide sense as meaning representatives of the Two Canadas, of New Brunswick and of Nova Scotia.2 Contrary to what happened in 1791 and 1840, both the initiative and the constitutional plan came from British North American politicians,3 so that a historian has even cited it as the first occasion in history on which a colony had ever drafted its own constitution.4 It must be remembered that these colonies had already been granted responsible government. They were provinces which controlled their own domestic affairs, with full civil, political, and legislative autonomy, and they enjoyed internal sovereignty under the aegis of the British Crown, as Lord Watson explicitly recognized in a decision rendered in 1892 by the Judicial Committee of the Privy Council.5 These provinces had also obtained from the mother country full authority to prepare a new constitution, provided, of course, that everything was kept within the empire and ratified, in final resort, by London.6 One need only read the text of the Quebec Resolutions – repeated in almost identical form in the London Resolutions – to become immediately aware that all the main questions regarding union of the provinces had been settled by the Canadians themselves. The political system’s form, the choice of a federal union, the distribution of powers, provincial constitutions, etc. – all these were the work of Canadians. Moreover, they insisted that there should be, in the Act itself, a phrase emphasizing that the union was not solely an obligation imposed on them by Great Britain but a definite act of the provinces themselves: “Whereas the Province of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united …”7 It may be opportune to note that before, and also after 1867, Canadians were firmly convinced Confederation was “their” work and that they were the true authors of the new constitution. John A. Macdonald constantly spoke of “our” constitution,8 and Cartier, after his return from London in 1867, declared England had merely given its sanction to the work accomplished by Canadians.9 This suffices to show that Confederation was, first and foremost, an essentially Canadian work. History has recognized the fact by giving the title of “Fathers of Confederation” not to British statesmen but to

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the representatives of the various provinces who had met in conference at Quebec and in London. Confederation: The Work of Two National Groups However, to learn the full nature of Confederation, one must penetrate to the heart of this word “Canadians” and make sure to whom, at that period, it referred. For a long period, the only Canadians, called by that name without hint of hyphen or qualification, and even after the English conquest of 1760, were the former settlers of New France and their descendants. However, after 1840 the colony, with the Act of Union, officially assumed10 the name of Canada and all its inhabitants could claim title as Canadians from the political and legal viewpoint. But the policy of fusing races or national groups soon ended in failure. By 1842, Bagot found himself forced to turn to the French Canadians, as such, and (as he himself admitted) as constituting a race and people and not only a party. This gesture inaugurated the Union’s transformation into a federation of nationalities. The legal and official system, no doubt, subsisted as a legislative union, but the de facto situation, more eloquent than any mere legalism, had practically established a system of federal union, as Macdonald himself recognized.11 About 1860, the two groups were equally anxious to rid themselves of the legal double-harness imposed on them twenty years earlier, but one could not take any action without the other. An understanding, an agreement, or a compromise became necessary. “Whether we ask for parliamentary reform for Canada alone or in union with the Maritime Provinces, the French Canadians must have their views consulted as well as us,” said George Brown in 1865. “This scheme can be carried, and no scheme can be that has not the support of both sections of the province.”12 Now the facts reveal that the French Canadians only gave this necessary support on two clear conditions – that the union should be federative and that, in this union, they should be recognized as a distinct national group and that they should be placed on the same footing as the other ethnic group. It is only necessary to consult the documents of the period to discover that Lower Canada played the decisive role in the choice of the new system. Men like Macdonald, Tupper, and Lord Monck, who all favoured a legislative union, admitted that such a system was impossible because of Lower Canada’s peculiar position and they consequently had to be satisfied with the federative union. “It would not



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meet the assent of the people of Lower Canada,” explained Macdonald, “because they felt that in their peculiar position – being in a minority, with a different language, nationality and religion from the majority – in case of a junction with the other provinces, their institutions and their laws might be assailed, and their ancestral associations, on which they prided themselves, attacked and prejudiced; 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.”13 Historians also admit that it was due to the insistence and tenacity of the French-Canadian leader Cartier that the constitution was given a federative form. To those who wanted a legislative union, he bluntly replied, “No other scheme presented itself but the federative system.”14 And his biographer could say of him, “That the constitution was based on the federal principle was due to the fact that Cartier’s political strength and prestige were such that he was in a position to insist upon the adoption of the federal system in opposition to those who would have preferred a legislative union.”15 In the second place, the French Canadians did not want to enter upon this new union as conquered and second-class citizens but as partners and associates with special and distinct rights as regards everything, notably their language, their religion, and their civil law, which might affect their survival as a nationality.16 The constitution of 1867 bears, in several places, the mark of this determination of the French Canadians to have themselves recognized as a distinct national group with an official place in the Confederation. Thus, for example, Section 133 mentioned use of the English and French languages in Parliament, and that was included to give effect to a resolution expressly adopted by the delegates of all the provinces at the Quebec Conference. Maintenance of the French language, John A. Macdonald was careful to point out, had previously been left to the good will of the majority, but that was an inconvenience, and “… in order to cure this, it was agreed at the Conference to embody the provision in the Imperial Act. This was proposed by the Canadian government for fear an accident might arise subsequently, and it was assented to by the deputation from each province, that the use of the French language should form one of the principles upon which the Confederation should be established, and that its use, as at present, should be guaranteed by the Imperial Act.”17 The same spirit and the same desire for equality are to be found in Section 93, designed to protect the two religious minorities, both

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Protestant and Catholic, against the possibility of injustice at the hands of the provincial authorities. In presenting this Section to the House of Lords in England, Lord Carnarvon declared on February 19, 1867, “For the object of the clause is to secure to the religious minority of one Province the same rights, privileges and protection which the religious minority of another Province may enjoy.” And on February 22nd, during the discussion in committee, Lord Carnarvon added, “The object of that clause is to guard against the possibility of the members of the minority suffering undue oppression18 by the majority. It has been framed to place all these minorities, of whatever religion, on precisely the same footing, and that whether the minorities were in esse or in posse. Thus the Roman Catholic minority in Upper Canada, the Protestant minority in Lower Canada, and the Roman Catholic minority again in the Maritime Provinces, would all be placed on a footing of precise equality.”19 Moreover, Lower Canada only consented to enter the Union on the express condition that it would conserve control over its civil and social organization. That is why sub-heads 8 and 13 of Section 92 reserve legislation on municipal institutions, property, and civil rights to the exclusive jurisdiction of the provinces.20 That is also why Section 94, which gives the Parliament of Canada the power to make uniform the “laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick,” makes no mention of Quebec, whose civil law, already guaranteed to it by the Quebec Act of 1774, was maintained intact in 1867 and was recognized as being an equal of the common law in the English provinces.21 On this point, it may be worthwhile to recall the evidence of the British legislator Lord Carnarvon, who, during the debate on the plan of union, told the House of Lords, “Lower Canada, too, is jealous as she is deservedly proud of her ancestral customs and traditions; she is wedded to her peculiar institutions, and will enter this union only upon the distinct understanding that she retains them … The Coutume de Paris is still the accepted basis of the Civil Code, and their national institutions have been alike respected by their fellow-subjects and cherished by themselves. And it is with these feelings and on these terms that Lower Canada now consents to enter into this Confederation.”22 Consequently, anyone who searches for the true nature and sense of the 1867 union cannot overlook the existence of this prior agreement between the two principal races or national groups – an agreement which aimed at giving each of them official status in the Confederation, along



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with equality of treatment. No one has better defined the spirit of the Canadian federation in this respect than did Sir John A. Macdonald, in 1890, during a celebrated debate in the House of Commons in Ottawa, regarding the legal position of the French language in Canada: I have no accord with the desire expressed in some quarters that by any mode whatever there should be an attempt made to oppress the one language or to render it inferior to the other; I believe that would be impossible if it were tried and it would be foolish and wicked if it were possible. The statement that has been made so often that this is a conquered country is à propos de rien. Whether it was conquered or ceded, we have a constitution now under which all British subjects are in a position of absolute equality, having equal rights of every kind, of language, of religion, of property and of person. There is no paramount race in this country, there is no conquered race in this country, we are all British Subjects, and those who are not English are none the less British Subjects on that account.23

Such was the presiding spirit when the 1864–1867 agreement between the two main races was being drawn up. There was no question of victor or vanquished, nor of a superior or inferior race; both were to be associates and partners, with each possessing equal rights with respect to the survival of their ethnic groups in the Canadian union. It has been in this sense that the Province of Quebec has always interpreted and understood the spirit, and, therefore, the nature, of Confederation.24 Confederation: The Work of the Provinces If Confederation can be called an essentially Canadian work, it is scarcely less true that it owes its origin and distinctive features to the provinces themselves. Meeting in conference at Quebec in 1864, the delegates of the various provinces drew up a series of 72 resolutions which they undertook to submit to their respective governments,25 with a view to obtaining the sanction of the local parliaments “for the Union of the Provinces, on the principles adopted by the Conference.”26 As is known, these Resolutions were presented to the Parliament of the United Canadas at the 1865 session as a pact and treaty entered into between the various provinces and to which, consequently, no amendment could be entertained. It was Sir John A. Macdonald who was the most insistent and inflexible on this point. The government, he declared

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in his first speech to the House, would use its entire influence to have the scheme adopted without any alteration, for the very good reason that it was “in the nature of a treaty settled between the different colonies, each clause of which had been fully discussed, and which had been agreed to by a system of mutual compromise.” Then, so that there would be no misunderstanding, he again repeated, “It was obvious that unless the scheme were adopted as it had been settled between the different provinces, if they prosecuted it further they would have to commence de novo.”27 Macdonald maintained this attitude to the end, even when the Maritimes threatened to drop everything and when the Opposition harassed him with all sorts of amendments.28 The other members of the government were no less categorical and Taché,29 Cartier,30 Brown,31 and D’Arcy McGee,32 each in turn maintained that it was a treaty which was under discussion. Even Opposition members who recognized this fact complained bitterly that they could not propose any amendment because, according to the government, “the Constitution is in the nature of a compact, a treaty, and cannot be changed.”33 So there is no doubt that the Quebec Resolutions were presented in the Canadian Parliament as an inter-provincial compact. Newfoundland and Prince Edward Island refused for the time being to ratify them, and they consequently remained out of the 1867 Union. As for the two other Maritime Provinces, New Brunswick and Nova Scotia, after many postponements, changes of attitude, and discussions during which there was constant reference to the Quebec scheme, they finally appointed delegates to carry on union negotiations at London. As a matter of fact, the members of the London Conference were satisfied to summarize the Quebec Resolutions, modifying them slightly in favour of the Maritime Provinces. They finally adopted substantially the same scheme as they had done at Quebec,34 thereby satisfying the representatives from the United Canadas who had pledged themselves to accept only an Act based on the Quebec Resolutions.35 This was especially true of Georges-Étienne Cartier,36 mainly with a view to having Confederation accepted by Lower Canada.37 We freely admit that everything is not clear in this affair, that there were some not wholly loyal manoeuvres, and that the Maritimes had reason to complain,38 but we fail to see how all this alters the fact that Confederation was, in principle, the work of the provinces and can be considered as an inter-provincial compact. In any case, it was as such that it was presented to the Imperial Parliament.



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Confederation: Work of the Imperial Parliament Thus, in effect, it only remained to give legal form to this political agreement. British jurists intervened at this point to help the delegates from the provinces draft the bill which was to be presented to the Imperial Parliament, which was the only authority in a position to legally unite the British North American provinces. How can one best describe the mother country’s part in this affair? Let us allow the bill’s sponsors themselves to explain it. In the House of Commons, the Under-Secretary for State, Mr. Adderley, presented it in these terms: The House may ask what occasion there can be for our interfering in a question of this description. It will, however, I think, be manifest upon reflection that, as the arrangement is a matter of mutual concession on the part of the provinces, there must be some external authority to give a sanction to the compact into which they have entered … If, again, federation has in this case specially been a matter of most delicate treaty and compact between the provinces, if it has been a matter of mutual concession and compromise, it is clearly necessary that there should be a third party, ab extra, to give sanction to the treaty made between them. Such seems to me the office we have to perform in regard of this bill.39

These are plain words which clearly define the Imperial Parliament’s role. It was the external authority which gave sanction to the compact into which the provinces had entered, and it was an outside third party giving its sanction to the treaty agreed upon between them. Assertions of the same kind are to be found in Lord Carnarvon’s declarations in the House of Lords. Speaking about the preparations for union he said, The Conference of Charlottetown was adjourned to Quebec, and there, in the month of October, those resolutions were drawn up which have since become famous under the name of “The Quebec Resolutions,” and which, with some slight changes, form the basis of the measure that I now have the honour to submit to Parliament. To those resolutions all the British Provinces in North America were, as I have said, consenting parties, and the measure founded upon them must be accepted as a treaty of union.40

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It is interesting to observe that the noble Lord used the same formula as Macdonald had used when he sought to have the Resolutions adopted by the Canadian members of Parliament. Lord Carnavon told the House of Lords it was a treaty of union, whose every clause had been studied at length, and it could not be amended without dealing the measure a fatal blow.41 Here is how Cartier, on returning to Canada, in one of his speeches described the Imperial Parliament’s work. Some people, he said, had feared that England might modify the Quebec Resolutions and fasten on us a constitution of its own choosing. But no, (Trans.) We went to England and there we were treated fairly and generously. The Canadians, the English Minister told us, have come to us with a constitution fully made, the result of a friendly agreement between them and of matured discussion of their interests and needs. They are the best judges of what is best for them, so let us not in any respect change what they have done, but let us sanction their Confederation. Yes, it was in that spirit that England received our request. We required this sanction, and she gave it to us without hesitating and without seeking to intervene in our work … This understanding, which has directed all our efforts up to now, should continue in future. To you, my French-Canadian and Catholic compatriots and to you, also, English, Irish, and Scottish compatriots, I say: Do not fear! The constitutional Act which we have had passed in England, safeguards the privileges and rights of the minority as well as those of the majority.42

These words seem to us to sum up very well the true nature of Confederation. An essentially Canadian work, it was at one and the same time an agreement between the two principal national groups, a compact between the provinces, and also an Act of the Imperial Parliament. If we desire to get a right and fairly full view of it, no one of these aspects must be overlooked. In the Province of Quebec, this broad concept of Confederation has always been maintained and it has always found defenders from the system’s opening years right up to our times.43 In British Columbia,44 in Ontario,45 and in New Brunswick46 the same concept has prevailed. One might even add that, up to about twenty-five years ago, it was also the concept traditionally accepted even in Ottawa’s political circles.47 More than that, the Judicial Committee of the Privy Council has, by its judgments, at least twice confirmed this view and founded its



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argument on the fact that the Canadian Constitution embodied an agreement between the national groups and a compact between the provinces. In 1932, delivering his judgment “In re Regulation and Control of Aeronautics in Canada,” Lord Sankey laid down the following principle of interpretation: Inasmuch as the Act embodies a compromise under which the original provinces agreed to federate, it is important to keep in mind that the preservation of the rights of minorities was a condition on which such minorities entered into the federation and the foundation upon which the whole structure was subsequently erected. The process of interpretation as the years go on ought not to be allowed to dim or whittle down the provisions of the original contract upon which the federation was founded, nor is it legitimate that any judicial construction of the provisions of Section 91 and 92 should impose a new and different contract upon the federating bodies.48

Five years later, in 1937, Lord Atkin delivered the Privy Council’s judgment concerning the social legislation passed by the Canadian federal Parliament in 1935. After recalling that, in the distribution of legislative powers between the Dominion and the provinces, there is no question of legislation on treaties, as such, the tribunal’s president added, “No one can doubt that this distribution is one of the most essential conditions, probably the most essential condition, in the interprovincial compact to which the British North America Act gives effect.”49 It has been all the more necessary here to recall such testimony, which confirms Quebec’s traditional position towards Confederation because, within the past twenty-five years, an extremely violent attack has been directed by every means against what is referred to as the “so-called compact theory of Confederation.”50 It would be unrealistic to fail to realize that the adversaries of the traditional concept have succeeded in having it entirely set aside by the central government. Why and how has this happened? Why is there, even today, so much eagerness to demolish a concept which seems to fit in so well with the historical and political facts? For the very simple reason that this is not a purely theoretical, speculative, or even historical question but one which has considerable practical importance for each of the governments of the Canadian state – namely, the greater or lesser facility of amending the Constitutional Act of 1867. For that is the controversy’s vital centre. Since the Constitution did not provide any general formula for amendment, application has to

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be made, each time, to the British Parliament. But who should make such request, and on what terms? The provinces, and particularly Quebec, claiming that the Act of 1867 was only the legalization of an interprovincial compact, put forward the principle that the central government could not, without their consent, ask London to amend the Constitution. Obviously, this would make the Constitution a very difficult one to amend. Up to 1940, it would seem, the federal government did not have any very definite policy in this regard. Sometimes it acted alone, and the provinces, considering they had no interest, allowed them to do so; at other times, they obtained the provinces’ consent.51 But ever since the beginning of the Second World War, the central government has adopted a much clearer and more categorical attitude which might be summarized in these terms – for amendment of those parts of the Constitution which concern it, the federal government no more has to seek authorization from the provinces than the latter need Ottawa’s permission to amend their own constitutions. This was the declaration of a new principle, completely contrary to federalism in general and unknown to Canadian federalism, as Lord Carnarvon gave it to be understood when presenting the bill to the House of Lords. The local legislatures, he had said then, would have the right to amend their constitutions, but the provisions which govern the Constitution of the Central Parliament would be in the nature of permanent enactments.52 In any case, and in conformity with this new principle, the central government, despite protests from the Province of Quebec, proceeded alone with the amendments of 1943, 1946, and 1949. In the last amendment, it even had London admit its claims of being able, alone, to amend the Constitution of Canada in matters wherein it considered itself the only interested party. By such action, Ottawa notified the provinces of its firm and determined desire to set aside, in future, at least insofar as constitutional amendments are concerned, any claims solely founded on the fact that an interprovincial compact existed prior to the Act of 1867. Shutting itself up within a narrow and exclusive legalism, the central government reduces all of Confederation to the British North America Act and it forces the provinces to follow it in this practice. What recourse remains to the Province of Quebec under these circumstances? Should it assert and re-assert, in and out of season, the true nature of Confederation and, in particular, the existence of a federative



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compact which cannot be touched without its consent? That, without doubt, is a necessary step, but it nevertheless seems to us insufficient, in view of the last constitutional amendment obtained by the central government in its own favour. Yet continuous re-assertion is one necessary step, for truth always has weight and value, even when there is a refusal to recognize it. It is not within Ottawa’s power to change the nature of the 1867 Confederation. Dealing with this subject in the House in 1925, Mr. Ernest Lapointe asserted, I heard it suggested some time ago that this idea of confederation as a treaty is an antiquated idea. Maybe it is. But truth does not cease to be truth when it gets old; an old truth is always true. You cannot prevent facts from being facts whether you like them or not.53

And, in 1937, the same Minister of Justice again declared, The fact of saying that we have jurisdiction does not give it. The assumption of powers which we do not have, does not give those powers to us … The dominion is the child of the provinces; it is not their father. The provinces were in existence, had their powers, had their jurisdiction; they agreed to depart from a certain portion of their powers provided they were left with jurisdiction in other spheres, and they would never have come in and formed this Canada as it is if there had not been agreement at the conference which took place and which resulted in the British North America Act, a statute which was passed in England, that those provincial powers should remain within the sphere of authority of the provinces.54

Therefore, Quebec should reaffirm its traditional concept of Confed­ eration’s true nature, but without confining itself to this argument alone. The central government’s gesture forces it to fall back on its properly legal and constitutional positions. The latter remain intact and sufficiently strong, for the time being, so that it will be impossible to impose on the Province, against its will, either a general formula for amending the Constitution nor even a particular amendment which would tend to snatch from it any one of the powers, rights, and privileges which are guaranteed to it by this Constitution.55 Thus, while continuing the struggle on the political plane, the Prov­ ince must, in future, base itself to a greater extent on properly juridical and legal arguments, while solidly and scientifically organizing its

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defences, on this subject of growing importance so that, when the crucial question of a general formula for constitutional amendment again arises, it may be able to secure adoption of one which will not only be in accordance with the true nature of Confederation, but will also respect the particular character of our federalism as well as Quebec’s special position in the Canadian federation. NOTES 1 Royal Commission of Inquiry on Constitutional Problems, “Chapter III, ‘Nature of Confederation,’” Report of the Royal Commission of Inquiry on Constitutional Problems (Tremblay Report), volume II, Part Four “Federalism” (Quebec, 1956), 137–150. 2 “The B.N.A. Act was primarily the work of Canadians; it was the first time they had ever prepared a constitution for themselves” (F.R. Scott, “Political Nationalism and Confederation,” in The Canadian Journal of Economics and Political Science, August 1942, p. 396). 3 To more accurately reflect the original French version of the Tremblay Report in the translated English version of the Tremblay Report, the editors have inserted the word “politicians” and removed the word “public.” 4 “On February 7, Lord Carnarvon introduced in the House of Lords the British North America Act, the new constitution, the first one that a colony had ever drawn up for its own government” (G.M. Wrong, The Canadians, Toronto 1939, p. 348). 5 “But, in so far as regards those matters which, by sect. 92, are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion and as supreme as it was before the passing of the Act” (Liquidators of the Maritime Bank, 1892, A.C. 437). 6 See, in this connection, the declaration of John A. Macdonald in the Parliamentary Debates on Confederation of British North American Provinces, February 6, p. 42, and March 6, 1865, p. 649. 7 “The amendment made by Macdonald was so made to show that the Union was the act of the colonies themselves, not a gift, good or bad, of the Imperial authorities” (W. R. Riddell, “Some Origins of the B.N.A. Act, 1867,” Proceedings and Transactions of the Royal Society of Canada, 1918, p. 80). 8 See the speech of February 6, 1865, Confederation Debates. 9 See the speech of May 17, 1867, in the Tassé collection, pp. 523–524.



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10 To more accurately reflect the original French version of the Tremblay Report in the translated English version of the Tremblay Report, the editors have inserted the word “assumed” and removed the word “resumed.” 11 Speech of February 6, 1865, Confederation Debates, op. cit., p. 30. 12 Speech of February 8, 1865, Confederation Debates, op. cit., p. 85. 13 Speech of February 7, 1865, Confederation Debates, op. cit., p. 28. 14 Speech of February 7, 1865, Confederation Debates, p. 57. 15 John Boyd, Sir George Étienne Cartier, Bart., Toronto 1914, p. 272. 16 (Trans.) “The federal union is the result of a treaty, and the Province of Quebec was only willing to subscribe to this treaty on conditions which would allow it to live side by side with the other nationalities of Canada, without having to fear either for its autonomy or for its prestige within the Dominion” (P.B. Mignault, Manuel de droit parlementaire, Montreal 1889, p. 288). 17 Confederation Debates, op. cit., p. 944. Immediately following this declaration by Macdonald is found this one of Cartier’s: “It was also necessary to protect the English minorities in Lower Canada with respect to the use of their language, because in the Local Parliament of Lower Canada the majority will be composed of French-Canadians. The members of the Conference were desirous that it should not be in the power of that majority to decree the abolition of the use of the English language in the Local Legislature of Lower Canada, any more than it will be in the power of the Federal Legislature to do so with respect to the French language. I will also add that the use of both languages will be secured in the Imperial Act to be based on these resolutions” (ibid., p. 945). 18 To more accurately reflect the original French version of the Tremblay Report in the translated English version of the Tremblay Report, the editors have inserted the word “oppression” and removed the word “pressure.” 19 Speech of February 19, 1867, in Speeches on Canadian Affairs, by Henry H. Molyneux, Earl of Carnarvon, edited by Sir Robert Herbert, London, 1902, p. 105; speech of February 22, 1867, ibid., p. 133. 20 Cf. D.G. Creighton, British North America at the Time of Confederation, a study prepared for the Royal Commission on Dominion-Provincial Relations, Appendix 2, p. 60. 21 Cf. P.B. Mignault, Nos problèmes constitutionnels (15, Revue du Droit, p. 557). 22 Cf. Speeches on Canadian Affairs, op. cit., pp. 110–111. 23 House of Commons Debates, 1890, Vol. I, p. 745. 24 See, on this point, the following Briefs: Le Conseil de la Vie Française, pp. 2–3.

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La Commission des Écoles catholiques de Québec, pp. 6–7. La Société Saint-Jean-Baptiste de Québec, pp. 7–18. La Société Saint-Jean-Baptiste de Montréal, (printed volume) p. 44. La Chambre de Commerce de la Province de Québec, p. 5. 72nd Resolution of the Quebec Conference. 70th Resolution of the Quebec Conference. Speech of February 3, 1865, Confederation Debates, op. cit., p. 15. Speech of March 6, 1865, Confederation Debates, op. cit., p. 648. Speech of February 16, 1865, ibid., p. 240. Speech of March 7, 1865, ibid., p. 713. Speech of February 8, 1865, ibid., p. 109. Speech of February 9, 1865, ibid., p. 134. Speech of A.A. Dorion, February 16, 1865, ibid., p. 255. In the O’Connor Report, Annex 4, there will be found a detailed comparison between the Quebec Resolutions and those of London. The author writes, regarding the London Conference, “The London Resolutions except as to financial terms and the Intercolonial Railway, consist, largely, of the same text as that of the Quebec Resolutions” (Annex 4, p. 36). This is how a historian describes the attitude of the Canadians to the London Conference: “The Canadians pointed out that they had been delegated to work for a union that was based on the Quebec resolutions, and for no other. The B.N.A. Act was therefore based substantially on the Resolutions adopted at the Quebec Conference” (W. Whitelaw, “Reconstructing the Quebec Conference,” The Canadian Historical Review, 1938, p. 136). “I have already declared in my own name, and on behalf of the Government that the delegates who go to England will accept from the Imperial Government no act but one based on the resolutions adopted by this House, and they will not bring back any other” (Speech of March 13, 1865, Confederation Debates, p. 1022). See, on this subject, Macdonald’s letter to Tilley of New Brunswick, October 8, 1866: “Had we replied in the negative and stated that it was an open question, and that the resolution were liable to alteration, Lower Canada would have arisen as one man, and goodbye to Federation” (Sir J. Pope, Memoirs of Sir J.A. Macdonald, Vol. 1, p. 306). On these difficulties, see the O’Connor Report and the Brief presented to our Commission by John Fenston: The Federated States of Canada. Cited in the O’Connor Report, Annex 4, p. 149. Cited in the O’Connor Report, Annex 4, p. 171, and in the Speeches on Canadian Affairs, op. cit., p. 92.



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41 “It is, of course, within the competence of Parliament to alter the provisions of the Bill; but I should be glad for the House to understand that the Bill partakes somewhat of the nature of a treaty of union … It will be my duty to resist the alteration of anything which is in the nature of a compromise between the Provinces, as an amendment of that nature, if carried, would be fatal to the measure” (Speech of February 19, 1867, Speeches on Canadian Affairs, op. cit., p. 108).   The same speaker, explaining the conditions set by the provinces for entering into the Union, considered Section 145 regarding construction of the Inter­colonial Railways and declared, “Such an undertaking was part of the contract between the several Provinces and it was made an indispensable condition on the part of New Brunswick” (ibid., p. 108). 42 See J. Tassé, Discours de Sir Georges-Étienne Cartier, speech of May 17, 1867, p. 524. The similarity of thought between Cartier and Ernest Lapointe is to be noted. On February 1, 1937, the latter thus defined the role of the Imperial Parliament in the union of 1867: (Trans.) “As for Westminster, it may be said that it was merely the notary of the 1867 compact and its role, now as then, did not consist in anything more than the authentication of the clauses of the Canadian federal agreement” (According to La Presse of February 2, 1937). 43 See, among others, Judge T.J.J. Loranger (Lettres sur l’interprétation de la constitution fédérale, 1883), Judge P.B. Mignault (Manuel de droit parlementaire, 1889), and the numerous Briefs of the Province of Quebec to the central government, and, notably, that of April 25, 1946 (Federal-Provincial Conference on Reconstruction, pp. 395–399). 44 As regards British Columbia’s attitude in 1907, see the declarations made by the witness Skelton before the Special Committee of Inquiry on the British North America Act, proceedings, pp. 34–35. 45 See the brief of Mr. H. Ferguson, Prime Minister of Ontario, to the Prime Minister of Canada, September 10, 1930, which is reproduced in extenso in the O’Connor Report, Annex 4, pp. 134–139. 46 See the two briefs presented to the Rowell-Sirois Commission, in 1938, by the New Brunswick government, and the speech by Hon. J.B. McNair, Attorney-General, on March 17, 1939, to the Legislative Assembly of that Province (Synoptic Report of the Proceedings of the Legislative Assembly of New Brunswick, 1939 session, pp. 199–230). 47 See the lengthy speech on this subject made February 18 and 19, 1925, to the House of Commons by Mr. Ernest Lapointe, in which he cites the

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opinions of a host of politicians and jurists who considered the Canadian Constitution to be an interprovincial compact (House of Commons Debates, February 18 and 19, 1925, pp. 297–300 and 335–337). In re Regulation and Control of Aeronautics in Canada (1932) A.C. 54, 70. Attorney-General of Canada vs. Attorney-General of Ontario et al., (1937), A.C., 326. See, on this subject, Mr. N. McL. Rogers’s article “The Compact Theory of Confederation,” Papers and Proceedings of the Canadian Political Science Association, 1931, pp. 205–230, and especially the Report presented to the Senate in 1939 by its Parliamentary Counsel, Mr. W.F. O’Connor. Cf. Paul Gérin-Lajoie, Constitutional Amendment in Canada, 1950. “The Local Legislatures to be established in each Province stand next in order, and my task here is easy; for whilst the provisions regulating the constitution of the Central Parliament are in the nature of permanent enactments, those which govern the Local Legislatures will be subject to amendment by those bodies” (cf. Speeches on Canadian Affairs, op. cit., p. 100). House of Commons Debates, February 18, 1925, pp. 297–300. House of Commons Debates, February 1, 1937, p. 443. On this subject, see speech in the House of Commons by the Prime Minister, Louis Saint-Laurent, October 17, 1949, House of Commons Debates.

“Quebec and Confederation: Past and Present” Queen’s Quarterly 1964 Ramsay Cook1

The political problem of the French-speaking minority in Canada is as easily defined as it is difficult to solve: how can a self-conscious minority preserve its distinctiveness in a community governed by the principles of majority rule and representation by population? Clearly in such a society if a public question arises which divides the community along cultural lines, French-speaking Canadians inevitably find themselves subjected to what is sometimes called “the tyranny of the democratic majority.” Such issues have arisen in Canadian life in the past – most seriously in 1885 over the hanging of Louis Riel, during the First World War crises over French-language schools in Ontario and conscription for overseas service, and again over the conscription issue during the Second World War. These crises, which seriously ruptured relations between French and English Canadians, suggest that in Canada something more than simple majority support is necessary if public business is to be transacted smoothly and efficiently. A rough consensus of opinion in both French and English Canada is a primary requirement. The achievement of that consensus has been the objective of most of our political leaders. And the very machinery of government in Canada was, in part, designed to help make that consensus possible. When the Fathers of Confederation sat down at Charlottetown and later at Quebec to formulate the principles of union for British North America, one of the first problems they had to grapple with was

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that of the place of a minority in a majoritarian state. There were, of course, several types of minorities, including, in Sir John Macdonald’s view, the rich. But the most important minority was French Canada. It was not only the spokesmen of French Canada who insisted that the new state be a federal one, but they were certainly the strongest proponents of federal as opposed to legislative union. George-Étienne Cartier, the leader of the French Canadian delegation, told the Quebec Conference, “We thought that a federation scheme was the best because these provinces are peopled by different nations and by peoples of different religions.” What federal union provided was that French Canadians, while participating fully in all the common affairs of the new nation, also had one province where they would be in a majority. And the provinces were given control over those matters which, in 1867, seemed most important for the preservation of French Canada’s distinctiveness – education, civil law, and matters respecting religious life. Thus, in addition to being a union of the four provinces, Confederation was also a division between Canada East, or Quebec, and Canada West, or Ontario, which had previously been united in a single legislative union. Hector Langevin predicted, too optimistically, as events were to prove, that “in Parliament there will be no questions of race, nationality, religion, or locality, as this Legislature will only be charged with the settlement of the great general questions which will interest alike the whole Confederacy and not one locality only.”2 At the same time, of course, Canada became a bilingual country in its federal institutions, and Quebec, alone among the provinces, was declared officially bilingual. In this sense, as in one or two other more minor matters, Quebec was not to be a province like the others.… [French] had been used in public business before 1867, but it was not until the British North America Act was passed that it obtained legally guaranteed equality on the federal level of government. Despite the federal structure of the new nation and the guarantees given to the French language, by no means all French Canadians were enthusiastic supporters of the new constitution. Many of them feared that their minority position would be more vulnerable than ever in an arrangement that united the Canadas with the maritime colonies and looked forward to the addition of the Prairie West and the Pacific Coast territories in the near future. Moreover, there was a strongly expressed opinion that the new federal scheme placed so much power in the hands



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of the central government that a legislative union, in all but name, was in fact being established. The future of French Canada would thus rest at the mercy of the central power where English Canadians would always be in a majority. A.A. Dorion, a leading opponent of the proposed Confederation, expressed these fears: I know that majorities are naturally aggressive and how the possession of power engenders despotism, and I can understand how a majority animated this moment by the best feelings, might in six or nine months be willing to abuse its power and trample on the rights of the minority while acting in good faith, and on what is considered to be its rights.3

Dorion was worried, moreover, by the talk that he heard from the supporters of Confederation about a “new nationality.” Did this mean a uniform nationality? Did it mean the assimilation of French Canada into an English-speaking melting pot? It fell to Cartier to deal with these charges. He affirmed that a new nation was being projected but it would be a political nation which allowed for, indeed encouraged, cultural diversity. “The idea of unity of races was utopian,” he said; “it was impossible.” As to French Canada’s minority position, Cartier had two answers. First he said that the real question before Canadians was whether they would “obtain British North American Confederation or be absorbed in an American Confederation.” Of these alternatives, Canadian federation was the obvious choice.… [The] cocksure Cartier noted that there would always be French Canadians in the cabinet and they would be backed by a phalanx of sixty-five French Canadian votes in the House of Commons.4 While there was no popular vote on the Confederation scheme, the parliamentary division of the members from Canada East in 1865 was very close – twenty-seven in favour, twenty-two opposed to the plan. Perhaps François Évanturel, a French Canadian Conservative, expressed the views of many of his people when he remarked, I am in favour of the principle of Confederation, and one of those who maintain that by means of that principle the rights and liberties of each of the contracting parties may be preserved; but on the other hand, I am of opinion that it may be so applied as to endanger and even destroy, or nearly so, the rights and privileges of a state which is a party to this Confederation. Everything, therefore, depends upon the conditions of the contract.5

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In the first ninety years after 1867 both the supporters and the critics of Confederation were provided with some evidence to support their predictions. There can be no doubt that French Canadians benefited from the new arrangement. They shared in the economic progress that the new country experienced. They took an active part in the formulation of those policies which were designed to acquire full legal nationhood for Canada. Within the province of Quebec, French Canadians were their own masters in political and cultural matters. Economically they did not have full control over their society, but the complicated explanation of that situation had little, if anything, to do with Confederation. But French Canadians also suffered set-backs and disappointments in the new federal structure. And as set-backs were experienced, attempts were made to devise new methods of solving the old problem of minority rights in a majoritarian state. The first serious crisis arose in 1885 when the Macdonald cabinet, including three French Canadians, decided to allow Louis Riel’s death sentence to be carried out. Riel, the enigmatic, unbalanced Métis leader of two rebellions in Western Canada, became a symbol of the renewed nation. To many English Canadians, Riel was the murderer of a young Ontario Orangeman during the Red River Rebellion in 1870. To many French Canadians, the Métis leader was a valiant, if misguided, defender of a French and Catholic minority in Western Canada. Though strongly opposed to the decision to allow Riel to hang, Macdonald’s French-speaking colleagues did not resign from the cabinet, thus hoping to prevent the division of the country into warring cultural factions. Nor were the sixty-five Quebec members of Parliament numerous enough, or united enough, to punish the government with defeat. What French Canadians were brought to realize, probably for the first time in 1885, was that when an issue divided Canadians along French-English lines, English-speaking Canadians were the majority and could control decisions at Ottawa. This realization caused French Canadians to look inward and to fall back on their provincial government as the one bastion protecting them against the Englishspeaking majority. In 1885 French Canada found in Honoré Mercier a new leader and one who was, significantly, a provincial politician who had opposed Confederation. “We feel,” Mercier declared in 1885, “that the murder of Riel was a declaration of war on the influence of French Canada in Confederation, a violation of right and justice.” Taking advantage of the emotions aroused by the Riel affair, Mercier called upon



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French Canadians to cease their “fratricidal quarrels” and form a solid “national,” that is, Quebec national front. It was Mercier who, as premier of Quebec, provided the first important expression of a view of Confederation that has become a standard French Canadian interpretation. This was the “compact theory” of Confederation, a theory which insists upon the “autonomy” of the provinces. Shortly before Mercier’s election a Quebec judge, the Hon. T.J.J. Loranger, had worked out this theory in considerable detail. His essential argument was that “the Confederation of the British provinces was the result of a compact entered into by the provinces and the Imperial Parliament which, in enacting the British North America Act, simply ratified it.”6 Moreover, the Judge argued, the provinces in setting up the federal government had only delegated certain powers to it. Therefore the provinces were not only autonomous but, as the creators of the federal government, were equal rather than subordinate to it. If the autonomy of the provinces was not recognized, he concluded, the road to a fully centralized legislative union was a short one.7 One interesting point about Judge Loranger’s exposition of the “compact theory” was that he made no effort to prove that the compact was an agreement between French and English Canadians. For him the compact was among the provinces, regardless of cultural differences. Perhaps the reason for this attitude was that Judge Loranger was really taking his cue from the Premier of Ontario, Oliver Mowat, who throughout the 1880’s was engaged in legal combat with the federal government over a series of questions relating to the powers of the provinces. The Liberal Premier of Ontario, like the Conservative Prime Minister of Canada, was one of the Fathers of Confederation. But the two founders differed seriously over the role of the provinces in the new federation. It is worth emphasizing that the doctrine of provincial autonomy found its first effective exponent in an English-speaking premier of Ontario. The French Canadian Judge Loranger was merely urging Quebec politicians to join Mowat in the struggle against Ottawa. Mercier, on becoming Premier in 1886, quickly accepted the advice, for Ottawa, having bloodied its hands in the Riel affair, could now be easily stigmatized in Quebec. Together with Oliver Mowat, Mercier arranged a conference of provincial premiers in 1887 for the dual purpose of proposing limits to the powers of the federal government, particularly the power to veto provincial legislation, and also to press the federal government for larger financial subsidies to the provinces. Not all

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of the provinces attended the Interprovincial Conference, a fact which made it easier for Sir John Macdonald to ignore the meeting’s resolutions. But the standard of provincial rights had been firmly planted in 1887. Moreover, an unofficial alliance between the country’s two largest provinces had been established, an ad hoc alliance which in the twentieth century was occasionally renewed by Premiers Taschereau and Ferguson, and Duplessis and Hepburn. But despite alliances of this kind, Quebec has always had a unique interest in its defence of provincial rights. That interest was Quebec’s distinctive French and Roman Catholic culture. Nothing stimulated Quebec’s fears of English Canada more than the attacks, beginning in the 1880’s, which were made on that culture where it existed in pockets outside of the Province of Quebec. Beginning with the abolition of statesupported separate schools in Manitoba in 1890 and stretching through to the tragic years of the Ontario school controversy during the First World War, the rights of the French-speaking minorities were gradually whittled away. Although these beleaguered minorities, supported by Quebec leaders, fought back vigorously, their numbers were small and their opposition numerous. Section 93 of the British North America Act, which gave the federal government power to initiate remedial action when the legitimate school rights of a minority were interfered with by a province remained a dead letter. The reason was quite simple: the use of the power was politically dangerous for English-speaking politicians, and French-speaking representation at Ottawa was too small and too divided to force remedial action. Ironically it was Wilfrid Laurier and the Liberals who prevented a Conservative government in 1890 from taking action to restore minority rights in Manitoba. Whatever the explanation for the ineffectiveness of the federal remedial power, there can be no doubt that the efforts to limit French rights outside Quebec caused French Canadians to look more and more to their own province as the only part of Canada where they were fully at home. As Edmond de Nevers noted in 1896 in his book L’Avenir du Peuple Canadien-Français, “The Northwest is closed to us, thanks to the unjust retrograde law passed by the Legislature of Manitoba prohibiting French schools….” Nevertheless it was during these years of crisis over French language and Catholic schools outside Quebec that the theory of the cultural compact of Confederation began to receive a clear formulation. As early as 1890 when the attacks on the French language and school rights outside Quebec were being mounted, Sir John Macdonald had argued that



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we have a constitution now under which all British subjects are in a position of absolute equality, having equal rights of every kind, of language, or religion, of property and of person. There is no paramount race in this country, there is no conquered race in this country, we are all British subjects, and those who are not English are none the less British subjects on that account.

Macdonald, of course, was not speaking of a compact. It was left to French Canadians like Henri Bourassa, an independent Liberal, to transform Macdonald’s idea of equality into the theory that Confederation was a federation of cultures as well as provinces allowing for equal cultural rights for French and English-speaking Canadians from coast to coast. Bourassa and those who spoke of a “cultural compact” described an ideal rather than a reality and their compact was one which carried moral rather than legal sanctions. The implications of this moral compact are made clear by André Laurendeau who has written that if force of number alone rules the relations between an ethnic majority and an ethnic minority then a common life becomes impossible and only separatism remains. The minority must leave the house which has become uninhabitable.8

Thus, while French Canadians have insisted upon provincial autonomy, a position often supported by some English-speaking provinces, they have also developed the theory of the moral compact guaranteeing minority rights. But there have also always been those French Canadians who have rejected Confederation as a “fool’s paradise.” Usually these have been isolated intellectuals such as Jules-Paul Tardivel in the latter decades of the nineteenth century and some members of the L’Action française group in the 1920’s or idealistic young nationalists like JeuneCanada in the 1930’s. The separatist argument has always been based on the assumption that French Canada is a nation which should acquire all the trappings of complete nationhood, including an independent state. In his apocalyptic separatist novel of 1895, Pour la Patrie, Tardivel wrote, God planted in the heart of every French Canadian patriot a flower of hope. It is the aspiration to establish, on the banks of the St. Lawrence, a New France whose mission will be to continue in this American land the

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work of Christian civilization that old France carried out with such glory during the long centuries.

Tardivel’s theme was that Confederation was part of a plan for the ultimate assimilation of French Canadians and that the next step would be legislative union. The other alternative, the one that succeeded in the novel, was of course the establishment of a separate French Canadian, Catholic state. Tardivel thus set the pattern for later separatist groups, most of which have argued that Confederation will ultimately lead to legislative union and assimilation. In the 1930’s separatists frequently warned against the argument that centralization was necessary to deal with the social crisis of the depression. Others contended that the defence and extension of provincial autonomy was a necessary first step toward an independent Quebec.9 In the years before 1960 the voices of separatism had very little direct influence on Quebec politics. Nevertheless, the Quebec Legislative Assembly once debated a separatist resolution. In January 1918, a few months after the English Canadian majority had insisted on conscription for overseas service despite the opposition of most French Canadians, J.N. Francoeur presented the following resolution to the provincial legislature: “That this House is of opinion that the Province of Quebec would be disposed to accept the breaking of the Confederation Pact of 1867 if, in the other provinces, it is believed that she is an obstacle to the union, progress and development of Canada.” It is probably too strong to describe this motion as a separatist resolution, and the debate which followed was characterized more by sorrow than anger. Not a single voice was heard in support of separation, and the motion was never brought to a vote. Sir Lomer Gouin, the Premier of the province, could hardly have spoken more firmly of his faith in Confederation. He began by noting that “federal government appears to me the only possible one in Canada because of our different races and creeds and also because of the variety and multiplicity of local needs in our immense territory.” He said that if he had been one of the Fathers of Confederation he would have attempted to win a better guarantee for French-speaking minorities but he added that “even if it had not been accorded to me I would have voted in favour of the Resolutions in 1864.”10 Despite this reaffirmation of Quebec’s faith in Confederation, in the years after the Great War the French-speaking province was more jealous than ever of its autonomy. These were the years when Canadians began to expect government to play a larger role in social and economic



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affairs. And by government many English Canadians meant Ottawa. But French Canadians, still bitter about the conscription issue of 1917, retained a deep suspicion of any attempt by the federal government to increase its responsibilities. For example, Quebec remained out of the Federal Old Age Pension scheme, enacted in 1927, for more than eight years. Then, in 1936 the Quebec voters elected Maurice Duplessis, a premier who was to build his reputation as a staunch defender of provincial autonomy. Duplessis’ Party was characteristically called the Union nationale, and the national unity to which the title referred was that of Quebec not of Canada. In 1938 Premier Duplessis refused to co-operate with the Royal Commission on Dominion Provincial Relations established to examine the powers and responsibilities of all levels of government in Canada. Quebec’s view was the traditional one: “Confederation is a pact voluntarily agreed upon and which can be modified only by the consent of all parties.” Drawing out the implications of the “compact theory,” Duplessis’ government, following in the tradition of Mercier, insisted that no alterations could be made in the Canadian federal system without the consent of all provinces. A few years later the Quebec Premier explained why Quebec’s autonomy was necessary, saying, “The Legislature of Quebec is a fortress that we must defend without failing. It is that which permits us to construct the schools which suit us, to speak our language, to practise our religion and to make laws applicable to our population.” Here Duplessis was expressing the view of many French Canadian nationalists that Ottawa was the government of English Canada while Quebec City was the government of French Canada. Underlying this view was the doctrine of two nations: Canadians and Canadiens. Perhaps the event which most encouraged French Canadians to think of the government at Ottawa as a power dominated by Englishspeaking Canadians was the conscription plebiscite of 1942. Many French Canadians believed that the pledge made by the King government, and very specifically by Ernest Lapointe, in September 1939, that there would be no conscription for overseas service was a promise made to French Canadians. In 1942, however, the King government asked not French Canadians but all Canadians to release it from the pledge. One participant in the events of 1942 has since written, “French Canadian nationalists were opposed in principle even to the plebiscite. They denied that the government should ask the majority to remove a pledge made to the minority. They denied in advance the validity of the Canadian response.” The outcome of the plebiscite was

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what F.A. Angers called “Un Vote de Race” with more than eighty per cent of French Canadians casting a negative ballot. King’s handling of the conscription crisis was almost unbelievably adept, so adept that French Canadians are convinced that the crisis took place in 1942, while English Canadians are equally convinced that the date was two years later. The fact is that unlike 1917 when all the poison was administered at once, King, in typical fashion, prescribed two half doses. The result was that the federal Liberal Party continued to thrive in Quebec despite the demise of Premier Godbout’s fragile provincial Liberal administration. Nevertheless the fact remained that when limited conscription for overseas service was adopted in late 1944 the English Canadian majority imposed its will on the French-speaking minority. To many French Canadians the moral, as M. Laurendeau has written, seemed to be that “at Quebec one does what one wants, at Ottawa one does what one can.” In 1944 the Union Nationale was returned to power in Quebec. During the next dozen years the struggle between Quebec and Ottawa was intermittent but unceasing. These were years during which many English Canadians, at least, were becoming convinced that “Canadianism” had at last triumphed over the country’s chronic sectionalism and only just in time, too, in the face of the growing threat of what many saw as subversive American cultural and economic influences. The Report of the Massey Commission epitomized this spirit. But these same events caused profound uneasiness among French Canadian nationalists who, in turn, feared that “Canadians” might engulf “canadienisme.”11 Premier Duplessis’ battle against Ottawa thus won the support of the possessors of these disturbed nationalist consciences. Even so convinced an anti-separatist and vigorous critic of duplessisme as André Laurendeau was moved to write in 1955, “The separatist policy has become a chimera and an absurdity. However, those who have a conscience very alive to the perils into which the policies of Ottawa over the past fifteen years have plunged us, and who are consumed with impatience, prefer absurdity and chimera to death.” It was during these Duplessis years that the doctrine of “two nations” received its full blown exposition and, to some extent, obtained the official imprimatur. No one was more imaginative and forthright in his exposition of the doctrine of Canadians and Canadiens than Professor Michel Brunet, a historian at the University of Montreal. In 1954 he wrote,



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For French Canadians the Ottawa government can only be the central government of a federation uniting Quebec to English Canada. A narrow and harmonious collaboration can and must exist between the provincial and federal authorities. However the government charged with defending and promoting the common good of the French Canadian nationality is that of the province where the immense majority of French Canadians live.

The “two nations” doctrine received formal sanction in the voluminous Report of the Royal Commission of Enquiry on Constitutional Problems in 1956 which was, in effect, Quebec’s answer to the Report of the Rowell-Sirois Commission and Ottawa’s post-war economic, social, and fiscal policies. The Report of the Tremblay Commission included lengthy philosophical, sociological, and even theological discussions of the nature of the French Canadian identity. But its fundamental postulate was that “by reason of its history, as well as of the cultural character of its population, Quebec is not a province like the others, whatever may be said to the contrary. It speaks in the name of one of the two ethnic groups which founded Confederation, as one of the two partners who officially have the right to live and expand in this country. It is the only one able to represent one of the two partners, just as it alone may determine its reasons for refusing federal largesse.” But the French Canadian nation did not live exclusively in Quebec, and the Report therefore advocated not only the limitation of federal powers, but also the promotion of bilingualism and biculturalism throughout the country. And it put its finger on the central issue of Dominion Provincial relations when it remarked that “there can be no federalism without the autonomy of the state’s constituent parts, and no sovereignty of the various governments without fiscal and financial autonomy.” This was precisely the view which Premier Duplessis, with few philosophical trimmings, had been urging on the federal government for a decade. While the autonomist theme was the predominant theme in Quebec during the fifties, it was not the only one. Indeed the reactionary social policies and the growing corruption of the Union Nationale regime tended to discredit the provincial rights cause in progressive circles. French Canadian nationalism itself became suspect as a tool of reaction; the “state of siege” mentality, it seemed, was encouraged as much to stifle reform in Quebec as to fight Ottawa.12 In 1954 one reformer, Maurice Lamontagne, published Le Fédéralisme Canadien, a careful study of the Canadian federal system which, in effect, advocated that Quebec

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accept fully the implications of the type of centralized federalism that the Rowell Sirois Commission had recommended and which economic and social planning seemed to necessitate. While Duplessis lived, neither the Tremblay Commission’s theorists of “positive autonomism” nor the proponents of what Lamontagne called “une intégration lucide au nouveau fédéralisme canadien” gained control over provincial policy, though, of course, the former received a more sympathetic hearing than the latter. Doubtlessly far more important than the Union Nationale’s constant, noisy war with Ottawa was the economic and social transformation that was taking place in Quebec and the gradual growth of a new nationalist impulse which was, at least in origin, more aggressive in its advocacy of social reform and in its defence of provincial autonomy than anything Duplessis had countenanced.13 Since 1960 the turmoil in Quebec has resulted in the revival of all the traditional attitudes toward Confederation, as well as some new ones, stretching all the way from “co-operation federalism” and autonomism through to the idea of an associate state and separatism. The vague theory of an associate state includes among its proponents spokesmen for the traditionalist Société Saint-Sean-Baptiste, the populistic Créditistes, and the left-wing Parti Socialiste du Quebec.14 The appeal of the doctrine of an associate state obviously lies in its ready solution to the problem of the relation of the minority to the majority without going as far as separatism. In brief, its proponents reject representation by population, whereby French Canadians are increasingly outnumbered, in favour of representation by “nation.” It is, of course, a Canadian version of John C. Calhoun’s “concurrent majorities,” though, strangely, one never sees any reference to the writings of antebellum South’s most distinguished theorist in the writings of French Canadians. At least to English Canadians, the idea of an associate state seems hopelessly utopian and perhaps even less acceptable than outright separation. In the first place the idea would seem to promise only the deadlock which paralysed the Union of the Canadas in the 1860’s and led to Confederation. In the second place, French Canada’s minority status is not as much the result of our present constitutional arrangements as it is of geography. No constitutional changes can alter the fact that French Canadians live in North America. It is only the future, of course, that can supply fully satisfactory answers to the problems of the present. But the past suggests that it is in the realm of political action rather than in constitutional theorizing that solutions to our present discontents are likely to be found. It is highly



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significant that in his great struggle to defend the autonomy of his province against what he saw as the encroaching federal power, Premier Duplessis’ chief antagonist was another French Canadian, Louis St. Laurent. And Prime Minister St. Laurent’s position was characteristic. In the years since 1867 French Canadians have made their major adjustment to Confederation in the fashion that Cartier had recommended: effective leadership in the federal cabinet where an ad hoc system of concurrent majorities seemed at least partly feasible. A long line of vigorous French Canadian politicians, beginning with Cartier himself, and stretching through Laurier and Lapointe to St. Laurent, forcefully upheld the viewpoint of French Canada. It was in political action rather than in legal and moral compacts that these men placed their faith. For them Confederation, while not perhaps the ideal political arrangement, was nevertheless the best one available. All of them recognized that the relations between majorities and minorities in a democratic state can never be settled in an absolute manner. It was Sir Wilfrid Laurier who summed up this tradition best when he wrote just before his death that there have been found among us limited spirits who have shouted very loudly, “No compromise; all or nothing.” What an aberration! When a minority affirms that it will concede nothing, that it demands all or will accept nothing less than all, they are three times blind who do not see what the inevitable results will be: nothing. How can they not see that the majority itself will accept the doctrine and apply it without compunction to those who proclaim it! This truth was evident when Confederation was formed, it is equally so today. Salvation consists in administering Confederation in the same spirit as it was conceived, with firmness and always with moderation.

For Laurier, as for Cartier before him and Lapointe afterwards, Con­ federation was a compromise which provided for cultural co-existence within the bosom of a single political nation. Since the Canadian political community of 1867 had been established in a spirit of compromise it could only be operated effectively in the same spirit. That spirit meant that while the majority must respect the rights of the minority, the minority, for its part, could never forget that majorities also have rights. Only by working through the federal political parties in co-operation with English Canadians could French Canadians hope to have their viewpoint understood. Cartier had defined the underlying assumption of that co-operation when he declared in 1865, “[W]e were of different

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races not for the purpose of jarring against each other, but in order to compete and emulate for to general welfare.” Since 1867 Canadian co-existence has not always been entirely peaceful, competition has sometimes been destructive. Yet, at least until recently, the overwhelming majority of French-speaking and English-speaking Canadians have remained convinced that Confederation, when operated in a spirit of “firmness and moderation,” has been a worthwhile experiment. It may not always be so, but until a more attractive alternative is offered, it is perhaps well to remember a recent remark by a French Canadian writer in summing up the Canadian experience. “Most nations,” he wrote, “have been formed not by people who desired intensely to live together, but rather by people who could not live apart.”15 NOTES 1 Ramsay Cook, “Quebec and Confederation: Past and Present,” Queen’s Quarterly, 71, 4 (1964), 468–484. 2 Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, Quebec, 1865 (hereafter Confederation Debates), 368. 3 Confederation Debates, 250. 4 Confederation Debates, 60, 55, 571. 5 Confederation Debates, 711. 6 T.J.J. Loranger, “Letters on the Interpretation of the Federal Constitution Called the British North American Act,” The Morning Chronicle, Quebec, 1884 (first letter), 61. In 1884, as Leader of the Opposition in Quebec, Mercier used Loranger’s writings as a source for a speech on Provincial Autonomy; see J.O. Pelland, Biographie, Discours, Conférences etc., de L’Hon. Honoré Mercier (Montréal 1890), 40. 7 The arguments about the validity of the “compact theory” need not detain us here. The two sides of the case are summed up in N. McL. Rogers, “The Compact Theory of Confederation,” Proceedings of the Canadian Political Science Association, 1931, 205–230; and Richard Arès, S.J., La Confédération: Pacte ou Loi? Éditions de L’Action Nationale, Montreal, n.d. 8 La Crise de la Conscription, 1942, Les Éditions du Jour, Montreal, 1962, 74. 9 Dosteler O’Leary, Séparatisme, doctrine constructif, Les Éditions des Jeunesses Patriotes, Montreal, 1937, 1950; Émile Latrémouille, Tradition et indépendence, Les Éditions des Patriotes, Montreal, 1939, 28–29. 10 Quebec and Confederation: A Record of the Debate of the Legislative Assembly of Quebec on the Motion proposed by I.N. Francoeur, 1918, 124.



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11 “Mémoire de la Ligue d’Action Nationale à la Commission royale d’enquête sur les arts, les lettres et les sciences,” Action nationale, XXXV, 4 April 1950, 312; see also Michel Brunet, “Une autre manifestation du nationalisme canadien, le Rapport Massey,” in Canadians et Canadiens, Montreal, 1952. 12 See Pierre-Elliott Trudeau, La Grève de l’Amiante, Montreal, 1956, 10–37; and Pierre-Elliott Trudeau, “Some Obstacles to Democracy in Quebec,” in Mason Wade, Canadian Dualism, Toronto, 1960, 241–259. 13 Jean-Marc Leger, “Aspects of French Canadian Nationalism,” University of Toronto Quarterly, XXVII, 3, April 1958, 310, 329; Hubert Guindon, “Social Unrest, Social Class and Quebec’s Bureaucratic Revolution,” Queen’s Quarterly, LXXI, 2, Summer 1964, 150–162. 14 Le fédéralisme, l’acte de l’amérique du nord britannique et les canadiens français, Mémoire de la Société Saint-Jean-Baptiste de Montréal au Comité Parlementaire de la Constitution du Gouvernement du Québec, Montreal 1964; Le Devoir, 11 August 1964, p. 4; Jacques-Yvan Morin, “The Need for a New Canadian Federation,” Canadian Forum, XLIV, 521, June 1964, 64–66. 15 Jean-Charles Bonenfant, “L’ésprit de 1867,” Revue d’Histoire de l’Amérique français, XVII, I, June 1963, 38.

The Invention of a Myth: The Pact between Two Founding Peoples L’invention d’un mythe, Le pacte entre deux peuples fondateurs (Translated by Lin Burman) 1999

Stéphane Paquin1

The Theory of the Compact between Two Founding Peoples The theory of the compact between two founding peoples first meant that any constitutional amendment required the agreement of the two communities in Canada. It implied that biculturalism was the foundation of the country and that the federal government was the protector and promoter of that distinct identity. As Maurice Croisat asserts, “… the principle must inspire all government policy in order to respect the equality between the two founding peoples.”2 This theory suffers from the same problems as the first one. Canada could not act legally without London. While it is true that the unholy alliance between Brown and Cartier and their proposal for a federal union seemed to corroborate the compact theory, negotiations were only a prelude to the BNA Act. As Professor Maurice Croisat maintains, the background to an act must not be confused with its legal character.3 The legal nature or the spirit of the BNA Act by no means substantiates the theory of a two-way compact. The Fathers of Confederation wanted a highly centralised federation, going so far as to wish for the creation of a new nationhood.4 Canada could not be built on duality, which had caused the dysfunction of the Union of 1840. George Brown declared at the end of the Quebec Conference, “Is it not wonderful? French Canadianism entirely extinguished!”5



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Organization of the Charlottetown, Quebec, and London Conferences was driven by intergovernmental logic rather than a dualist foundation.6 As Professor Louis Massicotte points out, a two-way compact would have assumed delegations of comparable size. This, however, was not the case. At Charlottetown, there were only two Francophones as against twenty-one Anglophones; at Quebec, there were four as against fourteen; and in London, there were two as against fourteen. It was a very telling point with regard to power relations between the Francophone minority and the Anglophone majority at the time. A compact between two peoples was an unimaginable reality in 1867. Anglophones in North America did not feel that they constituted a people. Granted, they shared a sense of belonging to the British Empire, but they were also driven by a strong sense of regionalism. The provinces of Nova Scotia and New Brunswick entered into Confederation and kept their constitution and their powers intact. They would, however, be subject to the provisions of the BNA Act. The provinces of United Canada were cobbled together. Nova Scotia and New Brunswick refused to give up their distinctiveness and merge into Canada.7 In short, what was to become Quebec was not one of the two partners, but one of the four. On a symbolic level, if the BNA Act was the outcome of a compact between two founding peoples, then it is difficult to explain why only the English version of the text of 1867 has had force of law since 1867, and this is still the case today. How can we explain that the provisions of a dualist nature in the 1867 Constitution are so few and far between? How can we explain that the currency only became bilingual in 1935; that bilingualism was not instituted in Canada until the 1960s? That the Union Jack was Canada’s flag until 1965? That the bilingual national anthem was adopted only in 1980 (to replace God Save the Queen)? The Constitution of 1867 was the outcome of an unequal balance of power in which Francophones played an altogether limited role. Cartier believed that 1867 would grant Quebec the autonomy needed to protect its language, tradition of civil law, and religion. For George Brown, 1867 marked the end of French domination in Canada and the beginning of a new British nationhood. The Political or Historical Compact The theory of the political or historical compact also has its defenders, such as G.F.G. Stanley and Stanley Bréhaut Ryerson. Their point

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of view can be summarized as follows: 1) there was no legal content in the compact, and 2) the Cartier-Brown coalition was the basis of the compact. We are dealing here with a two-way compact. In light of the historical events that culminated in the BNA Act, the hypothesis in its version of a compact between two founding peoples has some merit. Let us keep in mind that for there to be a political compact, it is necessary for one party to have modified its initial objective with the aim of meeting the demands of one or more parties and thereby reach consensus on a project. It is easy to defend the idea that the compact rests on the adoption of the federal principle, as evidenced by the statements by Brown and Cartier. That modification of the original objective must be seen as a compact, since compromise was perhaps merely a pragmatic calculation on the part of the Fathers of Confederation. The aforementioned “compact” must be perceived as such. As we shall see in the next section, there seems to be consensus among writers that the theory of the historical compact came after 1867.8 The problem with the theory of the historical compact between two founding peoples is that it does not take into account the fact that no one at the time had presented the BNA Act as the outcome of a two-way compact. The theory of the two-way compact was first used in 1902 in the context of the struggle for school rights. It ties in with subsequent aspirations of the Francophones who constructed the theory for the purpose of political mobilisation. As Professor Louis Massicotte points out, “It is very strange that such a basic characteristic escaped everyone at the time, including the Francophone proponents of the project.”9 In the same article in La Minerve of 1 July 1867 presented earlier, no mention was made of a two-way compact. By examining the practice of constitutional amendments after Confederation, we see that the theory of the compact between two founding peoples did not inspire its practice. Between 1867 and 1982, the authorities had to alter the BNA Act several times. According to a federal government document of 1965, four generalisations concerning the procedure of constitutional amendment emerged:10 1) a British law amending Canada’s Constitution was passed only at Canada’s request; every time the Canadian government asked London to change the BNA Act, London complied without making any significant changes; 2) within Canada, it was the Canadian Parliament that authorized the request to the British Parliament (the request took the form of a joint address by the Senate and the House of Commons); 3) London had never changed the BNA Act at the sole



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request of a Canadian province (the secession of Nova Scotia in 1868, for example), and all attempts to that end on the part of the provinces ended in failure; and 4) the Canadian Parliament was not obliged, from a strictly legal point of view, to consult the provinces. However, from a conventional point of view, consultation and the assent of the provinces by the federal authorities on changes concerning federal relations became the norm. The Compact by Convention It is also possible that the compact was established by constitutional practice and became convention. In Canada, the unwritten part of the Constitution was also very important, as constitutional conventions and customs controlled the workings of institutions as well as parliamentary practices both federally and provincially. Thus, in accordance with that convention, the Queen did not intervene in Canadian political affairs and the government had to have the trust of the House of Commons to exercise power. A constitutional convention is an operating rule based on custom and considered (morally) compulsory, although without the force of law. The Supreme Court has recourse to the Jennings test to determine the criteria for establishing a constitutional convention. To do this, the answer to the following three questions must be yes: 1. Are there precedents? 2. Did the players believe themselves bound by a rule in those precedents? 3. Does the rule have a raison d’être? C.F.G. Stanley maintains that the compact had no legal basis in the strict sense of the term but that it was more in the nature of a moral compact or a gentlemen’s agreement. Recognition of Canadian duality by Canadian politicians was the basis of the compact and became, according to Stanley, a constitutional convention. Even if duality was recognized before 1867, it is an exaggeration to say that this duality was a convention of our Constitution in the same way as, for example, ministerial responsibility, the most important of the conventions in Canada. It was more out of pragmatism that politicians agreed, after the 1840 regime, to recognize a degree of cultural duality. G.F.G. Stanley’s argument in support of duality as a constitutional

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convention since the 1850s is, from this standpoint, unfounded; it does not stand up to the Jennings test. This point of view was confirmed by the Supreme Court in its ruling on the Quebec veto in 1982. The Fathers of Confederation had introduced the Quebec resolutions as being the outcome of a compact or a treaty that had to be adopted in its entirety in order to avoid having to renegotiate the whole thing. The proposal is largely explained by political problems in the Maritimes. In Canada, Macdonald and Cartier had hoped, in their great mistrust of that American invention, democracy, that they would never have to call a general election. The project of a union with Canada was hotly contested in the Maritime Provinces, where the Quebec Resolutions were not defined as the consequence of a compact. Representatives from New Brunswick and Nova Scotia were therefore dispatched to London with a mandate to renegotiate the agreement once more. Newfoundland and Prince Edward Island, for their part, decided to remain outside the project. A point worth noting is that Quebec Act of 1774,11 the Constitutional Act of 1791,12 and the Act of 184013 were all described as a compact or a contract. In fact, they were nothing of the kind. They were measures arbitrarily imposed by London. We are willing to bet that the use of these terms refers to the philosophers Hobbes, Locke, Montesquieu, and Rousseau who, each in his own way, used the philosophical concepts in the sequence “state of nature, compact and lastly, state of society.” The word compact as it is used takes on the sense of promulgation of a new modus vivendi that replaces the previous order.14 In short, the BNA Act was more than just a British law but was not in any way a compact. It was more than just a British law, because, in accordance with constitutional practice at the time, it was impossible for the imperial government to amend the new Canadian Constitution without Canada having a say in the matter. This way of doing things satisfied Macdonald, as it facilitated the creation of a new nationality whose sense of belonging to Canada would supplant the sense of belonging to a province. In United Canada, regionalism was responsible for the dysfunction of the system that had been established in 1840. Macdonald and the Fathers of Confederation would therefore create a quasi-unitary federal system to ensure the indisputable predominance of the federal government over the provinces and avoid a repeat of 1840. Theories that interpret Canada as the implementation of a compact among provinces or between two founding peoples were all subsequent



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to Confederation and were born out of a need: deciding on an amending formula for the Constitution. Such constantly evolving interpretations were to develop in particular circumstances. […] Theories that interpret Canada as the implementation of a compact among provinces or between two founding peoples were all subsequent to Confederation and were born out of a need: deciding on an amending formula for the British North America Act that did not include a formula to deal with the powers of the federal government. Faced with the strong centralism of the Confederation of 1867 and the centralising principles of the Conservatives, the federal Liberals rapidly developed a theory of federalism that ran counter to the ideas of John A. Macdonald. The provinces became “sovereign and independent” entities within their fields of jurisdiction and not merely “municipal councils,” as the Conservatives maintained. It is at this point that the compact theory first appeared: the compact among the provinces. The theory was developed by provincialists who reinvented the origins of the country in order to explain why only the provinces could amend the Constitution. The basic idea was simple: it was the provinces that first met in Charlottetown, and then at Quebec to create a new dominion, Canada. Since the provinces were the source of Canada, the provincialists argued, only they could amend the Constitution, the outcome of their compact. In short, the compact theory was one that stipulated that the sovereignty of Canada was the result of the union of the provinces and that the role of the federal government was to protect and promote their interests. That theory was ascribed to Oliver Mowat, the prime minister of Ontario, and a Father of Confederation. In Quebec, led by Honoré Mercier, on top of the struggle against Ottawa’s imperialism, a conflict broke out between Francophones and Anglophones. However, leaders in Quebec sought to create an alliance with the other provinces of Canada to destabilize the federal government. This was the context in which the interprovincial Conference of 1887 was created in Quebec City, a first in Canada. At the conference, the prime ministers who attended, nearly all Liberals, tried to convince the population that the BNA Act was a compact among the provinces. The anti-Francophone initiatives that were shaking Canada drove Henri Bourassa to come up with the theory of the compact between two peoples. Bourassa added to the theory of the compact among the provinces the theory of the compact between two founding peoples.

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Bourassa had developed a vision of Canada based on the fact that the Fathers of Confederation had had, in his view, the intention of founding a binational, and therefore bilingual and bicultural, country. This theory of Bourassa’s did not extend as far as a constitutional amendment; it was invented to support the struggle of Francophones outside Quebec. It did not gain immediate acceptance in Quebec: it put too many restrictions on the actions of the Quebec government, which preferred to maintain the theory of the interprovincial compact, which better sustained the idea of provincial autonomy. Following the crisis of 1929, there was an urgent need to make constitutional amendments to try and find a solution to the crisis. Many wellknown figures in English-speaking Canada were to challenge the theory of an interprovincial compact that prevented unilateral action by the federal government. There was therefore a shift from 1930 to 1940 onwards, because if, unlike 1887, it was no longer realistic to believe in the supremacy of the provinces over the federal government, it was nevertheless possible to gain an ally, even if this meant adjusting the compact theory. The reasoning that was adopted may be summarised as follows: the consent of the federal government was perhaps necessary, but was not enough. This was the argument put forward by Ferguson, the prime minister of Ontario, and by those who upheld the new version of the theory of the compact among provinces. As the BNA Act was the outcome of a compact among provinces that created federation, it stood to reason that any amendment to the Constitution required the consent of the provinces. The compact hypothesis was adjusted to fit the new power relationship. In the first version developed around 1887, the aim of the theory was to exclude the federal government from the amendment procedure. The second, rather more conciliatory, version henceforth included the provinces in the process of constitutional amendment. This new version of the compact theory was to be very short-lived. From the 1930s onward, legal experts like J.S. Ewart and N. McL. Rogers, a future minister in the federal government, opposed the new hypothesis. Encouraged by youthful nationalism of a suitably Canadian variety, these experts opposed the theory of the interprovincial compact, since there was a risk that it would delay the development of Canadian national institutions by granting a veto to the provinces. With the Rowell-Sirois Commission, charged with examining problems related to Canadian federalism, the theory of British law was confirmed. This new theory of the federal government was decisive in undermining the interprovincial compact: politicians lent credibility to



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the thesis of those who saw the Act of 1867 as just a British law. The debate went thus: those who upheld the theory of the simply British law defended the hypothesis so that the federal government could amend the Constitution without the consent of the provinces, whereas those who defended the compact theory declared that, on the contrary, the consent of the provinces was essential for any constitutional amendment. In the end, with the constitutional amendments of 1943, 1946, and 1949, the decline of the interprovincial compact theory became a reality. Louis Saint-Laurent declared that Confederation was not the outcome of an interprovincial compact. Federal policies aimed at making the central government the national government of all Canadians were to step up the role of defender of the Francophone minority played by the Quebec government. Lionel Groulx, the new leader of a new nationalist elite, which was no longer focused on French Canada, but on Quebec, revived the theory of the compact between two founding peoples. Under Groulx, the compact theory became a triple compact: between provinces, between religions, and between nationalities. In short, with Groulx, the two-way compact theory justified the protection of religious minorities in Canada, but also the protection of the French Canadian nation in Quebec. After Groulx, Maurice Duplessis was in a strong position to challenge “Ottawa’s imperialism.” Since the theory of the interprovincial compact was challenged in English Canada, Duplessis adopted the theory of the compact between two founding peoples. It would become official with the Tremblay Report of 1956. Under Duplessis, the conflict between Francophones and Anglophones became a conflict between Quebec and Ottawa. During the Quiet Revolution, Quebec underwent a profound transformation. French-Canadian nationalism, essentially defensive (“Give us back our booty,” said Duplessis), became more aggressive and demanding. A change of status was needed in Canada. Jean Lesage based himself on the theory of the compact between two founding peoples in order to obtain special status for Quebec and the right of veto. In the 1960s, the federal government, wishing to solve the problem of Quebec, would end up acknowledging the theory of the compact between two founding peoples, as evidenced by the mandate of the Commission on Bilingualism and Biculturalism. All federal political parties quickly adopted the principle, albeit with nuances. Following his election in 1968, Pierre Elliot Trudeau would work to counter the idea of the two-way compact. He proposed a policy of

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bilingualism and multiculturalism. Following the episode of Trudeau and the Supreme Court decision at the beginning of the 1980s, the idea of the two-way compact was hotly contested in English-speaking Canada. In Quebec, the idea was defended mainly by the leader of the Liberal political party, Claude Ryan. In 1985, the concept changed but the spirit of it remained. People wanted Quebec to be a distinct society and obtain the right of veto. The arrival of Jean Charest at the head of the Liberal party did not augur well for the theory of the two-way compact or for Canadian dualism. Charest’s line of discourse was distinctly more centralising in character than that of any Liberal presidents since Jean Lesage. Since the neo-nationalist tide and the Montreal historical school, part of the Quebec nationalist elite has abandoned the theory of the two-way compact for the annexation theory, a tragic consequence of Conquest. It must be noted, however, that after its defeat in the 1980 referendum, and at the time of the repatriation of the Constitution, the Parti Québécois adopted the theory of the two-way compact and then abandoned it once more with the arrival of Jacques Parizeau. Lucien Bouchard is currently keeping us in a state of deliberate vagueness on the issue. However, the recent proposal of the Bloc Québécois to abandon the idea makes his return to the sovereigntists difficult. […] Conclusion The thesis of this essay has three parts. The first maintains that the various forms of the compact theory, also known as the theory of the compact among equal provinces or between two founding peoples, are historical falsehoods. The BNA Act was more than just a British law without, however, being a compact. It was more than just a British law. because in the constitutional practice of the time, the imperial government did not want to amend the new Canadian Constitution without prior discussion with the representatives of Canada. Macdonald was satisfied with this way of proceeding, which served his ambitions of creating a new nationhood whose sense of belonging to Canada would supplant the sense of belonging to the provinces. In United Canada, regionalism was responsible for the dysfunction of the system that had been established in the 1840s. Macdonald and the Fathers of Confederation would therefore create a quasi-unitary federal system to guarantee the indisputable



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predominance of the federal government over the provinces, thereby trying to avoid a repeat of 1840. It was clearly the efforts of the provincial delegates that created the conditions leading to Confederation. However, even though any act presupposes negotiations, we cannot conclude that every act is a treaty that cannot be modified unless there is consent all-round. The history of the 1867 Constitution must not be confused with its legal character. The spirit of 1867 does not confirm the theory of an interprovincial compact between two founding peoples. Macdonald’s aim was to reduce provincialism and create a new sense of nationhood, and not to encourage provincialists or cultural duality. As a pragmatist, he was to succeed in making compromises guaranteeing the success of the project. As Claude Morin points out, the federal system of 1867 was, for many nationalists, the outcome of a cynical enterprise of assimilation from Conquest right up to the Durham Report.15 This rather frank interpretation of history is not a plausible one for the simple reason that the system established in 1867 would have been different. Canadians would certainly have had a unitary state, the system preferred by most of the Fathers of Confederation from Upper Canada. The causes of union are quite different. The first was of a political nature. The instability and iniquity of the political system instituted in 1841 contributed to politicians developing innovative ideas to resolve the political deadlock. They also had to do, in large part, with the fear of an American invasion. London’s disengagement and the weakness of the isolated colonies facilitated union. Our system is a federal one, not a unitary one, because of the will of Lower Canada and the Maritimes to preserve part of their autonomy, without which every project would have failed. For Francophones, agreeing to the federal principle amounted to recognising their difference; this was a pressing need, given their minority situation. The present-day Anglophone Canadian vision of federalism differs considerably from that of the Québécois. It would be unfair to claim that the problems of federalism stem from the fact that Anglophones did not respect the federal “compact” of 1867. It is, in fact, fortunate that they did not respect its spirit. As we have seen, Canada was founded on the double meanings of the Fathers of Confederation. For Francophones, led by Cartier, the Canada of 1867 meant obtaining a predominantly francophone government as well as equal representation in the Senate with Ontario; this in itself was a degree of recognition of Canadian duality or a state within

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a state, as was reported in La Minerve. Anglophones, for their part, led by Macdonald, hoped that the federal system would endow them with a strong central government to put an end to regionalism and create a new sense of nationhood that was strong enough to resist the intrusive neighbour to the south. Canadian provincialists were to prevent that dream from coming true. For Francophones, 1867 was to be the outcome of an association or a compact between two nations; for Anglophones, it would be a compact among provinces that joined together all the British provinces of North America. The second part of the hypothesis maintained that the development of compact theories was subsequent to the establishment of Confederation in 1867. They tried to reconstruct the historical origins of the country to explain and justify provincial control over the constitutional amendment procedure. The question of constitutional amendments was essential with regard to power relations, as the Constitution regulated the powers of the various orders of government, i.e., federal and provincial. A constitutional amendment became an extraordinary act in the sense that it altered the rules of the game that determined the political wrangling. The amending formula set the conditions for changing the rules of this power game or each party’s power base. As already mentioned, the BNA Act did not comprise any amending formula. It is at this point that the compact theory comes into its own. It is an attempt to reconstruct the historical origins of Confederation, and aims to explain and justify provincial or national control, with regard to Quebec, over the constitutional amendment procedure.16 The theory was originally developed by provincial politicians who supported autonomy of the provinces in order to explain the whys and wherefores of the need for provincial consent to effect major changes to the BNA Act.17 Of course, the theory evolved over time, according to the political situation. With the heightening of Francophobe sentiment in the West, Henri Bourassa, the nationalist Quebec leader at the time, was to develop a compact theory, which, in fact, made it into a moral compact to guide the actions of Canadian politicians. With Groulx and Duplessis, but also with Lesage and Ryan, the theory was to have a long life and enjoy immense popularity, especially in Quebec. The third part of the hypothesis maintained that the theories today are the national representation of how various nations in the country



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see themselves. Throughout history, we have seen the important role played by politicians and intellectuals. For Honoré Mercier, the compact in the first years of Confederation was a compact among provinces. The province of Quebec was assimilated, in its case, into the Quebec nation. For D’Alton McCarthy, a Conservative dissident in the Macdonald government, the compact limited the use of French in the province of Quebec and the federal Parliament. When he referred to the compact, it was to exclude Francophones in the Canadian West. For Henri Bourassa, the compact of 1867 was a moral undertaking between two founding peoples who were committed to developing bilingualism in the country, and provincial autonomy in Quebec had to be scrupulously respected in order not to compromise the survival of the French fact in Canada. Lionel Groulx for his part defended the theory of the triple compact, between religions, nationalities, and provinces. For Groulx, the Act of 1867 was created to defend “the French Canadian race,” the Catholic religion, and the autonomy of the provinces. Duplessis used the theory of the compact between two founding peoples to challenge the imperialist attitude of the federal government, which was increasingly interfering in areas of provincial jurisdiction. Jean Lesage, like Claude Ryan, used the compact theory to justify the special status and right of veto that Quebec had to obtain within the Canadian federation. The recent strong reactions caused by the proposal of the Bloc Qué­ bécois last April to question the idea of two founding peoples are not surprising: the idea refers not only to a possible interpretation of history, but to a myth and its implicit corollaries. For example, for Claude Ryan, the notion of the two-way compact is a bulwark against the policies of multiculturalism that deny the distinctiveness of Quebec.18 To abandon the notion of the two-way compact is to “deny history,” is basically what he says. For Stéphane Dion, who favours abandoning the notion, the idea of two founding peoples was the expression of ethnic, even exclusive, nationalism. He states, “Francophone people today are not all of French descent. They do not all have ancestry dating back to 1867 or earlier.”19 For his Franco-Ontarian colleague, Don Boudria, the idea of two founding peoples means furthering bilingualism in the country. He says, “[It] is dangerous to eliminate it and not replace it with anything. This is why, if we replace the concept with something else, it must at least carry the same weight in terms of acknowledging the minority language community.”20 Had the pulse of the Québécois been taken at the time of various significant events since the creation of Confederation, high blood pressure

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would have been diagnosed. As we have seen, new historical interpretations about the meaning of Confederation appear in times of upheaval. They are not the result of a search for truth but emerge from a need for historical justification. They are invented, all or in part, to lend historical weight to a new contractual theory of Confederation. The compact theory has become a national myth that is more than just a historical hypothesis. It is a myth used by politicians to justify their political actions. The theory limits debate and defines what can and cannot be done in constitutional politics. The myth of the two founding peoples is built on an unfulfilled dream, the dream of a country that respects and fosters duality. The myth serves as a point of social reference that brings the population of Quebec together under a single ideal: national recognition. These new interpretations of history lead us to understand a malaise, that of a minority people, one that is not truly “master in its own house.” New theories serve to camouflage reality or make it less hateful. We cherish the illusion or the hope of equality between the two peoples of Canada. These theories are a salve applied to the wound to relieve the pain and anxiety about the survival of the nation. Clearly, the role of the players is a determining one in developing the idea of a compact. However, the role of culture and organizations must also be taken into account; in Canada, we tend to blame politicians or intellectuals for the current situation. For example, Kenneth McRoberts maintains that everything could have gone better without Trudeau. For others, without Parizeau or Lévesque, everything would be for the best in the best of all possible worlds. However, if we compare the situation of Canada with that of other multinational federations, we see that the same problems exist. As Will Kymlicka and Jean-Robert Raviot point out, “Everything we know about multinational federations indicates that they are deeply divided societies – and that they will remain so –, and that they will never attain the social and political cohesion of countries which have a common national identity.… Fundamental conflicts are endemic and persistent.”21 The study of other federations reveals the existence of two models of federalism. The first one is “territorial” federalism and the second is “multinational” federalism resulting from a compact. These distinctions between two models of federalism are the foundation of the QuebecCanada conflict: the territorial model of federalism is the dominant model in Anglophone Canada, whereas the Québécois and the Native peoples opted for “multinational”22 federalism. Federalism in Canada



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is therefore not likely to ease tensions, as it is itself the cause. “The influence of the American and Australian model in English Canada results not only in the insistence that all provinces have equal legislative power, but also in demands for the kind of Senate in the ‘triple E’ clause that exists in the United States and Australia.”23 In Anglophone Canada, Anglophone Canadian nationalism has changed a great deal since Trudeau and the repatriation of the Constitution: the Canadian Charter of rights has become central to Anglophone Canadian identity. Furthermore, Trudeau’s push, from 1981 onwards, for the principle of equal provinces ties in with regionalist nationalism in the Canadian West, which, since 1975, has demanded equality of the provinces through the instituting of a triple-E senate. Thus the Charter, equal individual rights, and equality of the provinces have become sacrosanct principles for Anglophone Canadian nationalists. Trudeau institutionalised the main constitutional demands of Anglophone Canadians. As Kenneth McRoberts points out, “[I]f individuals and provincial governments must be absolutely equal with regard to their status and respective rights, Quebec can only be a province like all the others and its inhabitants, Canadians like any others.”24 The corollary to that perception of English Canadians is that the Quebec government must not be different from the others. No special status or distinct society is therefore possible. Since the new amending formula makes any constitutional change almost impossible, the situation can only get worse. This territorial model of federalism is incompatible with the aspirations of the Québécois and the Native peoples, as it excludes any kind of arrangement for national minorities. For the minorities of Canada, federalism is a multinational political compact, and a union of peoples. Catalans and Scots also consider that “association with the host state is the result of a compact which is always liable to renegotiation.”25 Political decisions must acknowledge and assert that reality.26 Culture sets the limit of political debate: participation in the game of politics by social players must be meaningful if their actions are to stand a chance of acceptance by other members of a culture. Culture is a tool for description and interpretation. More specifically, to talk about Canada in dualist terms is not “meaningful” for Canadian Anglophones who are not able to see themselves as the other founding people. For the Québécois, who make up a highly integrated nation, the idea that they are a province “like the others” is nonsense and an aberration. The survival of a new idea like the theory of the two-way or of a provincial

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compact depends on its ability to adapt to the system of meaning that is culture. Cultural difference explains differences in the construction of national myths. In the case of the Native peoples, they identify themselves as First Nations in reaction to the theory of two nations and demand special status so as not to be included in the catch-all term of multiculturalism. The principle of equality of the provinces rejects the principle of equality for minorities. On the other hand, for the majority, any special status is perceived as an undue privilege, as it undermines the principle of equality of the provinces. As Canada stands now, Québécois are doubtful that Anglophone Canadians respect the principles of federalism, because, for Anglophones, federalism is a kind of technical detail that can be changed as required. The distribution of power is only of secondary importance for most Canadian Anglophones.27 They themselves consider that the Québécois just want to have an independent state. For the moment, they are taking advantage of the benefits Canada confers on them before going through with independence. Each side is wary of the other. The interpretations of federalism and the origins of the country that have been adopted by the nations of Canada are based on a long historical tradition. Such traditions were formed amidst indifference to the needs of the other. In Canada today, the historical origins of national identities or of federalism are major political issues. People are highly sensitive. The identities of Canadian communities are often formed in terms of the other, in opposition to the other, and if need be, against the other, but never against a backdrop of indifference or estrangement. Just like the vision of federalism of the Québécois and the Native peoples, the vision of Canadian Anglophones is a legitimate one. However, the demographic and political weight of Anglophone Canada transforms its particular vision into the dominant one. Therein lies the problem. NOTES 1 Stéphane Paquin, excerpts from The Invention of a Myth: The Pact between Two Founding Peoples, a translation of material from L’invention d’un mythe, Le pacte entre deux peuples fondateurs (Montreal: VLB éditeur, 1999), 58–63, 68, 140–144, 155–163. 2 Maurice Croisat, Le fédéralisme canadien et la question du Québec (Paris: Anthropos, 1979), p. 32.



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3 Croisat, Le fédéralisme canadien et la question du Québec, p. 33. 4 Thomas Chapais, Cours d’histoire du Canada, t. VIII, 1861–1867 (Quebec: Librairie Garneau Limitée, 1934), p. 173. 5 Peter H. Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 2nd ed. (Toronto: University of Toronto Press, 1993), p. 33. 6 Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People? 7 Senate of Canada, Rapport au sujet de la mise en vigueur de l’Acte de l’Amérique du Nord britannique de 1867, de l’incompatibilité entre ses dispositions et leur interpretation judiciaire, et de matières connexes (Ottawa: Imprimeur de sa Très Excellente Majesté le Roi, 1939), p. 17. 8 On this point see Louis Massicotte, “Le partage des pouvoirs dans la fédération canadienne: à la recherche d’une rationalité,” in Panayotis Soldatos and J.-C. Masclet (eds.), L’État-nation au tournant du siècle: les enseignements de l’expérience canadienne et européenne (Montreal: Université de Montréal [chaire Jean-Monet], 1997), p. 171; Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, p. 17; Robert C. Vipond, “Whatever Became of the Compact Theory? Meech Lake and the New Politics of Constitutional Amendment in Canada,” Queen’s Quarterly, vol. XCVI, no. 4 (Winter 1989), p. 795; D. Smiley, The Canadian Political Nationality (Toronto: Methuen, 1967), p. 22; Ramsay Cook, L’autonomie provinciale, le droit des minorités et la théorie du pacte, 1867–1921; Alain-G. Gagnon and Mary Beth Montcalm, Québec: au-delà de la Révolution tranquille (Montreal: VLB éditeur, coll. “Études québécoises,” 1992), p. 203, etc. 9 Massicotte, “Le partage des pouvoirs dans la fédération canadienne: à la recherche d’une rationalité,” p. 170. 10 White Paper Published by the Government of Canada Devoted to the Amendment of the Constitution of Canada (Ottawa: Queen’s Printer, 1965), pp. 15–16. 11 Étienne Parent was to describe the Act as “a true social contract between us and England […] the conservation of our natural rights.” Taken from G.F.C. Stanley, “Act of Pact? Another Look at Confederation,” in Ramsay Cook (ed.), Confederation (Toronto: University of Toronto Press, 1967), p. 96. (The original version was published in 1956.) 12 The first lines of the declaration of independence begin as follows: “Whereas the solemn pact between the People of Upper and Lower Canada, as recorded in the books of Statutes of the United Kingdom of Great Britain and Ireland, in the 31st Chapter of the Acts passed in the 31st year of the reign of King George III, has been continuously violated by the British Government.” Taken from “Declaration of Independence by Robert Nelson,” Cap-aux-Diamants, no. 53 (Spring 1998), p. 15 (emphasis ours). 13 “The union was a distinct bargain, a solemn contract,” Macdonald asserted.

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14 On the use of these concepts, see Gérard Maigret, Les Grandes Œuvres politiques (Paris: folio, 1993). 15 Claude Morin, Les choses comme elles étaient. Une autobiographie politique (Montreal: Boréal, 1994), pp. 273–302. 16 Morin, Les choses comme elles étaient. Une autobiographie politique, p. 795. 17 Vipond, “Whatever Became of the Compact Theory? Meech Lake and the New Politics of Constitutional Amendment in Canada,” p. 794. 18 Huguette Young, “Dion remet en question la nation des ‘deux peuples fondateurs,’” La Presse, 23 June 1998, p. B5. 19 Young, “Dion remet en question la nation des ‘deux peuples fondateurs.’” 20 Young, “Dion remet en question la nation des ‘deux peuples fondateurs.’” 21 Will Kymlicka and Jean-Robert Raviot, “Vie commune: aspects internationaux des fédéralismes,” Études nationales, vol. XXXVIII, no. 4 (December 1997), p. 834. From this, we can only draw one conclusion: political instability or political uncertainty come not from Quebec, but from Canada. An independent Quebec would certainly be much more stable than present-day Canada. 22 Kymlicka and Raviot, “Vie commune: aspects internationaux des fédéralismes,” p. 792. 23 Kymlicka and Raviot, “Vie commune: aspects internationaux des fédéralismes,” p. 795. 24 Kenneth McRoberts, “Les perceptions canadiennes-anglaises du Québec,” in Alain-G. Gagnon and Alain Noël (eds.), Québec, L’État et la société (Montreal: Québec Amérique, 1995), p. 117. 25 Michael Keating, Les Défis du nationalisme moderne, Québec Catalogne, Écosse (Montreal and Brussels, Presses de l’Université de Montréal et Presses interuniversitaires européennes, 1997), p. 250. 26 Kymlicka and Raviot, “Vie commune: aspects internationaux des fédéralismes,” p. 839. 27 Kymlicka and Raviot, “Vie commune: aspects internationaux des fédéralismes,” p. 842. They write, “[Anglophone Canadians] simply want efficient government and are happy to let the federal government exercise that power in almost any area if they think that the federal government will exercise power in a competent manner … Most Canadian Anglophones name areas that are clearly provincial jurisdictions, such as education and health care.”

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2.1 Dickason Reprinted from Dickason, Olive Patricia, and Newbigging, William, A Concise History of Canada’s First Nations, 3rd ed. © Oxford University Press Canada 2015, pp. 158–178. Reprinted by permission of the publisher. 2.2 Royal Commission on Aboriginal Peoples Reprinted from the Royal Commission on Aboriginal Peoples, “Stage Three: Displacement and Assimilation: 8. Extending Measures of Control and Assimilation,” Report of the Royal Commission on Aboriginal Peoples, 1 Looking Forward Looking Back (Ottawa, 1996), 179–187. Permission granted by the Privy Council Office © Her Majesty the Queen in Right of Canada, 2017. 2.3 McPherson Reprinted with permission from the Robarts Centre for Canadian Studies. From Kathryn McPherson, “Gender and the Confederation Debates,” Canada Watch (2016), 30–32. © 2016 The Robarts Centre for Canadian Studies. 2.4 Migneault Reprinted with permission from Gaétan Migneault, “French Canada and Confederation: The Acadians of New Brunswick,” a translation of “Le Canada français et la Confédération: les Acadiens du NouveauBrunswick,” Jean-François Caron et Marcel Martel, eds., Le Canada français et la Confédération, Fondements et bilan critique (Québec: Presses

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de l’Université Laval, 2016), pp. 9–10, 17–28. © 2016 Presses de l’Uni­ versité Laval. 3.1 Russell Reprinted from Peter H. Russell, “Confederation,” Constitutional Odyssey: Can Canadians Become a Sovereign People? 3rd ed. (Toronto: University of Toronto Press, 2004), 12–33. © 2004 University of Toronto Press Incorporated. Reprinted with permission of the publisher. 3.2 Secession Reference Reprinted from the Supreme Court of Canada, Reference re Secession of Quebec, [1998] 2 S.C.R. 217, paragraphs 31–45. 3.3 Ajzenstat Reprinted with permission from McGill-Queen’s University Press. Ajzenstat, Janet. “Popular Sovereignty in the Confederation Debates.” The Canadian Founding. Montreal: MQUP, 2007. Print. pp. 22–48. 3.4 Lamonde Reprinted with permission from McGill-Queen’s University Press. From Lamonde, Yvan. “Breaches in Radical Liberalism (1852–1867),” The Social History of Ideas in Quebec, 1760–1896. Montreal: MQUP, 2013. pp. 276–308. Print. 3.5 LaSelva Reprinted with permission from Cambridge University Press. From Samuel V. LaSelva, “Federalism as a Way of Life: Reflections on the Canadian Experiment.” Canadian Journal of Political Science, 26, 2 (1993), 219–234. © 1993 Cambridge University Press. 3.6 Vipond Reprinted with permission from Cambridge University Press. From Robert Vipond, “1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered,” Canadian Journal of Political Science, 22, 1 (1989), 3–25. © 1989 Cambridge University Press. 4.1 Creighton Reprinted with permission from the Creighton Estate. From D.G. Creighton, “Conservatism and National Unity,” in R. Flenley, ed., Essays



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in Canadian History presented to George Mackinnon Wrong for his Eightieth Birthday (Toronto: Macmillan, 1939), 154–77. 4.2 Rogers Reprinted from Norman McL. Rogers, “The Genesis of Provincial Rights,” Canadian Historical Review, 14, 1 (1933), 9–23. 4.3 Arès Reprinted with permission from l’Action nationale. From Richard Arès, “La Confédération: Pacte ou Loi?” L’Action Nationale, 34, 3 (1949), 194–230. 4.4 Tremblay Report Reprinted from the Royal Commission of Inquiry on Constitutional Problems, “Chapter III, ‘Nature of Confederation,’” Report of the Royal Commission of Inquiry on Constitutional Problems (Tremblay Report), volume II, Part Four “Federalism” (Quebec, 1956), 137–150. 4.5 Cook Reprinted with permission from Queen’s Quarterly. From Ramsay Cook, “Quebec and Confederation: Past and Present.” Queen’s Quarterly, 71, 4 (1964), 468–484. © 1964 Queen’s Quarterly. 4.6 Paquin Reprinted with permission from Groupe Ville-Marie Littérature Inc. Une société de Québecor Média. From Stéphane Paquin, excerpts from The Invention of a Myth: The Pact between Two Founding Peoples, a translation of material from L’invention d’un mythe, Le pacte entre deux peuples fondateurs (Montreal: VLB éditeur, 1999), 58–63, 68, 140–144, 155–163. © 1999 VLB éditeur.

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Contributors

Janet Ajzenstat is professor emeritus at McMaster University. She is the author or editor of several books, journal articles, book chapters, and introductions to scholarly texts on constitutional law and Canadian political thought. Among them are Canada’s Founding Debates, a collection of documents on Confederation (Stoddart, 1999), The Once and Future Canadian Democracy: An Essay in Political Thought (McGill-Queen’s University Press, 2003), Discovering Confederation: A Canadian’s Story (McGill-Queen’s University Press, 2014), and a chapter in Liberal Edu­ cation, Civic Education, and the Canadian Regime, edited by David W. ­Livingstone (McGill-Queen’s University Press, 2015). Richard Arès (1910–1989) was a writer and a Jesuit. Director of Relations, he published several studies on linguistic assimilation, Francophone minority groups, and relations between English-speaking and French-speaking Canadians. David R. Cameron, a fellow of the Royal Society of Canada, is a professor of political science and dean of arts and science at the University of Toronto. His professional career has been divided between public service – in Ottawa and at Queen’s Park, Ontario – and academic life. A long-time student of Canadian federalism, Quebec nationalism, and constitutional reform, in recent decades he has turned his attention to political change and constitution-making in conflict and post-conflict situations in Sri Lanka, Iraq, Somalia, the Western Sahara, and Jerusalem.

366 Contributors

Ramsay Cook (1931–2016) was a prolific scholar, having published fifteen books such as Canada and the French-Canadian Question; The Maple Leaf Forever: Essays on Nationalism and Politics in Canada; Canada, Quebec and the Uses of Nationalism, edited 11 collections, and wrote more than 60 scholarly articles. He received numerous honorary doctorates and prestigious awards, among them, the Order of Canada, the Royal Society of Canada’s Tyrrell Medal, the Governor General’s Literary Award for Non-Fiction for The Regenerators: Social Criticism in Late Victorian English Canada, and was named to Japan’s Order of the Sacred Treasure. Donald G. Creighton (1902–1979) was one of English Canada’s most distinguished historians. A noted educator and scholar, Creighton taught history at the University of Toronto for forty-four years. In addition to being an author of several significant publications, including The Commercial Empire of the St. Lawrence, 1760–1850 (1937) and a two-­volume biography of John A. Macdonald (1952, 1955), Creighton was one of the leading public intellectuals of his generation, advising multiple governments and actively engaging in public debates. Creighton won numerous awards, honours, and distinctions, including the Governor General’s Literary Award for Non-Fiction on two separate occasions (1952 and 1955). Creighton was elected a fellow of the Royal Society of Canada in 1946 – winning its noted J.B. Tyrrell Historical Medal in 1951 – and in 1967, was appointed a Companion of the Order of Canada. Olive Patricia Dickason (1920–2011) was a journalist for twenty-three years and, at the age fifty, began her graduate studies at the University of Ottawa. She soon became one of the country’s most distinguished historians and worked diligently to improve the historical record of ­Indigenous peoples in Canada. Dickason wrote for the Winnipeg Free Press, the Montreal Gazette, and the Globe and Mail before becoming a professor at the University of Alberta for sixteen years. She authored many significant books and articles, including Canada’s First Nations: A History of Founding Peoples from Earliest Times, now in its fourth edition. Her efforts were recognized in 1996 when she was named a Member of the Order of Canada and again in 1997 when the Canadian Native Arts Foundation awarded her the Aboriginal Life Achievement Award. Meric S. Gertler is President of the University of Toronto, where he is a  professor of geography and planning and the Goldring Chair in

Contributors

367

Canadian Studies. His work engages in comparative analysis of North American and European cities to understand how local social and cultural dynamics create the foundations for economic success and prosperity. He has served as an advisor to local, regional, and national governments in Canada, the United States, and Europe, as well as to international agencies such as the OECD (Paris) and the European Union. Professor Gertler has published more than ninety journal articles and book chapters and nine books, including Manufacturing Culture: The Institutional Geography of Industrial Practice and The Oxford Handbook of Economic Geography (with Gordon Clark and Maryann Feldman). Jacqueline D. Krikorian is an associate professor in political science and law & society at York University. She undertakes research in the areas of constitutional politics, international law, and legal history. Her publications include Globalizing Confederation: Canada and the World in 1867 (forthcoming with co-editors Marcel Martel and Adrian Shubert) and International Trade Law and Domestic Policy: Canada, the United States and the WTO (2012). She has been a fellow at the Institute of International Economic Law at Georgetown University Law Center and held the Fulbright Visiting Research Chair in U.S.-Canada Relations at the Woodrow Wilson Center for International Scholars in 2014. Yvan Lamonde is an historian and a Professor Emeritus at McGill University. He is a prolific scholar, and several of his publications received prestigious awards including the Governor General’s Literary Award for Non-Fiction. He was the co-editor with Patricia Fleming of Histoire du livre et de l’imprimé au Canada (Presses de l’Université de Montréal) / History of the Book in Canada (University of Toronto Press) in six volumes. He has published Louis-Antoine Dessaulles. Un seigneur libéral et anticlérical (Fides, 1994); Histoire sociale des idées au Québec (volume I: 1760–1896; volume II: 1896–1929), Ni avec eux, ni sans eux. Le Québec et les États-Unis (Nuit blanche ed., 1996); Allégeance et dépendances. Histoire d’une ambivalence identitaire (Nota bene, 2001), and Fais ce que dois, advienne que pourra. Papineau et l’idée de nationalité (Lux, 2015). Samuel V. LaSelva is professor of political science at the University of British Columbia, Vancouver. His publications include The Moral Foundations of Canadian Federalism (1996), as well as articles in the Canadian Journal of Political Science, Political Studies, Supreme Court Law Review,

368 Contributors

and Vermont Law Review. He is currently at work on the ethics of constitutionalism in Canada, the United States, and the United Kingdom. Rhonda L. Lenton is President and Vice-Chancellor of York University. She joined York in 2002 as Dean of the Atkinson Faculty of Liberal Arts & Professional Studies, and went on to serve as the university’s inaugural Vice-Provost Academic, and then as Vice-President Academic & Provost from 2012 until April 2017. A dedicated proponent of community engagement and innovative partnerships, she has played an instrumental role in the creation of the York University–TD Community Engagement Centre and in expanding York’s institutional collaborations with other postsecondary education partners. A sociologist by training, she earned her PhD from the University of Toronto. Her areas of teaching and research expertise include research methods and data analysis, and gender and familial violence, and she has published peerreviewed book chapters and articles in a number of academic jour­ nals. Prior to joining York, she was an associate dean and professor at ­McMaster University. Marcel Martel is a professor and the holder of the Avie Bennett Historica Canada chair in Canadian History at York University. He has published several journal articles and book chapters on public policy, minority rights, moral regulation, and identity. His most recent publications include Globalizing Confederation: Canada and the World in 1867 (forthcoming with co-editors Jacqueline D. Krikorian and Adrian Shubert), Canada the Good? A Short History of Vice since 1500 (2014), and Langue et politique au Canada et au Québec (with Martin Pâquet, 2010), which was translated as Speaking Up: A History of Language and Politics in Canada and Quebec. Andrew W. McDougall is a lecturer in the Department of Political Science at the University of Toronto Scarborough. His research focuses on Canadian federalism, intergovernmental relations, and public law. He recently defended his dissertation, “Canadian Federalism, Abeyances, and Quebec Sovereignty.” His most recent publication is Collaboration and Unilateral Action: Recent Intergovernmetnal Relations in Canada (with Grace Skogstad and Robert Schertzer, IRPP Study No. 62, December 2016). Kathryn McPherson is professor and associate dean, Faculty of Liberal Arts & Professional Studies, at York University. An award-winning educator and a distinguished scholar, McPherson specializes in the

Contributors

369

history of women, work, and health. Her publication record is extensive and includes Bedside Matters: The Transformation of Canadian Nursing 1900–1990 (1996, 2003), Gendered Pasts: Historical Essays in Femininity and Masculinity in Canada (co-edited with Cecilia Morgan and Nancy Forestell, 1999 and 2003), and Women, Health and Nation: Canada and the United States since 1945 (with Georgina Feldberg, Alison Li, and Molly Ladd-Taylor, 2003). McPherson is currently the co-director of the noted journal Histoire Sociale, Social History. Gaétan Migneault is a lawyer and a scholar. He has published several scholarly articles on Acadians, federal-provincial relations, political ­activism, and language rights. His most recent publications include “L’émergence graduelle du droit à l’obtention de services publics provinciaux en français au Nouveau-Brunswick,” Revue juridique Thémis (vol. 50, no 1, 2016), “Les relations fiscales Canada-Nouveau-Brunswick de 1867 à 1917,” McGill Law Journal-Revue de droit de McGill (vol. 60, no 1, 2014), La crise scolaire de 1871 à 1875 au Nouveau-Brunswick: un produit de la Confédération (Editions du BeauBassin, 2013), and Les Acadiens du Nouveau-Brunswick et la Confédération (Éditions de la francophonie, 2009). William Newbigging has taught history at Algoma University and more recently at Laurentian University. His academic work has ­focused on historic contact between Canada’s First Nations and Europeans. Newbigging also has worked as a consultant with Indigenous peoples addressing land and resource claims. Stéphane Paquin is a professor at l’École nationale d’administration publique. His research interests include public policy, international relations, globalization, and governance. He has authored several monographs, edited collections, and journal articles. His publications include La revanche des petites nations: le Québec, l’Écosse et la Catalogne face à la mondialisation (VLB, 2001); Paradiplomatie et relations internationales: théorie des stratégies internationales des régions face à la mondialisation (P.I.E.Peter Lang, 2004), and with Jean-Patrick Brady, Groupes d’intérêt et mouvements sociaux (Presses de l’Université Laval, 2017). Norman McLeod Rogers (1894–1940) was a distinguished scholar and public servant who served as Prime Minister Mackenzie King’s secretary for Privy Council affairs (1927–1929), Minister of Labour (1935–1939), and Minister of Defence (1939–1940) until his untimely

370 Contributors

death at the age of forty-six. Rogers was a Rhodes scholar who taught history at Acadia from 1922 to 1927 and political science at Queen’s University from 1929 to 1935. His publications in history, political science, and law are extensive, and he is particularly well known for his work on the compact theory of Confederation. Rogers’s research focused on federalism and national unity issues and was published in a broad range of journals, including the Dalhousie Review, the Canadian Historical Review, Queen’s Quarterly, the Canadian Journal of Political Science, and the Canadian Bar Review. Peter H. Russell has taught political science at the University of Toronto since 1958. He has written widely in the fields of constitutionalism, Aboriginal politics, and parliamentary democracy, and he is one of the pioneers of the social-scientific study of law and politics in Canada. A member of the Royal Society of Canada and the Order of Canada, Russell has published extensively. Canada’s Odyssey: A Country Based on Incomplete Conquests is Russell’s most recent book, published in 2017 by the University of Toronto Press. Mamdouh Shoukri was appointed the seventh President and ViceChancellor of York University in 2007. He completed his decade-long tenure as President on June 30, 2017. Following seven years of conducting and leading research in the power industry, he began his career in academia at McMaster University, serving in a number of leadership roles there, including Dean of the Faculty of Engineering and Vice-President Research & International Affairs. A champion of innovation, he has guided York’s transformation into a comprehensive and research-intensive university, and overseen the advancement of York’s internationalization and social innovation agendas as well as plans for growth in York Region. He was named a Member of the Order of Canada and the Order of Ontario in 2013. A fellow of the Canadian Academy of Engineering and the Canadian Society for Mechanical Engineering, his scholarly interests are in thermo-fluid science, and he is the author or co-author of more than 120 papers that have appeared in refereed journals and symposia. Robert C. Vipond is professor of political science at the University of Toronto. He has published broadly in the area of Canadian political development and constitutional politics, notably Liberty and Community: Canadian Federalism and the Failure of the Constitution (SUNY, 1991). His most recent book is Making a Global City: How One Toronto School Embraced Diversity (University of Toronto Press, 2017).