Canada, House of Commons Debates, “Constitution of the Senate”, 3rd Parl, 1st Sess, (13 April 1874)

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Date: 1874-04-13
By: Canada (Parliament)
Citation: Canada, House of Commons Debates, 3rd Parl, 1st Sess, 1874 at 85-90.
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Mr. MILLS moved that the House go into Committee of the
Whole to consider tiie following resolution:—That tiie present
mode of constituting the Senate is inconsistent with tiie federal
principle in our system of Government, makes the Senate alike
independent of the people and tiie Crown, and is, in oilier material
reports, defective; and that our Constitution ought to be amended so
April 13,1874
as to confer upon each Province the power of appointing its own
Senators, and to define the mode of their appointment.
In doing so he reverted to the fact that he had frequently brought
this matter before the attention of the Elouse and he bespoke for it
on the present occasion a more favourable reception than it had
received at the hands of former Parliaments.
There were certain provisions in the British North America Act,
he said, relative to property and civil rights, which looked forward
to the time when the Local Legislatures of the various Provinces
would transfer their more important duties to the Parliament of
Canada, some of which referred to the Administration of Justice
and the Constitution of the Courts, which would enable the
Government here to retain the appointaient of Provincial Judges.
There had been a construction put upon the Act in reference to the
financial basis upon which the different Provinces entered the
Union which seemed to be inconsistent with the federal features of
our Government.
Then there was the constitution of an Upper Chamber by Crown
appointaient, which he did not think could be maintained if we were
going to keep up our system of Government—that is, the system of
throwing legislation on more general matters upon the Federal
Parliament, and retaining for the action of the Local Legislatures
matters which were of a peculiarly local nature. There were
gentlemen in this House, he had no doubt, who thought that if we
had a Legislative Union we would have a stronger and more
efficient Government than we have now. Opinions of this character
had been expressed by the right lion, gentleman who now led the
Opposition, who had never sought to conceal the fact that he
entertained such opinions. Whatever might be the right lion,
gentleman’s views upon the subject, however, or those of any other
lion, gentleman, it was quite clear that legislative union lay behind
this pale of practical politics. {Hear, hear.)
The reason why federation was preferable to legislative union,
and had been adopted in the United States as well as in this country,
was because the local interests of different States and Provinces
were so diverse that it was impossible to carry on government on
any other than the federal principle, giving each the right to deal
with its own local affairs, and reserving matters of general interest
for the general legislature. Legislative union was tried between
Upper and Lower Canada. The Government was for a time in the
hands of one party, and for a longer time in those of the other; but it
was equally unsatisfactory in either case. It was found perfectly
impossible to hold the Government responsible to the entire
country, and thus what was considered maladministration in one
Province was tolerated and allowed to pass unchallenged in another.
In fact, it was well illustrated that a Government can be held
responsible for the administration of the affairs of the country only
so far as you can interest the entire population in what is being
done. If they had in this House the power to deal with local matters,
very great mistakes and abuses would occur as regards the
individual Provinces. Tire experience of Canada before the adoption
of municipal institutions was in precisely the same direction, and he
dared say there were many gentlemen in the House who remember
the state of tilings which existed before that time. Tire great
question of tire relations subsisting between Church and State was
then being agitated; but it was frequently found that an election
turned more upon tire question of whether the county should have
assistance for building some local bridge than upon tire crucial
Tire same consideration which made it wise and prudent to
establish municipal institutions and to withdraw legislation upon
local subjects from tire old Parliament of Canada also made it wise
and prudent to withdraw provincial matters from the consideration
of tire Federal Parliament. The opinions prevailed in this country at
tiie time of the civil war in America that the Federal Government
there was weaker than it was desirable that a Government should
be; but our own experience during the quarter of a century which
preceded 1864 did not warrant the general conclusion arrived at by
tiie same gentleman in consequence of the state of matters over the
line at the time which he referred to. The extent of the power
possessed by our Government previous to that time was the very
element which tended to sever one Province from another, and
placed one portion of tiie country in direct conflict with another.
If we looked at the current history of Europe, it would be seen
that tiie strength of a Government did not depend upon tiie power it
possessed. Austria and Hungary were for a time connected by a
federal union, which was tiie cause of discontent, weakness, and
civil war, and precisely tiie same thing might be said of the union
which was established between Holland and Belgium by the Treaty
of Vienna. Where there were geographical and political divisions
there would be a corresponding diversity of interests among tiie
people, and it would be impossible [illegible] Government strong
by forcing upon it tiie considerations of questions upon which the
people themselves were divided. On the oilier hand the effect of
local self-government was to create a strong Federal Government,
because of the very fact that questions upon which the community
held antagonistic views were withdrawn from it.
In this country a system of representation by population had been
adopted, the people being tiie units represented in this House. No
such principle obtained in England, but on tiie oilier hand, it had
been maintained by Sir Janies McIntosh and others that tiie
Parliament of Great Britain was so constituted as to represent every
interest of the Empire. He did not pretend to say whether our
system was better than the British one or not, but we all knew that
they were just now negotiating the adoption of tiie principle which
we have here. It was true that in Britain there was less diversity of
interests than in this country, arising principally from its different
geographical position and extent. Whether our system was wise or
unwise, however, it had been accepted and was supported by almost
tiie entire population.
We had at the same time seen fit to recognize a second branch of
tiie Legislature, and had introduced what was, to some extent, a
federal element into it. There was another mode in which that body
could have been constituted, one which would have recognized no
political divisions in tiie country at all. He could easily understand
tiie ground upon which any change in tiie mode of appointing tiie
Senate would be opposed.
April 13,1874
Of the three leading features which characterized the British
Parliament the third was wanting in this country. We could control
the finances and procure the dissolution of the Elouse of Commons,
but where was our power to control the Upper Chamber? That
Elouse was independent of both the people and the Crown. Such a
feature was certainly inconsistent with our federal system, or indeed
with any system of Parliamentary Government. If the Provinces
were to be represented as Provinces, in his opinion it was absolutely
necessary that the power of appointment should be vested in the
Provinces as such. Tie did not say we should dispense with the
Senate altogether, for he considered that in countries like this,
where there may be great political excitement and antagonism, two
Chambers might be virtually necessary.
Tie believed it to be necessary to change the constitution of the
Senate in order to make it a really efficient second Chamber. Tie
was of opinion that in order to do this it was necessary to give it a
different origin from that of the Elouse of Commons. Elis resolution
did not necessarily involve this proposition. Some hon. gentlemen
might be of opinion that the constitution of the Senate should be
changed, though not exactly in the way indicated in the resolutions
which he intended to propose in Committee.
One of the most important functions a second Chamber could
serve in this Parliament, which possessed authority limited by
written law, would be where it had an interest in defending the
powers and rights of those legislative bodies not represented on the
floor of this Elouse, but part and parcel of the Government of the
country. If elected by the people, he believed the Senate would be
far more influential and able than it now was; but it would be
subject to tire same impulses and passions, and would not check
encroachments on the part of this Elouse upon the rights and powers
of the Local Legislatures. It was true that the legislation of this
Elouse might be disallowed by the Courts, but if it legislated once in
excess of its authority it could continue legislating in the same way.
Important usages might grow up under it, and might not be decided
upon in tlie Courts for a quarter of a century. Thus very serious
difficulties would result.
No one could read over the early history of the Government at
Washington without seeing the important functions which were
discharged by the Senate in this particular, especially during the
first twenty-five years of the Congress of the United States. There
was no analogy between the Elouse of Lords and the Senate here.
The Elouse of Lords represented a great power in the State, and
owed its power and influence to the landed interest of England. The
principle of any hereditary power which had an interest in the affair
of the country was never likely to prevail here, and unless they
constituted a second Chamber, which would represent somewhat
differently the view of the people from the other body, they would
not have one exercising any prominent influence of public affairs.
Assuming that Government honestly endeavoured to obtain the
most efficient men to fill the position of Senators, where did they
find them? In nine cases out of ten they took persons representing
the urban population, and thus the rural population had a very small
representation. Tie believed the preferable system was to have a
second Chamber possessing an interest in representing the
Provinces. It would be in consonance with popular feeling but
would not be the result of the popular passion of the moment. The
weakness of the proposal was, he was aware, that they might have
Provincial parties which might send Senators to Parliament to
represent the discontent which they might feel. In order to give
some semblance of federal power, they wanted to give the Local
Legislature the power of creating one branch of Government, so
that they might have an interest in the maintenance of the authority
of the central Government.
If the motion were carried, he intended to ask the Committee to
rise and report progress, so that he might have his resolutions
printed before the Elouse was called on to consider them further.
Tire motion was then carried and the Elouse went into
Committee, Mr. ROSS (Prince Edward) in the chair.
Mr. MILLS said he proposed to submit to the Committee a
series of resolutions on which he hoped an address might be
founded. Tie believed the Senate was at present too large a body for
legislative purposes. Tie thought the number should be reduced,
each Province retaining its proportionate representation, but one
half the present number. Tie did not propose that the present
Senators should be disturbed, but that in the smaller Provinces a
Senator should be elected every two years for a period of eight
years, and in the four older Provinces that a number of them should
be elected at one time.
Supposing that six Senators were to be elected at one time by the
Legislature of the Province of Ontario, he proposed to give to each
member one vote, and no more, so that one-sixth or one-fourth of
the Elouse, as the case might be, should be able to elect a
representative. Tie thought it was a fair field on which to try the
principle of representation of minorities. The objection to giving the
entire Elouse the vote on the election of each Senator was that the
party in the majority, if it were only a majority of one, would
succeed in electing the entire representation. In the case of
resignation or vacancies before the time for which the Senator was
elected expired, it would be impossible to do otherwise than give
the election to the entire representative body of the Elouse.
Tie proposed that the Senators should be elected for a period of
eight years, that the election of a half or a small proportion should
take place in the first instance, and that subsequently elections
should take place at regular intervals—if a half were the proportion
decided on, every four years. Tie thought that looking at the age of
the present Senators this scheme might be fairly carried out. Tie
now asked that the Committee should rise, report progress, and ask
leave to sit again.
Mr. BODWELL asked if his hon. friend intended to divide the
Dominion into electoral districts, and to require that the
representatives should be residents in the district which they
Mr. MILLS replied in the negative.
Right Hon. Sir JOHN A. MACDONALD said the resolution on
the notice paper only had been referred to this Committee, and he
thought the Committee could not go into these further details
proposed by the hon. member.
April 13,1874
Hon. Mr. BLAKE said it was perfectly competent for any
member to propose any substitute expressing enlargement or
modification of the resolution which had been submitted. They
might reject the resolution, substitute some other, alter the terms, or,
as was proposed by the member for Bothwell, neither amend nor
alter, but till up what was merely an outline.
Right Hon. Sir JOHN A. MACDONALD said they must get
the authority of the Elouse to consider details as well as the general
Hon. Mr. HOLTON was surprised at the contention of the
member for Kingston, particularly as it had never been the practice
when the right hon. gentleman was leading the Elouse to confine the
Committee of the Whole to the exact tenus of a resolution referred
to it. The member for Bothwell (Mr. Mills) had now taken a very
important step, having got the unanimous consent of the Elouse,
including the authors of the present Constitution of the country, to a
proposition that the present constitution of the Senate was in the last
degree defective, and ought to be changed. Tire Elouse was not
pledged to any particular scheme of the hon. gentleman, but it was
pledged to the proposition that the present constitution of the Senate
was defective.
Tie was glad that the hon. member for Kingston had been brought
to acknowledge this much, and he had no doubt that when his hon.
friend from Bothwell went into the details of his scheme he would
receive the valuable assistance of the hon. member for Kingston.
(Hear, hear and laughter. )
Mr. PALMER contended that he had not intended to assent to
the principle of the resolution by avoiding opposition to its going
into Committee. Tie thought it was a vicious principle to ask the
Imperial Parliament to alter an Act passed with the concurrence of
all the Provinces, without the consent of all those who were parties
to the agreement.
Hon. Mr. MITCHELL said he should not have spoken had it
not been for the observations of the hon. member for Châteauguay
(Eton. Mr. Elolton). Tie was amazed to hear the conclusions the hon.
gentleman had come to, that because no opposition was offered to
the Elouse going into Committee upon this resolution its principle
was affirmed. Tie wishes distinctly to state that, so far as he was
concerned, he ascribed the inaction of the Elouse in regard to this
resolution to the fact that it was looked upon by the Elouse as one of
the hobbies of the hon. gentleman from Bothwell (Mr. Mills). Tie
thought hon. gentlemen did not desire to occupy the time of the
Elouse by discussing the question. The hon. member for
Châteauguay said the Elouse had pledged itself to this resolution,
but he (Eton. Mr. Mitchell) conceived that no such pledge had been
made when the Elouse was allowed to go into Committee on it. Tie
protested against any such conclusion.
Hon. Mr. HOLTON said he did not hold that the Elouse was
pledged to the resolution, but he did hold that the Elouse was
pledged to the expression of opinion that the present constitution of
the Senate was unsatisfactory.
Hon. Mr. CAMERON (Cardwell) said that on that side of the
House they did not all believe in what the member for Châteauguay
said, and a great many of them did not think he believed it himself.
Hon. Mr. CAUCHON said he had intended to oppose the
motion but he had been waiting for the fathers of the Constitution—
(laughter)—to see if they were willing to kill their child. (Renewed
laughter.) He was altogether opposed to the change proposed by the
hon. member for Bothwell.
It being six o’clock, the House took recess.
The Committee resumed.
Mr. BODWELL said he looked upon the fact of the House
going into Committee on this resolution as tantamount to an
acceptance of the principle it contained. He hoped his hon. friend
would see tit to reconsider the opinion he had expressed against
dividing the Dominion into districts and requiring the members of
the Senate to reside in the districts which they represented. A
member of the House of Commons need not reside in his
constituency, and he thought it desirable that one branch of the
Legislature should be constituted on that principle, so as to give a
sufficient representation to the rural population. He did not think his
hon. Friend’s objections to the election of Senators by a popular
vote well founded. The Senate might be elected for twice the length
of time for which the members of this House held their seats, and in
that case the Upper House would not be subject to the same
impulses as those which actuated this House.
Mr. ROSS (Middlesex West) was glad this matter had been
brought before the House, but thought there were some objections
to the views enunciated by the member for Bothwell. He did not
agree with him that the particular duty of the Senate was the
protection of the Constitution from violation. He thought the
Constitution was as safe in the hands of the House of Commons as
in those of the Senate. He advocated a purely elective Senate. If the
Commons was radical and progressive, so should the other body of
the Legislature be. Tire history of the old Legislative Council
showed that this principle was the best.
He complained of the present unequal territorial distribution of
Senators, who could not now properly reflect the views of this
country. He believed both Houses should have the same origin. He
believed the people should be educated up to the full idea of selfgovernment
and should be considered worthy of electing both
Houses. He should move an amendment, basing the Senate upon
popular franchise, believing that they would do it as faithfully and
as well as the people had done in electing the present House of
Mr. CAMERON (Ontario South) entirely concurred in the
remarks of the last speaker. Our Legislative Council in the past had
never been looked up to with any amount of respect until it had
been made elective. He quoted from the dispatches of Lord Elgin,
one of the most Conservative of men, who recommended the
elective principle as the best check upon the legislation of the
April 13,1874
Elouse of Assembly, and the best manner of giving it influence. Tie
saw that to apply the elective principle was a necessity, and that it
would smooth away the difficulties which might arise.
Tie condemned the taking away from the people at the time of
Confederation their right to elect Senators. In principle this was
wrong, and he should support the hon. member for Middlesex West
(Mr. Ross) in his amendment to make the Elouse elective, but with a
few alterations such as length of office, etc. It might be very well to
have the Senate nominated by the Local Legislatures, but the
advantages of such a system would be as nothing to the advantages
of an elective chamber.
Hon. Mr. CAUCHON was opposed to the proposal of the
member for Bothwell. Ele complained that constant attempts were
made to change the Constitution. The present system had not yet
had a five years’ trial, and now they wanted to change it. Ele did not
say the Senate was perfection, but it was not the fault of the
The fact was that we had not the elements for perfect legislation.
It was said that we had in this country no less than 1,200
legislatures from the Dominion Parliament to the Municipal
Councils. The people must certainly be very intelligent to be able to
produce representatives tit to sit in all these legislatures. The hon.
member for Middlesex West did not seem to think a moderator was
necessary in the Legislature. Ele thought the two Elouses should
have the same source. Ele (Eton. Mr. Cauchon) entirely differed
from that view. If both Chambers were to be elected by the same
people, what was the use of a second Chamber at all? {Hear, hear. )
Ele proceeded to refer to and condemn the suggestion that the
Government might appoint Senators to sufficient number to swamp
those who oppose them in case of an adverse vote in the second
Chamber. There were only three instances of this in English history,
namely, in 1688, 1711 and 1832, each of which had had disastrous
effects. Ele read a long extract on this subject.
If the Senate here were constituted in the same way as that of the
United States, it would claim the same privileges, such as the right
to amend money Bills. There was no real responsible government in
the United States. The Senate there claimed the right to impeach the
President, and in many instances was, in fact, the State itself.
The Constitution was the result of a compact between the
Provinces, and if they made any alteration other difficulties would
arise. It was the constitution of the Senate today; it might be the
autonomy of the Provinces tomorrow. There had been some
changes made already in the monetary arrangements with the
Provinces, for instance. It was known that the member for Kingston
(Right Eton. Sir John A. Macdonald) had been in favour of a
legislative union, and it had been rumoured that it had been
contemplated to change the whole constitution into such a union.
When a radical change was necessary let them make it, but let
them keep a good tiling when they had it. There were now too few
men for the Local Legislatures, and under this proposal they would
be still further drained by sending their best men to the Senate. Ele
was opposed to making tire Upper Elouse a gladiatorial
amphitheatre in which to tight over again tire battles fought,
sometimes fiercely, in this Elouse. Tire Senate of tire United States
had not prevented tire struggle between the central body and the
State legislatures. Tire simplest system was tire best when
established on a sound basis.
If they wanted to have a moderating body, let them not have it a
simple reflux of the popular body. The member for Middlesex West
(Mr. Ross) had been more rational. Ele had said, we are radical here,
let us be radical there. Let us be all Radicals. Ele would ask, in that
case, if one Radical could do tire work, why they should have two?
(.Laughter and cheers. )
Mr. BROUSE was dissatisfied at the maimer in which the
counties on the St. Lawrence had been passed over in recent
vacancies. Ele believed most of tire discontent had arisen from the
maimer in which tire Senators were nominated. Ele believed in tire
elective system but thought it was not well to tinker with tire
Mr. CHISHOLM said he would vote for tire measure if tire
people were allowed to elect Senators, and tire Provinces were
divided into proper senatorial districts. Ele did not wish to attack tire
Government for recent appointments, but he believed tire system
faulty which gave any Government power to leave such an
important place as Hamilton without any representation. Ele did not
blame them for taking a man from Quebec Province to till an
Ontario vacancy. Ele blamed a system which permitted such a thing
to be done.
Ele had voted against a similar motion, but should support it if it
changed in the direction indicated by the member for West
Mr. PATERSON thought changes in tire Constitution should be
approached with great caution. Ele considered, however, that the
constitution of tire Senate was contrary to the spirit of our
institutions. The people of this country were strong in the
determination that all power must rest in the people themselves. Ele
should support tire proposal to be made by tire member for
Middlesex West.
Mr. GORDON supported tire principle of an elective Senate and
said that tire great fault of Mr. George Brown’s life had been that he
had always opposed tire principle of an elective Senate, but tire fact
was that he had been in bad company.
Ele said if a fault existed, as admitted by the member for Quebec
Centre, let them remove it before it became venerable. Ele was in
favour of the proposal of tire member for Middlesex West. The
people of Canada were neither aristocratic nor Republican, and it
would be much safer to leave the appointment to the people at large
than to tire Local Legislatures, where cabals would certainly arise in
consequence. There was now before them an instance of evil of this
system in the contest going on for the vacant senatorship in
Massachusetts. Ele hoped an agreement would be come to between
the member for Welland and tire member for Middlesex.
Mr. DYMOND said it had occurred to him that there was a
primary question to be considered before they decided to adopt
April 13,1874
either of the proposals before the Elouse, namely, the utility of
second Chambers in any case.
In Ontario, the absence of the Upper Chamber had been found to
be better than its presence. Tie believed his Liberal friends in
Quebec were not particularly enamoured of their Legislative
Council. Ele had heard of some Acts of the Upper Elouses of the
Maritime Provinces which were not arguments for their
continuance, and of all the absurdities of the Manitoba Act the
creation of the little Upper Elouse of seven members to ape the
British Elouse of Lords was the greatest.
What was the composition of the British Elouse of Lords? First,
there were the hereditary titled land owners of ancient lineage and
great wealth; then there were men of great experience at the bar;
then the great generals of the time; and then certain men who, when
wealthy enough, Conservative enough, and safe enough, were
elevated from the desk of the exchange to a seat among the Peers of
the realm; and then, too, there were the Bishops, of whom he would
say nothing, for if any changes were made in the constitution of that
august body they would certainly go first.
But even this venerable institution, so magnificent in its
component parts, so historic in its character, was upon its trial.
What did they want a Senate in Canada for? Ele believed it was
generally said to control the vagaries of the people’s
representatives, who were supposed to be young and inexperienced,
in fact, diamonds in the rough. (Laughter. ) Tire greatest blunders of
the past seven years were all sanctioned by the Senate: the
Intercolonial Railway Act in 1867-1868; the Nova Scotia Subsidy
Bill in 1869; the Manitoba Act in 1870; the British Columbia
resolutions in 1871; and the Canadian Pacific Railway Bill in 1872.
Finally, last year the Senate were asked to appoint a Committee to
enquire in the sale of the Pacific Railway Charters, but, refusing to
grant it, wrote their own final condemnation.
Ele had no doubt the present Government would not follow the ill
example of their predecessors in the mode of appointing Senators,
but he thought it would be charitable and kind to allow the
venerable gentleman who composed the Senate of Canada to gain
that repose which would be given them, either by the abolition of
the Upper Chamber, or by the adoption of either the plan advocated
by the member for Bothwell (Mr. Mills), or that of the member for
Middlesex West (Mr. Ross). (Load cheers.)
Mr. MILLS rose to reply to some of the objections advanced to
his proposal. Ele contended that a purely elective Senate would be
actuated by the same views and impulses as this Elouse and would
really be of no voice whatever as a court of review. A Senate
elected by the local legislatures, while having the same popular
origin as this Elouse, would not have exactly the same impulses, and
would be elected with more care and deliberation than those elected
immediately by the people. If they created a Second Chamber
directly representing the people they would create one that would
be in many respects a rival of this Elouse. Ele moved that the
Committee rise, report progress, and ask leave to sit again.
The Committee rose accordingly, and was given leave to sit
again on Monday.

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