Province of Canada, Legislative Council, Parliamentary Debates on the Subject of the Confederation of the British North America Provinces, 8th Parl, 3rd Sess, (6 February 1865)


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Date: 1865-02-06
By: Province of Canada (Parliament)
Citation: Province of Canada, Parliament, Parliamentary Debates on the Subject of the Confederation of the British North America Provinces, 8th Parl, 3rd Sess, 1865 at 20-25.
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LEGISLATIVE COUNCIL.

MONDAY, February 6, 1865.

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HON. MR. CAMPBELL said that, with the permission of the honorable member who had the floor (Hon. Mr. CURRIE), he would offer a few remarks upon one portion of the scheme of Confederation, to which allusion had been specially made in the House, and which, to a limited extent, had occupied the attention of the country. He referred to the proposed constitution of the Legislative Council under that scheme ; and in offering the reasons which had led the Canadian Government and the other members of the Conference, which, as honorable members knew, was composed of the leading men in the legislatures of the several provinces — the leading men in opposition as well as the leading men in office—to decide as they had done, he begged the House to believe that the decision had not been arrived at hastily, but after prolonged and anxious discussion, and after a full and careful consideration of the subject.

It was not to be supposed that the Government of Canada had itself laid down the scheme of the constitution as embraced in the resolutions on the table of the House. Honorable gentlemen must not misunderstand him. He did not mean to say that the Government did not heartily concur in and adopt the scheme, but that it was not its work alone, but that of the delegates from the other provinces as well. It was the result of deliberation, accommodation and compromise. When it became necessary for the Government to press the resolutions, he trusted honorable members would not suppose that they did so out of that love which people have for the creation of their own intellect, but would remember they were the joint production of the gentlemen to whom he alluded, and that any pertinacity on his part arose from a sense of the sacrifices they had made to secure an agreement, and the difficulties which any failure now would create. He felt it had been impossible for the Conference to arrive at any other understanding, and he only wished that those who looked with disfavor upon their plan, could have witnessed the anxious debates held at Charlottetown and Quebec before it was finally settled. The result arrived at would, he hoped, promote the welfare of the provinces interested, and be remembered with gratitude by their inhabitants many long years hence. And supposing this Chamber and the other were to come to a different opinion

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and reject the resolutions, what would be the effect ? The sacrifices and compromises submitted to by the representatives of the several provinces would go for nothing ; the efforts of the eminent men who had put aside personal and party differences to accomplish what they deemed a great and good work would be futile, and yet, by such men only could such a scheme have been devised and matured. Considering then the earnest efforts made to secure this agreement, and the improbability that, if rejected, any other could be attempted with better hope of success, he felt he had a right to ask the House to give the subject a fair, patient, and favorable consideration.

If an amendment were proposed here, and another there, and especially if the provision respecting the constitution of the House were changed, it was pretty certain that the whole thing would miscarry, for he well knew that in respect of this point the legislatures of the Lower Provinces would come to a different conclusion. If the elective principle were insisted upon in Canada, and its Government bound over to maintain it, even though another Conference were called, no agreement could be expected, for as he had already said, the delegates from the other provinces would be sure to be charged with exactly different instructions. And as of this particular point, so of a hundred others, until it would be utterly impossible again to arrive at anything like unanimity. As the honorable member for Brock had so well said on a previous evening, any failure now would be extremely damaging to our credit abroad. It was well known that the fact of our public men having thrown aside their political partisanship for the purpose of advancing the welfare of the country, the holding of the Conference, and the agreement secured, had already done us a great deal of good at home. But not only would this first fruit of the work be forfeited, but an injury more than correspondingly great would follow. (Hear, hear.) [The honorable member elaborated this idea at some length with the view of showing the beneficial effect the adoption of the scheme of Confederation had produced, and the disastrous consequences which its rejection by Parliament must inevitably entail.] He did not propose to follow his honorable friend the Premier in the discussion of the merits of the project as a whole ; the able manner in which that honorable member had presented it could not but have commended itself to every candid mind. (Hear, hear.)

He (Hon. Mr. CAMPBELL) would, however, take up the point to which he had alluded at the commencement, and from which he had for a moment digressed, and give the reasons which had induced the Conference to determine as they had done, upon the constitution of the Upper House. And the main reason was to give each of the provinces adequate security for the protection of its local interests, a protection which it was feared might not be found in a House where the representation was based upon numbers only, as would be the case in the General Assembly. The number of representatives to the Legislative Council under the Federal constitution would be limited, and they would be appointed for life instead of elected by the people. For the purpose of securing equality in that House, the Confederation would be divided into two sections, viz. : Upper Canada, Lower Canada, and the Maritime Provinces, and each of these sections would send twenty-four members to the House. In Upper Canada, as had been stated lately by an honorable member, the population has increased very rapidly, and would probably go on increasing in a much larger ratio than that of Lower Canada or the other provinces, and if the Legislative Council were elective, the time might come when the people of that section would fancy themselves entitled to an increased representation in the Council, and commerce to agitate for it. They might object to the fishing bounties paid the Lower Province, to the money expended there in forti âcations, or to something else, and claim a representation in the Council, more in accordance with their population to enforce their views ; and in view of such contingencies the delegates from those provinces conceived it would not be safe to trust their rights to an elective House.

It was then determined that in one branch there would be a fixed number of members nominated by the Crown, to enable it to act as a counterpoise to the branch in which the principle of representation according to population would be recognized. It might be said that the principle of limitation of numbers could have been adopted, and that of election preserved. Well, he did not say the scheme was perfect, but it was the best that could be devised, and as the Lower Provinces felt the danger from their inferiority of numbers, being only 800,000 against double that number in Upper Canada alone, it was essential that the security which a fixed representation in the Council afforded to them should be acceded to. The Conference acted upon the conviction that they were not building a structure for a temporary purpose, but,

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as they hoped, for centuries, and knowing how the doctrine of representation according to population had operated in distracting the popular branch of the Legislature in Canada, they endeavoured to provide against a similarly disturbing cause in the Confederation. And their precaution appeared to him to be founded in wisdom and justice. For the sake of argument let it be supposed that the elective principle is maintained, and that the limit of numbers now proposed, viz., 24 members for each of the three grand sections in the Council is also fixed ; let it be supposed further, that the population of Upper Canada continues to augment as in the past, what may not be that of the Saugeen, Tecumseth and Eastern Divisions (which now have 130,000, 90,000 and 60,000 respectively) forty or fifty years hence ? And is it not possible, nay, would it not be likely, that these great constituencies, when comparing them with the divisions in Prince Edward Island, numbering some twenty thousand to twenty-five thousand souls, would be disposed to set up claims for additional representation ?

Who that looks to the future will say that with an elective Upper House the Constitution will last? It was the apprehension of danger to its permanency that decided the Conference to adopt the principle of nomination to the superior branch, and it was the only way which suggested itself for averting it. And he must say for himself, that he fully and entirely concurred in the decision. He felt that the principle of election kept alive a germ of doubt as to the security of the Lower Provinces, and he was glad that a way was found of removing it altogether. It was well known that even in the United States, where there was so prevalent a disposition to submit everything to the decision of the people, the principle of limitation to the Upper House was so fully recognized and settled by the Constitution, that no attempt was ever made to change it. In this way the smallest state, like Rhode Island, was as fully represented as the state of New York. And if that was considered necessary in a country so compact together as the United States, how much more would it not be proper in a Confederation, some of the sections of which were separated from each other by long, narrow strips of land, or wide estuaries, with small representation in the popular branch, and looking chiefly to their equality in the Upper Chamber for security for local rights and interests and institutions. He was gratified, upon another ground, that this decision had been attained, and this was on the ground of the respect he bore to the life-members of this Chamber.

In the law which had made the House elective there was no wiser provision than that which had guaranteed the seat of the members appointed by the Crown, who then composed it. He had always felt the great advantage of the presence of those honorable members hero. If the elective system had entirely superseded the nominated House, removed those gentlemen and brought together forty-eight entirely new members, the country would have suffered a grievous loss ; but the old members kept their places and the new ones came in twelve at a time, two years apart, so that the change from one system to the other was effected without any injury. The nominated members had retained their influence, and the tone of calmness and gravity which had obtained in their deliberations was insensibly acquired by the elective members as they came in, to the manifest advantage of the House. We (speaking of the elected members) had picked up the spirit of, and the instruction the Crown members were so fully competent to give us, and so had been enabled to discharge our duties in a way we could not possibly have done if had we been loft to ourselves. If the life-members had been deprived of their seats, it was not probable that many, if any of them, would have sought a restoration to them by the elective process, for they were generally gentlemen of wealth, position, and delicacy of feeling, whose habits of mutual deference, quietness and order, would have unfitted them, or made them averse to face the turmoil and excitement of the unfavorable electioneering contests.

These honorable gentlemen, under an elective system, must have been deprived of their seats, and their services have been lost to the country ; whilst under the nominative system they will stand on the same footing as the other members of this House, and have a fair representation along with the members holding their seats by election in the Legislative Council of the Confederate Parliament. (Hear, hear.) Passing on to another point, he would remark that some persons had asked what would be done if the two Chambers of the Confederation came into collision ? He had already remarked that the Legislative Council was intended as a counterpoise to the weight of numbers in the Assembly, but such a counterpoise did not necessarily imply the probability of collision. It was not likely that the two branches would come into such collision upon minor subjects, or subjects of minor importance, for two such bodies should not, for

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the mere sake of resistance, oppose each other in such a way ; they would not venture to do it. He did not remember that there had been any really difficult matter of this kind for a long time. This House had rejected the Squatters’ Bill, as it was called, seven or eight times after it had been passed by the Assembly, but that had not impaired the good understanding between them. Indeed the effect had been of the best.

The hon. life-member from Cobourg [Hon. Mr. BOULTON], whom he did not see in his place, had, by the force of reasoning, convinced the House that the bill was destructive of the rights of property, and the consequence was that, year by year, the measure had been pruned of its most offensive features, until now, as he was informed, it was hardly open to objection. He could not recall another instance of persistent difference of opinion between the Chambers. The real danger of collision would be where one Chamber invaded the prerogatives of I he other, and that danger, if it existed at all, would be greatly increased were the Legislative Council made elective. (Hear, hear.) If the members were elected they might say, ” We come from the people just as directly as the members of the Assembly do, and our authority is, therefore, as full and complete as theirs. Nay,uiore,fbr where we each represent 1000 electors, they only each represent 300, and we have, therefore, as much right to initiate money bills and impost bills as they have.” Make the Council purely elective, and he would not promise that an agitation of this kind would not spring up. It had not been a theme as yet on the floor of the House, but it was well known that it had been freely discussed in the corridors, and if the subject had not been formally introduced, it was probably because it was thought by those who debated it that they could not rely upon the life-members. (Hear, hear.)

Let the Council propose to deal with taxation and the elective system would be sure in the course of time to urge it on to do so, and immediately the spirit of the Assembly would be aroused to resistance. This would be the way to provoke collisions, and with an elective Council it was not unlikely at all to be resorted to. In England, where the Upper House was composed of a class entirely distinct from the Commons, and having interests, as a general thing, diverse from those of the people, even there the collisions between the two branches had been but infrequent. Indeed there had been only one very serious collision in the course of centuries. When, however, such conjunctures arose, the crown overcame them by the appointment of a sufficient number of peers whose political views accorded with those of the government. The right to sit in the House of Lords being, however, hereditary, the son generally inherited the politics of his father, and so the character of the body was always pretty well understood; but be it what it might, and as much as possible removed from popular influences, it had yet learned so far to respect the will of the people as to know when to make concession of its own opinions He did not say that it bowed to every breeze and instantly yielded to every demand, nor did he think that any Legislative Upper Chamber should do so, and be content merely to reflect the temper and complexion of the other branch.

On the contrary, he held that when it had good and sufficient evidence, sufficient to satisfy itself that a proposed measure was unjust, it was bound to resist, and public opinion which generally came out right in the end, would sustain it in such an attitude. But there was very much less danger in countries like this that difference of opinion would even be as frequent between the Legislative Chambers as between the Lords and Commons in England, and the reason was clear : our Legislative Councillors would not come from so different a class of society to the general population, as the peers of the British nation, compared with the people of that nation. The lords had ideas of caste and privileges which none of our people were imbrued with, and the common sympathy existing between all classes here would be felt equally by the Legislative Councillors and the Members of the Assembly. Both would be equally subjected to popular influences and be more or less controlled by them. The interests of the Legislative Councillor, though a nominee of the Crown, would be the same as those of the mass, and the legislation which would be good for them would, as a general thing, be good for him too. He would have no ancestral estates, privileges, immunities and titles to protect, like the peers of England. He would be affected by the social changes which affected others, and would be moved by the same aims and aspirations as his friends around him. This being the case, it was not very probable that his opinions would even be set in opposition to those of other men as to make it likely that he would come in collision with them, or that, as a House, the Council would be in danger of a serious quarrel with the Assembly. Then the changes which time would inevitably bring about in a body like the proposed Legis-

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lative Council, would be sufficiently great to prevent the possibility of a continued antagonism between it and the other branch, if unhappily it should arise. The demise, the resignation and the loss of seat from other causes, would do this, and afford the Government of the day the opportunity of so reconstructing the House as to bring it more in harmony with public sentiment. He did riot say it was desirable that at all times the Legislative Council should be a reflection of such opinion, though it was, of course, desirable that it should not continue violently to shock it. He would have that House conservative, calm, considerate and watchful, to prevent the enactment of measures which, in its deliberate judgment, were not calculated to advance the common weal. Any more rapid changes in the composition of the House than those he now indicated, he did not consider wholesome or desirable. From the history of the present Chamber for the last few years, it would be seen that such changes, whether among the life members or the elected members, were much more frequent than might be generally supposed.

According to the present elective system twelve members went out and twelve came in every second year. Supposing that a collision had taken place between the two branches of the Legislature, and that it was desirable to bring the Council more in accord with the representatives of the people, under this system, the same members might be returned, not because of the soundness of their political opinions on the topic which had brought about the collision, perhaps without the slightest reference to it, but from their position and their exertions. One might come back because he was a wealthy man and had a social position which gave him a large influence, another because he was an able canvasser and well versed in election tactics, and others from causes equally removed from the political question upon which the two Houses of Parliament were in antagonism. But suppose the twelve seats were at the disposal of the Government, and that an irreconcilable difference had existed between the two Houses, would they not have the opportunity of redress at once and thoroughly by bringing in twelve members who would harmonize better in opinion with them and the country ? Undoubtedly. Well, within eight years the changes among the life-members had been as follows :—When the House was made elective, there were 40 such members in it ; two years afterwards, at the call of the House, the number was found reduced to 31 ; two years after that again to 26 ; in two years more, to 24 ; and to-day to 21, of which 21, one honorable member was now seriously indisposed. In eight years, then, the number had been diminished by half.

Then changes nearly as great had occurred among the elected members. There had been 24 removals and changes by death and otherwise among these 48 ; and it should be remembered, that as the elected members came in by twelves, two years apart, the average time had been only four years. This was sufficient to show the opportunity which, even among younger men than the life-members, the Government would have of keeping the House in accord with the true interests of the country, or of overcoming any unfortunate misunderstanding between the two branches. [The honorable member here went minutely into a statement of the changes effected by death, acceptance of office, and defeat at elections, among this class of members, which, however, we do not deem it necessary to specify.] These changes had certainly altered, to some extent, the complexion of the House, and the future would, no doubt, be like the past in this respect.

The Conference had taken all these things into consideration, and wisely concluded, as he believed, that while the chances of collision were much less under the nominative system, the opportunity of restoring harmonious action was infinitely more prompt and effective, and that there was no such danger of collisions between the two branches of the General Legislature, as to make it a bar to the principle of nomination, which principle, in their judgment, offered the compensating advantage he had endeavored, in the earlier part of his observations, to point out. He sincerely hoped the House would concur in the views he had expressed, and would accept the measure now before them, as one which he believed calculated to promote the best interests of this country and the other provinces, and to hand down to posterity a constitution analogous, as nearly as might be, to that of the empire under whose protection we had the happiness to live—a Constitution calculated further, as he was fully convinced, to perpetuate the connection between these colonies and that mighty nation, to the mutual benefit of both. (Hear, hear, and applause.)

HON. MR. VIDAL here inquired from the honorable member why it was that the selection of Legislative Councillors from Lower Canada, in the Confederation scheme, was to be left to the Local Government of that section of the province, while no such provision existed with

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respect to Upper Canada or the Lower Provinces.

HON. MR. CAMPBELL said it was out of deference to the interests of the British Canadians of Lower Canada, who had some fear that they might not be sufficiently protected otherwise.

HON. MR. RYAN objected to this mode of selection, as calculated to perpetuate differences of nationality and creed, and thought it would be better to leave the selection unconditionally to the Crown.

[After this a number of questions were put to Hon. Mr. CAMPBELL upon various points of detail, and a cross fire was kept up from both sides of the House, which made it next to impossible to keep track of the proceedings.

Among the questions asked was one as to whether the local governments should be constituted before the Constitution of the Confederation became law. The resolution concerning this point seemed involved and contradictory, as it supposed some part of the plan to be in force, which depended upon the action of local governments not themselves in existence.]

HON. MR. CAMPBELL promised to give an explanation at the next sitting of the House.

HON. MR. SANBORN then addressed the House for a few minutes, it being then nearly six o’clock. He did not declare himself directly opposed to the scheme as a whole, but believed that the abandonment of the elective principle in respect of the Legislative Council was a step backward and an unwise one. He quoted as a proof the opinion of the Premier of the Government expressed two years ago, and thought it not a little strange he should so readily have changed his views— Cries of six o’clock. Further debate was then postponed until the morrow, and the House immediately afterwards adjourned.

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