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Date: 1865-03-10
By: The Montreal Herald
Citation: “The Mode of Carrying Confederation”, The Montreal Herald (10 March, 1865)
Other formats: TBA

THE MODE OF CARRYING CONFEDERATION.

—This country is supposed to be ruled by the people themselves. There is no peerage having an hereditary right to legislate, and what the value of the monarchical principle which we sometimes boast of as distinguishing us from our neighbours really is, may be judged from occasional examples of Her Majesty’s representative within a few months doing acts utterly contradictory of each other, and one of which, if he permitted himself to suppose that he had any responsibility for them, must occasion him a present feeling of degradation, and an expectation of future remorse. The Legislative Council, again, even when it was non-elective, consisted of men appointed by Ministers, whose only title to make such appointments was their possession of popular confidence. Whether this right of self-government be inherent in every British community, which swarms off from the parent hive, as some assert, or not, is a matter of not much practical importance at this moment, since the right has been years ago recognized by the Mother Country. We doubt, indeed, whether if the question ever assumed a practical shape, any community of Englishmen would be satisfied to hold their rights on the tenure of a charter octroye, as the Continental Monarchs call it, and containing only just such a modicum of freedom, as the grantor may define. However that may be, the possession of acknowledged rights of self-government, as full as those which we in Canada have been acknowledged to possess, plainly carries with it the undivided prerogative of evoking organic changes from the same popular authority which can alone give valid sanction to any legislative acts. If there is not in Canada any other authority than that of the people, acting through the three branches of the Legislature, competent for the most trifling piece of law making, and if every single clause of any bill, no matter how insignificant, must be separately considered and distinctly adopted in each House, how much more true, must it be that this is the only authority which can modify the constitution, or abolish that which exists, and substitute a new one in its place? But all this is just what it is proposed to do by the new scheme of confederation. The cry for an appeal to the people in any extraordinary way, as, for instance, by a plebiscite a la Napoleon, would be contrary to all our English modes of thought and forms of Government, were it not necessary to adopt some new method of obtaining a popular sanction to legislation proposed in a new form. No one would or could have thought of so un-English a proceeding, but for the utterly un-English methods, to which it has been proposed to apply this test. An appeal to the people by the ordinary Parliamentary mode of a dissolution, would be a matter of prudence and precaution, such as wise statesmen might in any case choose to take; but it would be a matter of mere expediency. We fully admit, as every one who understands the English Constitution must do, that if ours be, as we have fondly imagined, a transcript of that Constitution, the representatives of the people, acting in unison with the other two branches of the Legislature, are fully authorized to do anything legislative—with one exception, and that exception is the leaving it in the future power of the people to undo what the Parliament shall have done. It is because the piece of quasi legislation, which the Parliament at Quebec is now, without any moral or constitutional authority affecting to do, is precisely that excepted thing which no legislature of a free country can rightfully do—it is because it propounds a fundamental law, which is to limit the powers alike of the people and of all future Parliament; because it prohibits the freedom of evolving new forms of government hereafter; because it professes to lay down a rigid, final law, eternal and unalterable, that it must be held to require for its validity a sanction broader, deeper and superior to its own. So far from any such sanction being sought, the most unusual care has been taken to cut out the people and their representatives alike, from any exercise of will upon the subject. The Conference by which the articles of Confederation were drawn up, was composed of men chosen without any legal or even formal rule, for the regulation of the choice. From Canada none were admitted but members of the Government; from the other Provinces any one who was invited to come by the Ministry of those Provinces, much in the fashion in which the members of People’s Parliaments and similarly self-styled legislative bodies are collected. The vote was taken by the Province, so that Canada with her two millions of people had the same voice in the determinations which were arrived at, as Prince Edward Island or Newfoundland; and it has been stated in our Parliament that the article which deprives the two millions of people of the right to elect the Legislative Council, was carried by a majority made up out of the delegates, who altogether represented little more than half a million. While the people are some of them actually present, and all of them by means of the press virtually present at Parliamentary deliberations, they were excluded from any information as to the reasons which were given for the courses recommended by different members of the Conference, and were not even informed of the determinations actually come to till some months after. In the same way while in other Provinces the Ministry of the day refrain from pressing the scheme on the attention of their Legislatures, and profess that when it comes before them it may, if need be, be amended, our Ministry declare that the project is a treaty, that must not be altered in one word or letter and that it must be passed without a single moment of delay. We mention these circumstances only to bring out into stronger light the altogether extra-constitutional and unconstitutional character of the whole proceeding; but it is not these circumstances which give it that character, for that is inherent in the very essence of the scheme. You may regard the Union Act either in the technically offensive light of a charte octroye, which we are sure that no English statesman would pretend to do in a really offensive sense. Or, coupled with the written concessions of responsible government which have been made since, you may look at it as the recognition of our rights as a British community, before and independent of all charters, and as a basis, not a limit or an obstruction, to a regular government founded on British principles. But whichever alternative you adopt, you have the same difficulty in reconciling your theory with the attempt now being made at Quebec. We say nothing here about the incompatibility of any written constitution with the English mode of government, which, as we have seen, invests every new Parliament with the power of doing any legislative act, and admits of none doing anything which shall be final or irreversible. That is a wide subject, worthy of far more consideration than we can give it here. We speak of the alternative objections to the manner of doing it, which arise out of the alternative methods of reading the Union Act. In the first case—supposing that act to be a charter—we have acquired rights under it, among them say that of electing Legislative Councillors. The grantor of that charter, therefore, has no more right to forfeit the grant, and deprive the grantees of the benefits which have accrued from it, than James II. had to forfeit the charters of the learned and other corporations, whose privileges he sought to suppress. Under a charter, so long as its conditions are complied with, the minority of persons affected has rights just as well protected as those of the majority, which can only make its superior influence felt by action taken in conformity to the charter itself. On the other hand, if a British Province has an inherent right to self-government, and hence to evolve its own form of being, and if the Union Act was but a recognition of that right, and an instrument to give it effect—in that case we have a certain inconsiderable number of men, with all the irregularity of proceeding we have pointed out, endeavouring to get this right curtailed or destroyed. There are, of course, persons who despise theories of government, just as there are persons who despise theories of astronomy or other physical sciences, and who, if they can effect a desired object to-day, are very little concerned by even of demonstration of its being wrong, and, like all wrong, certain, sooner or later, to have evil consequences. But for those who believe that every cause has its appropriate effect, we hold that considerations like the above must have a very important meaning. Theorists pointed out at the foundation of the American Union that a grand catastrophe was involved, sooner or later, in the compromise which permitted Slavery to exist in a free Republic, both on the principle of the divine government of the World, and on that of harmony being impossible between absolutely hostile elements. The practical men saw, however, nothing beyond the immediate necessity of the day. So it was also that theorists pointed out the impossibility of working, in a population constituted like ours, a constitution which did not recognize the element of population as the basis of representation. The practical men, however, wanted only to swamp the French, and a nice job they made. of it. An illustration in the same line may be seen at the antipodes—in New Zealand they have had the theory of responsible Government thwarted and spoiled by Imperial interference, till after years of disaster and no end of bickering and recrimination between the two branches of the double Government, they have determined that the theory shall have full play to work out its own results. Let the same theory as applied in our Government have the same freedom; let responsible government, as it exists in our constitution, be worked out in its orderly, regular, and known method, without extra-constitutional meddling, either in this country or elsewhere; or let us be sure that, as in all cases where antagonistic elements are brought together, their apparent harmony will not be a real one, and that sooner or later there will be a collision, and a stoppage or an overthrow.