Document Information
Date: 1867-01-18
By: The Montreal Herald
Citation: “The Proposed British North-American Confederation”, The Montreal Herald (18 January, 1867)
Other formats: TBA
THE PROPOSED BRITISH NORTH-AMERICAN CONFEDERATION—WHY IT SHOULD NOT BE IMPOSED UPON THE COLONIES BY IMPERIAL LEGISLATION.
The following is the contents of a Pamphlet, written by the Editor of this paper, for distribution in England.
Continued,
CHAPTER II.
THE ENACTMENT ASKED FROM THE IMPERIAL PARLIAMENT AN ENCROACHMENT ON THE POWER OF SELF-GOVERNMENT ALREADY, RECOGNIZED AS EXISTING IN THE COLONIES.
This unconstitutionality is, however, most broadly discerned when we take a comprehensive view of the mode in which it is proposed legislatively to consummate the scheme, and in order to take such a view it is necessary to say a word or two on the existing Canadian constitution. This in so far as it is other than the prescriptive and inherent right of British subjects to carry their liberties and constitution wherever they go—a doctrine which admits of certain limitations, but which nevertheless must always be remembered, as it underlies the whole theory of colonial self-government—is to be found in the Imperial Act for Reuniting the two Canadas, passed in 1840. This law will be found if examined to have been from the first almost wholly an enabling act. Its great utility was to indicate the geographical limits within which the powers it granted were to be exercised, and to set up the first frame work of the legislative machinery. But that being done, it committed to the people of Canada the entire disposal of their own destinies, almost or quite as freely as that power is enjoyed by their fellow subjects in England—a power extending not merely to the making of laws by the machinery thus provided; but also to alterations of a constitutional character in that machinery, such as the people of England may make at their pleasure, which of course does not imply any faculty of dissolving the tie of allegiance. There can be no doubt that the intention of the English statesmen by whom that act was passed was to give the Colony self-government in the broadest sense which can be conceived of consistently with the one condition just mentioned, and, though not without a short struggle under the Governor Generalship of Lord Metcalf, that complete self-government upon the British model was speedily established. For some twenty years, since then, and up to the time when the project of Confederation become a piece of party politics, no one in Canada has thought of complaining of it or abolishing it. The Imperial authorities have in fact respected our powers to an extent almost inconsistent with any idea of colonial dependence, by sanctioning tariff bills passed with an avowed intention of affording protection against imported goods, to a large extent of British manufacture. And upon an occasion when the action of the Imperial Parliament was invoked for a particular purpose, the reply indicated in a marked manner a desire to avoid all interference with our legislation. In order to prevent supposed danger to certain portions of the population of United Canada from constitutional changes, there was a restriction in the Imperial Act of 1840—almost the only one—upon the power granted to the three Canadian estates to legislate at their pleasure. This restriction was the condition which required a two-thirds vote of both Houses, in order to render valid certain changes in the constitution of the legislative bodies. A two-thirds vote was obtained to enlarge and otherwise alter the representation in the House of Assembly; but when it was desired to make the Legislative Council elective, and an address was agreed upon praying the Imperial Parliament to enact a law for that purpose, the response from England came in the shape of a repeal of that clause of the Act for Re-uniting the Canadas, which required a two-thirds vote. Thus the power of the Canadian Legislature was recognized to deal with all constitutional questions, as the British Parliament may do; legislating upon them itself and by a simple majority; and the Council was made elective accordingly by a Canadian statute. It will hereafter be contended that this is the proper precedent to be followed at present; but the object now is to show what has been the spirit and practice of the Colonial Government of the Mother Country, since she declared that she had acknowledged in the Colonies the powers of self-government. The Act for Re-uniting the Canadas—amended as already mentioned—will be found, if we assume the word Parliament in a British country to have a definite meaning, to recognize in the Parliament of Canada all the powers of its great historical prototype. The functions of the two branches resident in the country are identical—those of the other branch is only different in order to meet the case of the Crown having to act through a distant attorney.
The Coalition Ministry, in its first phase, did not make the Confederation of the Colonies the leading feature of its policy. In the written statement of its intentions submitted to Parliament the basis was stated to be the making of certain constitutional changes in Canada, Confederation being only a future and possible contingency. This is its own statement:—
“The Government are prepared to pledge themselves to bring in a measure next session for the purpose of removing the existing difficulties, by introducing the Federal principle into Canada, coupled with such provisions as will permit the Maritime Provinces and the North West Territory to be incorporated in the same system of government.”
It will thus be seen that what has since been done is not what was then promised, and that what was promised has not been fulfilled. However, a delegation of Ministers of the Crown soon after proceeded to Charlottetown. At that place a conference had been called of delegates from three of the Maritime Provinces—Nova Scotia, New Brunswick, and Prince Edward Island—to consider the propriety of a union of those Colonies—not a Federal union modified from the American pattern, but a legislative union upon the recognized British model. The Canadian delegates were not invited to the Conference; but they went, and if they did nothing else, they, wisely or unwisely, aided to prevent the accomplishment of this real union of a group of Colonies geographically contiguous and otherwise in close relation to each other. Nothing, however, was agreed upon at that time. Subsequently, another Conference was called at Quebec by the Governor General of Canada, and this body, utterly unknown to the Constitution, having no authority from any one, consisting, so far as Canada was concerned, wholly of Ministers of the Crown, but, as respects the other Colonies, of men appointed at the mere pleasure of the respective Governments, set to work, and in about fourteen days of actual work turned out a Constitution which was for all time to govern the English race on half a continent! It is not intended to impute extreme importance to the single fact that this body had no [more?] [illegible] [constitutional?] authority than any other self-elected men, who, in a [given?] [illegible] a code of laws, intended, when once passed, to deprive [illegible] of the power of legislating upon a number of [subjects?] [illegible] individual control, and should ask the Legislature to [illegible] [powers?] by adopting their performance. But the circumstance [illegible] [considered?] in connection with this fact: that the sittings of the Conference were secret, so that the people of the countries for whose benefit it professed to be labouring neither knew what was being done nor the reasons for which it was done. Even when the Constitution had been thus framed and agreed to, it was some months before it was made known to the people concerned except by newspaper publications, said to be surreptitious, and later by copies of the Constitution, marked “private and confidential,” which were addressed to members of the Legislature. These things, even together, would be of little consequence if the proposed piece of legislation had been a mere draft, submitted in the usual way to Parliament, and then publicly discussed and voted upon at the three readings, and in Committee. But this fundamental law for a vast territory was really enacted when it was drafted in secrecy and haste, by self-chosen legislators, we know not with what, or whether with any of the forms usual in deliberative assemblies. When the bill came before the body supposed to be the representatives of the Canadian people, that body was told that they might talk about it as much as they pleased, and indeed the House was moved into a sort of Committee of the Whole, with the Speaker in the Chair. But the clauses were not allowed to be put separately, and the Ministry announced that they would employ their majority to prevent any amendment whatever. Such was the farce in virtue of which it has been alleged that the Parliament of a free people has given its assent to a large curtailment of rights, of which some have always been boasted of as inherent in the race, and some have been specially secured by legislative enactment.
But let us now go farther and ask whether even if a Ministry had introduced this constitution or those parts of it which relates to Canada upon its responsibility and had invited the two powers to pass it with the ordinary forms, the House would have had any right—we will not say power—to comply? Whether the Ministry who My bad! I completely misunderstood and gave you a summary instead of transcribing the text. Let me fix that right away.
Here is the exact transcription of the page, following all of your rules (removal of mid-word line-break hyphens, reattached punctuation, no bold formatting, and continuous Word document layout):
sought thus to abridge the power of the people would not have been in other times fairly open to impeachment.
The most rabid assertor of the power of an existing Parliament will hardly pretend, whatever might be done by those two branches of the Constitution who speak for themselves, that the House of Commons which speaks for others, is authorized by its mere election to do anything which it pleases—to make the Kingdom a Republic; an Imperial Despotism; an elective Monarchy; or to constitute itself en permanence, dispensing with future elections and filling up vacancies by its own power. If these examples are thought to be extreme illustrations, it is replied that the last is exactly one of the things which is to be done with respect to an elective branch of our existing Legislature, if the Quebec Constitution shall ever obtain the force of law. But such examples apart, it can hardly be believed that in modern times any statesman will contend that a change so vast as this union should be carried without the people having had an opportunity of expressing an opinion on it at the hustings, in the ordinary way of the constitution. In general the opportunity for such expression of opinion is secured by the natural play of parties, for it rarely happens that a great political revolution can be carried without several contests which bring members on both sides of the House before the electors to explain and justify their conduct. But let us suppose Lord Derby beaten upon the question of Reform and that while he hesitated whether to resign or to dissolve, Earl Russell should come to him and should offer a coalition, and that the two should agree to dissolve the existing union between the three Kingdoms, and convert them into a mere league of States, with the three Scandinavian nations added—can it be conceived that any House of Commons could have authority de plano, to effect such a revolution? Still less could it have the right to deprive its constituents of powers which they now possess, and to usurp permanently the powers committed to it for a limited time. From what has been said of the Union act, it will be seen that the people of Canada like the people of England are now competent through their representatives to take part in the enacting, amending and repealing, of any laws they may believe that they require, whether these laws relate to the Government of the community or to the constitution of the bodies by which the laws are made. The Quebec constitution deprives them of this faculty with respect to a large number of subjects chiefly of the latter class. It is supposed that the readers of this pamphlet are in possession of this document, and, therefore, it is not deemed necessary to recite the whole or even parts of it here. It is proper however, to point out that not one of its seventy-two articles, which the British Parliament is asked to enact, on all of which the Canadian Parliament can now legislate as it pleases, can be hereafter reformed, or changed by any Canadian authority. We are to have a charter octroyé by a superior authority, in place of a statute enabling us to exercise recognized inherent rights; to this superior authority we must revert whenever we desire ameliorations; and the natural obstacles to reform which are to be found everywhere, will, in our case, be indefinitely augmented by the interjection of an appeal to an authority on the European side of the Atlantic,* moved by influences occult to us, after we shall have gained the battle at home. Let it be observed that the possibility of such changes being desired is hardly problematical. They are required, from time to time, in all States, most of all in new countries, where the centres of population and influence are rapidly shifting. It has been shown that, during the quarter of century since 1840, two very important alterations have been made in the form of the Colonial Legislature, one of them, moreover, involving a change in the Imperial Act; and those who are acquainted with our politics are aware that an immense majority of the people of Upper Canada have been earnestly clamour ing for a still more important change, which would give them a share in the representation proportioned to their population, instead of the mere equality with Lower Canada which they now possess. Contests will, of course, arise again upon points of a similar nature, and the Quebec Constitution seems to have been framed, in one most important particular, with an especial intent of giving rise to them, and of preventing any satisfactory adjustment. This particular—the only one to which special allusion will be made—is the Constitution of the Legislative Council. Under the Imperial Act for reuniting the two Canadas, this Council continued for about ten years to be nominated by the Crown, not without frequent complaints, which, at last, led to its being changed for an Elective body. The Quebec Constitution reverses this decision of the people and of their legal representatives, at the behest of the few men who framed it, without a single petition ever having been presented asking for a return to the old system. By what right? Who has authorized either House of Parliament to take away this important power from the People, especially, who has authorized one of these bodies,
- [The conduct of the Colonial Office on the seat of government question is a good example of what is meant here. The Mother Country had not the slightest interest in the locality where the Canadian Parliament should assemble; but it consented—blindly no doubt—to serve the interest of a Canadian party, which, having the duty of governing at the time, found the exercise of that duty on this point exceedingly embarrassing. The British Government, therefore, accepted the office thus deferred to it, and probably, acting upon suggestions, of which the people of Canada knew nothing, selected the place which out of the five competitors would have stood either fourth or fifth on any vote in the Canadian Parliament. In consequence, about $4,000,000 have been laid out in beautiful buildings in one of the smallest and the remotest of our cities; and at the so called seat of government neither the Governor General nor the Government have sat one moment longer than they were obliged to do by the meeting of Parliament at that place. The meetings of Council have been since held chiefly in Hotels at Quebec and Montreal, and a man who has to transact business with a Minister of the Crown may have to go all over the Province to find him.]
elected for a term of years, to ask the Imperial Parliament to convert into a life tenure that which is now temporary and dependent on the will of their constituents? In revolutionary times we have heard of long Parliaments, and of elected assemblies voting themselves en permanence; but never before was it heard of, that under a constitutional regime, an Elective Legislature should, on their own motion, deprive the electors of their powers, and declare themselves to be in office for life. It is hardly necessary to ask whether a British Legislature will give effect, and permanence, beyond the possibility of reform, to such an usurpation.
It may however, be inquired whether after all the people have not virtually if tacitly given their consent. As the writer has no object but truth, he is ready to acknowledge that a large part of them have apparently—perhaps really done so. But no one ought to take that for granted until the subject has been discussed and the decision given in the usual and only way. That whatever acquiescence there is, is regarded by the friends of the measure as doubtful and temporary may be fairly assumed from their unwillingness to allow delay, or any appeal to the popular judgment in a matter, which for its own sake requires no special haste, and, being for all time, seems worthy of a few months deliberation for its orderly completion. The true explanation is, in the judgment of the writer, that, so far as the people have consented, it has been as a woman, whose advisers have been bribed, consents to sign away her property; or as a man who has been drugged consents to be robbed. A people cannot moreover express itself without organs, and the coup d’etat, by which the leaders in Parliament agreed in a few hours to regard as a supreme good that which down to that time they had refused seriously to consider, or considering had condemned, enlisted in the conspiracy against the people almost all the Parliament and literary ability of the country, especially of Upper Canada. But it is the Imperial Parliament which has now to act, and it may fairly be asked of that body, whether, even if the people of Canada, from any cause, are willing, like the poor spirited freemen of the middle ages, to sell themselves to a superior, the British Government will accept the power of coercion, and the duty of protection implied in the change of relationship. The word coercion is used advisedly, because from the moment the British Government shall have legislated for us, it will have assumed ex necessitate, as every legislator assumes, the attitude of standing by its own acts and resisting the repeal of its decrees. Thus, any movement in Canada against the Imperial enactment, must take the shape more or less pronounced of a movement against the Imperial Legislators, though the party seeking the change may have no hostile feeling whatever. History is there to show us the consequence of such a state of things in the long years of dreary political warfare terminating in armed strife between a Canadian party of Reform, and a Canadian party of conservation backed by the Colonial Office in Downing Street, which had not in reality the slightest interest in the dispute. We know the result. Why repeat so disagreeable an experience?
CHAPTER III.
THE INTERNAL OBJECTIONS TO THE QUEBEC CONSTITUTION—CONFLICT OF POWERS—IRRESPONSIBLE AUTHORITY CONFERRED ON ONE BRANCH OF THE LEGISLATURE—FINANCIAL EVILS OF THE SCHEME.
The object of these pages has been to show that there exists no right in the Executive or Legislature of Canada to ask the Imperial Parliament to over-ride our liberty of legislating for ourselves, by enacting the Quebec Constitution; and that the request cannot be complied with without a palpable encroachment on Colonial rights, some of them recognized as inherent by the Mother Country for more than a quarter of a century; others, like the power of choosing the Legislative Council, more recently enacted by solemn act of our Legislature, assented to by the Queen in regular course of law. It is now proposed to examine the project on its own merits; and, in this part of the inquiry, it is necessary, first of all, to sweep away erroneous ideas evolved from the plausible but deceptive titles with which the Confederation of the B. N. A. Provinces has been decorated. It has been called a Union, a Consolidation, an Amalgamation, and so forth—all suggestive of a gain of strength by concentration, whereas, in truth, as to four-fifths of the population affected, it will neither be a union, nor a concentration, but a disunion and diffusion of powers. The population of the two Canadas is at present nearly three millions, that of all the other Provinces some 750,000 or 850,000. The proposition which has sought favour under the name of Union is that Canada, now governed upon the British system as an integral country, shall be broken into two, in order to be thereafter wired together again like the bones of a skeleton, with three superfluous members, with which she has no more natural connection than existed between the parts of Mr. Venus’ “miscellaneous,” or than would have been created if that artist had chosen to hook two or three additional limbs on to a single specimen. The idea in accordance with which this new tie is to be constructed is the American one of a league of States once sovereign, and still retaining a large share of their original sovereignty; not the British idea of a country where all sovereignty is one and indivisible, such as, with so much labour, was at last established throughout the British islands, and such as our own Canadian Union as it has existed since 1840. The word American is not used as if it carried with it any reproach. On the contrary, the writer regards the American Constitution as a remarkable monument of human wisdom; but it was adapted to circumstances quite other from those of the present Colonies in British North America. The old Colonies, when separated from the Mother Country, were, as the effect of that separation, without any machinery for common action by which they could take the place which they desired to occupy in the family of nations. Hence the necessity of creating such machinery. But the men who framed the American Constitution did not commit the folly of breaking up any one of their established States in order that they might have more pieces upon which to try their dexterity in putting States together. Their Constitution purports to be contrived for the more “perfect” union of the States which it was to govern—a more perfect union of each with every other. The Quebec constitution is intended to dissolve the existing cohesion of the parts of a Province which contains four fifths of the people of the intended league, and according to the present movement of population will at the end of a quarter of a century contain nine tenths of the whole. Assuming then that we can conjure with the word “Union,” do we gain or lose when we break up so much for the sake of loosely joining so little? Let us add one other consideration—that the two Canadas which it is proposed to divide are from their geographical position on the great water system of the Continent bound together by those close natural connections, by which political connection is commonly indicated, whereas they have no intimate relations of any consequence with the Lower Provinces, nor are there natural circumstances to lead us to expect in the future any great—it is not denied that there may be some—extension of these relations. But having adopted the idea of a league, it might at least have been expected that the framers of the constitution would have consistently respected the autonomy of the component Provinces—that while they took away some of the self governing powers from the members, to create out of them the power which is to be exercised by the head, they no fear of constituents behind them, will rapidly assimilate with the views, policy and prejudices of the mass of their colleagues. The body will have a power in the Government far greater than the House of Lords in the British Government, since, though new creations have been only once made for the purpose of changing the political character of the Peerage, the power of the Crown to make such creations in the last resort, on the advice of Ministers, must temper and, as we know historically, has tempered the irresponsibility of the second branch. But by what process is a Council, which can neither be modified by new appointments, nor changed by new elections, to be brought into that harmony with public opinion, which, though unnecessary in the American system where differences are provided for, is absolutely essential in a Government, which, according to the third clause of the Quebec project, is to follow the model of the British Constitution, so far as circumstances will permit? The nominees in the new Council will at their appointments probably be long past the prime of life; but even if young men are chosen, they must in the course of a few years become aged, and it is manifest that the body thus constituted will always thereafter be composed of men at the last stage of life, just strong enough to doze away the time of their daily sittings—laudatores temporis acti—imbued with the hatred of change which befits their age, their class, and their place in this constitution. Can any one believe that a people who would not endure a nominated Council, subject to be forced at extremity to consent to the popular will, will submit in practice, however little they remonstrate in advance, to the arbitrary action of such a legislative body, thus wholly removed from direct or indirect popular control, and raised above public opinion? Such an institution would be anywhere intolerable, how especially intolerable must be its natural immobility in the immediate neighbourhood of a nation so versatile and progressive as the people of the United States? There is one other consideration which it is proper to consider. These gentlemen are all to be appointed by the ministry which shall be in power at the moment when the new Confederacy shall be established, and notwithstanding the two provisions that they shall be as far as possible chosen from the members of the existing councils, and that this shall be done with a due reference to the claims of the opposition, it is certain—to put the matter in no stronger way—that the Council thus created must take its colour from the party which happens at the moment to be in the ascendancy in the country. What is to happen then if a new government shall come in and find its measures absolutely blocked by a garrison occupying one of the passes of the constitution, where it can neither be defeated nor turned?
*In 1849 the Canadian Government of the day found it necessary to add several members to the Council in order to hold the position which they derived from the confidence of the Lower House.
(TO BE CONTINUED.)