Cultivating a Constitution: Defining the Legal Foundations of Political Community
Remarking on the flurry of events and writing on constitutional matters that had appeared in its pages, the Week noted in 1889 that “since the passage of the British North America Act in 1867 various causes have conspired to give the ‘Constitution of Canada’ an importance that could scarcely have been at that time anticipated.”1 Indeed, in the decades following Confederation, the subject of “the constitution” came under greater scrutiny as the courts began judicial review of the British North America Act, and political controversies, especially over the division of powers between Ottawa and the provinces, highlighted its contested aspects.2 What these incidents made clear was that the Canadian “constitution” was not promulgated in a single statute or codified in coherent documents; rather, it was subject to multiple definitions that reflected different understandings of the nature of political community and their relation to constitutional forms.
This chapter examines how the enactment of the British North America Act in 1867 affected ways of thinking about the constitution in Canada. It focuses on the creation of a “Canadian constitution” as a rhetorical means of understanding and legitimizing the idea of nationality in Canada. The Canadian constitution did not reflect an existing or natural entity, but created a condition for thinking about Canada as such in particular ways. To speak of a Canadian constitution was not merely to observe foundational laws and political boundaries, but to marshal together diverse people, legal regimes, and regions into a single narrative. An implicit tension emerged in articles and books on the constitution in Canada, for while most writers believed in the slow, organic evolution of the British constitution in Canada, they also posited a distinct constitutional order formed by the British North America Act. While continuing to aver the racialized and political inheritances of the British constitution, their description of a new “Canadian constitution” served to present to readers the image of a distinct local constitution. The concept of a Canadian constitution, outfitted with a deep historical lineage and potent promise, supported the idea of a Canadian nationality or substantive political association. It helped to infuse a political jurisdiction with significance beyond its immediate legal framework.
Vigorous discussion of constitutions was not unique to the period following Confederation. In the late eighteenth and especially early nineteenth centuries, constitutions were a dominant feature of political thought and practice across different parts of the world. After the American constitution was drafted in 1787, new constitutions proliferated throughout continental Europe and the Americas.3 In each case, the crafting of a new constitution carried the purpose of endowing greater legitimacy on the state, as perceived by both its own citizens and the wider international community.4 The “contagion of constitutions” that Linda Colley describes also influenced politics and society in British North America, where reformulations of constitutional order in different colonies shaped both political thought and public opinion.5 What was different about constitutional discussion after Confederation, however, was the common attachment of the constitution to nationalism and the broader idea that the constitution enacted in 1867 represented something especially novel in the political order of the British Empire.
As a result, while this chapter looks at the transformation of constitutional narratives in Canada precipitated by the British North America Act, it also traces the wider negotiation of the meaning of constitutions in political thought at the end of the nineteenth century. The constitutional narratives that emerged here were reflections of a fundamental transition in imperial constitutionalism, which was shifting from the idea of a common “ancient” constitution spread throughout the British world to the idea of new constitutions as reflections of local political order in British settler societies. The latter idea represented the fragmentation of the British constitution across the empire, where the emergence of local constitutions – increasingly deemed “national” constitutions – was perceived less as a “transplant” of the British constitution than the development of new constitutions based on unique local history and circumstances. These constitutional narratives developed the footing for what K.C. Wheare called autochthonous constitutions, “sprung from their own soil, and not imported from the United Kingdom.”6
Using key writings on constitutionalism from magazine articles, monographs, and pamphlets, including by legal scholars and other writers, this chapter analyses how reputed “authorities” helped to develop the concept of constitution in Canada between 1867 and the turn of the twentieth century. During this time, the topic of the constitution attracted significant attention, owing to the ambiguous status of the new political jurisdiction of Canada and the political and legal controversies precipitated by judicial decisions related to the British North America Act. The first section looks at the basic problem of defining the term “constitution” in legal and political scholarship, especially in the Canadian context where there are multiple layers of constitutional traditions. The next sections examine the construction of constitutional narratives in numerous books written on the constitution in Canada following Confederation, often intended for a wide public readership. The implicit objective of these writings was to solidify the boundaries of the Canadian state as the boundaries of a distinct political community, defined and authenticated by a constitution that bore a unique historical lineage. The final section of this chapter examines the correlation of the British North America Act to the concept of “constitution,” and how this process affected ideas of Canada’s relation to the “unwritten” or uncodified British constitution and the written constitution of the United States.
Law, History, and Definitions of Constitutions
Despite its centrality in law, the term “constitution” is difficult to define, though it is most often attached to the state through what Carl Schmitt called a special form of rule between citizens and the state.7 Although constitutions are often thought of as specific documents or laws, William Conklin has referred to the “images of a constitution,” arguing that a constitution does not exist independent of the legal community’s imagination, an argument that can be extended beyond the legal community to encompass more diverse groups in civil society.8 Stable constitutional legitimacy requires that a significant portion of the constituted community understand it as a deep-rooted reflection of themselves, and therefore the ways in which the “constitution” becomes known and meaningful to the wider population should be a central aspect of defining constitutions. American historian Jason Mazzone has noted:
Constitutional historians have never provided a very satisfying account of how it was that after the drafting and ratification of the federal and state constitutions, the population at large came to understand what these constitutions meant, accepted them as law, and went along with the arrangements that had been put in place and the consequences that followed.9
It is not enough, therefore, to employ the term “constitution” as it appeared in judicial and political forums. A more comprehensive definition would consider how the concept of a constitution developed in civil society, starting with an examination of the term “constitution” and what it signified.
Writing in 1936, American political scientist Edward S. Corwin described the American constitution as both an instrument and a symbol, the former being the document’s legal prescriptions and the latter forming a “consecration” of visions of the political community that it represents.10 It was a vital distinction that highlighted the particular capacity of constitutions to acquire meaning beyond their obvious legal contexts. Attention to the symbolism of constitutions and its powerful implications led scholars of what was then called the “new” political history to assess the symbolic and semantic position of constitutions in political discourse, particularly in the context of British history.11 These discourses, James Vernon writes, show how “constitutionalist rhetoric was used strategically as a language of legitimation.”12 In particular, constitutions often act as foundational aspects of national discourse, providing a narrative of origin and purpose.13 Helen Irving’s study of constitutional formation in Australia at the turn of the twentieth century similarly links the process to specific cultural contingencies that shaped the legal meanings of the constitution.14 Irving illustrates the prevailing ideas of race, gender, citizenship, and federalism in Australian society and how those ideas informed the 1901 constitution, making it essentially a “cultural artefact” of turn-of-the-century Australia. In the case of the United States, the constitution has maintained a fair presence in historical and legal study, owing to the political potency of the American constitution and the importance often placed on its founding, which have frequently been matters of popular debate.15 Michael Kammen details in his book A Machine That Would Go of Itself the dominant place that the constitution has often held in American culture.16
Whereas historians in other contexts have integrated constitutionalism into this expanded ambit of legal history, there has been a relative reluctance to do so in the Canadian context.17 If the American constitution was a “machine that would go of itself,” the Canadian constitution was a languid locomotive, largely obscure to the general population and only reservedly emerging from British custody. In Peter Russell’s survey of Canada’s constitutional development, the “people” do not appear in the story until the Charlottetown Accord of 1992.18 The constitution, another legal scholar flatly observes, “is not a people’s constitution.”19 It’s small wonder, given what Janet Ajzenstat describes as the desire of the drafters of the British North America Act to create a “barebones constitution,” which was “designed to discourage political fervour.”20 Such an austere constitution, Reginald Whitaker has explained, is because the constitution has never involved or invited interest or engagement from individual Canadians. Instead, “the constitution of Canada has been, from 1867 onward, an arrangement between elites, particularly between political elites.”21 The history of the constitution, according to these impressions, is an inherently elite political history.
This assessment is true of most historical studies of the constitution in post-Confederation Canada, which have for the most part focused on its political and legal aspects. Studies of constitutional scholarship from the late nineteenth century have tended to focus on the politics of constitutional law in Canada, especially the often contentious development of federalism. The main actors in these accounts are legislators and judges, with the Judicial Committee of the Privy Council – the final court of appeal in the British Empire until the mid-twentieth century – playing the most prominent role. As Alan Cairns noted in an influential essay, “the interpretation of the British North America Act by the Judicial Committee of the Privy Council is one of the most contentious aspects of the constitutional evolution of Canada.”22 This view continues to be the case, as more recent publications suggest.23
Perhaps the focus on the rather narrow politics of constitutional history in Canada is a reflection of more modern political debates that have dominated constitutionalism since the failed attempts to amend the constitution in the late 1980s and early 1990s. A survey of rather morose titles published in subsequent years, such as And No One Cheered, End of a Canadian Dream, and The Collapse of Canada, indicates the politicized nature of constitutional studies.24 Notably missing in this volume of literature is an effort to assess the historical genealogy of the constitution in Canada or a critical focus on the concept of “constitution” itself. As Stephen Tierney has noted, it is this lack of critical engagement among constitutional scholars that contributes to a “myth of cultural neutrality” of constitutions, attributing to the category of “constitution” a singular, historically stable meaning.25 It is important then to understand constitutional meaning in its historical context, especially the changing significations that have been attached to the term.
An appropriate starting point would be to assess the development of the term “constitution” itself. Few words, after all, have as powerful an effect as “constitution” in legitimizing notions of political community. The term “constitution” is outfitted here with cautionary quotation marks in order to divest it of its more familiar meaning as an empirical document or set of laws, a definition that has gained prominence in Canada following the constitutional patriation of 1982 and retroactive renaming of earlier legislation as part of a “Constitution Act.”26 This act of renaming applied a retroactive clarity and cohesion to the term “constitution,” minimizing the fact that the Canadian constitution was not created in a single moment, nor was it the product of a conscious and universal inception. In the late nineteenth century, the meaning of the term “constitution” was malleable and unspecified, used variously to describe parliamentary government, judicial process, legal and political conventions, or rights and freedoms.27 Precisely because of the absence of any self-aware moment of constitutional creation or approval by popular constitutional ratification, the deployment of narratives that chronicled the history and form of a Canadian constitution helped to create and make concrete what they purported to describe.
In Canada, the term “constitution” has most often denoted European modes of governance, specifically the development of British political and legal institutions. Yet, as John Borrows has made clear, numerous legal traditions exist in Canada that can be considered part of Canada’s “Indigenous constitution,” which has been replaced or marginalized by the advent of European legal regimes in North America.28 Much of this marginalization has been through the attempted inculcation of and adherence to these legal institutions, but much is also owed to the conceptual development of what can be considered a “constitution” in Canada.29 It is in large part a consequence of a long-standing concept of the constitution as defined most importantly by the British North America Act and its corollary developments, constructed and conditioned by over a century of scholarship on defining and explaining the Canadian “constitution.”
Constitutional narratives are not simply written stories and cultural understandings of law; rather, they can strongly influence the courts, especially in constitutional adjudication. Renáta Uitz argues that, in constitutional cases, judges hear and shape decisions based on different historical narratives. “When invoking a historical narrative,” she writes, “in essence the court selects one privileged account of the past.”30 As she further notes, this practice was especially evident in Canada, where the Supreme Court’s reference on the constitutionality of Quebec secession in 1999 “relied on Canadian history not as an aid to constitutional construction but as a source of principles and rules, giving rise to constitutional obligations.”31 On this case, R. Blake Brown has similarly noted “that the Court crafted a historical narrative that supported its judgement, and, more broadly, imagined Canada as a nation founded upon principles to which many Canadians now aspire.”32 Such constitutional narratives do not appear spontaneously. They are the product of a gradual process of defining a constitution and imbuing it with meaning. A specific constitution did not create Canada in 1867; rather, the creation of Canada by an imperial statute generated subsequent efforts to endow it with a unique constitution.
Crafting Constitutional Narratives
Confederation and the subsequent study of its meaning and constitutional structure developed at a moment when attention to constitutional history and the origins of political governance captured interest not only in Canada but also across Europe and in the United States. As noted in the previous chapter, the late nineteenth century witnessed the accelerated development of professional social sciences and universities. This growth was not confined to any one state, but spread within the wider transatlantic sphere, constituting an intellectual world that included Germany, France, Britain, the United States, and Canada.33 As John Burrow has illustrated, interest in constitutional history, popularized in particular by authors including Walter Bagehot, William Stubbs, and E.A. Freeman, flourished in this context.34 Constitutional study seemed to provide the foundation for historical inquiry and for understanding the origins and evolution of political societies. The study of constitutions, as with many things in the late nineteenth century, was inextricably connected to and informed by ideas of race, which remained a foundational concept in efforts to describe the nature of political association.
Anthony Brundage and Richard A. Cosgrove describe this interest in constitutionalism as the “Great Tradition,” which they define as “the process by which English constitutional history both as a research field and as a teaching field acquired a status that placed it at the apex of historical scrutiny.” This focus, they add, “regarded public law, the relationship between the individual and the state in any period, as the foundation of national history, and therefore national identity” in both Britain and the United States.35 The correlation of constitutions and national identity was critical because constitutional narratives provided seemingly authoritative accounts of national development. Even though the prominence of constitutional study emerged in a transnational context, it ultimately helped to enforce national boundaries.
In Canada, the development of popular constitutional narratives after Confederation grew primarily from the considerable increase of publications on constitutional law and history. Between 1867 and the turn of the century, dozens of books and pamphlets appeared on the subject of the British North America Act specifically and the development of parliamentary government and federalism more generally. These publications ranged in size, scope, and purpose. Some were straightforward descriptions and reprints of the act, such as John Gooch’s Manual or Explanatory Development of the Act for the Union of Canada, published in 1867 and intended to convey the new constitutional framework to parliamentarians, and a pamphlet produced in 1883 titled The British North America Act, 1867, Made Easy, which was intended for civil service candidates.36 A number of other publications were produced specifically on the developing adjudication of constitutional issues in Canada; these included John R. Cartwright’s five-volume compilation of court decisions related to the British North America Act, Gerald John Wheeler’s 1,000-page book on Judicial Committee of the Privy Council cases related to the act, and Joseph Doutre’s collection of statutes and cases related to the constitution.37
Numerous other titles appeared that focused more specifically on the historical development of the constitution in Canada. For these authors, the historical narrative of constitutional development in Canada was more central than its legal adjudication, and they wanted their audience to extend beyond legal professionals. Dennis O’Sullivan’s Manual of Government in Canada was intended to “furnish such information on the matter in which we are governed as every student should know, and to furnish it in as plain language as the subject will permit.”38 Alpheus Todd, who gained prominence across the British Empire for his 1867 Parliamentary Government in England, followed up in 1880 with Parliamentary Government in the British Colonies, which he was prompted to write because of “the great and growing necessity for properly instructing the public mind upon a vital question of practical politics.”39 Albert R. Hassard’s description and annotation of the British North America Act was “intended principally for popular perusal.”40 Other publications that marked significant contributions to writing on the constitution in Canada included titles by Samuel James Watson, Jeremiah Travis, William Houston, W.H.P. Clement, and A.H.F. Lefroy.41 British author J.E.C. Munro published a large volume on the Canadian constitution in Britain in 1889, which garnered notice in Canada.42 A number of public lectures on Canadian political history focusing on the constitution were published as books or pamphlets to allow them wider public consumption. These included lectures by John George Bourinot, MP Charles Carroll Colby, University of Toronto professor William James Ashley, and Montreal businessman and philanthropist Herbert Brown Ames.43 In short, the subject of the constitution elicited sustained interest among English Canadian writers in the decades following the enactment of the British North America Act.
A key characteristic of this constitutional scholarship was that it was shaped by the shifting patterns of inquiry in the social sciences. In universities, this shift was marked by a new current of professors of political economy who, Sara Burke argues, “followed the inductive, or empirical, method and only generalized after direct observation of fact,” rather than subscribing to grand economic theory. This practice meant that “the new political economy was above all to be an applied science – a discipline that could prove its utility by addressing the problems of industrial society.”44 William James Ashley, a former student of British economist Arnold Toynbee, was a prominent example of the changing nature of the social sciences, and his particular interest in the social extension of political economy and history was evident in his published lectures on Canadian constitutional history. The first lecture in his Nine Lectures on the Earlier Constitutional History of Canada was devoted to the “nature of constitutional history,” in which he elaborated the meaning of the concept of a constitution and its historical study. He expressed concern that the study of the constitution might be dominated by legal professionals, writing that “there is some danger lest they should be unduly influenced by their professional habit of thought, and should take that narrow view of constitutional history which identified it with the description in order of time and a number of constitutional instruments.” Instead, he urged the importance of “going behind constitutional documents to the general political and social history of the people.”45 The study of the constitution was therefore no less than the study of the development of political societies. Reflecting Ashley’s claim, much of the discussion on the meaning of the constitution in Canada represented ideas about the nature and boundaries of political community.
Not surprisingly then, one of the most defining characteristics of constitutional writing in late-nineteenth-century English Canada was the interlacing of history and constitutionalism. To study the constitution often meant studying the history of Canada, and tracing historical milestones helped to imbue the concept of the constitution in Canada with historical depth. Much of the writing produced on the subject of the constitution in the decades following Confederation entangled history and law, presenting the constitution as the central artery of Canadian history. As others have noted, the writing of history in the late nineteenth and early twentieth centuries tended to be dominated by constitutional study.46 The professionalization of history echoed the development of sciences, and the draw of constitutional history was its basis in empirical documents that could be presented as authoritative and organized artefacts of the past.
It was no coincidence then that Ashley compared constitutional history to geology, which in the wake of Darwinism gained increased influence owing to its promise of material measurement of natural history.47 “It is in History as it is in Geology,” Ashley declared, noting that, just as geologists now sought to understand the gradual evolution of change, so too did historians seek to understand change over time, or “slow growth and development.”48 Similarly, in his Canadian Magazine article on the Canadian constitution, lawyer Edward Meek drew an analogy between geological and constitutional study, remarking that geologists “tell us those great boulders which are found imbedded in the sand and clay were brought by glacial drifts and floating icebergs from distant countries in remote ages. So, many institutions, which we now find imbedded in the political constitutions of modern countries, were brought by the drift of invasion from other countries at different times.”49 In this light, it was possible to understand the publication of collections of “constitutional” documents and explanations of their evolution as excavation sites for retrieving a constitutional past.
By detailing rich historical accounts, authors of constitutional narratives purposed the Canadian constitution with a sense of autochthony, making the British North America Act the corollary of centuries of political development in North America. Ashley acknowledged in his lectures the disparate nature of the different histories of each colony, but insisted that, “while the Dominion lasts, it certainly seems to be more fitting to regard its constitutional history as a number of parallel streams which at last converge.”50 Similarly, author William Houston, the librarian of the Ontario Legislature, juxtaposed various statutes governing British North America, deliberately fashioning them with a retroactive national purpose. The documents, he stated, “have a relation to the present constitution [the British North America Act] that is not merely historical,” and he encouraged students to read them in successive comparison.51 In this collection of legal documents, various events from colonial history were placed on an assembly line of constitutional production that inevitably led to the finished product of the Canadian constitution in 1867. Like Ashley, Houston supported the idea that constitutional history was like a science that traced social change over time; he preferred the term “sociology” to “political science,” stressing its implications for social reform.52 Constitutional history, he argued, “is substantially a digest of human experience in the development of government machinery,”53 which meant, then, that “the history of the constitution is to be traced by means of documents, the correct interpretation of which is, in relation to the subjects and for other reasons, a matter of the greatest importance.”54 He invited readers to read and compare the text of the collected documents, which included imperial statutes related to British North America; peace, extradition, and fishery treaties; governors general’s commissions and royal instructions; documents related to responsible government; and the Quebec Resolutions.
The temporal boundaries outlined in constitutional publications signified a unique history of the Canadian constitution. By locating specific moments in time as the genesis of the Canadian constitution, most authors identified seeds that planted the historical trajectory of constitutional development culminating in the British North America Act. Manitoba College professor George Bryce noted this point in an article on Canadian history: “Starting from different sources, the History of Canada comes down to the present time, when British North America is beginning to realize her unity under the Canadian Confederation.”55 Most constitutional narratives illustrated the North American origins of the Canadian constitution, pointing to European settlement of the continent as the beginning of the story. For Albert Hassard, the starting point was Columbus’s first Atlantic crossing in 1492. This event was followed by a long “series of constitutional experiments” before Confederation, when the Fathers of Confederation “surmounted the difficulties of their ancestors.”56 Canadian Secretary of State Joseph Adolphe Chapleau’s brief Report on the Constitution of the Dominion of Canada, written to provide an official description of the Canadian constitution, began with Cabot’s voyage to North America in 1497.57 Herbert Brown Ames’s lectures on Canadian political history pointed to the founding of Quebec by Champlain as the starting point.58 Together, these chronologies effectively naturalized the political jurisdiction of Canada as the logical container of historical political development.
The integration or separation of French and English Canadian history is a notable feature of these narratives. Samuel James Watson and D.A. O’Sullivan commenced their treatises with the conquest of New France in 1760, correlating Canadian constitutional history with British rule. Likewise, William Houston’s collection of documents covered items related to British rule in Canadian history, but started with the Treaty of Utrecht of 1713, which saw France cede large parts of its North American empire, including Nova Scotia, to Britain. Watson’s Constitutional History of Canada begins abruptly with the capitulation of Montreal in 1759 and the commencement of British rule in Quebec, which placed the French Canadian population under “the shield of the British Constitution.”59 The text describes the struggle of colonists in Canada to acquire the greater liberties that were natural to the “free soil” of Canada.60 O’Sullivan’s treatment of pre-Confederation history, which commenced with the conquest of Quebec, is comparatively quite brief, as he describes the British North America Act as a “new departure in the history of Colonial Government,” owing to the novelty of federalism.61 William James Ashley’s lectures, on the other hand, claimed that “the Constitutional History of the Dominion of Canada may be said to begin just 290 years ago ... with the patent granted in 1598 by Henry IV to the Sieur de la Roche.”62 The focus of his nine lectures detailed the history of New France and the Maritime colonies, ending with the Constitution Act of 1791, effectively integrating the French colonial period into the story of constitutional development in Canada.
The synthesis of French and English Canadian history was also a notable characteristic in the many writings of John George Bourinot, who became one of the most prominent authorities on constitutional law and history in Canada. Born in Sydney, Nova Scotia, in 1836, Bourinot later moved to Ottawa where he became a Senate clerk and later the chief clerk of the House of Commons. In addition to his professional duties, he wrote and spoke extensively on parliamentary procedure and constitutional history, subjects for which he was a widely reputed authority. His landmark work, Parliamentary Procedure and Practice, first published in 1884, begins with a description of government in New France. In his 1889 publication Federal Government in Canada, he stressed the importance of including French Canadian history prior to the conquest because “many of the institutions which were inherited from old France have become permanently established in the country.”63 Canada under the French regime, he added, was characterized by absolutist and centralist government that denied the people of New France many liberties. It was only after the conquest that “French Canadians were gradually to win for themselves the fullest political freedom under the auspices of England.”64 Thus, while including New France in his narrative of Canadian constitutional development, he emphasized that the foremost tenet of self-government was an ultimate outcome of British rule.
Bourinot’s narrative was important because it emphasized milestones that carved a local foundation onto the Canadian constitution. After describing the statutes that governed British North America and the development of responsible government, he concluded: “The results of these many years of political agitation through which Canada has passed have been eminently favorable to her interests as a political community.”65 By this comment, he meant that self-government was ultimately achieved in Canada, but his point is more notable for its description of these constitutional developments as the experiences of a political community. With this notion, he tied together the colonies of British North America and its French and English inhabitants in a singular community that conformed to the boundaries of the jurisdiction later created by the British North America Act. He went further, adding his scepticism that the French in Canada would ever be assimilated, and concluded that the constitutional history he illustrated nevertheless gave encouragement for the national future:
Though there are differences in language and certain institutions between the French and English peoples, yet there is an equal community of interest between both ... The foundations of a new nationality have been already laid by the common efforts of the two races, united as they are by the strong ties of a common interest.66
The constitutional development of Canada was, therefore, not only distinct but represented the establishment of a “new nationality” that included French and English Canadians, closely echoing Cartier’s notion of a “new political nationality” from the Confederation debates. For Bourinot, the constitutional development of Canada was very much the story of its national development.
Despite his confidence in the common interests of a Canadian political community, Bourinot’s understanding of constitutional history was deeply influenced by contemporary scholarship on racial theory and the “ancient” development of government in northern Europe. He outlined this concept most clearly in his Canadian Studies in Comparative Politics, which placed Canadian constitutional history in the wider context of Europe and North America. In the first chapter, titled “The English Character of Canadian Institutions,” he emphasized the Teutonic origins of the Canadian constitution, citing various authorities including Austrian anthropologist Karl Penka, German political scientist Rudolf von Gneist, British historian William Stubbs, and American author John Fiske.67 By tracing a political lineage back to the Aryan tribes of Germany, Bourinot framed the development of government as a racial genealogy that provided a simple yet organized structure to centuries of history. The implication of this genealogy for Canada was that it connected French and English Canada to a common source, as both groups, he claimed, “can trace their history back to times when the Teutonic people, the noblest offspring of the Aryan family of nations, conquered the original Celtic inhabitants of Gaul and Britain.”68 Historian Carl Berger has noted that Bourinot’s attention to racial “germ theory” was important to his depiction of the Canadian constitution. “By tracing the origins of the Canadian constitution back to the assemblies of the Teutonic tribes,” Berger writes, “Bourinot imparted to that constitution a venerable antiquity which in itself was satisfying to national pride.”69 Bourinot’s constitutional narrative, far beyond a description of law, situated the Canadian constitution as a product of a wider constellation of racial development. The importance of ideas of race in these constitutional narratives demonstrates that, even as constitutional writers developed the idea of a new Canadian nationality based on a unique constitutional lineage, they were guided by fundamental assumptions about the nature of political association. Once again, we see that ideas of a supposedly modern Canadian nationality based on common political association were embedded in ideas of racial belonging and exclusion.
Communicating the Constitution to a Public Audience
The crafting of constitutional narratives in the large volume of constitutional publications after Confederation directly related to changing attitudes about democracy and citizenship in the late nineteenth century. The perception of and anxieties about rising democracy, especially the expanding franchise, influenced many of the writings and speeches on aspects of constitutional law and history in Canada. Frank Yeigh, president of the Young Men’s Liberal Club in Toronto, captured this urgency in an article in Lake Magazine: “If the true spirit of Democracy is to pervade this new world in reality, all classes as well as all ages of men must participate in the control and guidance of the Ship of State by such a study of current events and national problems as will lead to an intelligent voice in the conduct of affairs.”70 It was vital, Yeigh continued, that they read and understand constitutional treatises like Bourinot’s Constitutional History of Canada and Houston’s Canadian Constitutional Documents. In an editorial on Bourinot’s lectures on constitutional history, the Week stressed “the importance to Canadians of the study of political science so that everyone may thoroughly understand the origin, character and operation of our political and other institutions.” This understanding was especially urgent, it added, because “we are entering on the most critical stage in the development of our institutions, with the lowering of the franchise and the growth of democracy.”71 The importance placed on constitutional law and history grew with perceptions of democratic expansion, in large part because of the concern that people who voted needed to be well equipped with a “thorough” understanding of political and constitutional institutions.
For many of the writers on constitutional matters examined here, it was this concern about an expanding voting public that motivated their work. In his published lecture on parliamentary government, Charles Carroll Colby acknowledged the growing influence of public opinion, while Dennis O’Sullivan accepted the ultimate sovereignty of the people, writing that “the people are the source of all power.”72 W.H.P. Clement stressed this point further, noting the importance of understanding the “power behind the throne.” He argued that, whereas older works on constitutional law had focused on the exercise of power by the executive branch of government, new studies of the constitution needed to recognize the responsibility of the executive to the people through the elected branch. “The rising spirit of democracy,” he wrote, “[has] silently permeated the system of government, without any apparent disintegration of parts, but with a difference in the practical ‘residence’ of power, which at length challenged recognition at the hands of those who would expound the constitution and its law.”73 Alpheus Todd’s Parliamentary Government in the British Colonies was an example of the type of work that Clement criticized. It focused heavily on crown prerogatives, and Todd enforced the point throughout the book that vice-regal authorities in colonies or provinces essentially possessed the same powers as the sovereign. He noted disapprovingly the pattern in some Canadian provinces of abolishing appointed upper chambers, which he defended as a critical “counterpoise to democratic ascendency.”74
Awareness of such “democratic ascendency” explains the perceived imperative of educating the population on constitutional issues. Herbert Brown Ames, a shoe manufacturer and philanthropist who became known for his sociological study of anglophone working-class districts in Montreal, delivered a series of ten lectures on the topic of Canadian political history to the Young Men’s Christian Association of Montreal in 1894.75 The focus of the lectures was the constitutional development of Canada from the French regime, including an extensive examination of the British North America Act, or “Canadian constitution.” The final lecture in the series was devoted to the right of suffrage in Canada, drawing a direct link between education on constitutional matters and “the methods provided whereby each citizen can make his influence felt in regard to these matters.”76 Here, the purpose of narrating the constitutional history and law of Canada was not merely to describe a system of government, but to elucidate the connection between individuals – notably restricted by franchise laws to men – and the Canadian state.
Few people, however, did more to expand popular interest in the constitution than John George Bourinot. As biographer Elizabeth Banks has noted, Bourinot achieved national prominence in Canada by the 1880s, in large part because of his prolific pen.77 Reporting on a public lecture on the subject of the constitution by Bourinot at Trinity University in Toronto in 1889, the Week magazine expressed confidence that it “whetted the public appetite for more.” More importantly, the article continued, “discussions of Canadian constitutional questions by competent and dispassionate authorities are just now greatly needed, and it may be hoped that either the learned author or the University may give these to the public in some easily procurable form.”78 This appeal for dispassionate authorities was a contrast to the political debates and divisions over constitutional matters that swirled in Ottawa, especially with the development of controversies relating to the “provincial rights” movement.79 The constitution needed to be explained and communicated to a Canadian public in a way that these authors thought could transcend political differences on key issues, and so the role of constitutional “experts” gained increasing prominence.
For Bourinot, it was clear that studies of the constitution needed to reach the hands of wider public audiences. Reflecting on the growing output of literature on the constitution in Canada, he wrote a review article in the Week in 1893 commending “the considerable amount of constitutional and legal literature that has already appeared as a result of a quarter century’s experience of the practical operation of the federal system which came into effect in 1867.”80 The purpose of the review article was to provide readers with a digest of fifteen major titles published on the subject of the Canadian constitution, encouraging a wider awareness and readership of them. The constitutional literature, he added, would allow readers to be “thoroughly conversant with a subject of deep interest to every citizen of this young Dominion, now on the threshold of national life.”81
Bourinot was not alone in encouraging wider public readership of books published on constitutional law and history. Canadian magazines published notices or reviews of works written on constitutional matters, often placing a high level of importance on them and typically using universal language to commend them to “every” person in Canada. A review of O’Sullivan’s Manual of Government in Canada in 1880 commended its purpose of providing “a knowledge of the machinery of government and the principles which underlie the Canadian constitution ... and other useful material which ought to be familiar to the student of Canadian history and every resident of the country.”82 Similarly, an article in the Week noted that Bourinot’s Parliamentary Government in Canada “ought to be in the hands of every Canadian who wishes to understand the constitution of his own country,” and another review of Bourinot’s How Canada Is Governed claimed that it “ought to be in the hands of every Canadian, young and old.”83 The multiple editions printed of many of Bourinot’s books reflect their popularity.
Attempts to reach a broader public audience with publications on the Canadian constitution provided a means to craft powerfully symbolic historical narratives that coalesced disparate histories and provided deep foundations to the new political jurisdiction. For many of these writers and their reviewers, the ultimate purpose of elucidating a Canadian constitution was to solidify a strong national identity based on individual attachment to the constitution. As Liberal-Conservative Senator Charles Arkoll Boulton stressed in an article in Canadian Magazine, the issue was one of visceral importance. “The national constitution,” he claimed, “should be just as much an object of care and solicitude as his own constitution is to an individual.”84 The small industry of constitutional writing in the late nineteenth century was an essential aspect in the invention and popularization of the concept of a Canadian constitution, though defining the boundaries of the constitution and its distinction from the wider British constitution was a contested process.
The British North America Act and the Problem of a Written “Canadian Constitution”
Even though the constitution was a subject of interest and importance, it was evident that not all writers meant the same thing when using the word “constitution.” It was a remarkably polyvalent term, having little consistent connection to any given statute. A number of writers identified the ambiguity of the term and explicitly defined it in their work. Ames, for example, simply defined constitution as “the system under which a country is governed.”85 Dennis O’Sullivan defined the constitution as “the agreement the people have with themselves as to the manner in which the Government of the country is to be carried on.”86 While O’Sullivan presented this definition in a supposedly technical “manual” on government, it reflected a concept of constitution that was based on a democratic and contractual arrangement among the people, who by their consent “agreed” to be so constituted. This view was an important shift away from the understanding of constitution as a natural or organic identity that developed gradually over time and reflected what many at the time would consider a more modern form of political association.
The attachment of the term “constitution” to the British North America Act was therefore neither unanimous nor immediate. Writers variously referred to the act as the Confederation Act, the Union Act, or the Constitution Act. Often, the wording depended on the author’s understanding of federalism, particularly whether the British North America Act effected a new constitutional order or merely united existing constitutional entities. The majority of writers, however, shared the common understanding that “constitution” meant the basis of government, specifically the institutions on which government rested. This interpretation indicated that constitutional history and law largely regulated parliamentary bodies and the nature and scope of their authority. Issues of personal liberties and collective values were only obliquely included in the ambit of constitutional studies. R.C.B. Risk and R.C. Vipond suggest that this relative omission was because of scholarly preoccupation with federalism and a strong faith in the “liberties” of the British constitution.87 Instead, constitutional scholarship in the late nineteenth century tended to focus on defining and describing the new political order established in 1867.
In many instances “constitution” was shorthand for the British North America Act. Interest in that statute after Confederation tended to reflect the assumption that it provided an important means of understanding Canada as a distinct political order. The British North America Act was often transformed in rhetoric from the drab delineation of government powers set by Westminster into a founding covenant of a new nation. By the end of the century, for example, Canadian poet Thomas O’Hagan extolled the importance of the act as a founding constitution:
It is a mistake to think that the Act which led to the Confederation of the various provinces in 1867 has attained no higher meaning in the life of the Canadian people than that of a constitutional union. It carried with it a meaning of far deeper import – a union of hearts, whose offspring is oneness of patriotic aim and purpose.88
Another author, writing the next year in the 1896 Dominion Day issue of the same magazine, asserted along similar lines that the British North America Act “has given, primarily, such an impulse as comes from a fresh start, an advanced step, a new resolve based on a new unity.”89 Within thirty years of its creation, the British North America Act had become for some not merely an imperial statute but a basis of Canadian nationality.
Of course, given the imperial context of the time and the shifting understandings of world order, the idea that the British North America Act marked the foundation of a new nationality was a contested notion, particularly by those who defined constitution not as a written statute but as an organic tradition. For example, in an article about Senate reform – a topic that generated interest and frustration in Canada from the beginning – the author rested his argument on appeals to the British constitution, denying that the British North America Act was in fact a constitution:
It is time that we began to look upon the British North America Act as what it is, a mere Act of Parliament passed for a particular and specific purpose and not a Constitution. It never was intended for a Constitution, and it does not even hint at, not to say enact, the formation and responsibility of Cabinet. All the chief principles of our Government are unwritten; and it seems strange that our courts and legislators continually talk of that Act as the Canadian constitution.90
For this writer, “constitution” was a term that denoted the customs and conventions of parliamentary government, which were inseparable from the British constitution. It also reflected the understanding of constitutions as organically and gradually developed unwritten aspects of culture that had shaped Britain and the empire over the course of centuries.
Certainly, the British constitution and the powerful mythos that it embodied was an enduring element of constitutional identity in English Canada following Confederation. The idea of the British constitution entailed the heritage of political development that most writers traced back at least to the Magna Carta in the thirteenth century. It signified that, despite the development of a new written constitution for Canada, Canada remained governed by the principles of the British constitution. One writer, who feared the rise of Canadian independence, insisted that the British constitution was the “one under which life and property are best protected; civil and religious liberty are enjoyed to the fullest extent consistent with due regard to the rights of others; and order is maintained and due respect for and obedience to the law enforced by the consent of all, and for the good of all.”91 The vague meaning of the British constitution allowed writers to argue that Canada maintained its connection to it, despite developing its own constitution. Oliver Aiken Howland, who described the development of the “new empire” in terms of constitutional innovation, pointed to the “elastic principles of the British Constitution” that allowed Canada to develop greater autonomy within the empire.92 Bourinot, who described the Canadian constitution most extensively, maintained that “Canadians have adhered closely to the great principles that give at once strength and elasticity to the English constitution.”93
The fact, however, that the British North America Act provided Canada with what many considered to be a formal “written constitution” made the Canadian constitution distinct from the celebrated tradition of the unwritten British constitution. If, as George Monro Grant stated, “the proudest boast of any constitution is that it has not been made, but grown,” the enshrinement of a written constitution for Canada seemed at odds with the idea of an organically developed one.94 For imperialists like Grant, the unwritten British constitution remained the defining aspect of the constitution in Canada. In fact, a key criticism of imperial federation was the prospect that it would require the introduction of a written British constitution. Indeed, some imperialists like Nova Scotian lawyer Percy Blanchard drafted model imperial constitutions for public consideration, reflecting what British Conservative politician Lord Norton deemed “constitution mongering.”95
On the other hand, the idea of an unwritten and evolving constitution could make the project of imperial federation appear to be a natural outcome of constitutional growth.96 Some imperialists, therefore, tended to minimize the place of the British North America Act as the Canadian constitution. John Castell Hopkins was explicit on this point: “In our Constitution, also, rests the glories of a thousand years. Not so much in that piece of parchment called the British North America Act, but in the unwritten code of principles which represents the struggles and aspirations of centuries.”97 In the larger view of British constitutional history, then, the British North America Act was but a minor aspect, overshadowed by a wider constitutional chronology. Speaking to a meeting of the Imperial Federation League in Halifax, Catholic bishop Cornelius O’Brien boasted that, unlike Americans, “we are not of the school of doctrinaire fools, who think that a constitution may be written out somewhat after the manner of a geometrical demonstration, by reasoning from abstract principles, and theoretical identities.”98 The idiom of the unwritten British constitution and the project of imperial federation could thus be understood as reinforcing outcomes of British national growth across the world.
Maintaining a clear connection to the British constitution was important in order to distinguish the Canadian constitution from the American one, though since the British North America Act introduced federalism and a written “constitution,” the comparison between it and the American constitution seemed obvious. Prominent British legal scholar Albert Venn Dicey briefly mentioned Canada in his influential book Introduction to the Study of the Law of the Constitution, first published in 1885, claiming “it is clear that the Constitution of the Dominion is modelled on that of the Union,” referring to the United States.99 This claim incited protest from Canadian authors, who denied the suggestion that Canada’s constitution bore closer resemblance to that of the United States than to Britain’s. Edward Douglas Armour wrote a front-page article in Week magazine refuting Dicey’s comparison.100 Armour was editor of the prominent law journal Canadian Law Times, which similarly rebuked Dicey: “While displaying a great deal of theoretical knowledge, he has evidently not mastered the details of our charter.”101 Yet, Armour’s description of the British North America Act as “our charter” also distinguished it from the British constitution and emphasized the foundational nature of the written text, a separation made even clearer by the claim that a prominent British legal scholar fundamentally misunderstood it.
W.H.P. Clement, a noted Toronto lawyer and Liberal who went on to become a legal advisor to the Yukon Council and a puisne justice on the Supreme Court of British Columbia, published Law of the Canadian Constitution in 1892.102 The book’s title directly mirrored Dicey’s celebrated Law of the Constitution, and Clement dismissed Dicey’s comparison as “erroneous.”103 The introduction to A.H.F. Lefroy’s The Law of Legislative Power in Canada likewise provided an extensive rebuttal of Dicey’s comparison.104 Lefroy, a prominent common law scholar who became a law professor at the University of Toronto in 1899, was an enthusiastic imperialist who maintained that the British constitution served as the foundation of Confederation.105 This reaction to Dicey’s comparison reflected some writers’ tendency to regard the Canadian constitution as superior to the American one, based largely on misgivings about American democracy.106 The Dominion Illustrated, for example, proudly repeated Ontario Premier Oliver Mowat’s claim that the Canadian constitution, though imperfect, “is far superior to the American constitution.”107 This sense of constitutional superiority reflected the impression of many Canadians that American democracy had become too strongly guided by materialistic values and a “mob” mentality.108
While the romance of appeals to an ancient constitutional inheritance held great cultural value in English Canada, it was difficult to describe a Canadian constitution that was both a unique framework of a political entity embodied in a single document and a branch of a wider constitutional body embodied in many texts and centuries of development. Lefroy epitomized this tension in Law of Legislative Power. The dense book pertained almost exclusively to the division of power according to the British North America Act and consequently did not make any appeal to constitutional history in Canada. Instead, Lefroy insisted on the endurance of the British constitution in Canada, defined in particular by his claim that the crown’s prerogatives in Canada were not “impaired or lessened by the British North America Act.”109 It is notable, therefore, that Lefroy avoided referring to the act as the “Canadian constitution” throughout the book. The framers of the British North America Act, he argued, “restrained their hands, and allowed as free scope as in the nature of the case was possible for that process of organic growth of the Constitution coincidently with the organic growth of the nation, which is one great virtue of the Constitution of the United Kingdom.”110 It was clearly important for Lefroy that the legislative powers vested in the British North America Act not be viewed as representing a division in the rule of the British constitution and that its drafters not be positioned as “founders” who marked a conscious break from the past.
Most other writers, however, described a growing distinction between Canadian and British constitutions. Clement, for example, described the Canadian constitution as a discrete entity, while still recognizing the technical supremacy of the imperial parliament. “The British Empire,” he wrote, “is scattered over the whole earth, and in the practical work of government, matters of common concern are few and far between – much more so in fact than is commonly imagined.”111 He insisted that the empire was in fact more of a federal system than even the United States. Despite Clement’s pointed criticism of Dicey’s claim that the Canadian constitution was modelled on the American one, other writers encouraged comparison between the two federal constitutions. The collections of documents published by Montreal lawyer Joseph Doutre and by William Houston, Ontario’s legislative librarian, both included the American constitution for readers’ reference. The point was to indicate the distinctive nature of the Canadian constitution, which was not merely an offshoot of the British constitution but a unique model of government that could be studied comparatively alongside other constitutions.
It is perhaps not surprising then that the subject of the constitution was a common reference point for Goldwin Smith, who looked to the British North America Act as evidence that Canada had its own written constitution distinct and dissimilar from the British constitution. He rejected the claim that the Canadian constitution maintained a clear connection to the British constitution. In an article prompted by O’Sullivan’s Manual of Government, Smith asserted: “The British Constitution is National, not Federal, and its principles, even if they were as well understood as the framers of our Constitution assumed, could throw no lights on Federal questions.”112 He stressed instead that what he considered to be the true nature of the constitution in Canada was not British at all. Insisting again that “our Constitution is not British,” Smith pointed out that “we have no peerage or established church ... Canada has no group of political families by which, in the absence of a written constitution, traditional principles can be preserved.”113 For Smith, the British North America Act, by providing a written constitution to Canada, rendered appeals to the British constitution in Canada erroneous.
Of course, few could ignore the fact that the British North America Act introduced a written element to the constitution in Canada. Some writers expressed concern that written constitutions established an almost immutable framework that would prevent political progress. In a full-page editorial in 1895, Week magazine expressed reservations about written constitutions. The editorial criticized the idea that future generations “are to be governed by the men of long ago” and that judges “may themselves become virtually Constitution-makers, or under-makers.”114 Toronto lawyer Edward Meek expressed similar reservations about written constitutions in several articles. They were, he asserted, “obstructive in their character. They are out of harmony with the every-day political wants of society, especially a growing, changing society. As soon as adopted, they begin to become a thing of the past. They begin to grow old from birth.”115 Instead, Meek envisioned a future when the unwritten British constitution would ultimately develop a federal union of the “Anglo-Saxon race.”116 The idea of a written constitution that formed the basis of a new political association of different people seemed to obstruct this “natural” development, a sentiment that reflected some of the anxieties of “modern” ideas of political association. Despite these criticisms of a written constitution, it was clear that, however the British North America Act was defined, it was a significant benchmark in the history of Canada and the British Empire.
Conclusion
The degree to which the concept of a Canadian constitution was analysed and presented to the public in dedicated studies and magazine articles reflected its central role in defining political association. The concept of a “constitution” was conditioned by the writings of various “authorities” who employed it to define the boundaries of political community and endow it with historical depth. These publications, which appeared with great frequency in the decades following Confederation, should not be regarded as neutral and descriptive studies, as they actively informed the sense that Canada could and should be thought of as a distinct political entity complete with its own history and constitutional lineage. The fact that many of these publications were either intended for or promoted to a public audience further reflects their assumed importance in educating people about the meaning of the new Canadian state.
The concept of a constitution developed by these writers was certainly distinct from the mythos of the organically developed ancient constitution of Britain. The written Canadian constitution, embodied in the British North America Act, served not only as a legal blueprint of the new state but, for many of the writers examined in this chapter, also represented the foundation of a new and distinct political community. It represented an understanding of nationality as a primarily political category, based on the affiliation of individuals living in the same constitutional state. In this sense, defining a “Canadian constitution” was one aspect of the process of making the political jurisdiction of Canada appear to be a natural and united entity. Influenced by the professionalization of social sciences and history, the development of narratives of the constitution in Canada often rested on supposedly empirical data that positioned various European legislative acts in colonial North America as precursors of the Canadian constitution. These early writings on the constitution indicate that the concept of the constitution was often used as a way of retrospectively legitimizing Canada as a natural political jurisdiction that had evolved from a long history of legal and political development. Furthermore, while the concept of the constitution established ways of thinking about the political and legal boundaries of Canada, it also prompted consideration of the relationship between individuals and the constituted polity. For this reason, the effect of the idea of a Canadian constitution reverberated far beyond legal and political debate. The nature of what it constituted – the sense of the kind of entity or community that it created – inspired much debate about and evaluation of the concepts of citizenship and loyalty, which the following chapters explore.