THE HOSTS OF the Quebec conference hoped the old city and its spectacular site would welcome the visitors with a Laurentian fall to match the Island summer that Charlottetown had provided so lavishly in September. But before the delegates arrived, Quebec City’s blazing autumn colours were whirled away in an early snowstorm. Mercy Ann Coles, who came from Prince Edward Island with her father, the ex-premier, would grumble to her diary about watching endless rain pound down on the roof outside her hotel window. Nevertheless, Quebec City could glitter even in the rain. With its viceregal court and its military garrison, in an era when the court and the officer corps were the acme of society, Quebec offered unparalleled conditions for dignified celebration.1
The liveliest descriptions of the Quebec conference’s ceremonial side come from women. Frances Monck, the governor general’s niece, who had left her baby in Ireland to visit Quebec, met many of those who had come “to arrange about a united kingdom of Canada.” In the diary she kept, she generally approved of what she saw of the conference, looking with amused toleration even upon the Catholic clergy’s edict against intimate dancing. Charles Tupper she found forward in his courtesies. George-Étienne Cartier struck her as “the funniest of little men,” always lively and amusing, and apt to break into song after dinner. She thought George Brown handsome and D’Arcy McGee remarkably ugly. During one conference dinner, Edward Chandler of New Brunswick told her “a great deal about the happiness of slaves, and how miserable they are when emancipated.”2
Frances Monck assessed the ceremonial side of the conference with the detachment of one long used to the elegant entertainments of the British aristocracy. Mercy Coles, one of many delegates’ wives and daughters who came along to Quebec, was better placed to express a colonial view of the conference. She had grown up in the small town of Charlottetown, in the home of a successful middle-class brewer who also happened to be premier. Neither Mercy nor her father would have got in the door of English society of the kind Frances Monck knew, but George Brown had been much taken with the Coles women when he met them in Charlottetown. As soon as the Coles family settled at the Hotel St. Louis (“a very nice hotel and every comfort one can wish for”), Mercy was surrounded by ministerial admirers from Charlottetown – not only Mr. Brown, but also Cartier, Macdonald, and McGee. “Major Bernard tells me we are to have grand times,” she wrote the night she arrived. “The first word almost he said was ‘I hope you brought the irresistible blue silk.’ ” She had.
In her diary Mercy Coles seemed oblivious to the conference itself, which she could not attend and about which her father seems to have told her little. Constrained by mid-Victorian ideas about a woman’s role, she shopped with a daughter of Upper Canadian delegate William McDougall and gossiped about the daughters of New Brunswickers Steeves and Fisher (“The Misses Steeves seem to be possessors of the parlour downstairs. I think they never leave it. There is a Mr Carver who seems to be the great attraction. He is a beau of Miss Fisher’s but they monopolize him”). She saw the sights around Quebec in a party led by Premier Gray, whose invalid wife was home in Charlottetown with barely a month to live. She even put up with bad behaviour from D’Arcy McGee (“Before dinner was half over he got so drunk he was obliged to leave the table. I took no notice of him. Mr Gray said I acted admirably”).
At the end of the first week of the conference, Mercy Coles fell ill; indeed, she may have had diphtheria. After Colonel Gray’s homeopathic remedies failed, her parents called in Dr. Tupper, and Tupper attended to her before and after conference sessions for ten days (“Dr Tupper came in and found me out of bed standing in my bare feet. Get into bed this minute, he said, you want to catch your death of cold. I tumbled in pretty quickly, he felt my pulse and looked into my mouth and said you are a good deal better”). In her sickbed, Mercy Coles missed most of the great balls and dinners of the Quebec conference and had to content herself with collecting the photographic visiting cards of the delegates (“Mr Tilley gave me such a nice card of himself. All the gentlemen have been having their likenesses taken. Papa’s is only tolerable”). When she was able to dine in company again, she was delighted by the kind inquiries of John A. “The conundrum!” she wrote as Macdonald, trying to draw George Coles away from his deepening disaffection from the Quebec plan, courted his family.
Edward Whelan was another admiring observer of the social whirl attending the Quebec conference. “If the delegates will survive the lavish hospitality of this great country, they will have good constitutions – perhaps better than the one they are manufacturing for the confederation,” he wrote home. Whelan had argued against secrecy in the conference, but felt bound by the rules. In the reports he sent his newspaper in Charlottetown, he was circumspect about the decisions being made.3 Instead he described every dinner and ball. Whelan even hinted that the intercourse of Maritimers and Canadians was not restricted to dancing and dining. In an afterdinner speech at the end of the conference, he paid tribute to the way the Maritime delegates had been “caressed” by their hosts. “This was not intended to apply to the fair ladies of Canada,” he said to appreciative laughter. “For the delegates all being married men were, of course, like Caesar’s wife – above suspicion.” Perhaps Whelan had special targets among his fellow delegates as he went on, “If not so circumstanced, they would be as dead as Julius Caesar long ago!” Whelan had left his own wife at home.4
After another ball, which lasted until three in the morning, Whelan wrote, “I think it would be advisable to be somewhat reticent hereafter regarding the social parties in which the delegates engage in this stupendously hospitable city, lest it be supposed they do nothing but frolic.” In fact, the social whirl of Quebec, though more sustained and more glitteringly adorned, was actually less significant than Charlottetown’s. At Charlottetown the entertainment had helped build the trust that convinced the delegates to proceed to Quebec. At Quebec, however, the work of drafting a constitution had to be faced.5
The hours the delegates spent in conference at Quebec suggest the gravity with which they faced the task. They gathered on sixteen different days between October 10 and October 27. They failed to meet only on the two Sundays, and they averaged over six hours a day in formal session. At first they sat from 11 a.m. until 4 p.m., but, as they warmed to the work and its difficulties, they revised that schedule into a 10:00 a.m. to 2:00 p.m. session, followed by a second session from 7:30 p.m. until midnight. The afternoon break was not for leisurely teas, but for additional lobbying, caucusing, committee work, and the drafting of resolutions. Throughout the Quebec conference, the delegates permitted themselves only a fifteen-minute lunch break, during which they grabbed lunches in the next room – this in an era when civil servants with a six-and-a-half-hour workday always took a two-hour lunch.6
Whelan marvelled that “the cabinet ministers – the leading ones especially – are the most inveterate dancers I have ever seen,” and Mercy Coles described her father coming home from a ball “with every stitch of clothes wringing wet with perspiration. He never had such a time.” But mostly the delegates joined the dancers after midnight, and mostly they went back to work early the next morning. Reporters who were turned away from the doors of the working sessions described the conference much as Mercy Coles did, by its glittering hospitality and its rivers of champagne. For the delegates, however, Quebec meant mostly a conference room heaped with papers and hot with debate, and the drumbeat of rain at the windows.
Painting “The Fathers of Confederation” on a Canadian government commission in 1884, Robert Harris lent splendour to the room where they met by endowing it with spectacular arched windows. Through a large central window flanked by smaller ones in the same style, Harris presented a panorama of the St. Lawrence, the river of Canada. The richly symbolic view was accurate enough, but the windows – which would give the name “confederation window” to a style – were the painter’s own invention. The real windows were identical in size, and were framed in sturdy wooden casements, rather than the delicate leading of Harris’s imagination.7
The working sessions of the Quebec conference took place in a makeshift reading room in what was supposed to be a post office. In 1864, the Quebec City legislative building was an unprepossessing structure, though it occupied the magnificent cliff-edge site once adorned by the eighteenth-century palace of the bishops of New France. After the episcopal palace burned in 1854, the new building on the site was pressed into service as a legislature when Quebec temporarily became capital of the Province of Canada in 1860. (After the capital moved to Ottawa in 1865, the post-office-turned-legislature, where the makers of confederation met, burned down in its turn in 1883. This fire took place while Harris was working on his painting, which itself was lost in Ottawa’s Parliament Hill fire of 1916. Since the Second Empire-style Assemblée Nationale on the heights beyond the city walls was already under construction, its predecessor seems to have gone largely unremembered and unlamented.)
The weather may have been disappointing, the meeting room undistinguished, and the grind of work relentless, but the conference at Quebec in October 1864 was a remarkable event, the longest, largest, most inclusive, most productive, and most successful constitutional conference in the long history of Canadian constitutional palaver. The long-vanished reading room on the cliff-edge at Quebec is where confederation was made. In sixteen working days, the thirty-three delegates of more than a dozen political factions from six provinces negotiated, drafted, debated, and passed seventy-two resolutions that set out the essentials of the constitution that has governed Canada ever since. Since the deal they made at the conference table at Quebec is substantially the Canadian constitution of the late-twentieth century, the agreements hammered out in mid-October 1864 are the ones that really matter.
Charlottetown’s one crucial resolution – in favour of federation “if the terms of union could be made satisfactory” – had given Quebec its agenda. Back in 1859, faced with an early flurry of union talk, Britain’s colonial secretary had advised governors in the colonies not to put too much stock in early enthusiasm. “The success of such a measure must depend much on details,” he wrote then, “and unless all interests are provided for, fresh sources of discontent will arise.” This proved nicely prescient of the task that would keep the Quebec delegates at the table. If there was a constitutional deal to be made, the delegates would sit around the table under the not-quite-confederation windows and hammer at the details until a deal was made.8
The delegations at Quebec formed a larger body than those at Charlottetown. Only Nova Scotia’s delegation was unchanged from Charlottetown, and there were ten new faces around the table. Prince Edward Island and New Brunswick had both recruited additional advocates of union into their delegations. The Canadian delegation, on its home turf, had swelled from eight to twelve – the whole Canadian cabinet. And a new delegation was present: Newfoundland’s. Informed too late to attend at Charlottetown, Newfoundland’s legislature sent two observers to Quebec. As if to prove how widely the value of bipartisanship in constitution-making was understood, the Newfoundlanders had sent conservative Frederick Carter of Protestant, mercantile St. John’s and Catholic reformer Ambrose Shea of the outports.
The Quebec sessions began on Monday, October 10, with the election of Sir Étienne Taché as chairman. A veteran politician, first elected as one of LaFontaine’s francophone reformers in 1841, Taché had been made nominal premier of the united Canadas by the three-way coalition whose real (and rival) powers were Brown, Macdonald, and Cartier. Leaders of the other provinces were elected honorary secretaries to the conference, and Hewitt Bernard, Macdonald’s civil-service deputy and future brother-in-law, was appointed to keep the actual minutes. As at Charlottetown, the conference rejected the pleas of journalists, who argued that regular reports to the press would be a valuable corrective to rumours, even if the statements of individual delegates had to be kept secret to permit frank discussion.
Early in the deliberations at Quebec, George Brown burst out in a moment of frustration: “I appeal to the other provinces!” The conference had agreed that voting would be by province; each province would cast a single vote, except the united Canadas, which would have two. Talk was free: Brown, losing a dispute in his own delegation, was hoping he could sway the other delegations to his personal view. If there seemed sometimes to be as many viewpoints as delegates, however, there was also strong pressure for consensus. Brown’s plea went unheeded here and, after all the talk, many resolutions passed by concurrence – unanimously, without even a pause for provincial caucusing before the vote.
After setting out some general principles, the conference devoted most of its time to an exploration of federalism: how to constitute the national and provincial governments and how to divide authority among them. Loud and long, influential confederation-makers had proclaimed their preference for a strong central government. From large provinces and small came wistful declarations that, if possible, the best union would be a legislative union, in which the national Parliament would be the only legislature and there would be no provinces. A legislative union was the properly British model; no states or provinces rivalled the sway of Parliament in London. A federal union, dividing power between a national and state governments, was suspiciously American. It was indeed, said delegates frequently, the flaw that had led the United States to civil war.
Macdonald and Tupper and Galt and others could sing the praises of legislative union, however, only because they knew it was an absolute non-starter, never for one moment to be taken seriously at Charlottetown or at Quebec. The enduring existence of provinces with their own governments and powers was a first principle of confederation in the 1860s. A federal union that would provide a substantial measure of autonomy to both Canada West and Canada East – that was the bargain that had brought Brown and Cartier into the coalition government of the united Canadas. Brown had established that Canada West would not remain in the existing union without rep-by-pop, and Cartier had insisted Canada East would not remain with it. Federalism, by separating the two regions, was the mechanism that might satisfy both. Brown and Cartier’s shared understanding of that ruled out all serious consideration of legislative union even before the conferences began.
The Maritimers, unwilling to sink their local autonomy in Maritime union, were just as unfavourable to a legislative union, in which they would be overwhelmed by either of the Canadas, let alone both of them. Any union with the Canadas was going to be looked at sceptically there, but one that annihilated all local governments had no chance of being accepted. Whatever lip-service might be given to clear, simple legislative union, federalism was the only feasible proposal. Tupper at one point spoke of diminishing local governments as much as possible, but he instantly admitted the conference could not “shock too largely the prejudices of the people in that respect.” In the Maritime provinces, the degree to which the Quebec resolutions respected local autonomy would be a fundamental issue on which confederation would be judged.
Any delegate could talk about the simplicity and cheapness of a single legislature for the whole country and how appropriately British that would be, but not a single delegation supported a complete legislative union. Later, battling with provincial governments, Prime Minister John A. Macdonald would speak wistfully of New Zealand, where the national government had the power to abolish local authorities, and did so. But at Quebec, when another delegate cited the New Zealand constitution, it was Macdonald who dismissed the analogy. New Zealand’s experience was irrelevant, he said. That was a legislative union.
Only federalism, in fact, made a written constitution essential. On the British model, with undivided sovereignty reposing in a single parliament, Canada would hardly have needed a written constitution any more than Britain did in the 1860s (or the 1990s). Federalism and the division of powers between governments was what required the weeks spent drafting the resolutions at Quebec.
Reading the debates at Quebec, however, one looks in vain for ringing declarations of provincial rights. Provincial rights had been at issue from the first glimmerings of confederation, but the principle was hardly explicit in the agreement. The French Canadians, having struck their deal within the cabinet of the united Canadas, had remarkably little to say on that issue. George Brown, entranced by all the seats Canada West would have in the new federal Parliament, hoped that local governments would be small and economical. As late as August 1864 and again soon after the Quebec conference, the Globe endorsed the independent authority of the provinces, but during the conference itself Brown spoke of the provinces becoming mere municipal institutions, as if his quasi-separatism of 1859 had never existed. Charles Tupper, who by personality as well as circumstance was a leader among the Maritimers at the conference, cheerfully advocated diminishing the powers of local governments. Guarantees of provincial authority, in fact, have to be found in the texts of the resolutions they passed, rather than in the speeches they made to each other. Even in the resolutions, they are deeply buried.
The delegates got into meaty issues of power and its allocations on the fourth day, Thursday, October 13, when John A. Macdonald introduced a resolution, drafted by the Canadian cabinet, on what would become the Senate. His resolution ignited a week of fierce wrangling, first over the composition of the Senate, then over how senators would acquire their offices.*
The argument over the Senate was the longest of the conference and the one which brought it closest to breakdown. But the time the delegates spent fighting about the Senate was hardly an index of how important the upper house was. Rather, the shape of the Senate, as the first substantial question on the agenda, became the issue on which the delegates began to test each other for soft spots and stone walls. The Maritimers, who fuelled the debate, wanted more influence in the Senate, but implicitly they were demanding more influence in the conference, too, where it was mostly the Canadians who presented the resolutions and the others who reacted to them.
“For the first few days, the leading delegates of the lower provinces exhibited caution and vigilance upon every question affecting the interests of these provinces,” said Prince Edward Island’s Edward Palmer approvingly. What their vigilance would expose, however, was how very little the Canadians were willing to bend. After the Senate confrontation, leading Maritime delegates displayed their willingness to make substantial compromise for the sake of confederation – much to Palmer’s dismay.9
The Canadian delegation’s Senate proposal offered sectional equality. The three “sections” – Ontario, Quebec, and the Maritimes – would each have the same number of seats in the upper house of the new federal Parliament. The Canadians were acting as if Maritime union had gone ahead, and the Maritimes were to be treated as one province. A negotiator of long experience, Macdonald presented this as a concession to the Maritimers, noting they were receiving “equality” in the Senate, although their collective population was smaller than either of the Canadas.
The Maritimers saw it differently. Leonard Tilley, then Charles Tupper, and then Charles Fisher, one of the newly appointed New Brunswick delegates, tried in succession to expand the Senate representation of the Maritimes. They may have been testing the Canadians, for they offered no clear principle in place of sectional equality. Their amendments simply attempted to secure a few additional seats for their region. The argument ground on through Thursday and Friday to Saturday, October 15, but all the Maritimers received was a lesson in the intransigence of the Canadians.
George Brown apparently suggested that, if the Maritimes could have extra senators, so should Upper Canada. That, said Hector Langevin at once, was anathema to Lower Canada. The hint that they might be endangering the bleu-Grit alliance at the heart of the Canadian coalition seems to have trumped the Maritimers’ claims. But the arguments were heated. “Matters do not certainly look very promising,” wrote Edward Whelan on Friday night, just before the first great ball. Saturday’s sessions were no better.10
After the Sunday break at the end of the first week, the Prince Edward Islanders launched an even more serious challenge. In August, George Coles had thought that confederation should be based on equal provincial representation in the House of Commons. Charlottetown squashed that idea; the Canadians had established that rep-by-pop was indispensable. Now Coles’s fellow reformer, Andrew Macdonald, observed plausibly that, if rep-by-pop had to prevail in the Commons, “the upper house should be more representative of the smaller provinces, as it was to be the guardian of their rights and privileges.” Each province (not merely each section) ought to have equal representation in the federal upper house, said Macdonald, as American states did in the Senate of the United States.11
Perhaps some deal-making had been going on during the Sunday break. Or the Canadians may have feared that, if the deadlock continued, Andrew Macdonald’s idea might win over Maritime moderates whose less-far-reaching Senate proposals had already been rebuffed. In any case, the Canadians held a private caucus after Andrew Macdonald’s Monday-morning proposal and changed their tactics. They revived a motion Charles Tupper had put forward at the start of the debate. The three Maritime provinces together would start on an equal footing with Ontario and Quebec in the Senate, but there would be additional Senate seats for the Atlantic region if Newfoundland joined confederation. Tupper’s suddenly resurrected motion was quickly passed.
The Canadians had moved, but not far. They preserved most of their principle of sectional equality – Newfoundland’s Senate seats, they suggested, would be balanced by future seats for the North-West when it joined confederation. The Maritimers had gotten the satisfaction of extracting a concession from the Canadians, but they had won only a handful of extra seats to distribute. Andrew Macdonald’s proposal for a different kind of Senate was, as he acknowledged in his own notes, “not entertained.”
His fellow Islanders, who still liked the idea of their small province having as many senators as any other, seem to have endorsed his threat that, if the Canadians “made no allowance,” the Island might prefer to remain out of confederation. In response, the Canadians implied that they hardly cared whether Prince Edward Island came in or stayed out. In the vote on the distribution of Senate seats, Prince Edward Island cast the first of several lonely dissents to conference resolutions.
The other Maritime delegations had turned a deaf ear to Andrew Macdonald’s plausible contention that the Senate could not be the guardian of provincial interests unless all provinces were equally represented in it. No Maritime delegate gave an unequivocal explanation of why they accepted a mere handful of extra seats in the Senate as a substitute for provincial equality there. But a hint at an answer emerged from the next big issue of the conference: how senators were to be selected.
The delegates took up the method of selecting senators as soon as the division of seats had been settled. Should senators be elected or appointed? If appointed, should they be appointed by federal or provincial governments? Should members of the existing upper houses have priority in appointment and, if so, should opposition as well as government parties be represented? These questions took up another couple of days of the conference’s fast-dwindling time. Motions and amendments were debated and withdrawn or defeated at a bewildering rate.
Finally, on a motion by Nova Scotian reformer Jonathan McCully, the delegations voted by concurrence – unanimously – that senators would be appointed for life by the federal government (although the first Senate would be a bipartisan one, appointed from all parties in proportion to their existing strength in the upper house of each province). The decision for “sectional” (that is, regional) rather than provincial equality had already established that the Senate was unlikely to become an effective guardian of provinces’ interests. The decision to let the federal cabinet appoint the senators killed any possibility of that.
The appointive principle was ridiculed, even at the time. In the Canadian legislature, Christopher Dunkin would call the appointive Senate “just the worst body that could be contrived – ridiculously the worst.” The best defence of it, he joked savagely, was that its appointees would be old men, upon whom death would provide a strange kind of constitutional check when nothing else did. Others condemned the Senate plan as reactionary, a return to the bad old days before responsible government, when appointive councils wielded autocratic power on behalf of a narrow élite of the wealthy and well-connected.12
In the decision to go back to appointed senators, the 1960s historians saw proof of the conservatism of the makers of confederation, of their doubts about democracy and their search for ways to hem in the unreliable will of the people. They defended the Senate decision by defending the delegates’ conservatism, emphasizing the confederation-makers’ dislike of American precedents and their concern that untrammelled democracy would undermine the dignified, British character of colonial society.
Yet it was not the conservative delegates who most vigorously supported the appointive principle. Jonathan McCully, who moved the crucial motion, was a reformer, and George Brown supported him vigorously. As reformers, they believed in government being made, and kept, responsible to the voters. A wide (male) franchise, representation by population, strict control of government by the legislature: these had been touchstones of reform politics for a generation. Yet Brown and McCully spoke for many reformers in their vehement opposition to elective upper houses, and the reason was not some vestigial reactionary tinge.
The main body of reformers did not want the Senate elected quite simply because an elected Senate would be a legitimate and powerful body. Reformers understood that an upper house’s function was always conservative. An upper house existed to place a check upon the democratic excesses of the widely elected lower house, and it tended to become the preserve of wealthy men, relatively insulated from constituent pressure. “We must protect the rights of minorities, and the rich are always fewer than the poor,” John A. Macdonald put it genially during the conference’s discussions of the Senate.13 Brown believed in the rights of property, but he did not want a conservative upper house that felt itself entitled to challenge the House of Commons. Election was the one sure way to give senators that sense of entitlement, so election of senators was anathema to reformers like Brown.
All schemes for a powerful upper house were modelled on the United States Senate. The American Senate was much smaller than the House of Representatives, and both the scarcity of seats and the significant property qualification required of senators favoured wealthy candidates. In short, the United States Senate had been conceived by the American founders as a conservative check on the democratic House of Representatives. As such, it had been very successful. Indeed, when the triumph of responsible government suddenly made the once-tame legislatures of British North America into such powerful institutions, it was conservatives who looked to the American Senate for inspiration. In the 1850s, in the first decade of responsible government in British North America, conservative politicians began to push for an elective upper house (then called the Legislative Council), because they wanted a rival to the newly powerful lower house. They wanted an élite counterweight to the too-representative assemblies and too-powerful cabinets empowered by responsible government. The united Canadas got an elective upper house in 1856, by the votes of an odd alliance of conservatives and Brown’s Clear Grit rivals (who believed all public institutions should be elective). Brown was among those who opposed the change. Eight years later, when elected councillors were slowly replacing the life-tenure appointed councillors in the united Canadas, he still thought it had been the wrong decision, and he was no longer in the minority.14
George Brown had always looked balefully upon the growing influence and confidence of the elected upper house. Reformers – and many moderate conservatives who had accepted and thrived under responsible government – did not want a powerful, conservative Senate confronting and confounding the Commons. And that was the point around which the consensus formed at the conference. Most of the delegates, and all the influential ones, were the children of responsible government. Leonard Tilley and his New Brunswick reformers had cut their political teeth in that struggle, as had Coles and Whelan from the Island and Shea from Newfoundland. Nova Scotians McCully and Archibald were Joseph Howe’s heirs and allies. Just as much as them, conservative politicians like Nova Scotia’s Tupper, Macdonald of Canada West, and Cartier of Canada East had thrived under responsible government. Conservatives or reformers, they all believed in the shiny new-model parliamentary government that the colonies had been enjoying for less than twenty years. They had cut their ties not only to the ultra-democratic Clear Grits but also to ultra-tories who yearned for a gentlemanly upper chamber with real power to block the Commons.
The makers of confederation understood a powerful upper house to be a threat to parliamentary power. The constitutional text of their day was John Stuart Mill’s 1861 book Representative Government. In it, Mill had succinctly explained why the British House of Lords no longer posed a very significant challenge to the authority of the British House of Commons. “An assembly which does not rest on the basis of some great power in the country is ineffectual against one that does,” wrote Mill. Once the House of Lords had rested on a great power, the landed aristocracy. But the influence and authority of great landowners had waned in Britain, and so had the power of the Lords. In 1861, Mill savoured the paradox: the strength of the House of Lords lay in its weakness. Its members could enjoy their dignified perquisites, wield back-corridor influence, and even function as a chamber of sober second thought – but only so long as they posed no direct challenge to the Commons, which claimed to rest on the power of the people of Britain.15
Ultimately, Mill’s view was the view of the delegates at Quebec. Their commitment to responsible government was such that no competing interest could induce them to create a rival power to the lower house. They could accept a chamber of sober second thought. They could welcome a source of legislative ideas and suggestions. They could anticipate a place in which to reward and honour their friends. But if they permitted the upper house to acquire independent and credible authority, they would fatally undermine their deepest commitment: parliamentary democracy rooted in the responsible government achieved in the 1840s and 1850s.
Brown would explain the reasons for the appointive Senate at a public gathering a week after the conference closed. He had always opposed elective upper houses, Brown told a cheering crowd that had gathered to welcome the delegates to Toronto on their postconference tour of the Canadas, “not because I was at all afraid of popular influence, but because I felt that while the lower house controlled the government of the day and the government of the day appointed the members of the upper house, the people had full and efficient control over the public affairs. The question, I think, fairly presents itself whether two elective chambers, both representing the people and both claiming to have control over the public finances, would act together with the harmony necessary to the right working of parliamentary government.”
Brown went on: “And there is still another objection to elective councillors. The electoral divisions [in the upper house] are necessarily of enormous extent.… The difficulty of obtaining personal access to the electors, and the expense of election is so great as to banish from the house all who are not able to pay very large sums for the possession of a seat.”16
Even elected councillors could share this opinion. During the debate on confederation in the Canadian upper house, Walter McCrea would declare that “but for the elective principle having been applied to this house, I should never have had the honour of a seat within its walls,” yet he went on to rank himself “among those of the reform party who think that making the members of this house elective was a step in the wrong direction,” because it undermined the more directly representative Commons.17
This was orthodox doctrine to more than the reformers. By the 1860s, responsible government ideas were the broad middle ground of colonial politics. Clear Grits still held out, at least in principle, for elective offices at all levels – from dogcatcher to governor general. (Indeed, the old Clear Grit William McDougall later claimed that during the conference he had urged an elective Senate. If he did, the minutes failed to note it.) Some diehard ultra-tories also hoped to resist the too-democratic Commons from an upper house which would be both reliably conservative and powerful. But Brown, Tilley, McCully, Whelan and other reform delegates agreed with conservatives like John A. Macdonald, Cartier, and Tupper: parliamentary democracy was fundamental. The power of the Commons guaranteed it. An elective Senate was a threat to it.
The confederation-makers, despite all the days they spent wrangling over details of the Senate, agreed on one thing about it: it must be weak. The Senate they designed was attacked from the start as unrepresentative, unable to defend provincial interests, a retirement home for party hacks. But no one has ever successfully shown the Senate to be strong, or to pose a credible challenge to the authority of the House of Commons. That was the essential requirement of the men who designed it.*
Faith in responsible government, rather than a yen for élitist autocracy, best explains why the delegates settled on an appointive Senate. It also suggests why Charles Tupper, Leonard Tilley, and other delegates from the small provinces had not pushed harder for provincial equality in the Senate or for provincial appointment of senators. Even if its members were unelected, a Senate representing the provinces (and appointed by them) could claim to represent a “great power” – not the voters, but the provinces themselves. A Senate authorized to speak for the provinces, like an elected Senate, could have claimed the moral authority to challenge the legislative supremacy of the Commons. Maritimers like Tupper and Tilley believed in parliamentary democracy that put real political power in the lower house, more than they believed in a Senate that would be a voice for the regions. The provinces would have to be protected elsewhere.
The argument on the Senate changed relatively little at Quebec, but it confirmed how much the Canadians were running the conference. The Canadian cabinet had done most of the detailed planning for the conference. Key resolutions had been drafted, debated, and redrafted by the coalition partners in the Canadian cabinet before the meeting. When the Canadians introduced a resolution, the Maritimers usually began with spontaneous questions and random opinions, and the Canadians could respond with apparently authoritative replies based on their prior discussions. They set the agenda.
By the end of the Senate debates, it was becoming clear that the delegations from Nova Scotia and New Brunswick were willing to accept that agenda. Prince Edward Island increasingly was not. Prince Edward Island’s disgruntled isolation, exposed in the Senate arguments, was confirmed in the brief argument about the Commons that followed. On the evening of Wednesday, October 19, le tout Québec was preparing for the ball being offered that night by the speaker of the Canadian Legislative Council. But until ten that evening, the delegates themselves were in the conference room, debating George Brown’s resolution that, in the new House of Commons, “the basis of representation would be population.”
Brown’s resolution marked the triumph of his ten-year crusade for rep-by-pop, but its approval by the delegations should have been automatic. The Canadian coalition and the Charlottetown consensus had both been rooted in agreement upon rep-by-pop; there could be no confederation on any other principle. Indeed, most of the discussion that evening turned on technical details. But when the vote was taken, Prince Edward Island stood opposed. After the vote, and again on Thursday morning when Brown demanded an explanation, Heath Haviland, Edward Palmer, and Andrew Macdonald all denounced rep-by-pop. They wanted more seats in Parliament than the mere five to which the Island’s population would entitle it. Edward Whelan, staunch confederate though he was, had voted with them to swing the Island delegation against the motion.
The Island’s delegation was split. Premier Gray and Provincial Secretary Pope, both warm supporters of confederation, were embarrassed by the repudiation of the Charlottetown consensus by their cabinet colleague, Attorney-General Palmer. But Palmer had always been cool to confederation, and he was willing to rally the Island against it if it meant no power in the Senate and only five seats in the Commons. Andrew Macdonald, who perhaps still smarted from the dismissive rejection of his Senate proposal, voted with Palmer. Haviland and Whelan, who had not been in the Charlottetown sessions, were enthusiasts for confederation, but seem to have felt obliged to make a stand on rep-by-pop after the Island’s inability to gain anything on the Senate question.
“Prince Edward Island would rather be out of the confederation than consent to this motion,” said Heath Haviland bluntly, but the Islanders were abused more than cajoled. Canada East’s Alexander Galt lamented that “it would be a matter of reproach to us that the smallest colony should leave us,” but to avoid that unfortunate situation, he urged the Islanders, not the other delegates, to reconsider. And when Galt presented the financial terms of confederation in the last days of the conference, it became clear that the Canadians had reneged on the commitment that the Islanders thought they had won at Charlottetown, namely, that the new nation would provide a fund for buying out the Island’s landlords and establishing freehold tenure. For Island delegates who had seen political salvation in confederation’s promise to end landlordism, this was a disaster. It clinched George Coles’s opposition to confederation and ruined Edward Whelan’s hope of persuading Islanders to support it.18
With the Islanders virtually written out of confederation, the conference proceeded to the workings of the federal and provincial legislatures. On Thursday and Friday, October 20 and 21, John A. Macdonald moved a series of resolutions. Several were routine, but the status of the provincial lieutenant-governors provoked a revealing exchange. Would they be appointed by the Imperial government, as was the governor general? Or would the federal government appoint them? Macdonald got what he wanted, a statement that the provinces would be subordinate in this to the national government.
That great issue, the independence or subordination of the provinces, came up again on Monday, October 24, in resolutions that set out the division of powers between the provinces and the federal government. These resolutions brought in a new player, who had not been at Charlottetown and thus far had said little at Quebec. This was Oliver Mowat, an Ontario reformer who had come into the coalition government with George Brown.
Like John A. Macdonald, Mowat was a Kingston Scot of unpretentious background and large ambitions, and, like Macdonald, he had chosen law as his path upward. He had been a law student in Macdonald’s own Kingston office and might have been his partner. Instead, as Macdonald launched his political career, Mowat moved to Toronto and prospered in the arcane field of chancery litigation. “I do not see where it all came from,” he said disingenuously as he tallied up the income a decade of practice had brought him.* 19
Despite his family’s conservative connections and his own utter lack of radical passion, Mowat went into politics as a reformer. John A. Macdonald resented this betrayal by his former protégé, but Mowat seemed no great threat. Knowledgeable and useful in administrative work, he seemed too “desky” for real political success. He peered at the world through small, round glasses set on a small, round face. He was pious, a non-drinker, a dull speaker, and he lived a life of bourgeois propriety, proud to call himself a “Christian statesman.” In the rough and tumble of Canadian politics, he hardly seemed a match for the likes of John A.
Mowat, however, would one day be a political giant, the first great provincial premier of confederation. As premier of Ontario from 1872 to 1896, Mowat would virtually set the mould for provincial premiers, and he would do it by declaring loudly that the provinces mattered. Far from being minor branches with no more than municipal duties, said Mowat, the provinces were sovereign powers within confederation. “The provinces are not in any accurate sense subordinate to the Parliament of Canada,” was the way he put it. “Each body is independent and supreme within the limits of its own jurisdiction.”20
Defending the rights of provincial governments proved to be brilliant politics in Oliver Mowat’s Ontario. Premier Mowat would become (to the extent it was possible) even duller and deskier as he aged in office, but the voters of Ontario supported him every time he got into a jurisdictional fight with Ottawa. Mowat had rooted himself in the great Upper Canadian political heritage. By resisting autocratic Ottawa, he made himself the heir to the Baldwin reformers who had resisted autocratic British governors and the Brown reformers who had resisted “French domination” of Ontario under the union. Mowat never lost an Ontario election. He was premier until he went to Ottawa in 1896, age seventy-six, to be Wilfrid Laurier’s minister of justice.
Mowat’s success on the platform of provincial rights infuriated John A. Macdonald, who was Ottawa for most of the time that Mowat was Ontario. Macdonald as prime minister insisted on the supremacy of Ottawa over the provinces. He insisted that the Quebec conference had authorized the central government to dominate the provinces – and that Ottawa’s pre-eminence was crucial to the survival of the new Canadian nation. Mowat, said Macdonald furiously, “with his little soul rattling like a dried pea in a too large pod – what does he care if he wrecks confederation?”21
Donald Creighton shared Macdonald’s opinion of Oliver Mowat as a dangerous wrecker. Creighton, who was born in 1903, came to maturity in a surge of postwar nationalism in the English Canada of the 1920s. His views solidified in the 1930s, when English-Canadian constitutional scholars agreed that only a strong national government could wield the powers needed to fight the Great Depression. Impatient with provincial sensibilities or provincial rights, Creighton agreed absolutely with Macdonald that strong central government was vital to Canada – and that centralized authority had been the aim and consensus of the Quebec conference. In Creighton’s story of confederation, anti-confederates were merely misguided. Oliver Mowat was a villain.
Mowat, said Creighton, was “a remarkable combination of determination, effrontery, and legal cunning,” who knew well that his provincial-rights views “differed from – and, in fact, completely contradicted – the original conception of confederation.” Mowat may have called himself a Christian statesman, said Creighton icily, but “attacking principles which he had previously endorsed and attacking a constitution which was partly his own handiwork apparently did not cause him a moment’s concern.” Creighton even accused Mowat of attempting to falsify the memory of what happened at the Quebec conference.22
To clinch their case that the delegates at Quebec had guaranteed Ottawa’s supremacy, Donald Creighton and John A. Macdonald could cite a string of resolutions on federal and provincial powers which were debated and passed between October 20 and 25. Had not the delegates established a clear hierarchy when they agreed that lieutenant-governors would be appointed by Ottawa, while Ottawa’s governors general would be appointed by the Queen? Had they not given Ottawa the power to make laws “for the peace, welfare, and good government of the federated provinces,” as well as authority to legislate “respecting all matters of a general character” in the new nation? Had they not given to Ottawa all the great powers: trade and commerce, finance, foreign affairs, and indeed all powers not specifically listed as belonging to the provinces? Had they not, in the financial resolutions debated on Saturday, October 22, and again on October 26, given Ottawa most of the nation’s revenues and made the provinces dependent upon federal allowances (unless they were ready to move into the then-explosive matter of direct levies on property)? Above all, had they not specifically given the government in Ottawa the power to disallow any law passed in any province, for any reason or for no reason at all?23
They had. These were apparently overwhelming powers. For Donald Creighton and English-Canadian constitutional scholars of the 1960s who defined the history of the confederation process, they confirmed that the founders had decreed a national government with all the powers needed to harness and direct “the expanding energies and requirements of a potentially great nation,” as Creighton put it. He quoted John A. Macdonald’s conference speech of Monday, October 24, when Macdonald denounced proposals for stronger provinces as American in inspiration. Macdonald declared, “We should concentrate the power in the federal government and not adopt the decentralization of the United States,” and the motion he was supporting passed without opposition.24
The records of the Quebec conference contain many statements echoing Macdonald’s. The confederation-makers did want a strong central government to fulfil their nation-building ambitions. They put much stock in the British example of undivided sovereignty in a single Parliament. If they doubted, the civil war in the United States provided strong lessons about the dangers of schism in a loose federation, while the republic’s very size (and the size of its armies) suggested that only a strong, united Canada could hope to stand up against its threats and pressures.
The delegates’ commitment to strong central government was demonstrated in their reaction to the states-rights argument of New Brunswick’s Edward Chandler on October 24. Chandler, Frances Monck’s expert on the happiness of slaves, objected to giving the federal government all powers not specified as provincial. It should be the other way around, he declared, with federal powers strictly listed and the provinces acquiring all the many powers that had gone unspecified. “I am rather inclined to agree with Mr. Chandler,” said Robert Dickey of Nova Scotia. A few other delegates expressed equally qualified sympathy.25
But the attack against his proposal was overwhelming. Henry from Nova Scotia, Haviland from the Island, Chandler’s fellow New Brunswickers Johnson and Gray, and Brown from Ontario all tried to show Chandler his error. The most powerful assault came from Charles Tupper, who called federal primacy “a fundamental principle … and the basis of our deliberations,” and from John A. Macdonald. Macdonald connected Chandler’s proposal to its origins in the United States, where, he said, the principle that “every man sticks to his individual state” had led to civil war. “It would be introducing a source of radical weakness,” cried Macdonald, winding up a long speech. “It would ruin us in the eyes of the civilized world.” Chandler was routed, left vainly protesting that his plan was “not precisely the same” as in the United States.26
Oliver Mowat said not a word in support of Chandler’s lonely fight for provincial rights. In fact, the resolution Chandler was attacking was Mowat’s own. It was Oliver Mowat himself who had introduced the essential resolutions on federal and provincial powers, and he had certainly helped draft them. At least since Creighton wrote his confederation histories, the case that Oliver Mowat accepted a dominant federal government at Quebec, only to renege on this fundamental principle of confederation when he became premier of Ontario, has seemed damning.
Yet Mowat, in his own defence, might wish to emphasize elements of his Quebec resolutions that the historians of the 1960s minimized. First among these was the list of powers granted to the provinces. By its terms, provincial governments won exclusive authority over education, hospitals, and charities. They would control the public lands and the income from them, and govern all matters of property and civil rights. They could levy direct taxation, which in the context of the 1860s essentially meant putting taxes on property. They would have full authority to create and supervise municipal institutions. They would run the prisons, the police forces, and the administration of justice. They would have authority over the whole sphere of what Mowat initially called “private and local” matters and which in the final draft became “generally all matters of a private or local nature.”
These were broad and substantial powers. From Canada West to the Maritimes, in fact, there was a significant caucus committed to preserving substantial provincial authority – even as it acknowledged the need for strong central authority. Leonard Tilley would later argue that eleven of every twelve laws he had seen passed in New Brunswick before confederation were in fields that would remain within its powers after confederation. What Ottawa had acquired, he implied, were Imperial powers transferred from London, rather than local powers removed from the provinces. George-Étienne Cartier hardly needed to say that French Quebec could never join a nation dominated by Protestant anglophones unless its local government had the powers to protect the vital institutions of francophone society. And Brown’s reformers had long wanted to get Upper Canada free of the union to run more of its own affairs through a legislature “beyond the control of the central power, set apart from it, untouchable by it” (as Brown’s Globe had put it just as the Charlottetown conference opened). Even John A. Macdonald concurred. When it was suggested the federal government might “sweep away” the provinces, he told the conference, “This is just what we do not want. Lower Canada and the lower provinces would not have such a thing.”27
There were, nevertheless, those crushing federal powers of reservation and disallowance in Mowat’s own resolutions, which transferred London’s Imperial authority to Ottawa and expressed the yearning of many delegates for a single, clear focus of constitutional authority in the new nation. They allowed Ottawa to delay or simply to nullify any piece of provincial legislation whenever it chose. Reservation and disallowance seemed to give the federal government a sledgehammer against the provinces.
Mowat did not confront disallowance and reservation directly at the conference. He may, however, have schemed to undermine them in the drafting of them. John A. Macdonald said of his own constitutional drafting at Quebec, “I must do it all alone, as there is not one person connected with the government who has the slightest idea of the nature of the work.” But Mowat was an expert in administrative law, abundantly qualified for legal drafting, and a friend described him as the delegate chiefly responsible for putting the Quebec decisions “into constitutional and legal shape.” At least part of what Macdonald had to do himself, perhaps, was wield a restraining hand upon Mowat’s drafts.28
With Macdonald looking over his shoulder, if not actually holding the pen, the final draft of Mowat’s resolution on the division of powers was something he described late in his life “only as the best practicable in view of the different interests and sentiments of the members of the conference and those they represented.” His first version, he claimed, had been much more explicit about the equality of the federal and provincial governments. But changing some words did not necessarily mean yielding on the principle. For Creighton was right: Mowat was cunning. He was a skilled and very successful lawyer, who almost certainly considered himself a better lawyer than John A. Macdonald. If the conference was reluctant to oppose directly the idea of a supreme national government, Mowat could try to build in restraining principles that he drew from his legal specialty, the law of chancery.29
The jurisdiction of the common-law courts and the jurisdiction of the chancery court were separate territories of English and Canadian law until they were merged late in the nineteenth century. (As premier and attorney-general of Ontario, Oliver Mowat supervised their merger in his province.) Common-law judgments were bound by the letter of the law and by strict judicial precedent. The chancery court, on the other hand, left scope to consider natural justice and to apply “equitable principles,” if strict application of the black-letter law would lead to an injustice. It was the subtle challenges of working out and applying these equitable principles that made chancery procedures so slow, so intellectually satisfying, and so lucrative for practitioners like Mowat. When he was a judge, one of Mowat’s critics called him an “equity fanatic,” always ready to overthrow a common-law rule or a legislative statute on some principle of natural justice. Today, he might be called a judicial activist.30
From his successes in chancery, Mowat understood how principles of natural justice could modify the constitution the delegates were drafting. He was well placed to calculate that, in passing their resolutions, the Quebec delegates were embedding in them equitable principles strong enough to challenge the rule of disallowance. The black letter of the disallowance clause, he could have calculated, might one day be exploded by the deeper principles of responsible government.
During the Quebec conference’s discussions of provincial powers, Nova Scotian reformer Jonathan McCully declared that the provinces must be “miniature responsible governments.” Seizing on this phrase, Donald Creighton emphasized the word “miniature,” as if McCully had wanted to underline the minor and dependent status of the provinces. But the part of McCully’s phrase that must have echoed around the conference table was “responsible government.” In the political context of the 1860s, responsible government – rule by a government that answered to a popularly elected legislature – was the fundamental shield of the rights of British North Americans. It was a sacred thing.31
Creighton was ill-placed to ponder what “responsible government” meant to the delegates. The defining moment of his historical career had come when he grew bored with the colony-to-nation history of Canada that limped from Robert “Responsible-Government” Baldwin through a tedious series of constitutional abstractions towards the national independence of Canada. Creighton brilliantly shifted the emphasis away from reform-minded advocates of colonial self-determination. He directed attention to the tory entrepreneurs and politicians who transformed the commercial empire of the St. Lawrence into the continent-spanning Dominion of Canada. Reform obsessions had been sidelined in the 1860s, Creighton argued. In confederation, he saw the strategic calculation and nation-building vision of John A. Macdonald. Creighton had no more patience for reform soliloquies on responsible government than for reform arguments that the reason to appoint senators was not to make them dignified and aristocratic (as conservatives suggested), but to make sure the Senate was toothless.
But even the tory nation-builders stood squarely on reform foundations. By the 1860s, the political culture of the colonies made it almost impossible to justify outside interference with a responsible government. In law, the Colonial Office’s authority over British North America was absolute. The achievement of responsible government in the 1840s and 1850s, however, had made it unacceptable for London to interfere arbitrarily with the internal affairs of the colonies in any but rare and extreme cases. When the British cabinet overruled Prince Edward Island’s attempt to legislate an end to landlordism, Edward Whelan had called London’s interference “degrading and humiliating” and “a species of despotism that strikes at the root of one of our most valued privileges – that of self-government.” Such things would never happen in Canada, Nova Scotia, or New Brunswick, Whelan said bitterly.32
Indeed, governments throughout British North America had largely defanged London’s ability to control local politics. In the debate on confederation, one veteran politician said London had not disallowed a Canadian law in twenty-five years. When a colleague cited one lone example, he retorted, “in that case we got our own way in effect directly afterwards.” Reformer or tory, no British North American politicians were willing to have their legislatures dictated to by London on local matters where local voters insisted they must be heard. It was being answerable to their own electorates that enabled confederation-era politicians to delegitimize interference from London, even as they proclaimed themselves loyal subjects of the Queen.33
If there was a Machiavellian brilliance in Oliver Mowat’s work at Quebec, it lay in perceiving that what had reduced London’s Imperial power to ceremonial trappings (of the sort so bitterly resented by New Brunswick’s Arthur Gordon) would just as effectively undermine the powers Ottawa might one day claim to find in the Quebec resolutions. If the provinces were responsible governments answerable to their own electorates, Ottawa would find itself unable to interfere with them in their allocated spheres, just as London already had.
The power of disallowance was plainly there in the Quebec resolutions. But if Ottawa tried to disallow what a provincial government had enacted, it would be interfering in the action of a government responsible to its own local electorate. By attempting to negate the will of the voters, Ottawa would instantly become the old Family Compact, the autocratic appointed governor, the interfering Colonial Office of the bad old days. It would be wrong in politics, and it would be contrary to natural justice.
It may have been Mowat’s guess, as he and Macdonald drafted division-of-powers resolutions for the conference, that the crucial item in the deliberations, then, was the unequivocal agreement that the provinces, miniature or not, were responsible governments. Though George Brown, who should have been a reliable supporter of Ontario’s determination to control its own affairs, had said in his newspaper that “a responsible ministry in each province would certainly not be the cheapest system which could be adopted,” the provinces’ status as responsible governments was clearly understood at Quebec. In fact, the principle was confirmed in the resolutions that John A. Macdonald had himself introduced.34
In the battle of the draftsmen in the Canadian delegation at Quebec, John A. Macdonald put his faith in disallowance and other federal powers he had had written into the resolutions. He believed that, armed with them, “the central power must win in the long run. My own opinion is that the general government or parliament should pay no more regard to the status or position of the local governments” than they would to municipal corporations. Mowat may have reasoned, however, that responsible governments were sacred in mid-nineteenth-century Canada, and that the principles of natural justice to which he had devoted his legal career would secure the rights of the provinces’ responsible governments against Macdonald’s black-letter rules of disallowance.35
By the late stages of the Quebec conference, Macdonald may have been growing aware of Mowat as a threat, for he paid him the compliment of getting rid of him. One of Canada West’s three chancery judges died in Toronto on the very day that Mowat was introducing at Quebec his crucial resolutions on the respective powers of the federal and provincial governments. Macdonald was the attorney-general for Canada West and, to the chagrin of several conservative allies who were angling for the appointment, he offered it to his Grit rival Mowat.
This rare offer – there were only three seats on the chancery bench in Canada West, all life appointments – was irresistible to a dedicated counsel like Mowat, particularly considering the minor role politics seemed to offer him. He accepted the judicial appointment. As a judge, he could not participate in the debates that followed the conference, and for years he offered no views about the terms of confederation. As a result, the reform-based, provincial-rights interpretation he would have been uniquely able to present was almost entirely unspoken in English Canada. As the confederation battles were fought, as the Dominion of Canada came into being, and as John A. Macdonald and his view of confederation came to dominate national politics, Mowat would spend eight quiet years as a judge in Toronto.
In October 1872, Mowat would leave the bench in spectacular fashion, shedding his chancery robes to assume the premiership of Ontario. Prime Minister Macdonald was by then making frequent and enthusiastic use of the disallowance powers granted to the federal government in the British North America Act. Mowat almost at once confronted him. The conflict that had been buried in the backrooms of the Quebec conference became one of the great constitutional struggles of Canadian history.
The judicial war Mowat and Macdonald would fight between 1878 and the 1890s involved a long series of cases about provincial authority and the right of Ottawa to override provincial law. In 1880, John Wellington Gwynne of the new Supreme Court of Canada gave Macdonald just the verdict the prime minister wanted. “The Dominion of Canada is constituted a quasi-Imperial power,” he ruled “… while the provincial governments are, as it were, carved out of, and subordinated to, the Dominion.… Nothing can be plainer … than that the several provinces are subordinate to the Dominion government.”36
Mowat would have none of this. “I claim for the provinces the largest power which they can be given,” he told the Ontario legislature in 1882. “It is the spirit of the B.N.A. Act and it is the spirit under which confederation was agreed to. If there was one point which all parties agreed upon, it was that all local powers should be left to the provinces and that all powers previously possessed by the local legislatures should be continued unless expressly repealed by the B.N.A. act.… The provinces are not in any accurate sense subordinate to the Parliament of Canada; each body is independent and supreme within the limits of its own jurisdiction.” 37
Defending Ontario against Ottawa’s interference made good politics in the late nineteenth century. Indeed, it revived the crusading fervour of the old Ontario reform tradition. The lawyer and journalist David Mills, who would one day succeed Mowat as federal minister of justice under Wilfrid Laurier, denounced Macdonald’s use of the power of disallowance as “war upon responsible government.” Macdonald’s cabinet was a “Star Chamber,” he wrote, and it was attempting to impose an autocratic and tyrannical power upon the free people of Ontario. Macdonald himself was a new King James II – significantly, James was the monarch deposed in the Glorious Revolution of 1688, when the triumph of Parliament over autocratic monarchy was confirmed in England.38
John A. Macdonald’s attempts to use federal power simply strengthened Mowat’s hold on Ontario. Since every quarrel with Ottawa increased his popularity at home, Mowat did not flinch from rhetoric as inflamed as Mills’s. “Confederation was well worth maintaining if the constitution was faithfully administered,” he told the Ontario legislature in 1882. “But if [the provinces’] power of passing laws within their own legitimate sphere was to be subject to the whim of a minister or ministers at Ottawa, … then it was not worth maintaining.”39
Mowat did not need to pursue this separatist threat seriously. He had one more constitutional court to which he could appeal. In the 1880s (until 1950, in fact), Supreme Court of Canada judgments could be appealed to an Imperial tribunal, the Judicial Committee of the Privy Council (which sometimes included judges from Canada and other Commonwealth nations, but which sat in London). At the Privy Council, Mowat won a string of resounding victories that killed the federal power of disallowance and permanently established the provinces as powerful partners in confederation. “The object of the [British North America] act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority,” said the Privy Council in 1892. At last, Mowat had someone reading the provincial-powers clauses of the British North America Act the way he thought he had drafted them in 1864. “In so far as regards those matters which by section 92 are specially reserved for provincial legislation, the legislation of each province continues to be free from the control of the Dominion, and as supreme as it was before the passing of the act.”40
The privy councillors had decreed that, whatever the British North America Act said about disallowance, interference with the workings of a responsible government in its own sphere was fundamentally unjust. The words remained unchanged, but Ottawa lost the power of disallowance, much as the Colonial Office had lost it with the coming of responsible government. The equitable principles of interpretation upon which Mowat had built his legal career had triumphed over the black-letter rules in which Macdonald had put his trust.
At the end of the Quebec conference, with his baggage gone and the train waiting, George Brown scribbled a note to his wife. “You will say our constitution is dreadfully tory – and it is – but we have the power in our hands (if it passes) to change it as we like. Hurrah!” This has always seemed a poignantly sad prediction. Brown’s party would be out of power in Ottawa for most of the rest of the century, and the constitution drafted at Quebec largely resisted formal amendment for more than a hundred years. But perhaps at some point during the conference, Brown had had Mowat at his elbow, Mowat with his enigmatic smile and his equity-lawyer mind, hinting that Canada West would find the federal government’s big guns as easy to discredit as the autocratic rule of the bad old days before responsible government.41
The Mowat resolutions on the division of powers and Alexander Galt’s financial resolution were the last large issues of the Quebec conference. Galt’s financial proposals were another demonstration of the Canadians’ control of the Quebec agenda. Mowat’s resolutions had confirmed that the provinces would receive the revenues of their Crown lands and would be entitled to levy direct taxes. But direct taxes were almost unknown and much feared in the 1860s. (George Brown, who took his free-trade principles seriously, was rare in his eagerness to see direct taxation of property replace customs tariffs as a main source of public revenue). On the whole, the financial terms gave blunt evidence of Canadian primacy. Although the Maritime provinces had substantial net assets and the Canadas substantial liabilities, Galt’s resolution transferred to the federal government most of the assets and liabilities of the old provinces. The federal government would also acquire control of customs duties and tariffs, though the sea-trading Maritimes needed low tariffs much more than the revenue-hungry Canadas did.
Had these fiscal proposals been introduced at the start of the conference, they might have launched intense, even fatal, disagreement. Even in the last days, with confederation almost a fait accompli, the financial terms provoked hard bargaining. Soon after Galt introduced them on Saturday, October 22, they were handed over to a committee for further work. When the committee members – Galt and Brown for Canada, Tilley, Tupper, Pope, and Shea for the four Atlantic delegations – returned on Wednesday, they proposed new details but no fundamental change. Tilley, who had an eye for a balance sheet, had secured for New Brunswick a special grant of $63,000 a year for ten years. Tupper, less preoccupied with monetary details, got nothing similar for Nova Scotia. As part of the bargaining, the delegates had also agreed on a railway from Quebec to Halifax – considered a boon to the Maritimes and particularly to Halifax, but long viewed sceptically by Upper Canadians. Prince Edward Island, perhaps to teach it a lesson about the perils of resisting the Canadians on so many issues, got nothing for its land problem.
The conference wound up at Quebec on Thursday, October 27. A ceremonial tour of the Canadas followed. Some delegates left for Montreal on the afternoon train, but the key ones spent most of the day in a desperate scramble to get the resolutions into coherent form and caught the night train at 9:00 p.m.
What they had produced in their sixteen days of arguing and voting was a strikingly utilitarian document. There is no poetry in the Quebec resolutions. The colonists had addressed the philosophical questions of government in the responsible-government struggles two decades earlier. They treated their constitution as a machine for running governments, and their resolutions were almost entirely about governmental mechanics. Explosive issues of language, religion, ethnicity, and national identity were not ignored, but they were left almost entirely unstated in the text.
“Since they had entered the province of Canada,” reflected Nova Scotia delegate Robert Dickey about the experiences of the Quebec delegates, “the managers of railways had contributed in a very great degree to their pleasure, comfort, and accommodation.” The railwaymen, who understood exactly what the new nation could mean for railway development, had been keeping in touch at the St. Louis Hotel throughout the conference.42 When it ended, they were happy to lay on special trains to take the delegates wherever they chose to go. After Charlottetown, the delegates had gone on to Halifax, Saint John, and Fredericton, giving speeches and promoting their new proposal everywhere. Now the railways would speed the Quebec delegations through the Canadas. In their last official session, held at the St. Lawrence Hotel in Montreal on Saturday, October 29, the delegates formally adjourned the Quebec conference, and the Charlottetown conference too, at least until Maritime union returned to the political agenda. Then it was more speeches, more dinners, more champagne.
The weather at Montreal was as bad as at Quebec, and a military review and fireworks display in honour of the delegates was cancelled, but there was another lavish ball. At a six-hour luncheon the next day, the delegates described their agreement to a large and enthusiastic crowd. Then they and their families went by Ottawa River steamer to Ottawa. They dined in the spectacular new parliament buildings, still under construction. Then, in a few whirlwind days on the railways, they visited Prescott, Kingston, Belleville, Cobourg, Toronto, Hamilton, and even Niagara Falls. Conference secretary Hewitt Bernard refused to give in to the agonies of gout, but John A. Macdonald succumbed to drink at Ottawa. Mercy Coles, having the time of her life, was much more forgiving of him than she had been of D’Arcy McGee two weeks earlier. At each town, there were tours and civic receptions, and even George Coles and Edward Palmer were persuaded to say kind things about confederation – which they were later to regret.
The very brief stop at Cobourg was made mainly to gratify the local delegate, James Cockburn, a loyal supporter of Macdonald, who, so far as the record shows, had said not a single word throughout the conference. But the tour was acutely political, too, for the decisions of Quebec still had to be ratified. The men of the confederation conferences were merely delegates, with no power to bind their respective provinces. The Quebec resolutions were merely their proposals, and would lack all official standing until given legislative approval. “I should see no objection to any consultation on the subject amongst the leading members of the governments concerned,” the colonial secretary had instructed the colonies in 1862, “but whatever the result of such consultation might be, the most satisfactory mode of testing the opinion of the people of British North America would probably be by means of resolution or address proposed in the legislature of each province by its own government.” Only the legislatures could grant legitimacy to the Quebec resolutions.43
The delegations at Quebec represented the cabinets of all five provinces, as well as three of the four political parties of the united Canadas and both leading parties in each of the Atlantic provinces. From the perspective of the late twentieth century, when the functions of Canadian legislatures had become largely ceremonial, it was difficult to imagine that legislative approval of the Quebec resolutions would have been more than a formality. In the 1860s, however, no legislature could be taken for granted. To get their plan through, the delegates had to begin to seek public approval as part of the campaign to win legislative approval.
So the grand tour of the Quebec delegations coincided with a flood of press coverage in newspapers controlled by the delegates – and in the hostile press as well. The resolutions, and commentary on them, were soon published throughout British North America. So were the speeches the delegates made to public meetings at all the stops on their tour. Their opponents were soon organizing counter-demonstrations, but for a time the confederation delegates had a clear advantage. The largest of their post-Quebec public meetings was in Toronto, late at night on Thursday, November 3. With Mercy Coles watching from her window at the Queen’s Hotel on Front Street, Tupper, Tilley, and Toronto’s own hero of the hour, George Brown, stood on a gallery just beneath her and spoke to five thousand cheering citizens.
That was almost the end. The festive excursion to Niagara Falls was the last gathering of the personnel of the great confederation conference. When her family parted from the others after a visit to the falls (“I can’t, it is quite impossible to describe them. They far exceeded anything I ever expected to see”), Mercy Coles was grief-stricken.44 It was time for the delegates to face the reactions back home.
* At Quebec, the delegates spoke of a “legislative council,” not a Senate. Throughout, I use the name that was adopted later.
* Only in the 1980s did the appointive Senate begin to challenge the authority of the Commons by rejecting important measures that were thought to lack popular support. It was able to justify its actions only because the Commons was widely held to have forfeited its own traditional role as an independent check on arbitrary government.
* One of his fellow practitioners was more explicit. “That’s the business I like,” said Skeffington Connor about chancery law, “the pace dignified and slow, the pay handsome, and a gentlemanly understanding among practitioners to make it handsomer.”