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Sir John A MacDonald
Provincial Rights

MACDONALD'S preference for a legislative rather than a federal union was strongly put forward at the Quebec conference. In submitting the result of that conference to the parliament of the old provinces of Canada in 1865 he stated it anew. "As regards the comparative advantage of a legislative and a federal union, I have never hesitated to state my own opinions. I have again and again stated in the House that, if practicable, I thought a legislative union would be preferable. I have always contended that if we could agree to have one government and one parliament legislating for the whole of these peoples, it would be the best, the cheapest, the most vigorous, and the strongest system of government we could adopt." The explicit way in which he at the same time publicly announced his conviction, as the result of the conference, that a legislative union was impracticable, and that he yielded his own judgment to the general opinion, renders quite incredible the statement made with some hesitation by the biographer of Sir Georges Cartier that Macdonald again tried during the negotiations of 1866-7 in London to modify to this end the British North America Act, and was only prevented from doing so by the resolute opposition of Cartier.

But the original bias of his mind on this question, so frankly expressed, explains the fact that his general inclination in interpreting the constitution and in working the machinery of government, was to limit as far as possible the area of provincial rights, and to concentrate control in the hands of the general government. The assertion of State sovereignty had lately led on to secession in the United States, and the union had only been maintained at the price of one of the most frightful wars of modern times. He therefore strove conscientiously to save the Dominion from a danger written so large in contemporary history. More than once he failed to carry out his views, and it may well be that he exaggerated the danger and made too little allowance for other considerations. Provincial patriotism was enlisted in vigorous opposition to what sometimes looked like federal aggression, and more than once his purpose was overruled.. It may fairly be claimed that his prevailing motive was a larger patriotism which aimed at national consolidation. It is yet too soon to form a final judgment of his policy on this difficult question. Time and experience alone can decide whether the advocate of centralized strength or those who championed local independence most contributed to the permanent good of his country. We may hope that Canada has found the golden mean between conflicting ideas. Fortunately our empire offers opportunities to carry out political experiments on varying lines and on a great scale. Under the federal system adopted by Australia the importance and independence given to the individual State furnish a strong contrast to the ideas which prevailed in Macdonald's mind. In the southern commonwealth by general admission they have, so far, distinctly militated against the efficiency of the general government, and also against the sense of national unity. It remains to be proved whether counterbalancing advantages have been gained.

In the process of harmonizing federal and provincial rights, constitutional points of delicacy and difficulty arose, and in dealing with them it can scarcely be said that Macdonald did not sometimes allow party considerations to influence his better judgment.

In December, 1876, the Hon. Luc Letellier de St. Just, a senator of the Dominion, and an exceedingly active Liberal politician, was appointed by the Mackenzie administration lieutenant-governor of the province of Quebec, at that time under the control of a Conservative majority and ministry in the local legislature. The relations of the lieutenant-governor and his advisers were from the first marked by mutual distrust, and finally resulted in a quarrel which grew more and more bitter as time went on. The climax was reached when an important measure was passed through the legislature without having been previously submitted to the governor, and proclamations over his signature were issued with which his first acquaintance was made on their appearance in print. Angered at these gross breaches of courtesy M. Letellier abruptly dismissed the ministry on the ground that they had acted "contrary to the rights and prerogatives of the Crown." The act was probably only that of a high-spirited, impulsive man, irritated beyond endurance by the unseemly conduct of his ministers. But it was not difficult for opponents to believe that the dismissal of ministers possessing a majority in the legislature, the formation of a new administration, and the dissolution which followed, resulting in the return of a small Liberal majority, were all measures carried out as moves in the party game, since the control of the local legislature might considerably influence the coming Dominion election.

In bringing the matter before parliament 1MTacdonald, then in Opposition, did so on high constitutional ground in a resolution which affirmed that "the recent dismissal by the lieutenant-governor of Quebec of his ministers was, under the circumstances, unwise and subversive of the position accorded to advisers of the Crown since the concession of the principle of responsible government to the British North American colonies." This proposition was maintained in a moderate and powerful speech in which he quoted a long array of precedents from British and colonial history to prove "the principle that so long as the ministry of the day have the confidence of the people they should have the confidence of the Crown." The resolution introduced by Macdonald was voted down in the Commons by Mr. Mackenzie and his Liberal majority, chiefly on the ground that the intervention of the Dominion parliament in the case would amount to interference with provincial autonomy. A corresponding motion was, however, carried in the senate. Meanwhile M. Joly de Lotbiniere, the Liberal leader, who had assumed full responsibility for the action of the lieutenant-governor, was sustained in the provincial election by a majority of one, so that the lieutenant-governor could claim a nominal popular endorsement for his action, and also could shelter himself under the principle which Macdonald had upheld. At the ensuing session of parliament, when the Conservatives were again in power, the motion of censure was renewed by a French Conservative member in precisely the same terms as had been used by Macdonald, and was carried by a large majority. Such a vote of censure by the federal parliament necessarily involved the dismissal of the lieutenant-governor, and advice to this effect was tendered by Sir John and his cabinet to the governor-general, the Marquis of Lorne, whose approval was necessary for executive action. His Excellency considered the constitutional point of such significance and delicacy that he deemed it expedient to submit the advice of his council and the whole case with attendant circumstances, to Her Majesty's government for their consideration and instruction. In doing so he observed that the federal system being unknown in Great Britain and her colonies till introduced by the British North America Act of 1867, there were no precedents to serve as guidance in the case, which was of special importance as involving the future relations between the Dominion and provincial governments so far as the office of lieutenant-governor was concerned.

A great outcry followed from the Quebec Conservatives and other extremists of the party at this "subversion of the principles of responsible government" on the part of the governor-general, in reserving for imperial consideration a case in which ministers had given definite advice and in which imperial interests were not concerned. Macdonald defended the constitutionality of the governor-general's course, but at the same time said, "I would have been pleased and gratified, and I think it would have been well, had our advice been at once accepted."

The home government very prudently declined to interfere, and on July 25th, 1879, Letellier was dismissed from office. Broken in health from the anxieties through which he had passed, he died in the following year.

As the province of Quebec had, though only by a small majority, sustained the action of the lieutenant-governor, his dismissal by the federal cabinet seems high-handed and unwarranted, and as the reference to the home government was with the consent of Macdonald and his colleagues, and probably at their suggestion, they should have vigorously defended the governor-general from any aspersions cast upon him. There is reason to believe that Macdonald privately disapproved of the bitterness of his Quebec followers, but hesitated to thwart them, and thought it necessary to sacrifice Letellier to their demands. It was perhaps one of those cases of which he himself said, "There are often times when I do things which are against my conscience, and which I know are wrong; but if I did not make allowance for the weakness of human nature, my party would turn me out of power, and those who took my place would manage things worse." But to assume that others will do worse, as an excuse for doing ill, is to take dangerous moral ground, however it may be regarded from the standpoint of politics.

While to Macdonald it was as much a matter of preference as of interpretation of the constitution to limit, so far as he legally and rightly could, the powers of the provincial legislatures, which he looked upon as a hindrance to his ideal of a united Dominion, there were others who took a widely different view. Foremost among these was the Hon. (afterwards Sir) Oliver Mowat. Under his direction the province of Ontario maintained a long and obstinate contest with the federal government, ending in a victory for the provincial point of view, and in almost the only serious constitutional defeat that Macdonald ever suffered. Oliver Mowat had been one of the three Reformers in the coalition ministry of 1864, and had resigned in the same year to accept the position of vice-chancellor of Upper Canada. Now, after eight years of service on the bench, he reentered political life to become premier of Ontario and leader of the Liberal party in that province in succession to the Hon. Edward Blake, who had withdrawn from the local legislature on the passing of a bill abolishing dual representation, in other words, the right previously enjoyed by members of the Dominion parliament of being elected also to the provincial legislature.

Mr. Mowat had in early years been an articled clerk in the law office of Macdonald in Kingston, and, in spite of political differences, retained both affection and regard for his old chief. Though the current of Canadian politics had led him to identify himself with the Liberals, his mind was essentially that of a Scottish Conservative, thrifty, honest, and cautious almost to excess. His administrative ideals were those of the economical John Sandfield Macdonald; but he was also a keen and sagacious constitutional lawyer, and during his long premiership of twenty-four years did more than anyone else to settle the relations of the province to the Dominion. The quarrel was in no sense personal, though the keenness of the political struggle sometimes gave it that appearance. As a matter of fact several of Mr. Mowat's contests on behalf of his native province were waged against the Liberal administration of Alexander Mackenzie. In one of these, arising out of a protest made against the validity of an Act passed by the Ontario legislature "to amend the law respecting the sale of fermented or spirituous liquors," principles were laid down in 1883 by the judicial committee of the Privy Council which in their bearing on the status of the provincial legislatures were of the very highest importance. Their Lordships held that the local legislatures were "in no sense delegates of, or acting under, any mandate from the imperial parliament. When the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the province, and for provincial purposes in relation to matters enumerated in section ninety-two of the British North America Act, it conferred powers not in any sense to be exercised in delegation from, or as agents of, the imperial parliament, but authority as plenary and as ampleŚwithin the limits presented by section ninety-twoŚas the imperial parliament in the plentitude of its powers possessed or could bestow. Within these limits of subject and area the local legislature is supreme, and it has the same authority as the imperial parliament or the parliament of the Dominion would have had under like circumstances." In this view Sir John Macdonald's minister of justice, the Hon. John S. D. Thompson, afterwards concurred, and it may now be regarded as established.

The most important dispute of all, that about the boundaries of Ontario, began as far back as 1871, when Sir John Macdonald at Ottawa, and Sandfield Macdonald at Toronto, appointed, by friendly agreement, commissioners to define the northern and western boundary of that province.

Soon after a Reform government came into power in Ontario, and Macdonald instructed the Dominion commissioner to claim as the northern boundary the height of land dividing the waters which flow into Hudson Bay from those emptying into the valley of the Great Lakes, and in the west a line to coincide with 89░, 9', 30" w. longitude. Had this view been adopted, the area of the province would have been one hundred and sixteen thousand seven hundred and eighty-two square miles, and its western limit would have been fixed at six and one-half miles east of Port Arthur.

On the refusal of the provincial premier to accede to this arrangement Macdonald proposed an appeal to the judicial committee of the Privy Council, but Mr. Blake, while not absolutely refusing this offer, preferred a commission sitting on this side of the Atlantic. Under the Liberal regime at Ottawa, a reference to arbitration was arranged, and Sir Francis Hincks was appointed by the Dominion, Chief-Justice R. A. Harrison by the province, and Sir Edward Thornton, G.C.B., British minister at Washington, by the two other arbiters, to decide the dispute. By their unanimous award made in 1878 the western boundary was placed at 95░, 14', 38" w. longitude, and the northern was determined to run along the line of lakes and rivers far north of the height of land connecting the Winnipeg River with the mouth of the Albany River in James Bay. By this award the area of the province was increased from one hundred and sixteen thousand seven hundred and eighty-two square miles to two hundred and sixty thousand eight hundred and sixty-two.

On Macdonald's return to power a few months later he refused to accept this award, and, assuming federal rights over the disputed territory, he proceeded to grant Dominion licenses to cut timber therein, almost wholly, it was asserted, to supporters of the Conservative party. In addition to his general wish to curtail the powers of the local legislatures, and to secure for the Dominion such a source of revenue as the Crown lands, he probably desired to fight with their own weapons the government of Ontario, which had in 1878 thrown the whole weight of its influence and patronage into the scale against him. Moreover the dispute stirred up anew the long existing rivalry between Ontario and Quebec, the latter objecting strongly to so great an aggrandizement of Ontario without the grant of some equivalent for herself. In making this general statement an exception should be recorded in the attitude of Sir Wilfrid (then Mr.) Laurier, who had succeeded to the Liberal leadership in parliament, and who in that position courageously faced the opinion of his own province in supporting Ontario's claims based on the results of the arbitration.

In 1881 a new factor appeared. The province of Manitoba passed an Act consenting, as was necessary under the British North America Act, to the proposed eastward extension of its bounday, when defined by federal authority. This was doubtless done at the suggestion of the Ottawa government, which soon after had a bill passed assigning the additional territory to Manitoba. This preference of Manitoba to Ontario is explained by the fact that in the older provinces the Crown lands are under the control of the local government, whereas in the Prairie Province, created by Macdonald in 1870, they are under federal administration. Mowat suggested an appeal to the Privy Council, but it was now Macdonald's turn to haggle, and he did so with great ingenuity, suggesting a reference to the Supreme Court of Canada, or that some great English legal luminary, such as Lord Cairns, should be invited to act as sole arbiter. In 1883 both provinces endeavoured to take possession of the disputed territory.

The Ontario district of Algoma and the Manitoba constituency of Varennes overlapped, and on September 28th each elected a member to their respective legislatures. At intervals during the summer, encounters more or less serious took place around Rat Portage. The Manitoba police arrested an Ontario tavern-keeper and were themselves arrested by the constables of Ontario. Such a condition of affairs was ludicrous and intolerable, and in the next year the governments of Manitoba and Ontario agreed on a special case, which was tried in July, 1884, before the judicial committee of the Privy Council. To this course the federal government agreed, "so far as it related to the definition of the westerly boundary of Ontario, but not so far as it related to the title to the lands thereby brought into question." After a vast display on both sides of historical, topographical and legal knowledge, the case was decided in favour of Ontario and the award of the arbiters of 1878 practically confirmed. On August 11th, 1884, this decision was ratified by an imperial order-in-council.

Macdonald was not yet beaten. He had expressly reserved the question of the proprietary right to these lands, and in 1882 had assured a Toronto audience that "even if all the territory Mr. Mowat asks for were awarded to Ontario, there is not one stick of timber, one acre of land, or one lump of lead, iron or coal that does not belong to the Dominion government." This rather wildly expressed opinion he based on the ground that the lands were Indian lands, conveyed by them to the Crown. Finally a test case was argued in July, 1888, before the Privy Council, and decided in favour of Ontario, on the ground that the title to the land was "vested in the Crown at the time of the union; the Indian title was a mere incumbrance or burden." In each instance Mowat pleaded his own case with skill and erudition, and vanquished the foremost constitutional lawyers of the Conservative party. He was powerfully helped by the views on federal government and administration held by Lord Watson, whose masterful mind was at that time supreme on the judicial committee. But nothing more conclusively shows the relative greatness in Canadian politics of Sir John Macdonald than that a struggle which marks a culminating point in the career of Sir Oliver Mowat is in his but an incident, and defeat, even on so large a question, a matter of secondary importance. As it turned out his original insistence upon an appeal to the judicial committee of the Privy Council ultimately prevailed.

Connected with this question of provincial rights is the Franchise Act of 1885. By section forty-one of the British North America Act the provincial lists of voters were to be used until the federal parliament saw fit to take further action. While the qualifications demanded differed slightly in the various provinces, and while several attempts at unification were made, no serious difficulty arose, and it was not till 1885 that Macdonald resolved to establish a uniform suffrage. As he wrote to Lord Carnarvon, "The provinces had begun to tinker at their electoral franchises, and in some cases legislated with the direct object of affecting returns of the federal parliament, so that the independence of that parliament was threatened to such a degree that it had to be dealt with."

In consequence, a bill was introduced, the chief provisions of which were: (1) uniformity of the suffrage; (2) a property qualification; (3) federal officers for the preparation and revision of voters' lists; (4) enfranchisement of Indians with the necessary property qualifications. To the enfranchisement of single women (with the necessary property qualifications) he avowed himself personally favourable, but he did not introduce it into the bill. The Opposition believed, not altogether without reason, that the measure was aimed at them, and fought desperately, denouncing the bill as expensive, unnecessary, an assault on provincial rights, and an attempt through the appointment of revising officers to exert underhand influence upon the compilation of the lists. That these officers would be willing instruments of wrongdoing, appeared to many critics of the bill to be a natural, if not necessary, assumptions. Violent scenes took place in the House and a policy of obstruction was deliberately adopted. Twenty-five divisions occurred during a single sitting. Some members of the Opposition spoke more than twenty times, and at inordinate length. One member read to the Speaker the whole British North America Act in French. A single session lasted from three p.m. on Thursday till midnight on Saturday. Eventually the bill was passed, by a vote of eighty-seven to thirty-eight, though not without important amendments, the property qualification being lowered, and the enfranchisement of the Indians of Manitoba, British Columbia, and the North-West Territories abandoned.

Though the bill was one on which Macdonald set great store and which he may almost be said to have forced upon his party, it was not wholly a success. The revising officers in nearly all cases did their work fairly and well, and little if any injustice was done to the Liberals. But it proved expensive and cumbrous, and many Conservatives were not sorry to see its repeal a few years later by the Liberal administration of Sir Wilfrid Laurier.

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