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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 ample—within the limits presented by
section ninety-two—as 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. |
