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1787 and 1867: The Federal Principle and Canadian Confederation Reconsidered*

Part of: CJP Canada 150 collection 0617

Published online by Cambridge University Press:  10 November 2009

Robert C. Vipond
Robert C. Vipond
Affiliation:
University of Toronto
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Abstract

This article challenges the conventional interpretation of the intellectual origins of Canadian federalism. The article argues that the debate over Confederation can be interpreted as a debate over the meaning of sovereignty. It argues centrally that certain of the most prominent supporters of Confederation were more powerfully attracted to the conception of classical federalism and co-ordinate sovereignty than is usually assumed, thus creating a striking parallel to United States federalism that is not typically recognized. It concludes by showing how this understanding of classical federalism was used with great success in opposing the post-Confederation centralism of John A. Macdonald.

Résumé

Cet article met en question l'interpretation conventionnelle des origines intellectuelles du fédéralisme canadien. II propose d'interpréter le débat sur la Confédération comme un débat sur la question de la souveraineté. II avance comme argument central l'idée que certains des plus fervents partisans de la Confédération étaient davantage attirés par le concept de fédéralisme classique et de souveraineté nettement définie qu'on ne l'a généralement reconnu, ce qui a eu pour résultat de produire une situation parallèle avec le fédéralisme des États-Unis, situation dont on n'est pas toujours conscient. L'article conclut par une démonstration de la façon dont la conception de ce fédéralisme classique a été exploitée et utilisée avec succès pour constituer une opposition aux tendances centralisatrices de John A. Macdonald.

Type
Research Article
Information
Canadian Journal of Political Science/Revue canadienne de science politique , Volume 22 , Issue 1 , March 1989 , pp. 3 - 26
Copyright
Copyright © Canadian Political Science Association (l'Association canadienne de science politique) and/et la Société québécoise de science politique 1989

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References

1 Constitution Act, 1867, Preamble. The Constitution Act, 1867 was formerly known as the British North America Act. For reasons of historical accuracy, I will refer to it in the text as the Fathers of Confederation themselves knew and referred to it, as the BNA Act.

2 Waite, Peter B., The Life and Times of Confederation, 1864–1867 (Toronto: University of Toronto Press, 1962), 33.Google Scholar See also Creighton's, Donald classic exposition of this view, summarized in Canada's First Century (Toronto: Macmillan, 1970), 10Google Scholar: “The ‘federal principle', as British Americans called it then, was usually regarded as a highly potent political drug, which might prove efficacious in the cure of certain constitutions, but which must be administered in small doses, with great precautions, and never without a readily available antidote.” See also McNaught, Kenneth (The Pelican History of Canada [Harmondsworth: Penguin, 1969], 134Google Scholar) who concludes that while the Canadians examined “the sorely tested United States federal experiment” closely, they used it “more as a warning than as a model.” Bruce Hodgins makes a similar point in arguing that “the Fathers… distrusted pure coordinate or classical federalism” which “[t]hey saw as too American and too republican; empirically it was too fraught with potential for civil strife” ( “The Canadian Political Elite's Attitudes Toward the Nature of the Plan of Union,” in Hodgins, Bruce W., Wright, Don and Heick, W. H. [eds.], Federalism in Canada and Australia: The Early Years [Waterloo: Wilfrid Laurier University Press, 1978], 43Google Scholar). Norman Ward argues along the same lines that “the structure outlined in the [Quebec] Resolutions was clearly not a pure federal system in which the component parts would be of equal or co-ordinate rank with the central government” ( Ward, Norman, Dawson's The Government of Canada [6th ed.; Toronto: University of Toronto Press, 1987], 284Google Scholar).

3 Wheare, K. C., Federal Government (4th ed.; London: Oxford University Press, 1963), 4–5.Google Scholar

4 Cook, Ramsay, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921 (Ottawa: Queen's Printer, 1969), 8.Google Scholar Cook draws out the British comparison more fully in Cook, Ramsay (with John T.Saywell and John C. Ricker) Canada: A Modern Study (Toronto: Clark Irwin, 1963), 96–99.Google Scholar See also Creighton, Donald, The Road to Confederation (Boston: Houghton Mifflin, 1965), 176–77Google Scholar; Morrison, J. C., “Oliver Mowat and the Development of Provincial Rights in Ontario: A Study in Dominion-Provincial Relations, 1867–1896,” in Three History Theses (Toronto: Ontario Department of Public Records and Archives, 1961), 177Google Scholar; Morton, W. L., “Confederation, 1870–1896,” in McKillop, A. B. (ed.), Contexts of Canada's Past (Toronto: Macmillan, 1980), 211Google Scholar; Saywell, John T., The Office of Lieutenant-Governor (Toronto: University of Toronto Press, 1957), 4Google Scholar; Mallory, J. R., “The Five Faces of Federalism,” in Crépeau, P.-A. and Macpherson, C. B. (eds.), The Future of Canadian Federalism (Toronto: University of Toronto Press, 1965), 3–5Google Scholar; and Bothwell, Robert, A Short History of Ontario (Edmonton: Hurtig, 1986), 81.Google Scholar

5 On The Federalist and the founding myth, see Shklar, Judith N., “The Federalist as Myth,” Yale Law Journal 90 (1981), 942–53.CrossRefGoogle Scholar

6 Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose and Company, 1865)Google Scholar, 45 (Macdonald). Hereafter cited as Confederation Debates.

7 Ibid.

8 Constitution Act, 1867, Preamble.

9 See, for instance, the comments of M. C. Cameron and Christopher Dunkin, Confederation Debates, 459, 482.

10 Ibid., 947–50.

11 Ibid., 33.

12 Quebec Resolutions, sec. 29:37, reprinted in G. P. Browne (ed.), Documents on the Confederation of British North America, 154–65. Macdonald referred to the exclusivity of provincial jurisdiction twice in his speech to the Canadian Legislative Assembly. The first came in the context of explaining how the prevailing double majority system worked “in fact” like a federal union, such that “in matters affecting Upper Canada solely, members from that section claimed and generally exercised the right of exclusive legislation” (Confederation Debates, 30). The second occurred backhandedly in his summary of federal powers, when he noted that “all subjects of general interest not distinctly and exclusively conferred upon the local governments and local legislatures, shall be conferred upon the General Government and Legislature” (Ibid., 33). More importantly, the Constitution Act, 1867 itself enshrines the exclusivity of provincial jurisdiction. See Section 92 (Preamble) and Section 93 where the provincial legislatures are given the power “exclusively” to make laws in the matters listed therein.

13 Constitution Act, 1867, sec. 91 (Preamble). It should be noted that this grant of power to legislate for the “peace, order and good government” of the country was meant, as Macdonald said, to avoid the errors of the American Constitution. He put it thus: “[The Americans] commenced, in fact, at the wrong end. They declared by their Constitution that each state was a sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the Constitution, were conferred upon the General Government and Congress. Here we have adopted a different system” (Confederation Debates, 33).

14 See Maxwell, J. A., Federal Subsidies to the Provincial Governments in Canada (Cambridge: Harvard University Press, 1937CrossRefGoogle Scholar).

15 Constitution Act, 1867, sec. 92:10(c).

16 Ibid., sec. 56, 90.

17 Ibid., sec. 55, 58, 90.

18 Ibid., sec. 93:4.

19 Confederation Debates, 859, 858 (J. B. E. Dorion).

20 Ibid., 858 (J. B. E. Dorion); 690 (A. A. Dorion).

21 William Blackstone, Commentaries on the Laws of England, I:ii:7.

22 Wood, Gordon S., The Creation of the American Republic, 1776–1787 (New York: Norton, 1969), 529.Google Scholar

23 See Baker, Blaine, “The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire,” Law and History Review 3 (1985), 255CrossRefGoogle Scholar, who argues that “divergent Upper Canadian and republican social premises shared a somewhat unlikely meeting ground in such near-treatises as Blackstone's Commentaries. The Commentaries were widely read and thus absorbed into the political consciousness of both traditions, but for apparently different reasons.” See especially Baker's references at note 116. Peter Waite suggests that a similar understanding of sovereignty informed Joseph Howe's opposition to Confederation. For Howe, the most prominent anti-Confederationist from Nova Scotia, “[o]ne government or another had to be supreme. Apparently both could not be.” See Waite, Peter B., “Halifax Newspapers and the Federal Principle, 1864–1865,” in Bumsted, J. M. (ed.), Canadian History Before Confederation (2nd ed.; Georgetown: Irwin-Dorsey, 1979), 505.Google Scholar

24 Confederation Debates, 250 (A. A. Dorion).

25 Ibid., 689 (A. A. Dorion).

26 Ibid., 858 (J. B. E. Dorion).

27 Ibid., 623–24 (Perrault).

28 Ibid., 33.

29 Ibid., 33, 41.

30 Ibid., 42, 33.

31 Like the Fathers of Confederation themselves, the Reform party was not monolithic. Not all Reformers supported Confederation, and a few prominent members of the party, among them John Sandfield Macdonald, were openly critical of the settlement. Most, however, did support it, and most of the Reform press rallied behind it. On the participation of the Reform press, see Waite, Life and Times of Confederation, 126–33.

32 Toronto, Globe, August 1, 1864.Google Scholar See also Confederation Debates, 674 (Hope Mackenzie), and 807 (Walsh), for a similar line of argument based on a similar reading of the American Constitution.

33 Toronto, Globe, August 1, 1864.Google Scholar See also Ottawa Union, November 1, 1864.

34 Toronto, Globe, August 1, 1864.Google Scholar; August 29, 1864; and October 15, 1864; St. Catharine's, Journal, September 27, 1864Google Scholar; Ottawa, Union, September 12, 1864Google Scholar; Confederation Debates, 433 (Alexander Mackenzie).

35 Toronto, Globe, October 4, 1864.Google Scholar

36 Ibid.

37 Toronto, Globe, October 8, 1864.Google Scholar

38 J. C. Morrison, “Oliver Mowat and Provincial Rights in Ontario,” 11, 1. Also see Waite (Life and Times of Confederation, 133) who argues that the Reformers “did not in fact concern themselves much about local government.” W. L. Morton goes further when he argues that “[t]he provinces were not, in fact, expected to be self-supporting as they were not thought sovereign even in their spheres of exclusive jurisdiction. They were subordinate governments both in appearance and in fact. They had no great tasks to perform and were given no great powers” (W. L. Morton, “Confederation, 1870–1896,” in McKillop [ed.], Contexts, 209). See also Vaughan, Frederick, “Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation,” this Journal 19 (1986), 505Google Scholar; Armstrong, Christopher, The Politics of Federalism (Toronto: University of Toronto Press, 1981CrossRefGoogle Scholar), chap. 1; and the citations in footnotes 2 and 4 above.

39 See Elwood H. Jones, “Localism and Federalism in Upper Canada to 1865,” in Hodgins, Wright, and Heick (eds.), Federalism in Canada and Australia, 19–41. See also Oliver Mowat's speech to the Reform Convention of 1859, in which he set out both the problem and the proposed solution, reprinted in Biggar, R. W., Sir Oliver Mowat, vol. 1 (Toronto: Warwick Bro's and Rutter, 1905), 93–95Google Scholar; and Toronto, Globe, “Federation,” May 24, 1859.Google Scholar

40 Toronto, Globe, September 17, 1864.Google Scholar

41 Toronto, Globe, August 29, 1864Google Scholar; September 3, 1864; October 4, 1864; and October 15, 1864. See also Confederation Debates, 108 (Brown).

42 Hamilton, Alexander, Madison, James and Jay, John, The Federalist Papers (New York: Bantam, 1982), 195.Google Scholar

43 Wheare, Federal Government, chap. 1.

44 Fora useful analysis of the effect Blackstone's doctrine of parliamentary sovereignty had in pre-Revolution America, see Grey, Thomas, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978), 865–93.CrossRefGoogle Scholar

45 Hamilton, Madison and Jay, The Federalist Papers, No. 78, 397.

46 These images are taken from Hamilton, Madison and Jay, The Federalist Papers, No. 49 (255) and No. 46 (237) respectively. My debt to Gordon Wood's presentation of the question should be obvious. See Wood, Creation, 372–83.

47 Shklar, “The Federalist as Myth,” 950.

48 See Wood, Creation, 529 and Hamilton, Madison and Jay, The Federalist Papers, No. 39 (194). To be sure, Madison did not rest the protection of state interests wholly on a judicially patrolled division of powers. Jennifer Smith is quite right to point out that Madison's theory of federalism “extends beyond that to encompass” representation in national institutions. See Smith, Jennifer, “Canadian Confederation and the Influence of American Federalism,” this Journal 21 (1988), 446.Google Scholar Interestingly, the debate over the meaning of Madison's federal theory has recently resurfaced in the United States Supreme Court, dividing those justices who believe that the judicial protection of state sovereignty is imperative from those who argue that representational protection in Congress is all the states need. Both sides cite Madison as their authority. See Garcia v. San Antonio Metropolitan Transit Authority 105 S.Ct. 1005 (1985).

49 Toronto, Globe, August 1, 1864Google Scholar; see also the edition of August 30, 1864.

50 Ibid., August 30, 1864.

51 For references to a constitution in this “American” sense of a written, fundamental law, see Toronto, Globe, October 15, 1864Google Scholar (“Surely we can safely put into our constitution…”); and also Toronto, Globe, June 20, 1867Google Scholar (“The constitution excludes local and sectional questions from the federal Parliament…. The people of Ontario have got the absolute control of their local affairs, and they have a just representation in the Parliament which deals with the affairs of the Dominion. So far as these cardinal points in the Constitution are concerned, we have all that we asked or could ask”).

52 Toronto, Globe, October 4, 1864.Google Scholar

53 Hamilton, Weekly Times, September 30, 1864.Google Scholar

54 Toronto, Leader, September 27, 1864.Google Scholar The Leader was in fact a Conservative newspaper, but as Peter Waite has pointed out, it had a “liberal Conservative” slant on the Confederation proposal that brought it closer to Reform doctrine (Life and Times of Confederation, 126).

55 Toronto, Globe, August 30, 1864.Google Scholar

56 Toronto, Globe, June 28, 1867.Google Scholar

57 Ibid.

58 Ibid. See also Confederation Debates, 446–47 (Burwell).

59 Cited and reproduced in the Toronto, Globe, June 22, 1867.Google Scholar

60 Toronto, Globe, June 20, 1867.Google Scholar

61 Silver, A. I., The French-Canadian Idea of Confederation, 1864–1900 (Toronto: University of Toronto Press, 1982), 43.Google Scholar

62 Confederation Debates, 547.

63 Ibid., 690.

64 Ibid., 876.

65 Ibid., 697 (Cauchon).

66 Ibid.

67 Confederation Debates, 575–76 (Cauchon); see also Cauchon, Joseph, L'Union des provinces de I'Amérique britannique du Nord (Quebec: A. Cote, 1865), 40.Google Scholar

68 See footnote 12 above. It should be noted as well that Macdonald adopted the Reform image that emphasized the novelty of the Confederation proposal, calling it a “happy medium” between a legislative and a federal Union. See Confederation Debates, 33, and Toronto, Globe, October 15, 1864.Google Scholar Compare that with Madison's characterization of the American Constitution as a “composition” of national and confederal elements.

Macdonald was by no means blind to the implications of this concession of “exclusive” jurisdiction. As the minister of justice responsible for the exercise of the veto power of disallowance, Macdonald went to some trouble in the first years of Confederation to develop a set of rules for using the veto that would satisfy the federal government's need to keep the provincial governments at bay while not violating the federal principle. His solution, at least for the first 15 years of Confederation, was to conceive of disallowance as a jurisdictional veto; that is, as a veto to be used only against provincial legislation that exceeded provincial jurisdiction or impinged on national policy. In the course of the debate over the New Brunswick schools question in 1873, he explained that any broader conception of disallowance would turn Parliament into a “court of appeal to try whether the Provincial Legislatures were right or wrong in the conclusions that they came to.” And that, Macdonald argued, “would destroy the independence of the Provincial Legislatures” and violate their “rights” ( Canada, House of Commons, Debates, May 14, 1873, 178Google Scholar). For an elaboration of this interpretation, see Vipond, Robert C., “Constitutional Politics and the Legacy of the Provincial Rights Movement in Canada,” this Journal 18 (1985), 267–91.Google Scholar

69 The story is told briefly in Bruce W. Hodgins and Robert C. Edwards, “Federalism and the Politics of Ontario, 1867–80,” in Hodgins, Wright and Heick (eds.), Federalism in Canada and Australia, 63–64.

70 The parliamentary speeches of David Mills, Liberal MP and constitutional critic, are especially good examples of the way in which the federal principle was used to discredit the institution of dual representation. See Canada, House of Commons, Debates, November 28, 1867, 149, 154Google Scholar, and April 28, 1869, 96–98.

71 See Vipond, “Constitutional Politics,” 275–88.

72 See especially the comments of Lord Watson in the Local Prohibition case, A. G. (Ont.) v. A. G. (Canada) 1896 A.C. 348, 361 in which the Judicial Committee rejected the federal government's broad reading of the “peace, order and good government” clause of Section 91 of the BNA Act. A broad construction of the clause, Lord Watson argued, would permit the federal government to legislate on almost any subject ostensibly within provincial jurisdiction, and this “would practically destroy the autonomy of the provinces.”