John George Bourinot.

Canada under British rule, 1760-1905 online

. (page 24 of 30)
Online LibraryJohn George BourinotCanada under British rule, 1760-1905 → online text (page 24 of 30)
Font size
QR-code for this ebook

to west, and 1400 miles from north to south.

No country in the world gives more conclusive evidences
of substantial development and prosperity than the Dominion

IX.] Confederation. 18671909.

under the beneficial influences of federal union and the pro-
gressive measures of governments for many years. The total
foreign trade of Canada has grown from about $131,000,000
in the first year of confederation to about $600,000,000, in
1909, while the national revenue has risen during the same period
from $14,000,000 to rather more than $80,000,000 at the
present time (1909). The railways, whose expansion so closely
depends on the material conditions of the whole country, stretch
for 24,000 miles, as compared with 2278 miles in 1868; while
the remarkable system of canals, which extend from the great
lakes to Montreal, has been enlarged so as to give admirable
facilities for the growing trade of the west. The natural re-
sources of the country are inexhaustible, from the fisheries of
Nova Scotia to the wheat-fields of the north-west, from the
coal-mines of Cape Breton to the gold deposits of the dreary
country through which the Yukon and its tributaries flow.

No dangerous questions like slavery, or the expansion of the
African race in the southern states, exist to complicate the
political and social conditions of the confederation; and,
although there is a large and increasing French Canadian
element in the Dominion, its history so far need not create
fear as to the future, except perhaps in the minds of gloomy
pessimists. While this element naturally clings to its national
language and institutions, yet, under the influence of a complete
system of local self-government, it has always taken as active
and earnest a part as the English element in establishing and
strengthening the confederation. It has steadily grown in
strength and prosperity under the generous and inspiring
influence of British institutions, which have given full scope
to the best attributes of a nationality crushed by the depressing
conditions of Bourbon rule for a century and a half.

The federal union gives expansion to the national energies

of the whole Dominion, and at the same time affords every

security to the local interests of each member of the federal

compact. In all matters of Dominion concern, Canada is a

B. c. 18

274 Canada under British Rule. [CHAP

free agent. While the King is still head of the executive
authority, and can alone initiate treaties with foreign nations
(that being an act of complete sovereignty), and while appeals
are still open to the privy council of England from Canadian
courts within certain limitations, it is an admitted principle
that the Dominion is practically supreme in the exercise of all
legislative rights and privileges granted by the imperial parlia-
ment, rights and privileges set forth explicitly in the British
North America act of 1867, so long as her legislative action
does not conflict with the treaty obligations of the parent state,
or with imperial legislation directly applicable to Canada with
her own consent.

The crown exercises a certain supervision over the affairs of
the Dominion through a governor-general, who communicates
directly with an imperial secretary of state; but in every matter
directly affecting Canada as for instance, in negotiations
respecting the fisheries, the Bering Sea, and other matters con-
sidered by several conferences at Washington the Canadian
government is consulted and its statements are carefully con-
sidered, since they represent the sentiments and interests of
the Canadian people, who, as citizens of the empire, are
entitled to as much weight as if they lived in the British Isles.

In the administration of Canadian affairs the governor-
general is advised by a responsible council representing the
majority of the house of commons. As in England, the Cana-
dian cabinet, or ministry, is practically a committee of the
dominant party in parliament and is governed by the rules,
conventions and usages of parliamentary government which have
grown up gradually in the parent state. Whenever it is
necessary to form a ministry in Canada, its members are sum-
moned by the governor-general to the privy council of Canada;
another illustration of the desire of the Canadians to imitate
the old institutions of England and copy her time-honoured

The parliament of Canada consists of the King, the senate,

IX.] Confederation. 1867 1909. 275

and the house of commons. In the formation of the upper
house, three geographical groups were arranged in the first
instance Ontario, Quebec, and the maritime provinces; and
each group received a representation of twenty-four members.
More recently other provinces have been admitted into the
Dominion without reference to this arrangement; and now
eighty-seven senators altogether may sit in parliament. The
remarkably long tenure of power enjoyed by the Conservative
party eighteen years continuously enabled it in the course
of time to fill the upper house with a very large numerical
majority of its own friends; and this fact, taken in connection
with certain elements of weakness inherent in a chamber which
is not elected by the people and has none of the ancient
privileges or prestige of a house of lords, long associated with
the names of great statesmen and the memorable events of
English history, has created an agitation among the Liberal
party for radical changes in its constitution which would bring
it, in their opinion, more in harmony with the people's repre-
sentatives in the popular branch of the general legislature.
While some extremists would abolish the chamber, Sir Wilfrid
Laurier and other prominent Liberals recognise its necessity in
our parliamentary system. After the Liberals came into power
in 1896, it was not long before they had a majority owing
to new appointments to vacancies.

The house of commons, the great governing body of the
Dominion, has been made, so far as circumstances will permit,
a copy of the English house. Its members are not required to
have a property qualification, and are elected by the votes of
the electors of the several provinces where, in a majority of
cases, universal suffrage, under limitations of citizenship and
residence, prevails.

In each province there is a lieutenant-governor, appointed
by the Dominion government for five years, an executive
council, and a legislature consisting of only one house, ex-
cept in Nova Scotia and Quebec, where a legislative council

18 2

276 Canada under British Rule. [CHAP.

appointed by the crown still continues. The principles of re-
sponsible government exist in all the provinces stretching from
the Atlantic to the Pacific.

In the enumeration of the legislative powers, respectively
given to the Dominion and provincial legislatures, an effort was
made to avoid the conflicts of jurisdiction that have so fre-
quently arisen between the national and state governments of
the United States. In the first place we have a recapitulation
of those general or national powers that properly belong to the
central authority, such as customs and excise duties, regulation
of trade and commerce, militia and defence, post-office, bank-
ing and coinage, railways and public works "for the general
advantage," navigation and shipping, naturalisation and aliens,
fisheries, weights and measures, marriage and divorce, peniten-
tiaries, criminal law, census and statistics. On the other hand,
the provinces have retained control over municipal institutions,
public lands, local works and undertakings, incorporation of
companies with provincial objects, property and civil rights,
administration of justice, and generally "all matters of a merely
local and private nature in the province." The residuary
power rests with the general parliament of Canada,

The parliament of Canada, in 1875, established a supreme
court, or general court of appeal, for Canada, whose highest
function is to decide questions as to the respective legislative
powers of the Dominion and provincial parliaments, which
are referred to it in due process of law by the subordinate
courts of the provinces. The decisions of this court are already
doing much to solve difficulties that impede the successful
operation of the constitution. As a rule cases come before the
supreme court on appeal from the lower courts, but the law
regulating its powers provides that the governor in council may
refer any matter to this court on which a question of constitu-
* tional jurisdiction has been raised. But the supreme court of
Canada is not necessarily the court of last resort of Canada.
The people have an inherent right as subjects of the Queen to

IX.] Confederation. 1867 1909. 277

appeal to the judicial committee of the privy council of the
United Kingdom.

But it is not only by means of the courts that a check is
imposed upon hasty, or unconstitutional, legislation. The
constitution provides that the governor-general may veto or
reserve any bill passed by the two houses of parliament when
it conflicts with imperial interests or imperial legislation. It is
now understood that the reserve power of disallowance which
her Majesty's government possesses under the law is sufficient
to meet all possible cases. This sovereign power is never
exercised except in the case of an act clearly in conflict with
an imperial statute or in violation of a treaty affecting a foreign
nation. The Dominion government also supervises all the
provincial legislation and has in a few cases disallowed pro-
vincial acts. This power is exercised very carefully, and it is
regarded with intense jealousy by the provincial governments,
which have more than once attempted to set it at defiance.
In practice it is found the wisest course to leave to the courts
the decision in cases where doubts exist as to constitutional
authority or jurisdiction.

The great territory between Manitoba and British Columbia
was long without complete local government ; but, as we have
seen, when a movement of population set in towards the
west, two new provinces were formed, in 1905, out of this
area Saskatchewan and Alberta with adequate represen-
tation, like the other provinces, in the two houses of the
parliament of Canada. The Yukon territory in the far north-
west, where rich discoveries of gold have attracted a large
number of people within the past few years, is placed under
a provisional government, composed of a commissioner and
council appointed by the Dominion government 1 , and acting

1 Since this sentence was in type the Dominion government has given
effect to a provision of a law allowing the duly qualified electors of the
Yukon to choose two members of the council.

278 Canada under British Rule. [CHAP.

under instructions given from time to time by the same au-
thority or by the minister of the interior.

The public service enjoys all the advantages that arise from
permanency of tenure and appointment by the crown. It has
on the whole been creditable to the country and remarkably
free from political influences. The criminal law of England
has prevailed in all the provinces since it was formerly intro-
duced by the Quebec act of 1774. The civil law of the French
regime, however, has continued to be the legal system in
French Canada since the Quebec act, and has now obtained
a hold in that province which insures its permanence as
an institution closely allied with the dearest rights of the
people. Its principles and maxims have been carefully col-
lected and enacted in a code which is based on the famous
code of Napoleon. In the other provinces and territories the
common law of England forms the basis of jurisprudence on
which a large body of Canadian statutory law has been built in
the course of time.

At the present time all the provinces, with the exception of
Prince Edward Island, have an excellent municipal system,
which enables every defined district, large or small, to carry
on efficiently all those public improvements essential to the
comfort, convenience and general necessities of the different
communities that make up the province at large. Even in the
territories of the north-west, every proper facility is given to the
people in a populous district, or town, to organise a system
equal to all their local requirements.

Every Englishman will consider it an interesting and en-
couraging fact that the Canadian people, despite their neigh-
bourhood to a prosperous federal commonwealth, should not
even in the most critical and gloomy periods of their history
have shown any disposition to mould their institutions directly
on those of the United States and lay the foundation for future
political union. Previous to 1840, which was the commence-
ment of a new era in the political history of the provinces,

IX.] Confederation, 1867 1909. 279

there was a time when discontent prevailed throughout the
Canadas, but not even then did any large body of the people
threaten to sever the connection with the parent state. The
Act of Confederation was framed under the direct influence of
Sir John Macdonald and Sir George Cartier, and although one
was an English Canadian and the other a French Canadian,
neither yielded to the other in the desire to build up a
Dominion on the basis of English institutions, in the closest
possible connection with the mother country. While the
question of union was under consideration it was English
statesmen and writers alone who predicted that this new
federation, with its great extent of territory, its abundant
resources, and ambitious people, would eventually form a new
nation independent of Great Britain. Canadian statesmen
never spoke or wrote of separation, but regarded the consti-
tutional change in their political condition as giving them
greater weight and strength in the empire. The influence of
British example on the Canadian Dominion can be seen
throughout its governmental machinery, in the system of par-
liamentary government, in the constitution of the privy council
and the houses of parliament, in an independent judiciary, in
appointed officials of every class in the provincial as well as
Dominion system in a permanent and non-political civil ser-
vice, and in all elements of sound administration. During the
forty-three years that have passed since 1867, the attachment
to England and her institutions has gained in strength, and it
is clear that those predictions of Englishmen to which we have
referred are completely falsified. On the contrary, the domi-
nant sentiment is for strengthening the ties that have in some
respects become weak in consequence of the enlargement of
the political rights of the Dominion, which has assumed the
position of a semi-independent power, since England now
only retains her imperial sovereignty by declaring peace or war
with foreign nations, by appointing a governor-general, by con-
trolling colonial legislation through the King in council and

280 Canada under British Rule. [CHAP.

the King in parliament but not so as to diminish the rights
of local self-government conceded to the Dominion and by
requiring that all treaties with foreign nations should be made
through her own government, while recognising the right of
the dependency to be consulted and directly represented on
all occasions when its interests are immediately affected.

In no respect have the Canadians followed the example of
the United States, and made their executive entirely separate
from the legislative authority. On the contrary, there is no
institution which works more admirably in the federation in
the general as well as provincial governments than the prin-
ciple of making the ministry responsible to the popular branch
of the legislature, and in that way keeping the executive and
legislative departments in harmony with each other, and pre-
venting that conflict of authorities which is a distinguishing
feature of the very opposite system that prevails in the federal
republic. If we review the amendments made of late years
in the political constitutions of the States, and especially those
ratified not long since in New York, we see in how many
respects the Canadian system of government is superior to that
of the republic. For instance, Canada has enjoyed for years,
as results of responsible government, the secret ballot, stringent
laws against bribery and corruption at all classes of elections,
the registration of voters, strict naturalisation laws, infrequent
political elections, separation of municipal from provincial or
national contests, appointive and permanent officials in every
branch of the civil service, a carefully devised code of private
bill legislation, the printing of all public as well as private bills
before their consideration by the legislative bodies ; and yet
all these essentials of safe administration and legislation are
now only in part introduced by constitutional enactment in so
powerful and progressive a state as New York.

Of course, in the methods of party government we can see
in Canada at times an attempt to follow the example of the
United States, and to introduce the party machine with its

IX.] Confederation. 1867 1909. 281

professional politicians and all those influences that have de-
graded politics since the days of Jackson and Van Buren.
Happily, so far, the people of Canada have shown themselves
fully capable of removing those blots that show themselves
from time to time on the body politic. Justice has soon
seized those men who have betrayed their trust in the adminis-
tration of public affairs. Although Canadians may, according
to their political proclivities, find fault with some methods of
governments and be carried away at times by political passion
beyond the bounds of reason, it is encouraging to find that all
are ready to admit the high character of the judiciary for
learning, integrity and incorruptibility. The records of Canada
do not present a single instance of the successful impeachment
or removal of a judge for improper conduct on the bench since
the days of responsible government; and the three or four
petitions laid before parliament, in the course of a quarter of a
century, asking for an investigation into vague charges against
some judges, have never required a judgment of the house.
Canadians have built wisely when, in the formation of their
constitution, they followed the English plan of retaining an
intimate and invaluable connection between the executive and
legislative departments, and of keeping the judiciary practically
independent of the other authorities of government, Not only
the life and prosperity of the people, but the satisfactory
working of the whole system of federal government rests more
or less on the discretion and integrity of the judges. Canadians
are satisfied that the peace and security of the whole Dominion
do not more depend on the ability and patriotism of statesmen
in the legislative halls than on that principle of the constitution,
which places the judiciary in an exalted position among all
the other departments of government, and makes law as far
as possible the arbiter of their constitutional conflicts. All
political systems are very imperfect at the best; legislatures
are constantly subject to currents of popular prejudice and
passion; statesmanship is too often weak and fluctuating,

282 Canada under British Rule. [CHAP.

incapable of appreciating the true tendency of events, and too
ready to yield to the force of present circumstances or dictates
of expediency; but law, as worked out on English principles
in all the dependencies of the empire and countries of English
origin, as understood by Blackstone, Dicey, Story, Kent, and
other great masters of constitutional and legal learning, gives
the best possible guarantee for the security of institutions in a
country of popular government.

In an Appendix to this history I have given comparisons
in parallel columns between the principal provisions of the
federal constitutions of the Canadian Dominion, and the
Australian Commonwealth. In studying carefully these two
systems we must be impressed by the fact that the constitution
of Canada appears more influenced by the spirit of English
ideas than the constitution of Australia, which has copied some
features of the fundamental law of the United States. In the
preamble of the Canadian British North America act we find
expressly stated "the desire of the Canadian provinces to be
federally united into one Dominion under the crown of the
United Kingdom of Great Britain and Ireland, with a consti-
tution similar in principle to that of the United Kingdom,"
while the preamble of the Australian constitution contains
only a bald statement of an agreement "to unite in one in-
dissoluble federal Commonwealth under the crown." When
we consider the use of "Commonwealth" a word of republican
significance to British ears as well as the selection of " state "
instead of "province," of "house of representatives" instead
of "house of commons," of "executive council" instead of
"privy council," we may well wonder why the Australians, all
British by origin and aspiration, should have shown an in-
clination to deviate from the precedents established by the
Canadian Dominion, which, though only partly English, re-
solved to carve the ancient historic names of the parent state
on the very front of its political structure.

As the several States of the Commonwealth have full

IX.] Confederation. 1867 1909. 283

control of their own constitutions, they may choose at any
moment to elect their own governors as in the States of the
American Union, instead of having them appointed by the
crown as in Canada. We see also an imitation of the American
constitution in the principle which allots to the central govern-
ment only certain enumerated powers, and leaves the residuary
power of legislation to the States. Again, while the act pro-
vides for a high and other federal courts, the members of
which are to be appointed and removed as in Canada by the
central government, the States are still to have full jurisdiction
over the State courts as in the United States. The Canadian
constitution, which gives to the Dominion exclusive control
over the appointment and removal of the judges of all the
superior courts, offers a positive guarantee against the popular
election of judges in the provinces. It is not going too far to
suppose that, with the progress of democratic ideas in Australia
a country inclined to political experiments we may find the
experience of the United States repeated, and see elective
judges make their appearance when a wave of democracy has
suddenly swept away all dictates of prudence and given un-
bridled license to professional political managers only anxious
for the success of party. In allowing the British Parliament
to amend the Act of Union on an address of the Canadian
parliament, we have yet another illustration of the desire of
Canadians to respect the supremacy of the sovereign legislature
of the empire. On the other hand, the Australians make
themselves entirely independent of the action of the imperial
parliament, which might be invaluable in some crisis affecting
deeply the integrity and unity of the Commonwealth, and give
full scope to the will of democracy expressed at the polls. In
also limiting the right of appeal to the Queen in council by
giving to the high court the power to prevent appeals in constitu-
tional disputes the Australians have also to a serious degree
weakened one of the most important ties that now bind them to
the empire, and afford additional illustration of the inferiority

284 Canada under British Rule. [CHAP.

of the Australian constitution, from an imperial point of view,
compared with that of the Canadian Dominion, where a refer-
ence to the judicial committee of the privy council is highly

The Canadian people are displaying an intellectual activity
commensurate with the expansion of their territory and their
accumulation of wealth. The scientific, historical and political
contributions of three decades, make up a considerable library
which shows the growth of what may be called Canadian
literature, since it deals chiefly with subjects essentially of
Canadian interest. The attention that is now particularly
devoted to the study and writing of history, and the collection
of historical documents relating to the Dominion, prove clearly
the national or thoroughly Canadian spirit that is already
animating the cultured class of its people.

Of the numerous historical works that have appeared since

Online LibraryJohn George BourinotCanada under British rule, 1760-1905 → online text (page 24 of 30)