1867 (34 page)

Nevertheless, amidst the heated battles, the furious allegations, and the deep-rooted opposition that confederation provoked during the 1860s, the Canadian constitution that came into effect on July 1, 1867, had been judged – and finally endorsed – by legislatures of
elected representatives who maintained substantial independence from, and ultimately a veto upon, the governments that were responsible to them. Doubts, resentments, and even deep opposition remained. But the process by which the new constitution had been negotiated and ratified had conferred on it a legitimacy that was celebrated by its supporters, acknowledged grudgingly by opponents, and – above all – generally accepted by the Canadian population that would begin to govern itself under it.

Superficially, constitution-makers had things much easier in the 1980s and 1990s. To produce the British North America Act for five small colonies with barely three-and-a-half-million people in the 1860s, thirty-six mutually hostile and politically diverse delegates had to engage in weeks of intense negotiation, and their draft agreement was subjected to two years of vigorous, open-ended, and unpredictable legislative debate. By comparison, the Meech Lake accord of 1987, drafted by lawyers and bureaucrats, required barely a day of discussion by the first ministers – the famous “eleven white men in a room.” Slated for ratification by docile legislatures almost entirely subservient to executive control, it was derailed almost by accident. The patriation round of 1981 had been similarly exclusive, and Quebec in particular never accepted the legitimacy of the process, which produced what came to be known as “the Trudeau constitution.” The process leading to the Charlottetown accord of 1992 included more public comment, but its final terms were once more a matter of executive decree. The 1992 referendum, in which voters were invited either to ratify the accord or be held liable for the destruction of the country, reflected the widespread belief that “democracy” and “direct democracy” were the same thing – and Parliament largely irrelevant. Though it ignited passionate debate among Canadians, the referendum was a very limited substitute for genuinely representative scrutiny of the terms of the deal.

In the late twentieth century, Canada continued to govern itself through parliamentary forms. But the long quest for more “direct”
participation in government had – paradoxically – conferred enormous power upon first ministers. It was not that the politicians sought to be dictators. They submitted to leadership conventions, fought election campaigns, occasionally held referendums, and followed the polls devoutly. But they and their advisors made constitutions in a vacuum, because the only ongoing, effective control upon them – control by legislatures – had largely ceased to operate. Parliament no longer provided a forum in which elected representatives could test and potentially reject executive initiatives. Except for the election-night tallying of which party leader controlled the most seats and would become prime minister, a seat in the Commons had become largely ceremonial. Dignity was not a word much associated with late-twentieth-century Canadian parliaments and parliamentarians, but Walter Bagehot would have said that they had indeed shifted from the efficient to the dignified side of the constitution.

Would John A. Macdonald, that connoisseur of power, have envied the vast freedom conferred upon his successors as prime ministers and premiers? Perhaps not. Macdonald, like all the confederation-makers, had undergone his apprenticeship to politics in the moment when “responsible government” was shiny, fresh, and new. He wielded executive power ruthlessly when he could, and he always sought to maximize it. But in his day, elected legislators had only recently wrested power from unelected, arbitrary executives. They guarded their new responsibility jealously, and they used it both to make or unmake governments and to veto or ratify policies. No policy could achieve legitimacy without their consent. In nineteenth-century Canada, the great convenience of ruling by executive decree was understood to be cancelled out by its lack of legitimacy – as Oliver Mowat demonstrated to Macdonald so convincingly in the fight over the power of disallowance. By the late twentieth century, that understanding had largely been lost.

The wrenching and potentially disastrous inability of the Canadian political system to reform the British North America Act in the late twentieth century has long seemed to be a challenge to draft the right “deal.” Assessed from the perspective of the 1860s, it seems more precisely a problem of how to assess and legitimize deals, a problem of parliamentary government.

CHAPTER EIGHT
Nation and Crown

T
HOMAS D’ARCY
McGee, who turned forty in 1865, was a small, ugly, charming Irish-Catholic journalist with a complicated past. He had been an Irish rebel who recanted, a patriotic American who grew disillusioned, an anti-clerical who had made his peace with the Catholic Church, a reformer who had gone over to John A. Macdonald, and a teetotaller given to alcoholic binges. (Macdonald once instructed him he would have to quit drinking; the cabinet did not have room for two drunks.) In 1857 he had settled in Montreal, launched a newspaper, and got himself into the legislature. His constituents, Montreal’s Irish, were a narrow and not always secure power base, but McGee was funny, quick-witted, and a natural orator. He soon became popular in the House, and a prominent, more than a powerful, figure in Canadian affairs.

McGee was barely off the train from Boston in 1857 when he began advocating federal union, westward expansion, and the nurturing of a national literature for Canada. “A new nationality” became his platform and slogan. McGee had good reason to seek a nation. He despaired of Ireland, was an alien in Britain, and resented
American intolerance of foreigners and Catholics. He was also a journalist, but unlike George Brown, the millionaire publisher of the
Globe
, or Edward Whelan, who was at least solidly established in his Charlottetown newspaper, McGee always scrambled to make a living. The national vision became a valuable stock in trade.

McGee travelled widely in British North America. With help from railway barons who had their own reasons to encourage such visions, he organized intercolonial good-will trips for politicians and public figures. By 1865, he had been to Atlantic Canada seven or eight times, when many Canadians were still asking him, “What kind of people are they?” Though he had never gone west of Canada West, McGee even outlined a plan for a separate province to be set aside for the native nations on the plains of the far North-West. He had begun to imagine a new country where none existed.

It was a vision upon which he launched many articles and speeches. Amid the tension of the confederation debate in the Parliament of the united Canadas early in 1865, McGee was the first speaker to make the House laugh. It was a feat he achieved consistently in that speech and throughout his public career, but he was just as adept at rolling, patriotic oratory. “I see in the not remote distance,” he declared in 1860, when there was no serious prospect of British North American union, “one great nationality bound, like the shield of Achilles, by the blue rim of ocean.… I see within the ground of that shield the peaks of the western mountains and the crests of the eastern waves.” In the confederation debate, he celebrated the beauty of the Canadian land, rejoiced that confederation would elevate “the provincial mind” to nobler contests, and welcomed the advent of “a new and vigorous nationality.”
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McGee’s passionate Canadianism – “not French-Canadian, not British-Canadian, not Irish-Canadian; patriotism rejects the prefix” – disquieted listeners for whom the prefixes defined patriotism. But “a new nationality” had gone into the language. McGee modestly disclaimed sole credit for the phrase (It’s always the same, he told the House: “Two people hit upon the same thought, but Shakespeare
made use of it first”), but it popped up in many celebratory speeches during the 1860s. Anticipation of a “new nationality” was even written into the Throne Speech that Governor General Lord Monck read to the legislature at Quebec on the eve of the great debate on the Quebec resolutions – inspiring the
rouges’
clever amendment, proclaiming that they were too loyal to want such a thing.

Bleu
supporters of the coalition defeated Dorion’s amendment, and their unanimity was an early indication that they would not be swayed by attacks on the Quebec resolutions, but they did not much like doing it. McGee defended his phrase, and Macdonald made a point of using “the expression which was sneered at the other evening.” But George-Étienne Cartier was careful to say that confederation would create “a political nationality,” and he went on to stress that “the idea of unity of races was utopian – it was impossible. Distinctions of this kind would always appear.… In our own federation we should have Catholic and Protestant, French, English, Irish and Scotch, and each by his efforts and his success would increase the prosperity and glory of the new confederacy.”
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Cartier was glad to escape from awkward questions of nationality to the safer ground of monarchy. He celebrated the benefits of monarchical rule and French Canada’s love of monarchy. “If they had their institutions, their language, and their religion intact today, it was precisely because of their adherence to the British Crown,” he said. Confederation had been made, he said, “with a view of perpetuating the monarchical element.… the monarchical principle would form the leading feature.” In the Nova Scotia legislature, Charles Tupper said something similar, covering his declaration that the colonies should “advance to a more national position” with assurances that confederation would bind the new nation to the British Crown “by a more indissoluble tie than ever before existed.”
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McGee, for all his celebration of the Canadian land and the Canadian nationality, took the same stand. “We need in these provinces, we can bear, a large infusion of authority,” he said, and he wound up his speech in direct address to Queen Victoria: “Whatsoever
charter, in the wisdom of Your Majesty and of your Parliament you give us, we shall loyally obey and fulfill it as long as it is the pleasure of Your Majesty and your successors to maintain the connection between Great Britain and these colonies.” Such frankly deferential talk was as common in confederation speeches as talk of the new nationality.
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It too had its pitfalls. Confronted with it, Dorion smoothly shifted his line of attack to declare that confederation’s advocates were reactionary tories, who “think the hands of the Crown should be strengthened and the influence of the people, if possible, diminished, and this constitution is a specimen of their handiwork.” A Halifax newspaper put the same thought more vividly after the Charlottetown conference. When the delegates let their secrets out of the bag, said the
Acadian Recorder
, their constitution would prove to be “a real sleek constitutional, monarchical, unrepublican, aristocratic cat.”
⁵

This view of confederation – something imposed on cringing colonial Canadians by the reactionary local agents of Imperial dictate – became part of the late-twentieth-century consensus, much more than the confederation-makers’ talk of a new nationality. The political scientist Peter Russell opened his survey of Canadian constitutional history,
Constitutional Odyssey
, by quoting a piously deferential Canadian declaration that confederation would “not profess to be derived from the people but would be the constitution provided by the imperial parliament.” Taking the statement at face value, Russell identified the 1867 constitution as an Imperial and monarchical imposition. It could not be considered a legitimate beginning for a sovereign community, Russell concluded. Like many theorists and politicians, he declared this failing made the work of the original constitution-makers irrelevant, deserving of the neglect lavished upon it.
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