1867

by Christopher Moore

  Donald Creighton shared Macdonald’s opinion of Oliver Mowat as a dangerous wrecker. Creighton, who was born in 1903, came to maturity in a surge of postwar nationalism in the English Canada of the 1920s. His views solidified in the 1930s, when English-Canadian constitutional scholars agreed that only a strong national government could wield the powers needed to fight the Great Depression. Impatient with provincial sensibilities or provincial rights, Creighton agreed absolutely with Macdonald that strong central government was vital to Canada – and that centralized authority had been the aim and consensus of the Quebec conference. In Creighton’s story of confederation, anti-confederates were merely misguided. Oliver Mowat was a villain.

  Mowat, said Creighton, was “a remarkable combination of determination, effrontery, and legal cunning,” who knew well that his provincial-rights views “differed from – and, in fact, completely contradicted – the original conception of confederation.” Mowat may have called himself a Christian statesman, said Creighton icily, but “attacking principles which he had previously endorsed and attacking a constitution which was partly his own handiwork apparently did not cause him a moment’s concern.” Creighton even accused Mowat of attempting to falsify the memory of what happened at the Quebec conference.22

  To clinch their case that the delegates at Quebec had guaranteed Ottawa’s supremacy, Donald Creighton and John A. Macdonald could cite a string of resolutions on federal and provincial powers which were debated and passed between October 20 and 25. Had not the delegates established a clear hierarchy when they agreed that lieutenant-governors would be appointed by Ottawa, while Ottawa’s governors general would be appointed by the Queen? Had they not given Ottawa the power to make laws “for the peace, welfare, and good government of the federated provinces,” as well as authority to legislate “respecting all matters of a general character” in the new nation? Had they not given to Ottawa all the great powers: trade and commerce, finance, foreign affairs, and indeed all powers not specifically listed as belonging to the provinces? Had they not, in the financial resolutions debated on Saturday, October 22, and again on October 26, given Ottawa most of the nation’s revenues and made the provinces dependent upon federal allowances (unless they were ready to move into the then-explosive matter of direct levies on property)? Above all, had they not specifically given the government in Ottawa the power to disallow any law passed in any province, for any reason or for no reason at all?23

  They had. These were apparently overwhelming powers. For Donald Creighton and English-Canadian constitutional scholars of the 1960s who defined the history of the confederation process, they confirmed that the founders had decreed a national government with all the powers needed to harness and direct “the expanding energies and requirements of a potentially great nation,” as Creighton put it. He quoted John A. Macdonald’s conference speech of Monday, October 24, when Macdonald denounced proposals for stronger provinces as American in inspiration. Macdonald declared, “We should concentrate the power in the federal government and not adopt the decentralization of the United States,” and the motion he was supporting passed without opposition.24

  The records of the Quebec conference contain many statements echoing Macdonald’s. The confederation-makers did want a strong central government to fulfil their nation-building ambitions. They put much stock in the British example of undivided sovereignty in a single Parliament. If they doubted, the civil war in the United States provided strong lessons about the dangers of schism in a loose federation, while the republic’s very size (and the size of its armies) suggested that only a strong, united Canada could hope to stand up against its threats and pressures.

  The delegates’ commitment to strong central government was demonstrated in their reaction to the states-rights argument of New Brunswick’s Edward Chandler on October 24. Chandler, Frances Monck’s expert on the happiness of slaves, objected to giving the federal government all powers not specified as provincial. It should be the other way around, he declared, with federal powers strictly listed and the provinces acquiring all the many powers that had gone unspecified. “I am rather inclined to agree with Mr. Chandler,” said Robert Dickey of Nova Scotia. A few other delegates expressed equally qualified sympathy.25

  But the attack against his proposal was overwhelming. Henry from Nova Scotia, Haviland from the Island, Chandler’s fellow New Brunswickers Johnson and Gray, and Brown from Ontario all tried to show Chandler his error. The most powerful assault came from Charles Tupper, who called federal primacy “a fundamental principle … and the basis of our deliberations,” and from John A. Macdonald. Macdonald connected Chandler’s proposal to its origins in the United States, where, he said, the principle that “every man sticks to his individual state” had led to civil war. “It would be introducing a source of radical weakness,” cried Macdonald, winding up a long speech. “It would ruin us in the eyes of the civilized world.” Chandler was routed, left vainly protesting that his plan was “not precisely the same” as in the United States.26

  Oliver Mowat said not a word in support of Chandler’s lonely fight for provincial rights. In fact, the resolution Chandler was attacking was Mowat’s own. It was Oliver Mowat himself who had introduced the essential resolutions on federal and provincial powers, and he had certainly helped draft them. At least since Creighton wrote his confederation histories, the case that Oliver Mowat accepted a dominant federal government at Quebec, only to renege on this fundamental principle of confederation when he became premier of Ontario, has seemed damning.

  Yet Mowat, in his own defence, might wish to emphasize elements of his Quebec resolutions that the historians of the 1960s minimized. First among these was the list of powers granted to the provinces. By its terms, provincial governments won exclusive authority over education, hospitals, and charities. They would control the public lands and the income from them, and govern all matters of property and civil rights. They could levy direct taxation, which in the context of the 1860s essentially meant putting taxes on property. They would have full authority to create and supervise municipal institutions. They would run the prisons, the police forces, and the administration of justice. They would have authority over the whole sphere of what Mowat initially called “private and local” matters and which in the final draft became “generally all matters of a private or local nature.”

  These were broad and substantial powers. From Canada West to the Maritimes, in fact, there was a significant caucus committed to preserving substantial provincial authority – even as it acknowledged the need for strong central authority. Leonard Tilley would later argue that eleven of every twelve laws he had seen passed in New Brunswick before confederation were in fields that would remain within its powers after confederation. What Ottawa had acquired, he implied, were Imperial powers transferred from London, rather than local powers removed from the provinces. George-Étienne Cartier hardly needed to say that French Quebec could never join a nation dominated by Protestant anglophones unless its local government had the powers to protect the vital institutions of francophone society. And Brown’s reformers had long wanted to get Upper Canada free of the union to run more of its own affairs through a legislature “beyond the control of the central power, set apart from it, untouchable by it” (as Brown’s Globe had put it just as the Charlottetown conference opened). Even John A. Macdonald concurred. When it was suggested the federal government might “sweep away” the provinces, he told the conference, “This is just what we do not want. Lower Canada and the lower provinces would not have such a thing.”27

  There were, nevertheless, those crushing federal powers of reservation and disallowance in Mowat’s own resolutions, which transferred London’s Imperial authority to Ottawa and expressed the yearning of many delegates for a single, clear focus of constitutional authority in the new nation. They allowed Ottawa to delay or simply to nullify any piece of provincial legislation whenever it chose. Reservation and disallowance seemed to give the federal government a sledgehammer
against the provinces.

  Mowat did not confront disallowance and reservation directly at the conference. He may, however, have schemed to undermine them in the drafting of them. John A. Macdonald said of his own constitutional drafting at Quebec, “I must do it all alone, as there is not one person connected with the government who has the slightest idea of the nature of the work.” But Mowat was an expert in administrative law, abundantly qualified for legal drafting, and a friend described him as the delegate chiefly responsible for putting the Quebec decisions “into constitutional and legal shape.” At least part of what Macdonald had to do himself, perhaps, was wield a restraining hand upon Mowat’s drafts.28

  With Macdonald looking over his shoulder, if not actually holding the pen, the final draft of Mowat’s resolution on the division of powers was something he described late in his life “only as the best practicable in view of the different interests and sentiments of the members of the conference and those they represented.” His first version, he claimed, had been much more explicit about the equality of the federal and provincial governments. But changing some words did not necessarily mean yielding on the principle. For Creighton was right: Mowat was cunning. He was a skilled and very successful lawyer, who almost certainly considered himself a better lawyer than John A. Macdonald. If the conference was reluctant to oppose directly the idea of a supreme national government, Mowat could try to build in restraining principles that he drew from his legal specialty, the law of chancery.29

  The jurisdiction of the common-law courts and the jurisdiction of the chancery court were separate territories of English and Canadian law until they were merged late in the nineteenth century. (As premier and attorney-general of Ontario, Oliver Mowat supervised their merger in his province.) Common-law judgments were bound by the letter of the law and by strict judicial precedent. The chancery court, on the other hand, left scope to consider natural justice and to apply “equitable principles,” if strict application of the black-letter law would lead to an injustice. It was the subtle challenges of working out and applying these equitable principles that made chancery procedures so slow, so intellectually satisfying, and so lucrative for practitioners like Mowat. When he was a judge, one of Mowat’s critics called him an “equity fanatic,” always ready to overthrow a common-law rule or a legislative statute on some principle of natural justice. Today, he might be called a judicial activist.30

  From his successes in chancery, Mowat understood how principles of natural justice could modify the constitution the delegates were drafting. He was well placed to calculate that, in passing their resolutions, the Quebec delegates were embedding in them equitable principles strong enough to challenge the rule of disallowance. The black letter of the disallowance clause, he could have calculated, might one day be exploded by the deeper principles of responsible government.

  During the Quebec conference’s discussions of provincial powers, Nova Scotian reformer Jonathan McCully declared that the provinces must be “miniature responsible governments.” Seizing on this phrase, Donald Creighton emphasized the word “miniature,” as if McCully had wanted to underline the minor and dependent status of the provinces. But the part of McCully’s phrase that must have echoed around the conference table was “responsible government.” In the political context of the 1860s, responsible government – rule by a government that answered to a popularly elected legislature – was the fundamental shield of the rights of British North Americans. It was a sacred thing.31

  Creighton was ill-placed to ponder what “responsible government” meant to the delegates. The defining moment of his historical career had come when he grew bored with the colony-to-nation history of Canada that limped from Robert “Responsible-Government” Baldwin through a tedious series of constitutional abstractions towards the national independence of Canada. Creighton brilliantly shifted the emphasis away from reform-minded advocates of colonial self-determination. He directed attention to the tory entrepreneurs and politicians who transformed the commercial empire of the St. Lawrence into the continent-spanning Dominion of Canada. Reform obsessions had been sidelined in the 1860s, Creighton argued. In confederation, he saw the strategic calculation and nation-building vision of John A. Macdonald. Creighton had no more patience for reform soliloquies on responsible government than for reform arguments that the reason to appoint senators was not to make them dignified and aristocratic (as conservatives suggested), but to make sure the Senate was toothless.

  But even the tory nation-builders stood squarely on reform foundations. By the 1860s, the political culture of the colonies made it almost impossible to justify outside interference with a responsible government. In law, the Colonial Office’s authority over British North America was absolute. The achievement of responsible government in the 1840s and 1850s, however, had made it unacceptable for London to interfere arbitrarily with the internal affairs of the colonies in any but rare and extreme cases. When the British cabinet overruled Prince Edward Island’s attempt to legislate an end to landlordism, Edward Whelan had called London’s interference “degrading and humiliating” and “a species of despotism that strikes at the root of one of our most valued privileges – that of self-government.” Such things would never happen in Canada, Nova Scotia, or New Brunswick, Whelan said bitterly.32

  Indeed, governments throughout British North America had largely defanged London’s ability to control local politics. In the debate on confederation, one veteran politician said London had not disallowed a Canadian law in twenty-five years. When a colleague cited one lone example, he retorted, “in that case we got our own way in effect directly afterwards.” Reformer or tory, no British North American politicians were willing to have their legislatures dictated to by London on local matters where local voters insisted they must be heard. It was being answerable to their own electorates that enabled confederation-era politicians to delegitimize interference from London, even as they proclaimed themselves loyal subjects of the Queen.33

  If there was a Machiavellian brilliance in Oliver Mowat’s work at Quebec, it lay in perceiving that what had reduced London’s Imperial power to ceremonial trappings (of the sort so bitterly resented by New Brunswick’s Arthur Gordon) would just as effectively undermine the powers Ottawa might one day claim to find in the Quebec resolutions. If the provinces were responsible governments answerable to their own electorates, Ottawa would find itself unable to interfere with them in their allocated spheres, just as London already had.

  The power of disallowance was plainly there in the Quebec resolutions. But if Ottawa tried to disallow what a provincial government had enacted, it would be interfering in the action of a government responsible to its own local electorate. By attempting to negate the will of the voters, Ottawa would instantly become the old Family Compact, the autocratic appointed governor, the interfering Colonial Office of the bad old days. It would be wrong in politics, and it would be contrary to natural justice.

  It may have been Mowat’s guess, as he and Macdonald drafted division-of-powers resolutions for the conference, that the crucial item in the deliberations, then, was the unequivocal agreement that the provinces, miniature or not, were responsible governments. Though George Brown, who should have been a reliable supporter of Ontario’s determination to control its own affairs, had said in his newspaper that “a responsible ministry in each province would certainly not be the cheapest system which could be adopted,” the provinces’ status as responsible governments was clearly understood at Quebec. In fact, the principle was confirmed in the resolutions that John A. Macdonald had himself introduced.34

  In the battle of the draftsmen in the Canadian delegation at Quebec, John A. Macdonald put his faith in disallowance and other federal powers he had had written into the resolutions. He believed that, armed with them, “the central power must win in the long run. My own opinion is that the general government or parliament should pay no more regard to the status or position of the local governments” than they would to municipal cor
porations. Mowat may have reasoned, however, that responsible governments were sacred in mid-nineteenth-century Canada, and that the principles of natural justice to which he had devoted his legal career would secure the rights of the provinces’ responsible governments against Macdonald’s black-letter rules of disallowance.35

  By the late stages of the Quebec conference, Macdonald may have been growing aware of Mowat as a threat, for he paid him the compliment of getting rid of him. One of Canada West’s three chancery judges died in Toronto on the very day that Mowat was introducing at Quebec his crucial resolutions on the respective powers of the federal and provincial governments. Macdonald was the attorney-general for Canada West and, to the chagrin of several conservative allies who were angling for the appointment, he offered it to his Grit rival Mowat.

  This rare offer – there were only three seats on the chancery bench in Canada West, all life appointments – was irresistible to a dedicated counsel like Mowat, particularly considering the minor role politics seemed to offer him. He accepted the judicial appointment. As a judge, he could not participate in the debates that followed the conference, and for years he offered no views about the terms of confederation. As a result, the reform-based, provincial-rights interpretation he would have been uniquely able to present was almost entirely unspoken in English Canada. As the confederation battles were fought, as the Dominion of Canada came into being, and as John A. Macdonald and his view of confederation came to dominate national politics, Mowat would spend eight quiet years as a judge in Toronto.

  In October 1872, Mowat would leave the bench in spectacular fashion, shedding his chancery robes to assume the premiership of Ontario. Prime Minister Macdonald was by then making frequent and enthusiastic use of the disallowance powers granted to the federal government in the British North America Act. Mowat almost at once confronted him. The conflict that had been buried in the backrooms of the Quebec conference became one of the great constitutional struggles of Canadian history.