1867 (16 page)

Painting “The Fathers of Confederation” on a Canadian government commission in 1884, Robert Harris lent splendour to the room where they met by endowing it with spectacular arched windows. Through a large central window flanked by smaller ones in the same style, Harris presented a panorama of the St. Lawrence, the river of Canada. The richly symbolic view was accurate enough, but the windows – which would give the name “confederation window” to a style – were the painter’s own invention. The real windows were identical in size, and were framed in sturdy wooden casements, rather than the delicate leading of Harris’s imagination.
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The working sessions of the Quebec conference took place in a makeshift reading room in what was supposed to be a post office. In 1864, the Quebec City legislative building was an unprepossessing structure, though it occupied the magnificent cliff-edge site once adorned by the eighteenth-century palace of the bishops of New France. After the episcopal palace burned in 1854, the new building on the site was pressed into service as a legislature when Quebec temporarily became capital of the Province of Canada in 1860. (After the capital moved to Ottawa in 1865, the post-office-turned-legislature, where the makers of confederation met, burned down in its turn in 1883. This fire took place while Harris was working on his painting, which itself was lost in Ottawa’s Parliament Hill fire of 1916. Since the Second Empire-style Assemblée Nationale on the heights beyond the city walls was already under construction, its predecessor seems to have gone largely unremembered and unlamented.)

The weather may have been disappointing, the meeting room undistinguished, and the grind of work relentless, but the conference
at Quebec in October 1864 was a remarkable event, the longest, largest, most inclusive, most productive, and most successful constitutional conference in the long history of Canadian constitutional palaver. The long-vanished reading room on the cliff-edge at Quebec is where confederation was made. In sixteen working days, the thirty-three delegates of more than a dozen political factions from six provinces negotiated, drafted, debated, and passed seventy-two resolutions that set out the essentials of the constitution that has governed Canada ever since. Since the deal they made at the conference table at Quebec is substantially the Canadian constitution of the late-twentieth century, the agreements hammered out in mid-October 1864 are the ones that really matter.

Charlottetown’s one crucial resolution – in favour of federation “if the terms of union could be made satisfactory” – had given Quebec its agenda. Back in 1859, faced with an early flurry of union talk, Britain’s colonial secretary had advised governors in the colonies not to put too much stock in early enthusiasm. “The success of such a measure must depend much on details,” he wrote then, “and unless all interests are provided for, fresh sources of discontent will arise.” This proved nicely prescient of the task that would keep the Quebec delegates at the table. If there was a constitutional deal to be made, the delegates would sit around the table under the not-quite-confederation windows and hammer at the details until a deal was made.
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The delegations at Quebec formed a larger body than those at Charlottetown. Only Nova Scotia’s delegation was unchanged from Charlottetown, and there were ten new faces around the table. Prince Edward Island and New Brunswick had both recruited additional advocates of union into their delegations. The Canadian delegation, on its home turf, had swelled from eight to twelve – the whole Canadian cabinet. And a new delegation was present: Newfoundland’s. Informed too late to attend at Charlottetown, Newfoundland’s legislature sent two observers to Quebec. As if to prove how widely the value of bipartisanship in constitution-making
was understood, the Newfoundlanders had sent conservative Frederick Carter of Protestant, mercantile St. John’s and Catholic reformer Ambrose Shea of the outports.

The Quebec sessions began on Monday, October 10, with the election of Sir Étienne Taché as chairman. A veteran politician, first elected as one of LaFontaine’s francophone reformers in 1841, Taché had been made nominal premier of the united Canadas by the three-way coalition whose real (and rival) powers were Brown, Macdonald, and Cartier. Leaders of the other provinces were elected honorary secretaries to the conference, and Hewitt Bernard, Macdonald’s civil-service deputy and future brother-in-law, was appointed to keep the actual minutes. As at Charlottetown, the conference rejected the pleas of journalists, who argued that regular reports to the press would be a valuable corrective to rumours, even if the statements of individual delegates had to be kept secret to permit frank discussion.

Early in the deliberations at Quebec, George Brown burst out in a moment of frustration: “I appeal to the other provinces!” The conference had agreed that voting would be by province; each province would cast a single vote, except the united Canadas, which would have two. Talk was free: Brown, losing a dispute in his own delegation, was hoping he could sway the other delegations to his personal view. If there seemed sometimes to be as many viewpoints as delegates, however, there was also strong pressure for consensus. Brown’s plea went unheeded here and, after all the talk, many resolutions passed by concurrence – unanimously, without even a pause for provincial caucusing before the vote.

After setting out some general principles, the conference devoted most of its time to an exploration of federalism: how to constitute the national and provincial governments and how to divide authority among them. Loud and long, influential confederation-makers had proclaimed their preference for a strong central government. From large provinces and small came wistful declarations that, if
possible, the best union would be a legislative union, in which the national Parliament would be the only legislature and there would be no provinces. A legislative union was the properly British model; no states or provinces rivalled the sway of Parliament in London. A federal union, dividing power between a national and state governments, was suspiciously American. It was indeed, said delegates frequently, the flaw that had led the United States to civil war.

Macdonald and Tupper and Galt and others could sing the praises of legislative union, however, only because they knew it was an absolute non-starter, never for one moment to be taken seriously at Charlottetown or at Quebec. The enduring existence of provinces with their own governments and powers was a first principle of confederation in the 1860s. A federal union that would provide a substantial measure of autonomy to both Canada West and Canada East – that was the bargain that had brought Brown and Cartier into the coalition government of the united Canadas. Brown had established that Canada West would not remain in the existing union without rep-by-pop, and Cartier had insisted Canada East would not remain with it. Federalism, by separating the two regions, was the mechanism that might satisfy both. Brown and Cartier’s shared understanding of that ruled out all serious consideration of legislative union even before the conferences began.

The Maritimers, unwilling to sink their local autonomy in Maritime union, were just as unfavourable to a legislative union, in which they would be overwhelmed by either of the Canadas, let alone both of them. Any union with the Canadas was going to be looked at sceptically there, but one that annihilated all local governments had no chance of being accepted. Whatever lip-service might be given to clear, simple legislative union, federalism was the only feasible proposal. Tupper at one point spoke of diminishing local governments as much as possible, but he instantly admitted the conference could not “shock too largely the prejudices of the people in that respect.” In the Maritime provinces, the degree to which the
Quebec resolutions respected local autonomy would be a fundamental issue on which confederation would be judged.

Any delegate could talk about the simplicity and cheapness of a single legislature for the whole country and how appropriately British that would be, but not a single delegation supported a complete legislative union. Later, battling with provincial governments, Prime Minister John A. Macdonald would speak wistfully of New Zealand, where the national government had the power to abolish local authorities, and did so. But at Quebec, when another delegate cited the New Zealand constitution, it was Macdonald who dismissed the analogy. New Zealand’s experience was irrelevant, he said. That was a legislative union.

Only federalism, in fact, made a written constitution essential. On the British model, with undivided sovereignty reposing in a single parliament, Canada would hardly have needed a written constitution any more than Britain did in the 1860s (or the 1990s). Federalism and the division of powers between governments was what required the weeks spent drafting the resolutions at Quebec.

Reading the debates at Quebec, however, one looks in vain for ringing declarations of provincial rights. Provincial rights had been at issue from the first glimmerings of confederation, but the principle was hardly explicit in the agreement. The French Canadians, having struck their deal within the cabinet of the united Canadas, had remarkably little to say on that issue. George Brown, entranced by all the seats Canada West would have in the new federal Parliament, hoped that local governments would be small and economical. As late as August 1864 and again soon after the Quebec conference, the
Globe
endorsed the independent authority of the provinces, but during the conference itself Brown spoke of the provinces becoming mere municipal institutions, as if his quasi-separatism of 1859 had never existed. Charles Tupper, who by personality as well as circumstance was a leader among the Maritimers at the conference, cheerfully advocated diminishing the powers of local
governments. Guarantees of provincial authority, in fact, have to be found in the texts of the resolutions they passed, rather than in the speeches they made to each other. Even in the resolutions, they are deeply buried.

The delegates got into meaty issues of power and its allocations on the fourth day, Thursday, October 13, when John A. Macdonald introduced a resolution, drafted by the Canadian cabinet, on what would become the Senate. His resolution ignited a week of fierce wrangling, first over the composition of the Senate, then over how senators would acquire their offices.
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The argument over the Senate was the longest of the conference and the one which brought it closest to breakdown. But the time the delegates spent fighting about the Senate was hardly an index of how important the upper house was. Rather, the shape of the Senate, as the first substantial question on the agenda, became the issue on which the delegates began to test each other for soft spots and stone walls. The Maritimers, who fuelled the debate, wanted more influence in the Senate, but implicitly they were demanding more influence in the conference, too, where it was mostly the Canadians who presented the resolutions and the others who reacted to them.

“For the first few days, the leading delegates of the lower provinces exhibited caution and vigilance upon every question affecting the interests of these provinces,” said Prince Edward Island’s Edward Palmer approvingly. What their vigilance would expose, however, was how very little the Canadians were willing to bend. After the Senate confrontation, leading Maritime delegates displayed their willingness to make substantial compromise for the sake of confederation – much to Palmer’s dismay.
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The Canadian delegation’s Senate proposal offered sectional equality. The three “sections” – Ontario, Quebec, and the Maritimes –
would each have the same number of seats in the upper house of the new federal Parliament. The Canadians were acting as if Maritime union had gone ahead, and the Maritimes were to be treated as one province. A negotiator of long experience, Macdonald presented this as a concession to the Maritimers, noting they were receiving “equality” in the Senate, although their collective population was smaller than either of the Canadas.

The Maritimers saw it differently. Leonard Tilley, then Charles Tupper, and then Charles Fisher, one of the newly appointed New Brunswick delegates, tried in succession to expand the Senate representation of the Maritimes. They may have been testing the Canadians, for they offered no clear principle in place of sectional equality. Their amendments simply attempted to secure a few additional seats for their region. The argument ground on through Thursday and Friday to Saturday, October 15, but all the Maritimers received was a lesson in the intransigence of the Canadians.

George Brown apparently suggested that, if the Maritimes could have extra senators, so should Upper Canada. That, said Hector Langevin at once, was anathema to Lower Canada. The hint that they might be endangering the
bleu-Grit
alliance at the heart of the Canadian coalition seems to have trumped the Maritimers’ claims. But the arguments were heated. “Matters do not certainly look very promising,” wrote Edward Whelan on Friday night, just before the first great ball. Saturday’s sessions were no better.
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After the Sunday break at the end of the first week, the Prince Edward Islanders launched an even more serious challenge. In August, George Coles had thought that confederation should be based on equal provincial representation in the House of Commons. Charlottetown squashed that idea; the Canadians had established that rep-by-pop was indispensable. Now Coles’s fellow reformer, Andrew Macdonald, observed plausibly that, if rep-by-pop had to prevail in the Commons, “the upper house should be more representative of the smaller provinces, as it was to be the guardian of their rights and privileges.” Each province (not merely each section)
ought to have equal representation in the federal upper house, said Macdonald, as American states did in the Senate of the United States.
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Perhaps some deal-making had been going on during the Sunday break. Or the Canadians may have feared that, if the deadlock continued, Andrew Macdonald’s idea might win over Maritime moderates whose less-far-reaching Senate proposals had already been rebuffed. In any case, the Canadians held a private caucus after Andrew Macdonald’s Monday-morning proposal and changed their tactics. They revived a motion Charles Tupper had put forward at the start of the debate. The three Maritime provinces together would start on an equal footing with Ontario and Quebec in the Senate, but there would be additional Senate seats for the Atlantic region if Newfoundland joined confederation. Tupper’s suddenly resurrected motion was quickly passed.