1867 (17 page)

The Canadians had moved, but not far. They preserved most of their principle of sectional equality – Newfoundland’s Senate seats, they suggested, would be balanced by future seats for the North-West when it joined confederation. The Maritimers had gotten the satisfaction of extracting a concession from the Canadians, but they had won only a handful of extra seats to distribute. Andrew Macdonald’s proposal for a different kind of Senate was, as he acknowledged in his own notes, “not entertained.”

His fellow Islanders, who still liked the idea of their small province having as many senators as any other, seem to have endorsed his threat that, if the Canadians “made no allowance,” the Island might prefer to remain out of confederation. In response, the Canadians implied that they hardly cared whether Prince Edward Island came in or stayed out. In the vote on the distribution of Senate seats, Prince Edward Island cast the first of several lonely dissents to conference resolutions.

The other Maritime delegations had turned a deaf ear to Andrew Macdonald’s plausible contention that the Senate could not be the guardian of provincial interests unless all provinces were equally
represented in it. No Maritime delegate gave an unequivocal explanation of why they accepted a mere handful of extra seats in the Senate as a substitute for provincial equality there. But a hint at an answer emerged from the next big issue of the conference: how senators were to be selected.

The delegates took up the method of selecting senators as soon as the division of seats had been settled. Should senators be elected or appointed? If appointed, should they be appointed by federal or provincial governments? Should members of the existing upper houses have priority in appointment and, if so, should opposition as well as government parties be represented? These questions took up another couple of days of the conference’s fast-dwindling time. Motions and amendments were debated and withdrawn or defeated at a bewildering rate.

Finally, on a motion by Nova Scotian reformer Jonathan McCully, the delegations voted by concurrence – unanimously – that senators would be appointed for life by the federal government (although the first Senate would be a bipartisan one, appointed from all parties in proportion to their existing strength in the upper house of each province). The decision for “sectional” (that is, regional) rather than provincial equality had already established that the Senate was unlikely to become an effective guardian of provinces’ interests. The decision to let the federal cabinet appoint the senators killed any possibility of that.

The appointive principle was ridiculed, even at the time. In the Canadian legislature, Christopher Dunkin would call the appointive Senate “just the worst body that could be contrived – ridiculously the worst.” The best defence of it, he joked savagely, was that its appointees would be old men, upon whom death would provide a strange kind of constitutional check when nothing else did. Others condemned the Senate plan as reactionary, a return to the bad old days before responsible government, when appointive councils wielded autocratic power on behalf of a narrow élite of the wealthy and well-connected.
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In the decision to go back to appointed senators, the 1960s historians saw proof of the conservatism of the makers of confederation, of their doubts about democracy and their search for ways to hem in the unreliable will of the people. They defended the Senate decision by defending the delegates’ conservatism, emphasizing the confederation-makers’ dislike of American precedents and their concern that untrammelled democracy would undermine the dignified, British character of colonial society.

Yet it was not the conservative delegates who most vigorously supported the appointive principle. Jonathan McCully, who moved the crucial motion, was a reformer, and George Brown supported him vigorously. As reformers, they believed in government being made, and kept, responsible to the voters. A wide (male) franchise, representation by population, strict control of government by the legislature: these had been touchstones of reform politics for a generation. Yet Brown and McCully spoke for many reformers in their vehement opposition to elective upper houses, and the reason was not some vestigial reactionary tinge.

The main body of reformers did not want the Senate elected quite simply because an elected Senate would be a legitimate and powerful body. Reformers understood that an upper house’s function was always conservative. An upper house existed to place a check upon the democratic excesses of the widely elected lower house, and it tended to become the preserve of wealthy men, relatively insulated from constituent pressure. “We must protect the rights of minorities, and the rich are always fewer than the poor,” John A. Macdonald put it genially during the conference’s discussions of the Senate.
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Brown believed in the rights of property, but he did not want a conservative upper house that felt itself entitled to challenge the House of Commons. Election was the one sure way to give senators that sense of entitlement, so election of senators was anathema to reformers like Brown.

All schemes for a powerful upper house were modelled on the United States Senate. The American Senate was much smaller than
the House of Representatives, and both the scarcity of seats and the significant property qualification required of senators favoured wealthy candidates. In short, the United States Senate had been conceived by the American founders as a conservative check on the democratic House of Representatives. As such, it had been very successful. Indeed, when the triumph of responsible government suddenly made the once-tame legislatures of British North America into such powerful institutions, it was conservatives who looked to the American Senate for inspiration. In the 1850s, in the first decade of responsible government in British North America, conservative politicians began to push for an elective upper house (then called the Legislative Council), because they wanted a rival to the newly powerful lower house. They wanted an élite counterweight to the too-representative assemblies and too-powerful cabinets empowered by responsible government. The united Canadas got an elective upper house in 1856, by the votes of an odd alliance of conservatives and Brown’s Clear Grit rivals (who believed all public institutions should be elective). Brown was among those who opposed the change. Eight years later, when elected councillors were slowly replacing the life-tenure appointed councillors in the united Canadas, he still thought it had been the wrong decision, and he was no longer in the minority.
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George Brown had always looked balefully upon the growing influence and confidence of the elected upper house. Reformers – and many moderate conservatives who had accepted and thrived under responsible government – did not want a powerful, conservative Senate confronting and confounding the Commons. And that was the point around which the consensus formed at the conference. Most of the delegates, and all the influential ones, were the children of responsible government. Leonard Tilley and his New Brunswick reformers had cut their political teeth in that struggle, as had Coles and Whelan from the Island and Shea from Newfoundland. Nova Scotians McCully and Archibald were Joseph Howe’s heirs and allies. Just as much as them, conservative politicians like Nova Scotia’s
Tupper, Macdonald of Canada West, and Cartier of Canada East had thrived under responsible government. Conservatives or reformers, they all believed in the shiny new-model parliamentary government that the colonies had been enjoying for less than twenty years. They had cut their ties not only to the ultra-democratic Clear Grits but also to ultra-tories who yearned for a gentlemanly upper chamber with real power to block the Commons.

The makers of confederation understood a powerful upper house to be a threat to parliamentary power. The constitutional text of their day was John Stuart Mill’s 1861 book
Representative Government
. In it, Mill had succinctly explained why the British House of Lords no longer posed a very significant challenge to the authority of the British House of Commons. “An assembly which does not rest on the basis of some great power in the country is ineffectual against one that does,” wrote Mill. Once the House of Lords had rested on a great power, the landed aristocracy. But the influence and authority of great landowners had waned in Britain, and so had the power of the Lords. In 1861, Mill savoured the paradox: the strength of the House of Lords lay in its weakness. Its members could enjoy their dignified perquisites, wield back-corridor influence, and even function as a chamber of sober second thought – but only so long as they posed no direct challenge to the Commons, which claimed to rest on the power of the people of Britain.
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Ultimately, Mill’s view was the view of the delegates at Quebec. Their commitment to responsible government was such that no competing interest could induce them to create a rival power to the lower house. They could accept a chamber of sober second thought. They could welcome a source of legislative ideas and suggestions. They could anticipate a place in which to reward and honour their friends. But if they permitted the upper house to acquire independent and credible authority, they would fatally undermine their deepest commitment: parliamentary democracy rooted in the responsible government achieved in the 1840s and 1850s.

Brown would explain the reasons for the appointive Senate at a public gathering a week after the conference closed. He had always opposed elective upper houses, Brown told a cheering crowd that had gathered to welcome the delegates to Toronto on their postconference tour of the Canadas, “not because I was at all afraid of popular influence, but because I felt that while the lower house controlled the government of the day and the government of the day appointed the members of the upper house, the people had full and efficient control over the public affairs. The question, I think, fairly presents itself whether two elective chambers, both representing the people and both claiming to have control over the public finances, would act together with the harmony necessary to the right working of parliamentary government.”

Brown went on: “And there is still another objection to elective councillors. The electoral divisions [in the upper house] are necessarily of enormous extent.… The difficulty of obtaining personal access to the electors, and the expense of election is so great as to banish from the house all who are not able to pay very large sums for the possession of a seat.”
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Even elected councillors could share this opinion. During the debate on confederation in the Canadian upper house, Walter McCrea would declare that “but for the elective principle having been applied to this house, I should never have had the honour of a seat within its walls,” yet he went on to rank himself “among those of the reform party who think that making the members of this house elective was a step in the wrong direction,” because it undermined the more directly representative Commons.
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This was orthodox doctrine to more than the reformers. By the 1860s, responsible government ideas were the broad middle ground of colonial politics. Clear Grits still held out, at least in principle, for elective offices at all levels – from dogcatcher to governor general. (Indeed, the old Clear Grit William McDougall later claimed that during the conference he had urged an elective Senate. If he did, the
minutes failed to note it.) Some diehard ultra-tories also hoped to resist the too-democratic Commons from an upper house which would be both reliably conservative and powerful. But Brown, Tilley, McCully, Whelan and other reform delegates agreed with conservatives like John A. Macdonald, Cartier, and Tupper: parliamentary democracy was fundamental. The power of the Commons guaranteed it. An elective Senate was a threat to it.

The confederation-makers, despite all the days they spent wrangling over details of the Senate, agreed on one thing about it: it must be weak. The Senate they designed was attacked from the start as unrepresentative, unable to defend provincial interests, a retirement home for party hacks. But no one has ever successfully shown the Senate to be strong, or to pose a credible challenge to the authority of the House of Commons. That was the essential requirement of the men who designed it.
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Faith in responsible government, rather than a yen for élitist autocracy, best explains why the delegates settled on an appointive Senate. It also suggests why Charles Tupper, Leonard Tilley, and other delegates from the small provinces had not pushed harder for provincial equality in the Senate or for provincial appointment of senators. Even if its members were unelected, a Senate representing the provinces (and appointed by them) could claim to represent a “great power” – not the voters, but the provinces themselves. A Senate authorized to speak for the provinces, like an elected Senate, could have claimed the moral authority to challenge the legislative supremacy of the Commons. Maritimers like Tupper and Tilley believed in parliamentary democracy that put real political power in the lower house, more than they believed in a Senate that would
be a voice for the regions. The provinces would have to be protected elsewhere.

The argument on the Senate changed relatively little at Quebec, but it confirmed how much the Canadians were running the conference. The Canadian cabinet had done most of the detailed planning for the conference. Key resolutions had been drafted, debated, and redrafted by the coalition partners in the Canadian cabinet before the meeting. When the Canadians introduced a resolution, the Maritimers usually began with spontaneous questions and random opinions, and the Canadians could respond with apparently authoritative replies based on their prior discussions. They set the agenda.

By the end of the Senate debates, it was becoming clear that the delegations from Nova Scotia and New Brunswick were willing to accept that agenda. Prince Edward Island increasingly was not. Prince Edward Island’s disgruntled isolation, exposed in the Senate arguments, was confirmed in the brief argument about the Commons that followed. On the evening of Wednesday, October 19,
le tout Québec
was preparing for the ball being offered that night by the speaker of the Canadian Legislative Council. But until ten that evening, the delegates themselves were in the conference room, debating George Brown’s resolution that, in the new House of Commons, “the basis of representation would be population.”