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Speech in Senate Chamber: Inquiry— Canada's Founding Fathers: General Wolfe and King George III— Debate Concluded

Inquiry—Debate Concluded
Hon. Anne C. Cools rose pursuant to notice of March 1, 2018:
That she will call the attention of the Senate to the great
nation-builders of Canada and its constituting statute, the
British North America Act, 1867 and to this Act’s single
comprehensive and conceptual framework expressed in
section 91, in the words “It shall be lawful for the Queen to
make Laws for the Peace, Order and good Government of
Canada”; and, to General Wolfe’s 1759 conquest of Quebec,
and to the October 7, 1763 Royal Proclamation, given by
Britain’s King George III, which proclamation gave the
Governors of the colonies, later called Ontario and Quebec,
the power to summon and call General Assemblies in such
manner and form as was used in said colonies under British
She said: Honourable senators, today I speak to my inquiry,
No. 37, calling the attention of the Senate to the distinguished
men and women nation-builders, who in 1867, birthed the new
sovereign Confederation named Canada and authored its
Constitution, the British North America Act, 1867. Tonight I
speak to the greatness and success of this statute of the British
Parliament at Westminster, which greatness and success have
been well proven by its longevity and continuity in the wise
governance of our noble and vast country, Canada. I shall trace
the roots of this act’s section 91, headed “Powers of the
Parliament,” which says:
It shall be lawful for the Queen, by and with the Advice and
Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of
Canada . . . .
Colleagues, I invite you to explore Canada’s centuries-long
journey that made it a strong and free country. I invite you to
look at Canada’s constitutions, the great men who made them,
and the many others who endeavoured to build Canada, east to
west, from sea to sea.  My goal is to explore the minds and labours of the many fine
and great human beings who set out to make Canada a just and
prosperous country. I shall begin my journey in time after the
1759 war and British conquest of Quebec at the Plains of
Abraham, in which war the able Anglo-Irish British officer Guy
Carleton had served prior to his service in the 1775-83 American
Revolutionary War. I note that Carleton had also been Governor
in Chief of Quebec.
We meet British General Sir Guy Carleton, made Lord
Dorchester in 1786, in his famous May 6, 1783, encounter with
United States General George Washington. The matter at issue
between these two Generals was Washington’s desire to
recapture his personal property. This personal property was
Washington’s Negro slaves, then in the protection of the British
General Guy Carleton, who saw and treated them as free men.
I note that Carleton had charge of the safe passage of the
United Empire Loyalists and freed African slaves fleeing from
the United States to the still British North American provinces,
particularly Quebec and Nova Scotia.
In her 2011 book Liberty’s Exiles: American Loyalists in the
Revolutionary World, published by Alfred Knopf, New York,
author Maya Jasanoff records the bewildering but instructive
exchange on Washington’s Negro slaves that ensued between
these two powerful generals, Carleton and Washington. Jasanoff
writes, at page 89:
The commanders had pressing items of business to discuss,
including the ongoing depredations of partisan raiders in the
countryside, the exchange of prisoners of war, and the
timetable for evacuation. But Washington started off the
conference by lecturing Carleton on what, to him, was the
most urgent matter of all, the removal of human property
from New York. Carleton calmly explained that a fleet had
already embarked for Nova Scotia with registered black
loyalists on board. “Already imbarked!” exclaimed a startled
Washington. (He might have been yet more surprised to
know that one of the blacks embarked, Harry Washington,
had once belonged to him.) Carleton replied that he could
not abide by anything in the treaty ”inconsistent with prior
Engagements binding the National Honour, which must be
kept with all Colours.”
Jasanoff continues, at page 90:
. . . He demanded to hear from Carleton exactly what
procedures had been put in place to prevent such
miscarriages in future. But Carleton could match his
counterpart’s accusations point for point, meeting outrage
with moral superiority. It was odd that Washington should
be surprised by the news, Carleton dryly observed, when
everything had been conducted in the most open manner. All
the ships for Nova Scotia had been inspected, and the only
disputes “arose over negroes who had been declared free
previous to my arrival. As I had no right to deprive them of
that liberty . . . , an accurate register was taken of every
circumstance respecting them.” Besides, he concluded, “Had
these negroes been denied permission to embark, they
wou’d, in spite of every means to prevent it, have found
various methods of quitting this place, so that the former
owner wou’d no longer have been able to trace them, and of
course wou’d have lost, in every way, all chance of
compensation.” In short, he had acted entirely in keeping
with the spirit and letter of British law. “The negroes in
question . . . I found free when I arrived in New York, I had
therefore, no right . . . to prevent their going to any part of
the world they thought proper.
Insightful, Jasanoff noted, at page 91:
Carleton’s principled defense of the black loyalists stands
out for its clarity of conviction, and highlights an emerging
contrast between certain American and British attitudes
towards slavery. . . . Carleton himself was not an abolitionist
as such; he had not explicitly set out to free the slaves. His
actions spoke in part to a sense of personal honor. Promises
had been made, promises must be kept. But they also
reflected his commitment to a concept of national honor —
and the paternalistic government’s responsibility to uphold it
— that would rapidly gain momentum among the rulers of
the postwar British Empire.
Honourable senators, this exchange between these two capable
and famous soldier-generals provides marvellous and telling
insights into the profound difference in the minds and
perspectives of American, British and British Canadian leaders.
Guy Carleton had been the driving force and directing mind
behind the 1774 Quebec Act. The British Westminster
Parliament’s enlightened statute upheld British North America’s
French-speaking peoples and granted them the free use of their
French language, their Roman Catholic religion and their French
Civil Code. Seventeen years later, in 1791, the British Westminster
Parliament enacted the Canada Act 1791, also called the
Constitutional Act 1791. This British statute divided the territory
conquered from France in 1759 by General James Wolfe’s
British forces and constituted the two new provinces, Upper
Canada and Lower Canada. This division was part of Britain’s
political and constitutional efforts to hedge these two new British
North American Canadian provinces from the terrible and
dangerous consequences of the American Revolutionary War.
These consequences included American support for the French
Revolution, American privateers’ aggression and belligerence on
the two Canadas’ borders, and also on the borders of our British
Eastern, Maritime Lower Provinces.
In 1791, Americans were still unhappy that, despite their best
efforts, they had failed to obtain Canada’s support and
participation in their 13 colonies’ revolt against Great Britain.
They were also troubled by the Canadas’ and the Brits’
abolitionist and anti-slavery proclivities.
I note that William Wyndham Grenville, the Canada Act 1791
sponsor, had risen to the House of Lords in 1790. He had worked
with and well knew Britain’s great slavery abolitionists, in and
out of parliament, including Prime Minister William Pitt the
Younger, James Stephen, Charles James Fox, Thomas Clarkson,
Guy Carleton, John Graves Simcoe, Edmund Burke, John Wesley
— the founder of the Methodist Church — and others, including
the legendary William Wilberforce, who from the British House
of Commons floor, had led a 40-year successful campaign to
abolish that great human evil, the cross Atlantic African slave
trade and slavery in the Americas and the West Indies.
I shall quote John Wesley, who just days before his death on
March 2, 1791, wrote to William Wilberforce, recorded in
Samuel Wilberforce’s 1868 book The Life of Wilberforce. John
Wesley wrote:
. . . I see not how you can go through your glorious
enterprise, in opposing that execrable villainy which is the
scandal of religion, of England, and of human nature. Unless
God has raised you up for this very thing, you will be worn
out by the opposition of men and devils; but if God be for
you who can be against you. . . . . Oh be not weary of welldoing.
Go on in the name of God, and in the power of His
Might, till even American slavery, the vilest that ever saw
the sun, shall vanish away before it. That He who has guided
you from your youth up may continue to strengthen you in
this and all things, is the prayer of your affectionate servant,
John Wesley.
Colleagues, my mother was a strong Methodist. I am sure
senators know who the Methodists were.
Honourable senators, Upper Canada’s first Lieutenant
Governor, the British soldier-General John Graves Simcoe, the
great abolitionist, who had also served in the American
Revolutionary War, was a member of the British House of
Commons from 1790–1792. Therein, Simcoe had strongly
supported the slavery’s abolition. In his book, Correspondence of
Lieut. Governor John Graves Simcoe, published by the Society in
Toronto, Brigadier-General E. Cruikshank noted that in Quebec
on May 7, 1792, John Graves Simcoe in a letter to one Phineas
Bond wrote, at page 153:
The principles of the British Constitution do not admit of
that slavery which Christianity condemns. From the moment
that I assume the Government of Upper Canada, under no
modification will I ever assent to a law that discriminates by
dishonest policy between the natives of Africa, America, or
Simcoe’s words are compelling on this moral point. As I said,
the constitution and constitution-makers of Canada are an
insufficiently known story of human intelligence, human labour
and fantastic human moral courage. The Canada that we love was
founded in the humane liberal concepts called constitutional
governance. It is the story of some great and judicious leaders’
deep commitment to government with the consent of the
governed, meaning that government must be founded in sound
constitutional principles and, in law, agreed to by our citizens
and their representatives in their legislative assemblies. I note
that Canada’s constitutions were conceived and framed by these
judicious persons, in response to the terrible wars and savage
carnage that had twice plagued our powerful American
neighbours in their two large episodes of constitutional failure.
The first of which was their American Revolutionary War,
wherein their dominant republican instincts and labours yielded
their new United States of America. Their second was when they
took to arms again in their American Civil War between their
Northern Union states and their Southern Confederacy states. Of
interest, I note that Jefferson Davis, the southern Confederacy
president, had taken refuge in Quebec’s Eastern Townships.
Many of them had in those days. I also note that the name
“Canada” had been long in use and had long pre-existed
Canada’s 1867 Confederation.
Honourable senators, by the end of the 18th century, the people
and the leaders of British Canada had determined upon and had
adopted a wholly different approach and path to constitutional
governance and nationhood. This different approach was
expressed and recorded as our ancient and abiding single
constitutional phrase “peace, welfare and good government,”
which phrase later became “peace, order and good government”
as section 91 of the British North America Act, 1867, our
Confederation statute. This single, cohesive, conceptual and
comprehensive phrase has been central to each of our
constitutions, from the 1759 Plains of Abraham capitulation until
the present.
I shall list Canada’s constitutions in chronological order. They
are the 1763 Royal Proclamation; the Quebec Act 1774; the
Canada Act 1791, also called the Constitutional Act 1791; the
Union Act 1840; and famously, the defining and crowning
achievement, the British North America Act, 1867, wherein its
section 91 amended the earlier phrase “peace, welfare and good
government” to the phrase “peace, order and good government,”
that some lovingly call the P.O.G.G. powers.
Colleagues, we first meet this ancient constitutional phrase,
“peace, welfare and good government,” in King William III’s
1696 Order in Council, given under his hand to the tiny British
West Indian Island, Montserrat. In his 1880 book, the Powers of
Canadian Parliaments, Samuel James Watson, the Parliament of
Ontario Librarian, wrote about this recurring, defining phrase, at
page 14:
The words “peace, welfare and good government” occur first
in an Order in Council, dated “At the Court at Kensington,
the 31st of December 1696.” The Order, before declaring the
approbation of the King in Council of certain laws passed in
“the General Assembly of His Majesty’s Island of
Montserrat,” proceeds: “Whereas His Majesty has been
pleased by his Royal Commission of October 26, 1689, to
authorize the Governor, Councils, and Assemblies of their
Majesty’s Leeward Charibee Islands in America, jointly and
severally to make, constitute and ordain laws, statutes and
ordinances, for the public peace, welfare and good
government of the said Islands,” . . . .
Honourable senators, we must be mindful that 1696 was just
seven years after the 1689 Glorious Revolution when, by the first
act of settlement called the 1689 Bill of Rights, the British
Parliament settled and ended Britain’s terrible civil war strife.
These events and this statute had also compelled the abdication
of the Stuart, King James II. In his stead, the Parliament installed
King William of Orange as King William III of England and his
wife Queen Mary as the two joint sovereign monarchs of Britain
and the colonies. Mary and her sister Ann, who in 1702
succeeded them as Britain’s Sovereign Queen, were both
daughters of James II of England.
The British parliament had settled many large and difficult
constitutional problems, including the succession to the British
Throne, and had ushered in a new and bold era of politics and
reforms, advanced by political persons called Whigs. This term
has long been forgotten, but I heard about it when I was a child.
This British political group, the Whigs, many of whom were
aristocrats, was a truly new political party. In ascendancy for the
next 150 years, the Whigs became the great British Liberal Party.
The Hon. the Speaker: Excuse me, Senator Cools, but your
time has expired. Are you asking for five more minutes? Is leave
granted, honourable senators?
Hon. Senators: Agreed.
Senator Cools: This era was stellar in its parliamentary
reforms, achieving representative government, ministerial
responsible government, and constitutional monarchy, the
distinct features of the British constitution. I close on the
Constitution of Canada, its birth, its creation, and its now 150
years of unbroken existence. I thank senators for their attention. I
urge all to uphold the proposition that governance and
government should never be about personal ambition. It must
ever be for the peace, order and good government of our people. I
shall repeat section 91 of the Constitution Act, 1867, as the
British North America Act, 1867 is now known. The powers of
the Parliament are:
91. It shall be lawful for the Queen, by and with the
Advice and Consent of the Senate and House of Commons,
to make Laws for the Peace, Order, and good Government of
Canada . . . .
I thank senators for their attention, and I hope that you can
stand me for another few minutes, because I intend to proceed
from here on to my next one.
The Hon. the Speaker: Senator Cools, before you do that, I’ll
have to call it. If no other senator wishes to speak on this matter,
the matter is considered debated.
(Debate concluded.)