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Speech in Senate Chamber: Inquiry— Canada's Founding Fathers: British North American Delegates at the 1864 Quebec Conference and John A. Macdonald— Debate Concluded

British North American Provinces’ Delegates at the 1864 Quebec Conference and John A. Macdonald—Inquiry—Debate Adjourned

Hon. Anne C. Cools rose pursuant to notice of March 28, 2018:

That she will call the attention of the Senate to the great nation-building authors of Canada and their constituting statute, the British North America Act, 1867, and to this Act’s single conceptual and comprehensive framework expressed in its 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 the meeting of the British North American Provinces’ delegates at their Quebec Conference, held October 10 to 25, 1864, which conference yielded the famous 72 Quebec Resolutions, which, when corrected and perfected, became the British North America Act, 1867; and to Canada’s first Prime Minister, John A. Macdonald, who, with his clear, well-stocked mind, his exceptional skills, and his political intelligence was key to the achievement, success and longevity of our Constitution, the British North America Act, 1867, which has now lasted 150 years, a long time in constitution time.

She said: Honourable senators, I speak now to my fifth and last inquiry, Inquiry No. 43, about the meeting of the Confederation Fathers at their Quebec Conference, in Quebec City, October 10-25, 1864, which yielded their famous 72 Quebec Resolutions which, as corrected, amended and enacted, became the British North America Act, 1867.

I shall speak about John A. Macdonald and George Brown, the great and knowledgeable Canadian statesmen who were most dedicated to building a federated Canada with its new Constitution.

Honourable senators, the year 1864 was a great leap forward towards Canada’s Confederation. In his 1895 book, Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act, Joseph Pope records John A. Macdonald at the Quebec Conference on October 11, 1864, at page 53 thus:

Mr. John A. Macdonald proposed that Upper and Lower Canada should be considered as two Provinces for voting purposes.

Colleagues, unsurprisingly, the Quebec Conference delegates agreed unanimously to Macdonald’s motion. The delegates’ high regard for John A. Macdonald was legendary. I offer these citations to show the Quebec Conference delegates’ high motivation to reach agreement in their large and great enterprise that was their federal union of their provinces, then threatened by the carnage and bloodshed of the United States’ second failed constitution, which was known as their cruel American Civil War.

Our British North American provinces were also threatened by President Lincoln’s Secretary of State Seward’s designs to annex Canada to the United States as part of U.S. hostilities against Great Britain. The Americans believed that Britain was supporting the Confederacy as against the Union. At the Quebec Conference, Joseph Pope wrote, at his book’s page 22:

Friday, 21st October, 1864. . . . It was moved by the Honourable Mr. John A. Macdonald:-That it shall be competent for the General Legislature to make laws for the peace, welfare and good government of the Federated Provinces ...

Honourable senators, John Macdonald’s motion was clear that the constitutional purpose and raison d’être of the future general legislature, that is the future Parliament of Canada, would be composed of Her Majesty Queen Victoria, the Senate and the House of Commons, all for the grand purpose that is “the peace, welfare and good government of the Federated Provinces.” John Macdonald’s motion for the peace, welfare and good government of the provinces was Resolution  9 of the 72  Quebec Resolutions. In 1865, these Canadian delegates debated and adopted their 72 Quebec Resolutions in their respective legislatures. These debates, known as the Confederation Debates, clearly reveal that these dedicated public men from the future provinces of the future Confederation of Canada, were deeply committed to their united endeavour, which was to build their great constitutional enterprise, their Confederation. During these debates in the Canadian Legislature, these members adopted a resolution for a humble address to Her Majesty Queen Victoria. The Journals of the Legislative Assembly of the Province of Canada, from June 8 to August 15, 1866, on August 11, 1866, record, at page 362:

1. That by the 38th paragraph of the resolution of this House, passed on the third day of February, 1865, for presenting a humble address to Her Majesty, praying that she may be graciously pleased to Cause a measure to be submitted to the Imperial Parliament, for the purpose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, in one Government, with provisions based on the resolutions which were adopted at a Conference of delegates from the said Colonies, held at the City of Quebec, on the 10th of October 1864 . . . .

Colleagues, now to the Confederation Father George Brown, who was prominent at the Charlottetown and Quebec Conferences. An active Reform Party member, he was the founder-editor of the Toronto Globe, later called the Globe and Mail, a vigorous newspaper from its 1844 inception. In 1863, George Brown, then the South Oxford member in the Legislative Assembly of Canada West Province, had joined John Macdonald and George-Étienne Cartier in their 1864 Great Coalition, which united Reformers and Conservatives in their shared goal of Confederation. At the Quebec Conference, in debate, George Brown gave his robust support to representation by population for the birthing Confederation’s lower house, later called the House of Commons. Brown knew well that “rep by pop” would promote regional equality in Canada West and Canada East, soon to be called Ontario and Quebec by Canada’s then new Constitution. On October 19, 1864, at the Quebec Conference, George Brown moved, and is recorded in Pope’s book, at page 19:

That the basis of representation in the House of Commons shall be population, as determined by the official census every ten years; . . . .

Colleagues, George Brown’s motion became Resolution 17 of the 72 Quebec Resolutions. Its adoption meant that the electoral franchise in property would be the electoral foundation for the members of the Confederation’s Lower House, soon to be our House of Commons, that embodies that great constitutional principle representation by population. On February 8, 1865, in Canada West’s Legislative Assembly, during their Parliamentary Debates on the Subject of the Confederation of the British North American Provinces, known as the Confederation Debates, George Brown spoke to representation by population. As recorded in the Confederation Debates, he said, at page 88, that:

The honourable member for North Hastings is of that opinion; but that honourable gentleman is in favor of legislative union, and had we have been forming a legislative union, there might have been some force in the demand. But the very essence of our compact is that the union should be federal, not legislative. Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step; and, for my part, I am quite willing they should have it. In maintaining the existing sectional boundaries and handing over the control of local matters to local bodies, we recognize, to a certain extent, a diversity of interests; and it was quite natural that the protection for those interests, by equality in the Upper Chamber, should be demanded by the less numerous provinces.

Honourable senators, now to the Fathers of Confederation on their visit to England, at their London Conference at Westminster Palace. There, on December 4, 1866, our delegates adopted John Macdonald’s motion as the London Conference Resolution 28.

Colleagues, en passant, I note that all of these resolutions were carefully numbered for obvious reasons.

Joseph Pope recorded London Resolution 28, at his book’s page 102, that:

28. The General Parliament shall have power to make laws for the peace, welfare, and good government of the Confederation. . . .

Joseph Pope recorded the first of several drafts of the then birthing British North America Act, 1867. Titled “Draft of a Bill for The Union of the British North American Colonies, and for Government of the United Colony” and dated January 23, 1867, clause 38 of this draft bill said, at pages 152-153 Pope’s book:

38. It shall be lawful for Her Majesty, Her Heirs and Successors, by and with the Advice and Consent of the Houses of Parliament of the United Colony, to make laws for the Peace, Order, and good Government of the United Colony and of the several Provinces, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to Provincial Legislation; . . .

Colleagues, the words “Peace, Welfare and Good Government,” were changed to the words “Peace, Order, and Good Government.” This is the current wording. This change was made at the London Conference in the U.K. On March 29, 1867, Her Majesty Queen Victoria gave Royal Assent to the statute An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and for Purposes connected therewith. This statute came into force on July 1, 1867. Its section 1 said:

This Act may be cited as the British North America Act, 1867.

Colleagues, yet again this defining phrase as amended appears as Section 91 of the B.N.A Act. Its section 91 said:

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, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; . . . , it is hereby declared that . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; . . . .

Honourable senators, having shown that the phrase “Peace, Order, and Good Government,” was born of the earlier phrase “Peace, Welfare and Good Government,” I will share with you the genius of Canada’s Constitution and the skills in law, politics and governance that the Fathers of Confederation possessed and exercised. We must uphold the success that was Canada’s nation building and constitution making. At the Quebec Conference on October 11, 1864, Joseph Pope’s book recorded Macdonald’s words on the proposed Senate, at pages 57-58:

As regards the constitution of our Legislature. In order to have no local jealousies and all things conciliatory, there should be a different system in the two chambers. With the Queen as our Sovereign, we should have an Upper and a Lower House. In the former the principle of equality should obtain. In the Lower House the basis of representation should be population, not by universal suffrage, but according to the principles of the British Constitution. In the Upper House there should be equality in numbers. . . . . With respect to the mode of appointments to the Upper House, some of us are in favour of the elective principle. More are in favour of appointment by the Crown. I will keep my own mind open on that point as if it were a new question to me altogether. At present I am in favour of appointment by the Crown. While I do not admit that the elective principle has been a failure in Canada, I think we had better return to the original principle, and in the words of Governor Simcoe, endeavour to make ours “an image and transcript of the British Constitution.” We have to consider what is desirable; and then what is practicable.

Honourable senators, I have shared my love of Canada as conceptualized and actuated by our founding fathers’ most skillful efforts to steer their ship of state through new and uncharted waters. Their goal was to reach agreement, and to mold for perpetuity, a workable and enduring constitution for Canada.

Colleagues, for those of us who love to read this fast becoming obscure literature, I am always fascinated and also attracted by the fact that these men were willing to take the time they needed to reach agreement to get to the “yes.” The fact that they reached agreement is a great success. Their goal was to reach agreement, and to mould for perpetuity a workable and enduring constitution for Canada.

(1800)

The Hon. the Speaker: Excuse me, Senator Cools. It’s now 6 p.m., and unless we agree not to see the clock, we have to rise until eight.

Is it agreed that we not see the clock, honourable senators?

Hon. Senators: Agreed.

Senator Cools: I appreciate that, colleagues. I only have a few minutes left.

Canada’s Confederation and its constitution, the British North America Act, 1867, are now 150 years old. As I often say, 150 years is a long time in constitution time. Such constitutional longevity is rare. As faithful standard bearers we must thank God that by our earlier constitutions that antedated the BNA Act, 1867, and by the 1867 act itself, Canada, in the phrase “peace, order and good government,” will long express our high constitutional standards for fair and judicious governance.

Honourable senators, I come now to the widely held but mistaken notion that the Confederation Fathers intended this Senate to be non-partisan. This is not so. It is simply not true. The Fathers of Confederation set out to do the opposite. They set out to uphold the use of political parties, and to maintain the proper balance between the parties in their legislatures. Joseph Pope’s book records the Quebec Resolution 14, the subject of which is the selection of senators, at pages 40 and 41, that:

14. The first selection of the Members of the Legislative Council shall be made, except as regards Prince Edward Island, from the Legislative Councils of the various Provinces, so far as a sufficient number be found qualified and willing to serve; such Members shall be appointed by the Crown at the recommendation of the General Executive Government, upon the nomination of the respective Local Governments, and in such nomination due regard shall be had to the claims of the Members of the Legislative Council of the Opposition in each Province, so that all political parties may as nearly as possible be fairly represented.

Joseph Pope’s book also records the amended Quebec Resolution 14 that became the London Conference Resolution 15, at page 100:

15. The Members of the Legislative Council for the Confederation, shall, in the first instance, be appointed upon the nomination of the Executive Governments of Canada, Nova Scotia, and New Brunswick, respectively, and the number allotted to each province shall be nominated from the Legislative Councils of the different Provinces, due regard being had to the fair representation of both political parties, but in case any Member of the Local Council so nominated shall decline to accept, it shall be competent for the Executive Committee in any Province to nominate in his place a person who is not a member of the Local Council.

The Hon. the Speaker: I’m sorry, Senator Cools, for interrupting but your time has expired. Are you asking for five minutes?

Senator Cools: Five minutes.

The Hon. the Speaker: Is it agreed, senators?

Hon. Senators: Agreed.

Senator Cools: Honourable senators, the Confederation Fathers’ labours yielded the great feat, which is that for 150 years, Canada has been well governed by its unbroken, successful, enduring and abiding Constitution. We can wisely conclude that the current assertion that the Senate should rid itself of political parties and partisanship has absolutely no foundation in Canada’s Constitution and history, both of which have always intended the meaningful and successful use of political parties as tools to achieve Canada’s political and constitutional goals, which must ever be the peace, order and good government of our mighty country. It is to this end that we senators have been appointed by Commissions under Letters Patent to serve here in this the Upper and Royal House of the Parliament of Canada wherein the Queen, the Senate, and the House of Commons may gather as the Parliament of Canada assembled.

I thank colleagues for their attention.

Hon. Senators: Hear, hear.

Hon. Joseph A. Day (Leader of the Senate Liberals): Could I ask a question? Then I’d be pleased for my colleague to take the adjournment.

Senator Cools, thank you very much for the work that you’ve done on this. We very much appreciate it. You referred several times to the expression, “peace, order and good government.”

Did I understand you to say that that expression changed somewhat in London but came out of the Quebec Conference?

Senator Cools: Yes.

Senator Day: So often that expression has been contrasted with the United States. It is used to show a different temperament of the people in the different areas.

Am I correct that came not from Great Britain, although the “peace, order and good government” was defined there, but the expression had its genesis in Quebec and the Quebec Conference?

Senator Cools: It did, and it’s very interesting because this is in my other speeches on this matter. After the Plains of Abraham battle, having made many agreements, in 1774, the Quebec Act was enacted in the U.K., and one of its large purposes was to preserve for the French Canadians their religion, their French language, their law and their civil code. So you find the Peace, Welfare and Good Government in the 1774 Quebec Act.

You will find this phrase in the 1791 Canada Act that divided Quebec into Upper and Lower Canada. Then you find it again in the Act of Union in 1840. Then in 1840 they put them back together as Canada East and Canada West.

I began in 1774, but we’re moving more towards the time of Sir John A. Macdonald and these emerging leaders who were destined to be successful in their Confederation enterprise.

We had the Act of Union 1844. We must remember that the British brought Lord Durham to Canada in the 1830s. He submitted an excellent report which said that the fact that these people were not granted the same rights as in England, which meant responsible government. His report recommended that Canada East and West should be granted responsible government.

From that we gallop right into the 1860s, and the drive for Confederation, whereby the 72 Quebec resolutions were agreed to.

Then very quickly and rapidly, by the end of 1866, the delegates were at the London Conference. They come home with a document which has lasted now for, as I said before, 150 years.

This is something to be upheld and praised and, if anything, publicized more and more.

Senator Day: Something to be proud of.

Senator Cools: Something to be extremely proud of, but they did it. But you have to know at all times they were up against the savagery and bloodshed that attended the United States of America.

So the contrast is really very sharp, and I think in a way those words “peace, order and good government” are not as glamorous and as poetic as the Americans’ “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Many Canadians tell me that our Constitution is so boring but the American one is so exciting. I say it’s the opposite. Theirs is as boring as hell, and ours is the exciting one. Thank you.

(On motion of Senator Martin, debate adjourned.)