Date Published:
September 2004

L’Encyclopédie de l’histoire du Québec / The Quebec History Encyclopedia

Constitutional History of Canada

(1948)

[This text was written in 1948. For the full citation, see the end of the text]

There are four well-defined periods in the constitutional development of Canada. The first of these was the period of arbitrary government, covering the whole of the French régime and the first third of a century of British rule in Canada proper. The second was the period of representative but irresponsible government, dating from 1759 in the case of Nova Scotia and from 1784 in the case of New Brunswick , but beginning with 1791 in the case of Upper and Lower Canada . The third was the period of responsible government, which began between 1840 and 1850, but which, in the case of old Canada , was based on the negation of the principle of "representation by population." The last was the period of Confederation since 1867, in which the adoption of a federal system of government has been combined with both representative and responsible government, in ever increasing measure, both in the provinces and in the Dominion.

1. Period of arbitrary government .

From the day when Jacques Cartier  planted on the shores of the Gaspé peninsula the cross and the fleur-de-lys, and took possession of the country in the name of the king of France, until the year 1663, when the king of France set up a system of royal government in Canada, the colony was governed by a series of commercial companies chartered by the king. These companies, which usually obtained a monopoly of trading rights in Canada on condition that they brought out a stipulated number of colonists, were granted almost unlimited powers of government in the colony. The head of the company, who was generally appointed the king's lieutenant-general, had the right of making laws and ordinances, of granting lands, of appointing officials, and of exercising justice, with the power of life and death. Champlain, who represented several successive companies as governor at Quebec, had virtually despotic powers, though the colony was so small that his powers were scarcely exercised. Under the Company of New France, which received its charter in 1627, these powers were more clearly evident. This company, which was organized by Cardinal Richelieu, with the support of the court and the great merchants of Paris and Rouen (as distinct from the merchants of the sea-port towns, who had been the backers of previous companies), was empowered to control the whole political and economic life of the colony; and its resident governor was, by his commission, given authority "de juger souverainement et en dernier ressort." These arbitrary powers provoked resentment, and in 1647 a council was appointed as a curb on the governor. In 1648 the syndics of Quebec, Three Rivers, and Montreal, who owed their appointment to popular election, were added to the council, thus introducing into it a representative element. But this system did not last long, because of the financial collapse of the Company of New France; and in 1663 the king took the government of the colony back into his own hands.

The system of royal government set up in New France in 1663 was modeled on that of the provinces of old France. It was a system of checks and balances. The official representative of the king was the governor; but while the governor of New France exercised, owing to local conditions, more power than the governor of a French province, whose duties were mainly ceremonial, he was only one of several officers who took their instructions direct from Paris . Beside him was the intendant, who was really the king's business agent in the colony, and whose powers in some respects exceeded those of the governor. There was also the bishop, whose duty it was to supervise the religious and moral life of the colony. Finally, there was appointed in 1663 a Superior or Sovereign Council, corresponding to the parlements found in some of the provinces of France; and this was intended as a check on the powers of the governor, the intendant, and the bishop, just as these were intended to be a check on one another. In 1672, it is true, Frontenac attempted to introduce into the government of New France a popular element. He called together at Quebec an assembly of the nobles, the clergy, and the third estate-a sort of replica of the States General of France. But for this he received a severe snub from the king's minister. "It is well," wrote the latter, "that each one should speak for himself, and no one for all." Nothing could illustrate more clearly than this incident. the principles on which the government of New France was based. Paternalism was its keynote. The king's minister was not only unwilling to see any popular element introduced into the government of Canada, but he corresponded direct, not only with the governor, the intendant, and the bishop, but with minor officials in the colony. No detail of government was too small for him to regulate, though he was two thousand miles away. To say that the government of New France was arbitrary is only half the truth; it was so arbitrary that the king's minister in Paris constantly interfered with the officers of the king in New France .

The conquest of Canada by British arms in 1760 might have been expected to put an end to arbitrary government in Canada . But it did not. From 1760 to 1763, when the Peace of Paris was signed, Canada was of course under military rule; but the Proclamation of 1763, which inaugurated civil rule in Canada, set up a system of government under a governor and council which was just as arbitrary, if not quite so paternal, as the system of government under the French regime. Authority was granted, it is true, for the calling of an Assembly; but this Assembly was not called. Under the Quebec Act of 1774 this system of government was continued. The Council was enlarged, and was given more extensive powers; but despite the agitation of the English merchants in the province for an Assembly, there was no introduction of a representative element in the government of old Canada until the passing of the so-called Constitutional Act.

2. Period of Representative but Irresponsible Government . Representative institutions, in the form of an elected Assembly, were introduced into Nova Scotia in 1759, and into New Brunswick on its creation in 1784; but it was not until 1791 that the Constitutional Act, which divided the old province of Quebec into Upper and Lower Canada , gave these provinces representative institutions. All these provinces were granted constitutions of the old colonial type, which had existed in the American colonies prior to the American Revolution. The executive government was placed in the hands of a governor or lieutenant-governor appointed by the Crown, acting in conjunction with an Executive Council also appointed by the Crown. The legislature was composed of a Legislative Council, or upper house, appointed by the Crown, and a Legislative Assembly elected by the people. The people were thus given a voice in legislation; but unless the Legislative Assembly was in harmony with the Legislative and Executive Councils, its voice was largely nugatory. In legislation, it was unable to achieve anything without the concurrence of the Legislative and Executive Councils; and it had no influence over the executive government. The revenues of the Crown - arising from customs duties, the sale of crown lands, and other sources - were in the hands of the executive government; and the moneys voted by the Legislative Assembly were mainly devoted to the building of roads and bridges. Under these circumstances, there grew up in each province a. governing class or clique known in Upper Canada as the " Family Compact", in Lower Canada as the " Château clique ", and in Nova Scotia as the " Council of Twelve " - which normally controlled the executive government, and which, by its control of nominations to the Legislative Council, was able to impose a veto on legislation as well.

"It is difficult to understand," wrote Lord Durham in his famous Report on the affairs of British North Americain 1839, "how any English statesman could have imagined that representative and irresponsible government could be successfully combined . . . To suppose that such a system could work well here implies a belief that the French Canadians have enjoyed representative institutions for half a century without acquiring any of the characteristics of a free people; that Englishmen renounce every political. opinion and feeling when they enter a colony, or that the spirit of Anglo-Saxons is utterly changed and weakened among those who are transplanted across the Atlantic ." As a matter of fact, it was not long before the system of government established by the Constitutional Act roused opposition both in Upper and in Lower Canada . The beginnings of a liberal movement were discernible in both these provinces before the outbreak of the War of 1812, though in Lower Canada the constitutional issue was complicated by the racial issue. In the Canadas this liberal movement led to armed rebellion in 1837. What William Lyon Mackenzie  and Louis Joseph Papineau  and their associates really rebelled against was not the British Crown, but the absurd and illogical system of government embodied in the constitution which William Pitt gave the Canadas in 1791. In the Maritime provinces , the tradition of loyalty among the loyalists of the American revolution who had settled these provinces prevented a similar outbreak; but here too, under Joseph Howe  and others, opposition to the governing class under the old colonial constitution developed at a fairly early date. It was, however, the rebellion in the Canadas that brought things to a head. Public opinion in Great Britain was profoundly shocked that in 1837, the year of the accession of the young Queen Victoria, there should have been armed rebellion in the Canadas; and the British government appointed in 1838 Lord Durham as governor-in-chief of British North America and lord high commissioner to inquire into the affairs of the British North American provinces. Lord Durham, in his Report , recommended the union of Upper and Lower Canada, with a view to the submergence of the French Canadians in a province in which the English Canadians should be, in a majority; but he recommended also the adoption in British North America of the principle of responsible government - that is, the principle that the executive government should be responsible to the legislature. This principle had first been advocated by a Canadian statesman, Robert Baldwin, who later had the satisfaction of seeing that the principle was put into effect; but it was Lord Durham who introduced the idea into the arena of practical politics.

3. Period of Responsible Government, without " Representation. by Population". In recommending that responsible government should be brought into effect in the united province, Lord Durham expressly warned against any union of Upper and Lower Canada which should not be based on the principle of representation by population. "I am averse," he said, "to every plan that has been proposed for giving an equal number of members to the two provinces, in order to attain the temporary end of out numbering the French, because I think the same object will be obtained without any violation of the principles of representation." When Poulett Thomson, afterwards Lord Sydenham, was sent out to carry into effect Lord Durham's recommendations, this warning was, however, ignored. The Act of Union of 1841 gave to each part of the united province an equal representation in the united legislature; and thus introduced into the government of the colony a dualism or quasi-federalism that ultimately brought about the breakdown of all government. Under these circumstances, the inauguration of responsible government in united Canada did not proceed under the best auspices. Sydenham, it is true, set up in Canada the machinery of responsible government. He transformed the old Executive Council, the members of which seldom sat in the Legislative Assembly, and sometimes not even in the Legislative Council, into a counterpart of the British cabinet, the members of which were not only (as a rule) heads of departments, but were also members of parliament. But, because he was unwilling to admit the rebellious majority in French Canada to a share in government, he was unwilling to admit the principle of responsible government. With him the Council was "a council to be consulted and no more." He presided over the meetings of council, and in fact dominated it, so that he became virtually his own prime minister. His dexterity enabled him to preserve the unstable equilibrium of this position during his short period of office; but his system of government broke down under his successor Sir Charles Bagot. Bagot's ill-health compelled him to absent himself frequently from the council board, so that the office of prime minister began to emerge; and in 1843 he was compelled to accept a ministry reflecting the majority in the Legislative Assembly, including a number of the rebels of 1837. The principle of responsible government had a brief set-back under Bagot's successor, Sir Charles (afterwards, Lord) Metcalfe, who, like Sydenham, regarded the Council as a body "to be consulted, and no more," and who, after a disagreement with his council, appealed to the country in 1845, and won a temporary triumph at the polls. But in 1848 there came out to Canada as governor-general Lord Elgin, the son-in-law of Lord Durham, who was resolved to put the principle of responsible government into full operation; and the triumph of this principle was achieved by Elgin's admittance to office of the Baldwin-Lafontaine administration in 1848 and his assent to the Rebellion Losses Bill in 1849 [See the British reaction to the Bill]. In the other provinces of British North America , responsible government was introduced shortly after this.

The sphere in which responsible government operated was, however, at first circumscribed. Durham had recommended that it should be operative "except on points involving strictly imperial interests"; but these interests were deemed to be such important matters as crown lands, trade relations, defence, and foreign policy. It was not long before the crown lands were handed over to the Canadian parliament for administration; the control of the tariff, and hence of trade relations, was successfully asserted by the Canadian government in 1859; and most of the British troops in Canada were withdrawn in 1862. But the control of foreign policy was postponed for over half a century; and there were still in 1874 so many shackles on the will of the Canadian people that Edward Blake was able to describe them as "four millions of Britons who are not free." The constitutional history of Canada since 1849 has, indeed, been the story of the way in which these shackles have been gradually struck off.

4. Confederation . The provision in the Act of Union whereby the two parts of the united province were to have equal representation in the Legislative Assembly was the rock on which the union split. It brought about in the government of united Canada a dualism or quasi-federalism which ultimately proved unworkable. This dualism was reflected not only in the double-barrelled names of the administrations during this period (such as the Baldwin-Lafontaine administration, the Hincks-Morin, and the Macdonald-Cartier), but also in what was known as " the double-majority system" - a sort of convention by which a majority from the part of the province particularly affected was necessary for the passage of legislation. It was reflected even in the realm of public finance, so that if a sum of money was voted for Canada East, an equal sum of money had to be voted for Canada West.

When the Act of Union was passed, the population of Lower Canada was greater than that of Upper Canada ; and there was therefore no complaint from Upper Canada with regard to equal representation. But within a decade, the situation was reversed, and Upper Canada had a larger population than Lower Canada . The consequence was that there soon sprang up in Upper Canada a demand for " representation by population". This demand naturally roused opposition in Lower Canada; and Colonel (afterwards Sir) Etienne Taché declared that the surplus population of Upper Canada had no more right to representation than "so many codfish in Gaspé bay". The two parts of the province were thus set at variance; and it was not long before government came to an impasse. No government was able to command a majority in both parts of the province, and parties were so evenly divided that the fate of the government often hung by a thread. Between 1861 and 1864 there were four ministries formed, and two general elections held, yet without any decisive result.

This deadlock was, as Goldwin Smith said, "the true parent of Confederation." The idea of the federation of British North America was, it is true, not new. It was a favourite idea with the United Empire Loyalists; and it was later espoused by persons so different as John Strachan  and John Beverley Robinson on the one hand and Robert Gourlay and William Lyon Mackenzie on the other. It was advocated by Lord Durham, though he did not think it was feasible in his time; and it became the theme of some of the most stirring oratory of Thomas D'Arcy McGee. "I see in the not remote distance," said McGee, "one great nationality, bound, like the shield of Achilles, by the blue rim of ocean." But it was not only the breakdown of government in United Canada that brought the idea of the union of British North America within the, sphere of practical politics. It became necessary to submerge or subordinate the rival animosities of Upper and Lower Canada in a larger arena; and in 1864 the leading politicians in both parties in Canada were brought together in a coalition government with a view to bringing about this result.

It so happened that at this time the idea of the union of the Maritime provinces was in the air; and in September, 1864, a meeting of delegates from the Maritime provinces was called to meet at Charlottetown, Prince Edward Island , in order to discuss this project. Delegates from Canada were sent to this conference to invite the delegates from the Maritime provinces to meet at Quebec in October to discuss the larger union. The invitation was accepted; and on October 10, 1864, there met at Quebec the famous Quebec Conference, which, after deliberations lasting two weeks, framed seventy-two resolutions embodying the basis of Confederation. Owing to political difficulties in the Maritime provinces , Confederation was not immediately consummated. It was not until 1866 that representatives of Canada, Nova Scotia, and New Brunswick met in London to discuss with representatives of the Colonial Office the terms of union; but the result of their deliberations was the British North America Act, passed by the British parliament in 1867, and by this Act Upper Canada (henceforth Ontario), Lower Canada (henceforth Quebec), New Brunswick, and Nova Scotia were united in a federal union to be known as the Dominion of Canada.

The outstanding feature of the new Dominion was that it combined the advantages of central government with those of local autonomy. A set of governmental machinery was created, with its headquarters in Ottawa ; but at the same time the individual provinces retained their identity and their control of local affairs. To the Dominion was given oversight of such general matters as customs and excise, trade and commerce, militia and defence, railways and canals, and criminal justice; whereas the provinces retained control of education, property and civil rights, municipal affairs, and other matters of local concern. This arrangement enabled the province of Quebec, for example, to preserve its peculiar institutions, such as its language, its civil laws, and its schools; while it gave to it at the same time the backing of the other provinces in matters of general concern, such as military and naval defence, the building of railways, postal facilities, and so forth. There has been at times difficulty in drawing the line between the spheres of the Dominion and the provinces, and a good deal of litigation has resulted; but, on the other hand, the application of-: the federal principle to Canadian government has gone a long way toward solving the problem of " the two races" in Canada. Federalism has removed most of the sources of friction between the French and the English in Canada , and while no one can pretend that friction has disappeared, it has been reduced to a minimum, and has never since 1867 been serious.

The federation of 1867 included only Ontario , Quebec , New Brunswick , and Nova Scotia . But, with astonishing rapidity, the infant Dominion proceeded to extend itself from the Atlantic to the Pacific. In 1869 the Dominion acquired the vast extent of the Hudson's Bay Company's territories, out of which have been carved since that time the provinces of Manitoba, Saskatchewan, and Alberta; in 1871 British Columbia came into federation, and in 1873 Prince Edward Island. Finally, in 1895, Canada took over from the mother country the islands of the Arctic archipelago . These accessions of territory gave to the Dominion an area greater than that of the United States .

Since 1867 the internal changes in the constitution of the Dominion of Canada have been slight [Reminder: this text was written in 1948; there have been significant changes made to the Canadian constitution, notably through the process of patriation and the inclusion of a Charter of Rights in 1982]. There has been some diminution in the powers of the governor-general, introduced in. 378 at the instance of Edward Blake; and there have been various amendments in the British North America Act, such as that changing the number of members in the Senate of Canada [This page provides the text of the constitutional documents]. There is, however, a growing feeling that the British North America Act, passed in a generation preceding the last, is now out-of-date, and is due for extensive revision. Many problems, such as that of unemployment relief, control of marketing; and the regulation of radios and aviation, were not contemplated by those who framed the British North America Act; and it is desirable that the constitution should be amended so as to indicate clearly where the, responsibility for dealing with such matters really lies.

Bibliography. For the constitutional history of the French .period, see Sir William Ashley, Nine lectures on the earlier constitutional history of Canada (Toronto, 1889) ; E. Salone, La colonisation. de la Nouvelle France (Paris , 1906); and R. D. Cahall, The Sovereign Council of New France (New York, 1915). Reference may also be made to F. Parkman, The old regime in Canada (Boston, 1880). The important documents are printed in Collection des documents relatifs à la Nouvelle France (4 vols., Quebec, 1883-5); wits, ordonnances royaux (2 vols., Quebec, 1854-6) ; Jugements et délibérations du Conseil Souverain de la Nouvelle France (4 vols., Quebec, 1885-8) ; Jugements et délibérations du Conseil Supérieur de Quebec (2 vols., Quebec, 1889-91); Ordonnances des intendants (4 vols., Quebec Archives, 1919); and Insinuations du Conseil Souverain (Quebec Archives, 1921). For the constitutional history of the British period, see Sir John G. Bourinot, A manual of the constitutional history of Canada (Toronto, 2nd. ed., 1901), and W., P. M. Kennedy, The constitution of Canada : An introduction to its development and law ( Oxford , 1922). The chief documents are to be found in W. Houston, Documents illustrative of the Canadian constitution (Toronto, 1891); H. E: Egerton and W. I. Grant, Canadian constitutional development (London , 1907); W. P. M. Kennedy, Statutes, treaties, and documents of the Canadian constitution (Oxford, 1930) ; A. Shortt and A. G. Doughty, Documents relating to the, constitutional history of Canada, 1759-1791 (2 vols., Ottawa, 191.8); A. G. Doughty and D. A. McArthur, Documents relating to the constitutional history of Canada, 1791-1818 (Ottawa, 1914); and A. . G. Doughty and Norah Story, Documents relating to the constitutional history of Canada , 1819-1828 (Ottawa , 1935).

[The reader should consult the following texts from the Quebec History site: a biography of Durham; large extracts from his Report; a discussion of the nature of Responsible government; the section on Canadian federalism and the Canadian Constitution contains many pertinent texts as well.]

Source: W. Stewart WALLACE, "History, Constitutional", in The Encyclopedia of Canada, Vol. 3, Toronto, University Associates of Canada, 1948, 396p., pp. 147-153.