Manitoba Report - Part 4

Part 4 discusses the concept of 'constitutionalizing' legislation, arguing that it was alien to the British mode of legislation.

Part IV

 

THE QUESTION OF 'CONSTITUTIONALIZATION'

 

The historical process involves the questioning of the past from the standpoint of the present. But the concepts and values that animate the present may not have existed in the past. In that case, our questions become irrelevant, and the answers we may form may be misguided. Nineteenth-century government operated institutions that we can identify, and apparently spoke with a vocabulary that we can understand. This apparent sharing of discourse may lead us to discount the differences. This is the case with the mid-Victorian British in their attitude to the term and notion of 'constitution'. There is a sense in which to ask whether the British intended to 'constitutionalize' the British North America Act of 1871 is to pose an issue that would have no meaning for those involved at the time.

Bagehot's English Constitution. As it happens, the years immediately surrounding the Red River-Manitoba question provide two revealing examples of two aspects of British attitudes to the question of the constitution. The first, the publication of the first and second editions of Walter Bagehot's classic, The English Constitution, illustrates the extent to which the term was descriptive and not prescriptive. (In mid-Victorian times, 'English' and 'British' were interchangeable adjectives, at least in the minds of most English writers.) The second, the disestablishment of the Irish Church, already referred to, underlines the unfettered supremacy of Parliament to do by statute as it pleased, and to undo even the most emphatic of previous laws. On one occasion, referring to the United States system of government, Bagehot placed the term 'constitution' in inverted commas around, to distance the British point of view from the American adoption of a fundamental charter of government. Earlier, writing from the opposite point of view, Alexis de Tocqueville had expressed himself doubtful whether Britain possessed a constitution at all, since what passed for the constitution was entirely at the mercy of amendment by Parliament.[1] It is in line with this that the verb 'to constitutionalize', and its derivative participle, was hardly used in nineteenth-century Britain. Equally characteristic is the fact that the examples identified by the Oxford English Dictionary refer to the 'constitutionalization' of countries and not of enactments. The earliest traced example referred to liberal measures designed 'to constitutionalize Spain' in 1831, and the term was applied to other autocratic regimes during the revolutionary year of 1848.

Written on the eve of the Second Reform Act of 1867, Bagehot's English Constitution quickly became the accepted account of the operation of Britain's institutions of government. (On a visit to England, Sir John A. Macdonald once attended a fashionable dinner party where he remarked in conversation to the man sitting next to him that Bagehot's book was the best authority on the subject. His fellow guest confessed himself flattered, and identified himself as the author.[2]) Its instant-classic status tends to obscure the extent to which Bagehot relied upon paradox to challenge received ideas. His description of the powers of the Crown - the right to be consulted, the right to encourage, the right to warn - is still often cited, without appreciating that it was a bold inversion of the accepted position that the monarch was the recipient of 'advice'. Indeed, notwithstanding his title, Bagehot's picture of the constitution emerged in a series of asides, as the description of a phenomenon rather than the analysis of a structure.

Bagehot dismissed as 'erroneous' two tripartite views of the constitution, the first that Britain was ruled through a separation of powers that balanced the executive the legislature and the judiciary, and the second that it was a triangle of forces, balancing monarchy, aristocracy and democracy to harness the positive features of each through limiting its tendency to excess. While he was himself prepared to make a distinction between the 'dignified' parts of the constitution ('very complicated and somewhat imposing') and the 'efficient' ('decidedly simple and rather modern'), he insisted that the whole pivoted on a single, powerful core, which he located in the cabinet. 'The efficient secret of the English Constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers.' Obviously, this implied an entire contrast with the American constitution. 'The English constitution ... is framed on the principle of choosing a single sovereign authority, and making it good; the American, upon the principle of having many sovereign authorities, and hoping that their multitude may atone for their inferiority.' The power of Parliament to regulate itself, the very element that made de Tocqueville doubt whether Britain could be said to have a constitution, was to Bagehot a core strength. In the United States, the ' "constitution" cannot be altered by any authorities within the constitution, but only by authorities without it'. The consequence of depending upon the State legislatures to change the federal constitution was that 'the most obvious evils cannot be quickly remedied'.[3]

The British system, on the other hand, was 'a living Constitution', one that was 'in constant change'. Bagehot confessed to 'great difficulty' when he issued a second edition of the book in 1872. His portrait had captured the constitution as it had operated on the eve of the upheaval of the 1867 Reform Act. 'In so short a period there have rarely been more changes.' Some of the most important changes were those of 'spirit', the effects of which would only become apparent as new generation of politicians took control, unaffected by the habits of a previous era.[4] Bagehot was not in the least troubled that such extensive change had resulted from a single piece of legislation, the Reform Act of 1867. No doubt he would have compared favourably the ability of the British Parliament to respond to demands for change in its own constituency with what he perceived as the rigidity of the American Constitution.

Overall, three points stand out from Bagehot's luminous essays. First, he rarely used the key word from his own title. Secondly, when he did, he regarded the constitution as an entity to be described, as an expression of the spirit of government that could change, sometimes subtly, sometimes dramatically, sometimes in both ways at once. Thirdly, he had no problems with the untrammelled legislative supremacy of Parliament. Indeed, the 'efficient secret' of the British system lay in the ability of the executive to control the legislature, through the reciprocal relationship in which the former operated continuously through the cabinet, an institution nowhere known to law, and the latter functioned intermittently as an electoral college to manage changes in government. Foreign countries might be 'constitutionalized' in the sense of being tutored into copying Britain's system, but it is no wonder that nobody in the Colonial Office ever thought in terms of 'constitutionalizing' a document or enactment.

The Power of Parliament. Overall, the absence of any proposal to limit the scope of parliamentary power in Britain is striking. Even in the eighteenth century, when the House of Commons was almost comically unrepresentative, few radicals contemplated such an initiative. John Wilkes condemned the 'omnipotence of parliament' as 'a false and dangerous doctrine', claiming that there were 'fundamental inalienable rights, the landmarks of the constitution, which cannot be removed'. In 1774, John Cartwright suggested the creation of a Supreme Court to test the constitutionality of Acts of Parliament. The idea fed into American political discourse, but was not pursued in Britain. The utilitarian philosopher Jeremy Bentham rejected judicial review because there was that there was no way of guaranteeing that judges were any more in touch with the feelings of the community than politicians.[5] Consequently, the only power that could challenge the will of Parliament was Parliament itself. (To underline the freedom of the institution, the term was used in both singular and plural form, the former for the abstract institution, the latter for individual manifestations created by general elections: At Westminster, the senior official of the House of Lords is still styled the 'Clerk of the Parliaments', while Canada makes the point by numbering each Parliament from the time of Confederation, the present [2004] being the Thirty-Seventh.) The doctrine that no Parliament could bind its successors was established at an early stage, with few aberrations. In 1495, Henry VII put through 'An Act that no person going with the King to the wars shall be attaint of treason' (11 Henry vii, c. 1). This ingeniously provided that 'if any act or acts or other process of the law hereafter ... happen to be made contrary to this ordinance ... they shall be, stand and be utterly void'.[6] This was a desperate throw by a usurper king threatened with invasion by dynastic rivals. In 1686, the Chief Justice of England held that 'if an act of Parliament had a clause in it that it should never be repealed, yet without question, the same power that made it, may repeal it'.[7] In an authoritative statement in 1885, A.V. Dicey wrote that 'Parliament ... has, under the English constitution, the right to make or unmake any law whatever' adding 'that no person or body is recognised by the law of England as having a right to override ore set aside the legislation of Parliament'.[8]

Fundamental Law and the Disestablishment of the Irish Church. This much is of course widely known and generally accepted in studies of the British system of government. It is less noticed that the disestablishment of the Irish Church in 1869 provided a contemporary example of attitudes to fundamental law in two aspects, emphatic parliamentary enactment and the autonomous, oath-bound role of the sovereign.

In 1800, the Westminster Parliament passed 'An Act for the Union with Ireland' (39 & 40 Geo. III, c. 67). The subordinate legislature in Dublin, whose membership was confined to the Protestant minority, was bribed and browbeaten into acquiescence. Although the Protestant Episcopal Church of Ireland commanded the allegiance of only about one-eighth of the country's population, its status as the established Church secured it both political privilege and extensive endowments. The counterpart of the merger of the two Parliaments was the incorporation of the episcopalian Churches. Article 5 declared that the Church of England and Ireland 'shall be deemed and taken to be a fundamental part of the Union', and that 'the Doctrine, Worship, Discipline, and Government of the said United Church shall be, and shall remain in full force for ever'.[9] As with Henry VII's law on treason, this unusually emphatic language was motivated by a desire to reassure. However, arguing in 1828 in support of the overdue concession to permit Catholics to sit in Parliament, Lord Plunkett stated that 'the Protestant establishment of Ireland' was 'a fundamental principle of our imperial constitution ... unalterably settled at the Union'.[10] When disestablishment came to the forefront of politics in the extensive debates of the late eighteen-sixties, hardly anybody referred to this implied guarantee.

In March 1868, prior to the election of Gladstone's Liberal government, the Conservative leader Benjamin Disraeli had advanced what was in effect a view of major constitutional change based on popular mandate. Rejecting a call to strip the Irish Church of its endowments, he described as 'indecent' the idea that the House of Commons might 'attempt to come to a decision on this great question, unless we could place before the nation the enormous issue at stake'. 'Technically', he admitted, Parliament could exercise its authority, but

 

there is a moral exercise of power as well as a technical, and when you touch the fundamental laws of the country, when you touch the princi0ples on which the most ancient and influential institutions are founded, it is most wise that you should hold your hand unless you have assured yourselves of such an amount of popular sympathy as will make your legislation permanent and beneficial.[11]

 

Since the fate of the Irish Church was prominently canvassed during the ensuing election, Disraeli, by now leading the opposition, accepted that the incoming government had the right to bring forward its proposals, even though he gave no guarantee that they would be accepted. Gladstone introduced his legislation in March 1869, with a brief nod to the question of fundamental change. He accepted that, while the Act of Union had been altered on other occasions, it had never been amended 'for so grave a cause as this'. But he contended that 'while we are altering this particular provision of the act of Union, we are confirming its general purport and substance', by seeking 'to give it those roots which unfortunately it has never yet adequately struck in the heart and affections of the people'.[12] In constitutional terms, the end justified the means.

            Only one Member of Parliament seems to have raised the issue of the 'constitutionalization' of the Irish Church. Sir George Jenkinson was a Conservative backbencher, the son of a bishop and husband of an Irish Protestant. 'It had been said that Parliament made the Union, and that therefore Parliament could break it,' he was reported to have said. 'Perhaps so; but it could not break one vital clause of it, and cut it and cure it, and leave the rest.'[13] He was also the only Member to cite Plunkett's dictum from 1828. To a most remarkable extent, the debates over the Irish Church ignored the declared intention of the legislators of 1800 to entrench its status permanently. Disraeli referred at some length to Article 5 of the Act of Union, but said not a word about permanence.[14] In a brief allusion, the Attorney-General, Sir Robert Collier, stated that the words 'in full force for ever' simply applied for as long as the Church of Ireland was established by law. In 1872, the validity of the Irish Church Act of 1869 was questioned in a court case.[15] The Chief Justice, Cockburn, dismissed the challenge, saying that 'there is no judicial body in the country by which the validity of an act of parliament could be questioned. An act of the legislature is superior in authority to any court of law.'[16]

            The disestablishment of the Irish Church also raised the question of the Queen's Coronation Oath, but again the use of this argument was marginal. Jenkinson quoted from the Oath as put to the sovereign by the Archbishop of Canterbury and accepted by Queen Victoria in 1837:

 

Will you maintain and preserve inviolably the Settlement of the United Church of England and Ireland, and the Doctrine, Worship, Discipline, and Government thereof, as by Law established within England and Ireland and the Territories thereunto belonging? And will you preserve unto the Bishops and Clergy of England and Ireland, and to the Churches there committed to their Charge, all such Rights and Privileges as by law do or shall appertain to them, or any of them?

 

To this the monarch assented in the words, 'All this I promise to do.'[17] Partly sacerdotal, partly political, the legal significance of the English Coronation ceremony remains opaque: for instance, Edward VIII was king in 1936 although he was never crowned. None the less, the Oath highlights the contrast between British and American attitudes to constitutionality. In his First Inaugural in 1861, Abraham Lincoln had warned the seceding Southern States that he had taken 'an oath registered in heaven' to uphold the Constitution.[18] Challenged in the House of Lords to square disestablishment with the Queen's oath, Lord Granville made light of the objection:

 

...taking a constitutional view, it appears to me a monstrous doctrine to maintain that, when a Sovereign has appealed to Divine Providence with regard to a compact made between herself and her subjects, if those Subjects declare, through the votes of both Houses of Parliament their wish to depart from that compact, the Sovereign can under no circumstances, be relieved from her compact.[19]

 

Ten years earlier, so Bagehot wrote in 1872, the disestablishment of the Irish Church would have been regarded as a revolutionary act.[20] In 1869, that revolution was accomplished, and nothing stood between Parliament and the outcome. It is hard to see how the British North America Act of 1871 could be said to have been intended to 'constitutionalize' the status of the province of Manitoba when such plainly emphatic language as Article five of the Act of Union of 1800 had been so generally ignored, by both sides in an acrimonious debate on an issue perceived to be central to British domestic politics.

Colonial Constitutions. However, it may be objected that, while the British had no notion of entrenched institutions and independent limitations on the scope of enactment, they had adopted a different approach in devolving legislative authority to their self-governing colonies. Acts of the Imperial Parliament provided a written basis for structures of government, and were the basis of the concept that colonial autonomy was limited by inability to legislate ultra vires. Three general points may be made in this connection.

First, official and legal use of the term 'constitution' in relation to colonies was a recent development. The word had, of course, long been used in political debate. In a famous and highly inaccurate example, Governor Simcoe in 1792 had declared that Upper Canada was 'singularly blessed, not with a mutilated Constitution, but with a Constitution which has stood the test of experience, and is the very image and transcript of that of Great Britain'.[21] However, the 1791 Act (13 Geo III, c. 31), familiarly known as the 'Constitutional Act', to which he alluded, did not use the term, but spoke rather of 'making more effectual Provision for the Government of the Province of Quebec'. The first use of the term in an Imperial Act appears to have come in 'An Act to grant a Representative Constitution to the Colony of New Zealand' (15 & 16 Vic., c. 72), passed in 1852. It was also used in the titles of Acts passed in 1855-56 conferring responsible government upon New South Wales (18 & 19 Vic., c. 54) and Victoria (18 & 19 Vic., c. 55), but not for Tasmania (18 Vic., c. 17). In the preamble to the British North America Act of 1867, the word appears twice: the provinces wished to have 'a Constitution similar in principle to that of the United Kingdom' and it was 'expedient ... that the Constitution of the Legislative Authority in the Dominion be provided for'. It may be argued that neither of these examples strictly refers to a written constitution providing a fundamental charter of government. The first explicitly seeks to emulate the British model based upon undefined convention and tradition, while in the second, the key word is more logically taken as a synonym for 'creation' or 'make-up'. Thus the late appearance of the term 'constitution' in Imperial legislation for colonial governmental structures cannot be taken as evidence that the British had adopted a wholly distinct approach to constitutionalism in their wider Empire.

Secondly, colonial 'constitutions' inherited from Westminster the key property of untrammelled local parliamentary autonomy. Measures passed by a colonial legislature might be ultra vires, but that was a reflection of the limits placed upon them by the Imperial legislature under whose authority they operated. (Separately, of course, all colonial legislation remained subject to Imperial disallowance.) By the eighteen-sixties, it was established that local legislative authority was limited only by Imperial statutory restrictions explicitly extended to the colonies, and not by any other form of 'repugnancy'. Rogers had considered the matter in 1858. It was often asked, he wrote, 'whether there are not in the English Law certain fundamental enactments of Statute or principles of common Law, of so binding a nature that the Legislation of all British Dependencies must be conformable to them and that Colonial Laws which are not so conformable are void'.  His sensible reply was that 'in practice the tendency has long been to consider Colonial Legislatures as legally competent to pass almost any Law which they are not precluded from passing by some Imperial Statute intended by Parliament to be binding in the Colony'.[22] This principle was eventually written into law by the Colonial Laws Validity Act of 1865(28 & 29 Vic., c. 63). The need for this legislation arose out of a one-man campaign by a South Australian judge, Benjamin Boothby, to impose the discipline of judicial review upon local politicians. Thus in 1861 he purported to strike down a Real Property Act because it denied access to trial by jury and so, in his opinion, 'saps the fundamental principles of the Constitution of the British Empire'.[23] The Colonial Laws Validity Act reaffirmed (or clarified) the principle that, within their defined spheres, colonial legislatures were not subject to the independent control of the courts. Thus it cannot be argued that the British applied a different set of principles with regard to constitutionalism outside their own islands.

This may be seen in the third point, the question of entrenchment. The Imperial Parliament sometimes resorted to provisions for weighted majorities to change arrangements for representation within the colonies. This in the 1840 Act that created the Canadian Union (3 & 4 Vic, c. 35, sections 26, 12), a two-thirds majority was required to alter the equal representation of the two sections of the province. Section 80 of the British North America Act of 1867 protected twelve English-speaking ridings within the province of Quebec from electoral redistribution without the consent of a majority of their members. Thus, on the one hand, outside the United Kingdom, the Imperial Parliament was prepared experiment with departures from the simple majority principle which restricted the potential operation of its subordinate legislatures. However, such entrenchment applied solely to the colonial legislatures. In 1854, through section 5 of 17 & 18 Vic., c. 118, Westminster simply removed the two-thirds rule that it had imposed in 1840 by repealing section 26 of the Act of Union. Thus, in relation to the 1871 Act, what Westminster had done, Westminster might undo, as the despatch of July 1 1871 made clear. Westminster had passed a piece of legislation, not promulgated a constitutional amendment.

'Constitutionalization' A Hypothetical Check-List It may be useful at this point to ask: what steps or features might be expected in the passage of an Imperial Act that could entitle posterity to identify as legislation intended to be 'constitutional' in a sense intelligible both then and now. Five benchmarks may be suggested as possible guidelines for assessing the significance of individual pieces of legislation. It is admitted that the exercise is essentially hypothetical, since 'constitutionalization' in our modern sense was an alien concept to the mid-Victorian British. However, it is worth pointing out that four of the five suggested benchmarks can be discerned in relation to the British North America Act of 1867. Of the 1871 Act, only aspects of the first and the third seem to apply.

The suggested benchmarks are as follows:

 

1.      A formal request for legislation from accredited and responsible authorities in Canada;

2.      The recital of that request as part of the legislation;

3.      Evidence of detailed consent on the part of accredited and responsible authorities to the wording of the constitutional legislation;

4.      Some sense of ceremony, occasion or promulgation of the measure commensurate with the seriousness of its purpose;

5.      Provision for entrenchment, or guarantee against capricious alteration, through an agreed process of subsequent amendment.

 

Comparison of the passage of British North America Acts of 1867 and 1871 indicates that, while some case might be made out for regarding the first as practically intended, mutatis mutandis, to be 'constitutionalized' in an identifiably modern sense, no such interpretation can plausibly be placed upon the second. In other words, even given that the concept of 'constitutionalization' was alien to the mid-Victorian British, they presented and handled the 1867 Act as a more momentous event than its successor of 1871. It is to be noted that the 1857 Imperial Act to amend the constitution of New Zealand (20 & 21 Vic., c. 53) was specifically styled as a Constitution Amendment Act, the 1871 Act was not described as amending legislation, nor did the enactment expressly refer to Sections 146 and 147 of the 1867 Act.

The five suggested headings may be compared as follows:

1.      A formal request for legislation from accredited and responsible authorities in Canada.

      In 1867, the formal basis of legislation had been resolutions from the legislatures of the provinces concerned. It was for this reason that Gladstone felt able to reject the Nova Scotian campaign for Repeal in 1869.

      In 1871, the Committee of the Canadian Privy Council formally requested legislation (on January 2 1871). This was repeated on February 27 1871, and Addresses from the Parliament of Canada were sent to London by the Governor General on March 29 1871. While the opinion of the Manitoba legislature was at no point considered or requested, the procedure adopted in 1871 comes closest to conforming to the first benchmark. None the less, it remained unclear throughout which agency in Canada possessed the right to initiate the process.

2.      The recital of that request as part of the legislation.

The preamble to the 1867 Act stated that 'the provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into One Dominion under the Crown of the United Kingdom'.

No such reference was made in the 1871 legislation, and Kimberley made no mention of any Canadian request in his brief parliamentary speech. (A reference to the fact of Canadian consent was not the same as determining the question of which agency in Canada had the right to initiate such a request. Even in Section 4 of the Statute of Westminster, 1931 (22 Geo. V, c. 4), the requirement for the extension of future legislation to a Dominion was a statement in any Imperial enactment, 'expressly declared', that 'that Dominion has requested to, and consented to' its inclusion.[24])

3.      Evidence of detailed consent on the part of accredited and responsible authorities to the wording of the constitutional legislation.

In 1867, the British set aside a draft Bill drawn up by the four Attorneys-General of the British North American provinces and entrusted the actual wording of the Bill to their own legal adviser. However, when asked in the House of Lords if Parliament was precluded from altering the terms of Confederation, Carnarvon replied that 'the Bill partakes somewhat of the nature of a treaty of union, every single clause in which has been debated over and over again, and has been submitted to the closest scrutiny, and in fact, each of them represents a compromise between the different interests involved'. Specifically, referring to the 'long and anxious controversy' that had resulted in Section 93 (on separate schools), Carnarvon asserted that it was 'an understanding which, as it only concerns the local interests affected', and hence 'not one that Parliament would be willing to disturb, even if in the opinion of Parliament it were susceptible of amendment'. This was the closest that the Colonial Secretary came to appearing to argue for the binding nature of colonial consent. However, since he went on to defend the Section 93 compromise as 'equitable and judicious', it would seem that by 'susceptible of amendment' he meant 'capable of improvement'. Even so, a minor technical amendment was made in the House of Commons. (Section 41 was amended to insert the word 'male' into the householder voting qualification for Algoma.)[25]

     The contrast with the passage of the 1871 Act is considerable. While the Colonial Office was at pains to consult with the Canadian government, and as late as May 2 1871 informed the Treasury Counsel that legislation would not be presented to Parliament until Addresses were received from Ottawa, in the event the British undertook an entire reconstruction, both of the proposed order of the clauses approved by the Canadian House of Commons, and more especially of the wording of Section 6.

4.      Some sense of ceremony, occasion or promulgation of the measure commensurate with the seriousness of its purpose. Canadian observers were not impressed by Westminster rituals in 1867. Years later, Sir John A. Macdonald complained that the British North America Act was treated like 'a private Bill uniting two or three English parishes'. A Nova Scotian opponent of Confederation, William Garvie, raged at British politicians for 'rushing through a disagreeably dull measure' with 'lazy contempt', treating his province like 'some nameless Chinese mud village'.[26] However, Garvie's anger was directed partly at the formality of the committee stage in the House of Commons, where undisputed clauses were nodded through in batches. Macdonald would have welcomed, not a promulgation of the constitution as such, but a formal declaration of Canadian adhesion to the Empire. He attributed the low-key nature of the official British response to the Governor General, Lord Monck, and to Carnarvon's successor at the Colonial Office, the Duke of Buckingham, 'both good men, certainly, but quite unable, from the constitution of their minds, to rise to the occasion'.[27] This is a rare use of the word 'constitution' in the reference to 1867.

       To some extent, these criticisms were unfair. In introducing the 1867 Act into the House of Lords, Carnarvon made a comprehensive speech stressing that the legislation constituted 'one of the largest and most important measures which for many years it has been the duty of any Colonial Minister in this country to submit to Parliament'. Veteran politicians in both Houses welcomed Confederation, including the former Prime Minister, Lord Russell, who had first considered the idea thirty years earlier, and John Arthur Roebuck, London Agent for the Lower Canada Assembly at the time of the 1837 rebellions, who had urged a scheme for federation upon Lord Durham. As an event in colonial history, Confederation was hailed with some sense of occasion by a broad spectrum of senior British politicians. The constitution (Carnarvon used the word obliquely and sparingly in his speech) of the new Dominion was integral to that historical event, even if it was not specifically and ceremonially promulgated as such.

      However disappointing to Canadian observers the dramatic aspects of British handling of Confederation in 1867, there can be no doubt that the 1871 enactment was profoundly low-key and lacking in any sense of historical moment. Kimberley's speech to the Lords was a pale reflection of Carnarvon's presentation of four years earlier. A marginal note of June 30 1871 in the Colonial Office file by Holland simply states: 'I would propose to send out the Canada Act [sic], which last night rec[eive]d H[er] M[ajesty]'s assent'.[28]

5.      Provision for entrenchment, or guarantee against capricious alteration, through an agreed process of subsequent amendment.

One of the most striking features of all debates upon Confederation in the mid-eighteen sixties is the absence of any serious discussion of an amending process or formula. This was despite the fact the 1857 New Zealand Constitution Amendment Act had conferred power upon the colony's General Assembly (central legislature) 'to alter, suspend, or repeal' the provisions of the 1852 constitution, although 21 of the 82 sections were promptly exempted from its control. It seems indisputable that so obvious a consideration was deliberately ignored, a reflection of the sensitive nature of the compromises required to strike the Confederation deal. It was left to Nova Scotian opponents to point to this aspect of the Quebec Resolutions of 1864 as a weakness:

 

No means are provided by which the people, should it be found defective, can improve it from time to time. Whenever a change is required they must come back to the Imperial Parliament.[29]

 

No doubt that was precisely the guarantee against capricious or unjust change that the progenitors of Confederation sought. Lord Kimberley's despatch announcing the passage and terms of the British North America Act of 1871 made the same point in bald terms: 'recourse must be had to the Imperial Parliament for further legislation when once a Province has been established'.[30] Parliament had passed a piece of legislation. If necessary, and if seen to be so by the British themselves, Parliament would pass further legislation on the same subject. But the issue of who had the right to initiate a request for such legislation - the Dominion government, the Dominion Parliament, a provincial government, a provincial legislature? - was left undetermined, while the issue of consent to the terms of any such enactment was not even raised.

 

The Question of 'Constitutionalization': A Summary

 

The British had no conception that, in their own system of government, a constitution could exist independently of parliamentary sovereignty. The disestablishment of the Irish Church in 1869, in the face of an emphatic declaration of permanence of status in the Act of Union of 1800, was a striking contemporary example of this attitude. While the term 'constitution' had come into use to describe legislation setting out the powers of colonial legislation, such enactments were also products of the untrammelled sovereignty of Westminster, and liable to subsequent alteration by the normal process.

      A hypothetical check-list for 'constitutionalization' underlines the essentially workaday nature of the passage of the British North America Act of 1871, as one of a number pieces of clarifying or enabling legislation habitually passed by Parliament at the behest of government with little or no scrutiny of contents or implications.

Some case can be made for seeing the British presentation of the British North America Act of 1867 as a landmark for Canada and the Empire, as indeed it certainly was. Of the five suggested benchmarks, the passage of the 1867 Act conformed to the first and second, and there were elements of the third and fourth. The circumstances of the 1871 Act generally conformed to the first benchmark, although the British initially responded merely to a government-to-government approach, with no requirement specified for the legislative Addresses that had been taken to indicate consent in 1867. The second benchmark, the recital of such request, was entirely absent. The third, consent to detailed wording, was set aside in the hasty Colonial Office redrafting of early May 1871. The fourth, an element of ceremony or sense of event, was entirely missing. The fifth benchmark, entrenchment or agreed procedure for future amendment, was absent both in 1867 and 1871. However, it may be said that the attempt to invest 1867 was a sense of dignity, however inadequate in Canadian eyes, could be taken to imply the promulgation of a coherent system of government that, as Lord Carnarvon explicitly asked British legislators, should not be lightly disturbed. The 1871 Act was presented to Parliament as a minor measure of clarification, and despatched to Canada with the assurance of future 'recourse' to Westminster.

      Neither by modern standards nor by the attitudes of the time can it be argued that the British North America Act of 1871 was intended as 'constitutionalized' legislation.

 

 

 



[1] In Part 6, chapter 6 of Democracy in America (1835).

[2] Pope, Memoirs of Macdonald, ii, p. 271.

[3] Walter Bagehot, The English Constitution (first published 1867, Oxford: World's Classics edition, 1928), pp. 2-4, 8-9,12, 202, 199. 

[4] Bagehot, 'Introduction to the Second Edition' (1872) in English Constitution (1928 ed.), pp. 259-60.,

[5] H.T. Dickinson, Liberty and Property: Political Ideology in Eighteenth-Century Britain (London, 1979 ed.), pp. 217, 223.

[6] G.R. Elton, The Tudor Constitution: Documents and Commentary (Cambridge, 1962), pp. 4-5.

[7] Quoted, Colin Turpin, British Government and the Constitution: Texts, Cases and Materials (London, 1985), p. 32 (in Godden vs Hales, 1686).

[8] Quoted, H.J. Hanham, ed., The Nineteenth-Century Constitution 1815-1914: Documents and Commentary (Cambridge, 1969), p. 21.

[9] W.C. Costin and J.S. Watson, eds, The Law and Workings of the Constitution: Documents 1660-1914 (2 vols, 2nd ed., London, 1964), ii, 25-26.

[10] Hansard (2nd series), 19, June 10 1828, cols 1259-60. Plunkett's dictum was cited in 1869 by Sir George Jenkinson (below).

[11] Hansard (3rd series), 190, March 16 1868, cols, 1787-88.

[12] Hansard, 194, March 1 1869, col. 416.

[13] Hansard, 194, col. 1708 (March 19 1869).

[14] Hansard, 195, cols 994-95 (April 16 1869).

[15] Hansard, 195, cols 999-1000 (April 16 1869).

[16] Turpin, British Government and the Constitution, p. 23, quoting Ex parte Canon Selwyn.

[17] As quoted by Jenkinson, Hansard, 194, March 19 1869, cols 1709-10. A similar Oath, confined to the Church of England, remains part of the Coronation service and was taken by Queen Elizabeth II.

[18] Quoted, Stephen B. Oates, With Malice Toward None: The Life of Abraham Lincoln (London, 1978 ed.), p. 219.

[19] Hansard, 195, April 19 1868, cols 1059-69. Contemporary reports suggest that the Queen was unhappy about the position in which she was placed. However, the point remains: the British constitution contained no independent check, not even through the Head of State, upon the power of Parliament.

[20] Bagehot, English Constitution (1928 ed.), p. 261.

[21] Quoted, Gerald M. Craig, Upper Canada: The Formative Years 1784-1841 (Toronto, 1963), p. 29.

[22] Punctuation and capitalisation as given in F. Madden with D. Fieldhouse, eds, Settler Self-Government 1840-1900 (Westport, Conn., 1990), p. 91, and see also Swinfen, Imperial Control of Colonial Legislation, p. 62. The Minute was dated May 5 1858.

[23] Swinfen, Imperial Control of Colonial Legislation, p. 171.

[24] The absence of agreement on the procedure for notifying Canadian consent was shown to be a problem as early as the Abdication of Edward VIII, which was made the subject of retrospective legislation in 1937. F.C. Cronkite, 'Canada and the Abdication', Canadian Journal of Economics and Political Science, 4, 1938, pp. 177-91.

[25] Hansard, 185, February 19 1867, cols 557-76b; March 4, 1867, col. 1316.

[26] Pope, Memoirs of Macdonald, I, p. 313; Ged Martin, Britain and the Origins of Canadian Confederation, pp. 140, 289. Garvie was also angry that John Stuart Mill refused to take up the case of Nova Scotia but made the first serious parliamentary move to grant votes for women. Famously, the House of Commons filled up after a thin debate on the British North American Bill as members attacked a proposal for a dog tax.

[27] Pope, Memoirs of Macdonald, I, p. 313.

[28] CO 42/ 697, Minute by Holland, June 30 1871, fo. 518. Even the Royal Assent would probably have been a low-key affair. Queen Victoria had largely withdrawn from public business after her widowhood in 1861 and the Royal Assent was routinely pronounced on her behalf by a commission of judges.

[29] Howe et al. to Carnarvon, January 19 1867, quoted in Ged Martin, The Case Against Canadian Confederation, p. 30.

[30] CO 42/697, Kimberley to Lisgar, draft,  July 1 1871, fos 518-19.

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