As far as I could tell, the whole in the ground in the foreground of this photo is the site of the old legislature that the Orangemen burned down in 1849.

I thank Professor Matthew Harrington for having invited me to present at this Constitution at 150 Conference, and for having organized such an interesting series of talks from 16 to 18 May. In this entry, I provide an account of the first panel of the conference, in which I presented on Canada’s Legal-Constitutional Continuity, 1791-1867, and in which Professor Ryan Alford of Lakehead University presented on the true meaning Responsible Government in the preamble of the British North America Act, 1867.

• Presentation: “Canada’s Legal-Constitutional Continuity, 1791-1867″.
• Bowden, J.W.J. “Canada’s Legal-Constitutional Continuity, 1791-1867.” Journal of Parliamentary and Political Law 14, no. 3 (2020): 581-623.

My Presentation

In short, I argue that while the British North America Act, 1867 turns 150th this year, constitutional government more generally in what are now Ontario, Quebec, and the federal order of government of Canada dates back to the Constitutional Act, 1791 and that the Province of Canada (1841-1867) is the continuator, or successor polity, of Upper Canada and Lower Canada (1791-1841), and that Canada (1867-present) is, in turn, the successor polity of the Province of Canada. The best evidence in support of this idea comes from the text of the Constitution Act, 1791, the Act of Union, 1841¸ and the British North America Act, 1867 themselves. By “constitutional government,” I mean the establishment of representative government and an elected legislative assembly. I didn’t have time to touch upon this during my presentation, but with respect to the other provinces which existed as British North American Crown colonies in 1867 (all of them except Manitoba, Saskatchewan, and Alberta), they are, in legal-constitutional terms, the successor polities of themselves as they made the transition from Crown colony to province within the Dominion of Canada. Constitutional government dates to 1756 in Nova Scotia, for instance. And since the Colonial Office partitioned New Brunswick from Nova Scotia, it would use the same date.  British Columbia joined Confederation in 1871, but it existed prior to that as a Crown colony. Newfoundland and Labrador includes the oldest unofficial English colonies in the New World, though we normally count Jamestown, Virginia, founded in 1607, as the oldest English (and, after 1707, British) colony in the New World because official English and British policy didn’t recognize the early colonization of Newfoundland.

I’m drawing upon the law on the succession of states as an analogy to the successor of polities in British North America. These three polities (the Canadas, the Province of Canada, and the Dominion of Canada) remained self-governing colonies ultimately subject to the authority of Westminster Parliament and the Colonial Laws Validity Act until the Statute of Westminster, 1931. From 1931 to 1982, Canada couldn’t come up an indigenous constitutional amending formula, so we allowed by default the Westminster Parliament to continue to amend the British North America Act as required.

I stumbled upon this whole topic by accident, or perhaps I should say, by happenstance. Alpheus Todd, the last Librarian of the Legislature of the Province of Canada and the first Librarian of the Parliament of Canada, wrote in Parliamentary Government in the British Colonies that what we would normally regard as Sir John A. Macdonald’s first ministry lasted from 1864 to 1873 — not 1867 to 1873. I found this very odd indeed, even though I was vaguely aware at the time that Macdonald had also served as prime minister of the Province of Canada. This, in turn, stuck with me when I thhought back on the question, “Who is Canada’s longest-serving Prime Minister?” While Mackenzie King remains the longest-serving prime minister since Confederation, Sir John A. Macdonald surpassed King’s tenure by several years when we acknowledge that one of his ministries began in 1864, rather than in 1867, and that he had served as co-premier in two ministries prior to that.

In the presentation, I briefly outlined how the Constitutional Act, 1791 established the main political institutions of constitutional and representative government: the colonial Crown-in-Parliament, with Lieutenant Governors, appointed Legislative Councils, and elected Legislative Assemblies. The Constitutional Act also established the principles that the legislatures must meet at least once every twelve months and that general elections to the legislative assembly must take place at least once every four years. It also entrenched bijuridicalism by allowing Lower Canada to keep French law for civil matters and by permitting Upper Canada to repeal that system within its borders and replace it with English Common Law on civil matters, which it did in 1792.

After the Rebellions of 1837 and Lord Durham’s famous report, the Westminster Parliament reorganized the Canadas into the Province of Canada by way of the Act of Union, 1841. Sections 45, 46, and 47 of that statute expressly provide for the continuity of executive, legislative, and judicial authority from the Canadas to the united Province of Canada. Therefore, despite combining Upper and Lower Canada into one united province, the Act of Union contained the seeds of the Province’s political breakdown by expressly continuing the bijuridicalism of the Canadas, and by mandating the equality of representation of Canada West (Upper Canada) and Canada East (Lower Canada). Responsible Government also emerged in the Province of Canada between 1841 and 1848; 19th-century historians like Alpheus Todd tended toward the earlier date, while 20th- and 21st-century historians have gravitated toward 1848. As I explored in The Dorchester Review “1841 or 1848? When Responsible Government Began“, the difference in historiography hinges upon the separate emergence of individual ministerial responsibility, in 1841, and the later emergence of collective ministerial responsibility, in March 1848, when Elgin appointed the Baldwin-Lafontaine ministry after the assembly had withdrawn its confidence from the previous ministry as a whole.

But collective ministerial responsibility between 1848 and 1867 worked within a framework of a consociational, bifurcated ministry because of the sectional equality between and bijuridicalism of Canada West and Canada East. Like in contemporary Belgium, political parties remained firmly within their own section — with Liberals in Canada West and their Rouges counterparts in Canada East, and Conservatives in Canada West and Bleues in Canada East — and formed sectional coalitions with one another. Each section had its own Premier, Attorney General, and Solicitor General, the latter two because of the different legal systems for civil matters. This “Double Majority Convention” also emerged for legislation that dealt with only one section over the other, such as in legal and educational matters: the bill usually required both an overall majority in the assembly and a majority in the section that the legislative affected. In some cases, only one-half of the ministry — that for either Canada West or Canada East — would resign, but the ministry as a whole would not be regarded as having resigned unless both co-premiers resigned at once.

Consociationalism, bifurcated ministries, and the Double Majority Convention all went extinct in 1867 because representation by population replaced sectional equality, and because federalism and its division of powers allowed for an orderly re-organization of the united Province of Canada into and permitted Canada, Ontario, and Quebec to exist simultaneously as separate entities. Modern collective ministerial responsibility, where the tenure of the ministry as a whole is determined by the tenure of the prime minister alone, came into effect and replaced the bicephal co-premiership and double-compartmented collective ministerial responsibility. But the British North America Act makes clear that the Dominion of Canada is the continuator of the Province of Canada, except for those jurisdictions which section 92 granted to the provinces. Several sections of the BNA Act — notably, sections 9, 15, 41, and 84 — expressed continued the Province of Canada to the Dominion of Canada. Sections 64 and 88 continued the colonies of New Brunswick and Nova Scotia into the provinces of New Brunswick and Nova Scotia.

In particular, section 9 provided for a seamless transition of the executive government of the Province of Canada to the Dominion of Canada because the ultimate sources of executive authority, Queen Victoria, remained the same. The Colonial Office dutifully re-commissioned Governor General Lord Monck from Governor General of British North America to Governor General of Canada. Lord Monck, in turn, commissioned Sir John A. Macdonald as the first Prime Minister of the Dominion of Canada precisely because he was the co-Premier (and senior figure) of the Province of Canada. Finally, Macdonald reappointed most of his colleagues in the last ministry of the Province of Canada to the first ministry of the Dominion of Canada. Furthermore, the militia and most of the civil service, and its deputy ministers, of the Province of Canada continued to the Dominion of Canada, as far as sections 91 and 92 allowed. These charts show the timeline and the overlap of the ministries and civil service.

Timeline of the Executive Transition

The Legislature of the Province of Canada provided the foundation for the Parliament of Canada as well, both literally and figuratively, in accordance with section 16 of the British North America Act. The Victoria Building and Victoria Tower burned down in 1916, but the current Centre Block sits on the same site as its predecessor. The buildings on Parliament Hill that had served the Province of Canada fulfilled this role for the Dominion of Canada. The chamber for the Legislative Assembly of the Province of Canada became the first House of Commons of the Dominion of Canada, and the chamber of the Legislative Council became the Senate. Electing a new Legislative Assembly of House of Commons is easy. But what should become of the Legislative Council? Sections 25 and 127 of the British North America Act, which were repealed by the Statute Law Revision Act, 1893 (presumably because they could only have been used once and were spent by November 1867) reveal how the Legislative Council of the Province of Canada became the Senate of Canada. Section 127 contained the general policy that the 24 Legislative Councillors of Canada West would become the 24 Senators of Ontario and that the 24 Legislative Councillors of Canada East would become the 24 Senators of Quebec; it also specified that the Legislative Councillors of the colonies of New Brunswick and Nova Scotia had the option of remaining in their new provinces’ upper chambers, or becoming the first crop of Senators for their provinces in Ottawa. (Nova Scotia and New Brunswick each had 12 Senators in 1867, but I’m not sure how many Legislative Councillors each province had at the time. New Brunswick abolished its Legislative Council in 1891, and Nova Scotia followed suit in 1928). Under section 25, Queen Victoria appointed, on the advice of the British Cabinet, this first batch of Senators. Ironically, most of these Senators for Ontario and Quebec had originally been elected as Legislative Councillors between 1856 and 1866!

I concluded my presentation on why the Canadas and the Province of Canada have been forgotten. Despite the legal-constitutional continuity between the these three successor polities, the first two, the Canadas and the Province of Canada, and the years 1791 to 1867, are often seen as failures. The Canadas ended in the civil strife of the Rebellions of 1837. The Province of Canada suffered from incessant political gridlock by its very design (sectional equality and bijuridicalism) and only overcame its morass by transforming into a new federal Dominion of Canada. Perhaps nothing better represents the absurdity of the Province of Canada than its rotating capital city between 1841 and 1867:

1. Kingston (1841-1844)
2. Montreal (1844-1849)
3. Toronto (1850-1851)
4. Quebec City (1852-1854)
5. Toronto (1855-1859)
6. Quebec City (1860-1865)
7. Ottawa (1866-1867)

As Ryan accentuated in his presentation, Orangemen rioters burned down the legislature in Montreal in 1849 in protest of the Rebellion Losses Bill. They also caused several months of strife and made Montreal an untenable capital city. If they had not burned down the legislature in Montreal, it is quite possible that Montreal would have remained the capital city of the Province of Canada, and then would have become the capital of the Dominion of Canada as well. Perhaps Montreal is the capital of Canada in an alternate universe.

The legislature of the Province of Canada then moved to Upper Canada’s legislature in York, now Toronto, and then to Lower Canada’s legislature in Quebec City. That legislature also burned down in 1854, though by accident (as was common in the 19th century) and not by arson. The Province of Canada finally settled on Ottawa as the permanent capital city in 1858. But since all the parliament buildings had to be built from scratch, the legislature couldn’t sit there until 1866.

Canada and Ontario are content to forget Upper Canada and the Province of Canada entirely. Official records — sessional papers, Hansard, orders-in-council, etc. — are all difficult to come by and are not easily accessible online. The Parliament of Canada’s useful ParlInfo only compiles information from the 1st Parliament of Canada, and not anything on the Legislature of the Province of Canada. The Library and Archives have only made orders-in-council from 1867 and afterwards accessible online. Only Quebec and its National Assembly pay tribute to Lower Canada and the Province of Canada at all. The Publication of Statutes Act states that the Clerk of the Senate is, ex officio, the Clerk of the Parliaments, and holds custody of all statutes passed by the legislatures of Upper Canada, Lower Canada, and the Province of Canada, and the Parliament of Canada, from 1791 to present. So perhaps the Parliament of Canada in particular should do more to make records from 1791 to 1867 accessible to Canadians.

Incidentally, I speculated in my presentation that the title is “Clerk of the Parliaments” plural because this person is responsible for the records of four legislatures and parliaments; however, the current Clerk of the Senate and Clerk of the Parliaments, Charles Robert, also presented at this conference and informed me that the title “Clerk of the Parliaments” comes from Early Modern England, and it signified that the holder of this office occupied his position across more than one parliament. So that’s why it says “parliaments” in the plural. In Tudor and Stuart England, one spoke of calling “a parliament”, as a count noun, where today we use parliament as a mass noun and would say “call parliament.” The title therefore reflects the older usage of “parliament” as a count noun.

But if Upper and Lower Canada and the Province of Canada were failures, they were necessary failures, which the Dominion of Canada redressed through federalism. One could perhaps look at Canadian history from 1791 to 1867 as a Hegelian dialectic, wherein the Constitution Act, 1791 and the two Canadas represent the thesis, because they started constitutional government and representative government, where the Act of Union, 1841 and the Province of Canada act as the antithesis and the reaction against the Rebellions of 1837 and the separate governments of the two Canadas, and, finally, where the Dominion of Canada blends the two together in synthesis, having taken into account all the hard-won lessons.

In short, while the British North America Act, 1867 and Confederation turn 150 this year, constitutional government in what is now the Dominion of Canada dates back to 1791 and therefore turns 226 in 2017. In fact, constitutional government in Canada is only 4 years younger than the current United States Constitution, which dates from 1787.

Ryan Alford’s Presentation

Professor Ryan Alford gave an interesting presentation which complemented my own quite well. He focused his talk on the political turmoil surrounding the Rebellion Losses Bill, 1849 and how the Baldwin-Lafontaine ministry and Governor General Lord Elgin cemented Responsible Government, and how this entire debate destroyed the Family Compact and Chateau Clique. In 1848, Elgin had accepted the principle of collective ministerial responsibility when the previous Conservative administration lost a vote of confidence in the new legislature, just after the general election, and he appointed the Baldwin-Lafontaine Reform ministry. And in 1849, Elgin affirmed that he would grant Royal Assent to the Rebellion Losses Bill if the Legislative Assembly and Legislative Council validly passed it. No Canadian Governor General has ever attempted to withhold Royal Assent outright. (When Governors General were officers of the Imperial Crown and reported to the Colonial Office, they could reserve bills of Imperial concern for the consideration of the British cabinet, usually on the advice of the Colonial Secretary, but this is not quite the same thing as rejecting a Canadian bill outright himself on his own initiative).

Lord Elgin had appointed Baldwin and Lafontaine as co-premiers of a Reform Ministry in March 1848. Their Reformers, Patriotes, and Liberals had won a parliamentary majority in the election of January 1848. In those days, it was the norm that ministries remained in office after the election and met the new parliament; they would only resign after losing a vote of non-confidence in the new parliament. Baldwin and Lafontaine’s formations defeated the outgoing ministry on a vote of confidence, and Elgin dutifully appointed them to form a new administration because, as a good Whig, he was committed to implementing Responsible Government and collective ministerial responsibility, as per Colonial Secretary Earl Grey’s instructions. This Rebellion Loses Bill focussed primarily on compensating Lower Canadians who had lost property in the Rebellions of 1837, and it struck at the heart of concepts of loyalty and constitutional government in Canada. The bill enraged the Tories of the Family Compact, who saw themselves as the legitimate rulers of the Canadas because of their Loyalism and loyalty to the Crown and British Empire. In contrast, Baldwin and Lafontaine believed that Canadians’ Loyalism and loyalty should be directed toward constitutional government and norms themselves — to the institutions of self-government, liberty, and the rule of law — and not to the Loyalist families who made up the Family Compact and Chateau Clique. Baldwin charged that MacNabb and other Tories were the true rebels, because their obstinacy and heavy-handedness had fomented the Rebellions of 1837, which were justified because the Loyalist Family Compact and Chateau Clique had derogated from constitutional government and the true principles of the British constitution. This debate echoes those of 1774 in the Continental Congress and Thomas Jefferson’s pamphlet, A Summary View on the Rights of British Americans. Baldwin and Lafontaine also deliberately drew upon the debates surrounding the Glorious Revolution and Bill of Rights of 1688-89 and portrayed themselves as the inheritors of Whiggism and Burke’s Sons of Liberty.

The Tories believed that this Reform ministry and its bill were depriving them of their right to rule. Orangemen Loyalists stormed the legislature and set it on fire while it was in session, while parliamentarians were debating legislation. Riots and civil strife roiled through Montreal for weeks. Ryan argued that the violence directed toward Lord Elgin — pelting his carriage with rocks — amounted to assassination attempts. Indeed, Elgin’s brother was seriously injured by this lapidation. According to Alastair Bruce, a British historian and presenter — and one of John Bruce, Lord Elgin’s, great-great grandsons — the Bruce family have kept some of these rocks as “reminders of the dangers of leadership.”

The Orangemen in Ontario threatened to seize militia stores and execute a veritable coup d’état, and Lord Elgin wrote that he feared that he would be assassinated in Ontario.

Ryan argues as well that Baldwin and Lafontaine reacted justly and correctly to this civil strife. Unlike in the Rebellions of 1837, they did not resort to imposing martial law and trying civilians in courts martial. Instead, they relied on the normal civilian courts to prosecute rioters and mete out justice. This decision stands testament to their strength: they believed in constitutional government and the rule of law, and they backed up that belief in their actions.

Q&A on the Preamble and Lessons Learned

In the Q&A after our presentations, Peter Oliver, Professor of Law at the University of Ottawa, asked me about the discontinuity of Canada’s legal-constitutional history and the eventual break with the British Empire. (I have covered this in my manuscript, but I didn’t incorporate it into my PowerPoint due to time constraints). I replied that in terms of Canada’s relationship to the United Kingdom and place within the British Empire, nothing changed in 1867. The Dominion of Canada remained subject to the Colonial Laws Validity Act and the Westminster Parliament more generally, which remained the only authority competent to amend the British North America Act. In addition, the Governor General remained an agent of the Imperial Crown responsible to the Colonial Secretary until the early 20th century. Not until the Statute of Westminster, 1931 and the multiplication of the Imperial Crown into a Personal Union of Crowns in the 1930s did Canada become the successor state to the United Kingdom in areas of defence, foreign affairs, and treaty-making.

Ann Chaplin asked us about the preamble of the British North America Act and the meaning of its first recital, that the Dominion of Canada would have “a constitution similar in principle to that of the United Kingdom.” In my view, this phrase can only refer to the unwritten norms of Responsible Government because even in 1867, there were strict limits to how closely the constitution of the Dominion of Canada could resemble that of the United Kingdom. The United Kingdom was a unitary state and the metropolitan center of a vast Empire, while the Dominion of Canada was a federation, with an entrenched division of powers, and a Crown colony subject to the jurisdiction of the Westminster Parliament. Therefore, it is clear, even in 1867 and especially post-1931, “similar in principle” does not mean identical in practice or in form because the two constitutions were very different. Canada has always possessed a hybrid constitution, partially codified and partially uncodified, while the United Kingdom’s constitution is entirely uncodified and not entrenched beyond the competency of the Westminster Parliament alone to amend. The preamble thus refers only to this unwritten constitution, or to “constitution” in the classical sense of the word. That is the only explanation that makes sense.

Overall, I thought that my presentation went well; public speaking is certainly a skill on which I have improved over the last few years. Several of my fellow-presenters and attendees told me afterwards that they had found my presentation interesting, which is nice to hear and rather gratifying — especially since all of the other panellists are more educated and experienced than I am. I have learned not to read off the slides directly (though some of you might think that they’re still too text-heavy, and you might be right) and instead to rely on some speaking notes. This is primarily because the reading register of voice sounds more stilted than a more normal, extemporaneous register of voice. If you’ve ever listened to someone given a presentation by reading a speech verbatim, you know what I mean; sometimes, the presenter breaks the fourth wall by abruptly switching to a speaking register of voice — suddenly becoming more lively and engaging — and then falling back to the prepared text. Boring speeches almost always spring from the presenter reading a prepared text verbatim instead of practising the art of oratory. You should be sufficiently interested in your own subject-matter that you can convey and engender a certain enthusiasm about it to your audience and engage with them. I say all this based on my own experience and criticism of my earlier, worse speeches. I practice my presentation at least twice: in the first round, I talk without regard to time in order to establish a baseline of how long my PowerPoint presentation would take to go through; in the second, cut the speech as required in order to conform to a time limit. Usually at these conferences, the best time limit should fall between 10 and 20 minutes and no longer.

I look forward to more in the future! And I’ll write up my other notes and summarize the proceedings of the other panels that I attended.

Similar Posts: 

• Presentation to the Canada at 150 Conference
• 1841 or 1848? When Did Responsible Government Begin?
• Who Is Canada’s Longest-Serving Prime Minister? It Depends on When “Canada” Began