Provincial equality, special status and the compact theory of Canadian confederation

Canadian Journal of Political Science

Volumn 32, Issue 1, 1999, Pages 21-39

  Romney, Paul ^a  

^a NONE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0040290308     PISSN: 00084239     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0008423900010088     Document Type: Article

References (71)

1. Ramsay Cook, Provincial Autonomy, Minority Rights and the Compact Theory, 1867-1921 (Ottawa: Queen's Printer, 1969).
2. Ibid., 29-32, 51-69.
3. N. McL. Rogers, "The Compact Theory of Confederation," Papers and Proceedings of the Annual Meeting of the Canadian Political Science Association 3 (1931), 205-30, and see the works cited in Paul Gérin-Lajoie, Constitutional Amendment in Canada, Canadian Government Series (Toronto: University of Toronto Press, 1950), 205-06.
4. N. McL. Rogers, "The Compact Theory of Confederation," Papers and Proceedings of the Annual Meeting of the Canadian Political Science Association 3 (1931), 205-30, and see the works cited in Paul Gérin-Lajoie, Constitutional Amendment in Canada, Canadian Government Series (Toronto: University of Toronto Press, 1950), 205-06.
5. Quebec, Royal Commission on Constitutional Problems, Report, Vol. 2 (Quebec: Province of Quebec, 1956), 65.
6. Norman McL. Rogers, "Mr. Ferguson and the Constitution," Canadian Forum, November 1930, 49; and Frank R. Scott, Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977), 186, 204, 305-09.
7. Norman McL. Rogers, "Mr. Ferguson and the Constitution," Canadian Forum, November 1930, 49; and Frank R. Scott, Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977), 186, 204, 305-09.
8. Richard Arès, Dossier sur le Pacte fédératif de 1867: la Confédération - pacte ou loi? (Montreal: Les Éditions Bellarmin, 1967).
9. Quoted in Donald Smiley, The Canadian Political Nationality (Toronto: Methuen, 1967), 29. See also Raymond Barbeau, J'ai choisi l'Indépendance (Montreal: Éditions de l'homme, 1961), 81-82.
10. Quoted in Donald Smiley, The Canadian Political Nationality (Toronto: Methuen, 1967), 29. See also Raymond Barbeau, J'ai choisi l'Indépendance (Montreal: Éditions de l'homme, 1961), 81-82.
11. See, for example, W. L. Morton, "Confederation, 1870-1896: The End of the Macdonaldian Constitution and the Return to Duality," Journal of Canadian Studies 1 (1966), 11-24; Ralph Heintzman, " 'The Spirit of Confederation': Professor Creighton, Biculturalism, and the Use of History," Canadian Historical Review 52 (1971), 245-75; and Donald Creighton, Towards the Discovery of Canada: Selected Essays (Toronto: Macmillan, 1972), 65-83, 229-42, 256-70, 293-305. See, generally, Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997), 31-54.
12. See, for example, W. L. Morton, "Confederation, 1870-1896: The End of the Macdonaldian Constitution and the Return to Duality," Journal of Canadian Studies 1 (1966), 11-24; Ralph Heintzman, " 'The Spirit of Confederation': Professor Creighton, Biculturalism, and the Use of History," Canadian Historical Review 52 (1971), 245-75; and Donald Creighton, Towards the Discovery of Canada: Selected Essays (Toronto: Macmillan, 1972), 65-83, 229-42, 256-70, 293-305. See, generally, Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997), 31-54.
13. See, for example, W. L. Morton, "Confederation, 1870-1896: The End of the Macdonaldian Constitution and the Return to Duality," Journal of Canadian Studies 1 (1966), 11-24; Ralph Heintzman, " 'The Spirit of Confederation': Professor Creighton, Biculturalism, and the Use of History," Canadian Historical Review 52 (1971), 245-75; and Donald Creighton, Towards the Discovery of Canada: Selected Essays (Toronto: Macmillan, 1972), 65-83, 229-42, 256-70, 293-305. See, generally, Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997), 31-54.
14. See, for example, W. L. Morton, "Confederation, 1870-1896: The End of the Macdonaldian Constitution and the Return to Duality," Journal of Canadian Studies 1 (1966), 11-24; Ralph Heintzman, " 'The Spirit of Confederation': Professor Creighton, Biculturalism, and the Use of History," Canadian Historical Review 52 (1971), 245-75; and Donald Creighton, Towards the Discovery of Canada: Selected Essays (Toronto: Macmillan, 1972), 65-83, 229-42, 256-70, 293-305. See, generally, Kenneth McRoberts, Misconceiving Canada: The Struggle for National Unity (Toronto: Oxford University Press, 1997), 31-54.
15. Robert C. Vipond, "Whatever Became of the Compact Theory? Meech Lake and the New Politics of Constitutional Amendment in Canada," Queen's Quarterly 96 (1988-89), 793-811.
16. Louis St. Laurent, "Presidential Address," Canadian Bar Review 9 (1931), 529-34; and Gérin-Lajoie, Constitutional Amendment in Canada, 153-84.
17. Louis St. Laurent, "Presidential Address," Canadian Bar Review 9 (1931), 529-34; and Gérin-Lajoie, Constitutional Amendment in Canada, 153-84.
18. J. M. S. Careless, Brown of the Globe, Vol. 2 (Toronto: Macmillan, 1963), 129-46.
19. George F. G. Stanley, "Act or Pact? Another Look at Confederation," Canadian Historical Association, Annual Report (1956), 1-25.
20. Fernand Ouellet, Lower Canada, 1791-1840: Social Change and Nationalism (Toronto: McClelland and Stewart, 1980), 201-07.
21. Canada, Bureau of Archives, Report on Canadian Archives (1897), Note A, 24-27; and W. P. M. Kennedy, ed., Documents of the Canadian Constitution, 1759-1915 (Toronto: Oxford University Press, 1918), 332-33 . See also no. 53 of the Ninety-Two Resolutions of 1834 (ibid., 378).
22. Canada, Bureau of Archives, Report on Canadian Archives (1897), Note A, 24-27; and W. P. M. Kennedy, ed., Documents of the Canadian Constitution, 1759-1915 (Toronto: Oxford University Press, 1918), 332-33 . See also no. 53 of the Ninety-Two Resolutions of 1834 (ibid., 378).
23. Canada, Bureau of Archives, Report on Canadian Archives (1897), Note A, 24-27; and W. P. M. Kennedy, ed., Documents of the Canadian Constitution, 1759-1915 (Toronto: Oxford University Press, 1918), 332-33 . See also no. 53 of the Ninety-Two Resolutions of 1834 (ibid., 378).
24. Quoted in Guy Laforest, Trudeau and the End of a Canadian Dream (Montreal: McGill-Queen's University Press, 1995), 46.
25. S. 91, Preamble, British North America Act. Paul Romney, "The Nature and Scope of Provincial Autonomy: Oliver Mowat, the Quebec Resolutions and the Construction of the British North America Act," this JOURNAL 25 (1992), 21-23.
26. S. 91, Preamble, British North America Act. Paul Romney, "The Nature and Scope of Provincial Autonomy: Oliver Mowat, the Quebec Resolutions and the Construction of the British North America Act," this JOURNAL 25 (1992), 21-23.
27. T. J. J. Loranger, Letters upon the Interpretation of the Federal Constitution Known as the British North America Act, 1867. First Letter (Quebec: "Morning Chronicle" Office, 1884), iii-vii, 40-41.
28. Paul Romney, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet and Legislature, 1791-1899 (Toronto: University of Toronto Press, 1986), 252-54.
29. Robert Gourlay, A Statistical Account of Upper Canada, Vol. 1 (London: Simpkin and Marshall, 1822), 189. On Bidwell and his authorship of the Sketches, see Dictionary of Canadian Biography, Vol. 6, 54-59.
30. Robert Gourlay, A Statistical Account of Upper Canada, Vol. 1 (London: Simpkin and Marshall, 1822), 189. On Bidwell and his authorship of the Sketches, see Dictionary of Canadian Biography, Vol. 6, 54-59.
31. Kingston Chronicle, March 7 and 14, 1823.
32. Arthur G. Doughty and Norah Storey, eds., Documents Relating to the Constitutional History of Canada, 1819-1828 (Ottawa: J. O. Patenaude, 1935), 479. The word "fact" is missing in one place in this transcription but appears in the original document.
33. K. D. McRae, "An Upper Canada Letter on Responsible Government," Canadian Historical Review 31 (1950), 293-94 (emphasis in original). By "coordinate sovereignty," I mean that sovereignty, and hence legislative authority, within the British empire was held to be divided between the British Parliament and the colonial legislatures, rather than concentrated in the former. Accordingly, the British Parliament could legislate for a colony without its consent only on matters vital to the integrity and security of the empire, usually trade, navigation and defence.
34. Ibid., 290; Dictionary of Canadian Biography, Vol. 6, 57; and W. L. Morton, "The Colonial Executive in the British Empire, 1763-1828," English Historical Review 78 (1963), 456.
35. Ibid., 290; Dictionary of Canadian Biography, Vol. 6, 57; and W. L. Morton, "The Colonial Executive in the British Empire, 1763-1828," English Historical Review 78 (1963), 456.
36. Ibid., 290; Dictionary of Canadian Biography, Vol. 6, 57; and W. L. Morton, "The Colonial Executive in the British Empire, 1763-1828," English Historical Review 78 (1963), 456.
37. See Jack P. Greene, "From the Perspective of Law: Context and Legitimacy in the Origins of the American Revolution," South Atlantic Quarterly 85 (1986), 55-76.
38. Globe (Toronto), September 25, 1844; and see Romney, "Nature and Scope of Provincial Autonomy," 10-11.
39. Globe (Toronto), September 25, 1844; and see Romney, "Nature and Scope of Provincial Autonomy," 10-11.
40. Robert C. Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991), 23. The distinction between law and convention was classically expressed by A. V. Dicey (Introduction to the Study of the Law of the Constitution [8th ed.; London: Macmillan, 1927], 22-30, 413-34).
41. Robert C. Vipond, Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991), 23. The distinction between law and convention was classically expressed by A. V. Dicey (Introduction to the Study of the Law of the Constitution [8th ed.; London: Macmillan, 1927], 22-30, 413-34).
42. Globe, September 17, 1864. In the past, I have doubted Robert Vipond's contention that Brown remained true in 1864 to his party's traditional insistence on autonomy for Upper Canada (Vipond, Liberty and Community, 20-21; and Romney, "Nature and Scope of Provincial Autonomy," 8). This, and similar declarations in the Globe, constitute strong evidence in Vipond's favour.
43. Globe, September 17, 1864. In the past, I have doubted Robert Vipond's contention that Brown remained true in 1864 to his party's traditional insistence on autonomy for Upper Canada (Vipond, Liberty and Community, 20-21; and Romney, "Nature and Scope of Provincial Autonomy," 8). This, and similar declarations in the Globe, constitute strong evidence in Vipond's favour.
44. Globe, September 17, 1864. In the past, I have doubted Robert Vipond's contention that Brown remained true in 1864 to his party's traditional insistence on autonomy for Upper Canada (Vipond, Liberty and Community, 20-21; and Romney, "Nature and Scope of Provincial Autonomy," 8). This, and similar declarations in the Globe, constitute strong evidence in Vipond's favour.
45. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Ottawa: King's Printer, 1865), 42; and Globe, January 21, 1882, 5; compare the quotation in n. 30 below. Mowat maintained that it was well understood at Quebec that the federal veto should be subject to the same constitutional constraints as the imperial (Globe, March 9, 1888). On Reform ideology and other relevant points, see Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, forthcoming).
46. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Ottawa: King's Printer, 1865), 42; and Globe, January 21, 1882, 5; compare the quotation in n. 30 below. Mowat maintained that it was well understood at Quebec that the federal veto should be subject to the same constitutional constraints as the imperial (Globe, March 9, 1888). On Reform ideology and other relevant points, see Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, forthcoming).
47. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Ottawa: King's Printer, 1865), 42; and Globe, January 21, 1882, 5; compare the quotation in n. 30 below. Mowat maintained that it was well understood at Quebec that the federal veto should be subject to the same constitutional constraints as the imperial (Globe, March 9, 1888). On Reform ideology and other relevant points, see Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, forthcoming).
48. Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Ottawa: King's Printer, 1865), 42; and Globe, January 21, 1882, 5; compare the quotation in n. 30 below. Mowat maintained that it was well understood at Quebec that the federal veto should be subject to the same constitutional constraints as the imperial (Globe, March 9, 1888). On Reform ideology and other relevant points, see Paul Romney, Getting It Wrong: How Canadians Forgot Their Past and Imperilled Confederation (Toronto: University of Toronto Press, forthcoming).
49. McRae, "Upper Canada Letter," 294.
50. "The provinces party to the bargain were at the time of the compact independent nations in the sense that they enjoyed self-government subject to the Imperial veto upon their legislation, to the Imperial appointment of their Governor-General, and to the Queen's command of the Forces" (Globe, March 9, 1888, quoted in Cook, Provincial Autonomy, 43).
51. Arès, Dossier sur le Pacte fédératif, 17-45. On Gwynne, see Dictionary of Canadian Biography, Vol. 13, 426-29.
52. Arès, Dossier sur le Pacte fédératif, 17-45. On Gwynne, see Dictionary of Canadian Biography, Vol. 13, 426-29.
53. Rogers, "Compact Theory of Confederation," 208-21; and Canada, Senate, Report Pursuant to Resolution of the Senate . . . Relating to the Enactment of the British North America Act, 1867 (Ottawa: King's Printer, 1939), annex 4, 22-152.
54. Rogers, "Compact Theory of Confederation," 208-21; and Canada, Senate, Report Pursuant to Resolution of the Senate . . . Relating to the Enactment of the British North America Act, 1867 (Ottawa: King's Printer, 1939), annex 4, 22-152.
55. Donald Creighton, the pre-eminent historian of his generation, simply assumed without documentation that the Fathers of Confederation had taken the old colonial system as their model (Dominion of the North: A History of Canada [rev. ed.; Toronto: Macmillan, 1957], 306-07). The Globe editorial quoted above defeats this supposition.
56. Paul Romney, "Why Lord Watson Was Right," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1993), 187-89. pursue this argument in Janet Ajzenstat, Paul Romney and Ian Gentles, ed., Canada's Founding Debates (Toronto: Stoddart, forthcoming).
57. Paul Romney, "Why Lord Watson Was Right," in Janet Ajzenstat, ed., Canadian Constitutionalism, 1791-1991 (Ottawa: Canadian Study of Parliament Group, 1993), 187-89. pursue this argument in Janet Ajzenstat, Paul Romney and Ian Gentles, ed., Canada's Founding Debates (Toronto: Stoddart, forthcoming).
58. Report Pursuant, annex 2, 38-39, 100.
59. On the new liberalism and its Canadian manifestations, see Barry Ferguson, Remaking Liberalism: The Intellectual Legacy of Adam Shortt, O. D. Skelton, W. C. Clark, and W. A. Mackintosh, 1890-1925 (Montreal: McGill-Queen's University Press, 1993); and Doug Owram, The Government Generation: Canadian Intellectuals and the State, 1900-1945 (Toronto: University of Toronto Press, 1986).
60. On the new liberalism and its Canadian manifestations, see Barry Ferguson, Remaking Liberalism: The Intellectual Legacy of Adam Shortt, O. D. Skelton, W. C. Clark, and W. A. Mackintosh, 1890-1925 (Montreal: McGill-Queen's University Press, 1993); and Doug Owram, The Government Generation: Canadian Intellectuals and the State, 1900-1945 (Toronto: University of Toronto Press, 1986).
61. Vipond, Liberty and Community, 131-39. See also Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise," in Gerald L. Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983), 70-110, 127-39; David Sugarman, "The Legal Boundaries of Liberty: Dicey, Liberalism, and Legal Science," Modern Law Review 46 (1983), 102-11; and Richard Risk, "The Scholars and the Constitution: P.O.G.G. and the Privy Council," Manitoba Law Journal 23 (1995-96), 496-523.
62. Vipond, Liberty and Community, 131-39. See also Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise," in Gerald L. Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983), 70-110, 127-39; David Sugarman, "The Legal Boundaries of Liberty: Dicey, Liberalism, and Legal Science," Modern Law Review 46 (1983), 102-11; and Richard Risk, "The Scholars and the Constitution: P.O.G.G. and the Privy Council," Manitoba Law Journal 23 (1995-96), 496-523.
63. Vipond, Liberty and Community, 131-39. See also Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise," in Gerald L. Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983), 70-110, 127-39; David Sugarman, "The Legal Boundaries of Liberty: Dicey, Liberalism, and Legal Science," Modern Law Review 46 (1983), 102-11; and Richard Risk, "The Scholars and the Constitution: P.O.G.G. and the Privy Council," Manitoba Law Journal 23 (1995-96), 496-523.
64. Vipond, Liberty and Community, 131-39. See also Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise," in Gerald L. Geison, ed., Professions and Professional Ideologies in America (Chapel Hill: University of North Carolina Press, 1983), 70-110, 127-39; David Sugarman, "The Legal Boundaries of Liberty: Dicey, Liberalism, and Legal Science," Modern Law Review 46 (1983), 102-11; and Richard Risk, "The Scholars and the Constitution: P.O.G.G. and the Privy Council," Manitoba Law Journal 23 (1995-96), 496-523.
65. On legal realism, see Morton J. Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992).
66. Robert MacGregor Dawson, ed., Constitutional Issues in Canada, 1900-1931 (London: Oxford University Press, 1933), 33.
67. Cook, Provincial Autonomy, 10-11.
68. For this and the next paragraph, see, for example, Rogers, "Compact Theory of Confederation," 221-25.
69. Cook, Provincial Autonomy, 43.
70. Sir George Ross, The Senate of Canada: Its Constitution, Powers and Duties Historically Considered (Toronto: Copp Clark, 1914), 109-19.
71. Vipond, Liberty and Community, 30-32.