would offer an opportunity of voicing its protest against the policy of the government. In the circumstances it could only declare that it would not sanction the bill of supply until satisfactory assurance had been given that a temporary removal would not take place.1 This, in the opinion of the governor, meant 'objecting because the Bill was unobjectionable.' Though the consent of the council was necessary to money grants, it had no recognized power of originating money votes, altering the amounts, or changing the appropriation. If, however, it could say, 'We will not vote supplies unless they insert a particular item in the bill,' what became of the exclusive right of the crown to initiate money votes or anything else? Head believed that the crown could choose the place for meetings of parliament, and that its judgment need only be acquiesced in by the assembly. A quarrel was avoided by the action of the speaker, who ruled the protest out of order. But the vote of twenty-four to twenty in favour of the supply indicates the feeling of the council. The danger remained that it might wrest from the assembly control over finance, and Head admitted that, in forfeiting the power of dissolution in order to strengthen the upper house, the ministers had possibly gone too far. Five years later Monck was told that the elective Upper House showed a growing desire to claim a voice in the imposition and appropriation of taxation.'

We may conclude, therefore, that while the elected council was somewhat more vigorous than its predecessor, it had scarcely succeeded in finding the most natural or useful channel for its energy. It had abandoned the wide field of legislation for the disputed territory of finance. The result was a certain uneasiness in the public mind. Men wondered if they had not set up an engine for their own destruction, if they had not divided the sovereignty between two elected

1 An amendment to this effect was introduced into the legislative council on May 3, 1859.

During the discussion on the supply bill in the legislative council, May 18, 1860, a motion was introduced that it was inexpedient, taking into consideration the heavy charges upon the Consolidated Revenue Fund of the Province, to abolish the tolls at present charged on merchandise and vessels passing through the Provincial canals.' It was ruled out of order.

VOL. V

K

bodies, and thereby weakened ministerial responsibility. Hence, at Confederation, George Brown's argument that the nominated upper house corresponded more closely with British tradition carried greater weight than it had done ten years before. Other factors in the situation also told against the existing council. As John A. Macdonald contended, the character of the electoral districts had rendered the elections difficult and expensive, and there had not been such an improvement in the type of member as to justify his original expectations. It has been said that this was a characteristically indirect way of putting the fact that as party leaders both he and Brown found the expense and trouble of conducting the second set of elections too severe a strain upon the party funds and machinery. However that may be, we are safe in assuming that the old difficulty of securing active and painstaking members had not been overcome. Finally, we must take into account the attitude of Nova Scotia and New Brunswick, which were familiar only with a nominated council and would not accept any other form. For all these reasons the experiment had to be abandoned.

Yet all parties at Confederation were agreed that they should carry out the purpose which had suggested the change to an elected council, that of making the revising body vigorous and independent. They hoped that the duty of representing the several provinces which was now imposed upon the Senate, the class from which it would be drawn, the limitation upon its numbers and the life-tenure of office, would lend it dignity and strength. They did not feel, however, that it would be so likely as an elected chamber to come into conflict with the lower house, since the ministry possessed the power to nominate its members. The nonhereditary character of the office was a still further guarantee that the Senate would not hold out against the genuine wishes of the people. Hence, the Canadian delegates ignored even the advice of the home government, that some safeguard against an arbitrary use of its authority should be devised.

IV

CONFEDERATION

THE FAILURE OF THE UNION

'HE development of responsible government and the

THE changes in the legislative council made necessary

several amendments in the Act of Union. The intention of those who framed the measure had undoubtedly been that it should be accepted as a final solution of the Canadian question; in 1843 Stanley urged upon Metcalfe that Canadians should take the act to be un fait accompli and, instead of seeking to destroy the very basis of their constitutional existence, devote their energies to the improvement of the country. It has never been found possible, however, even by the most carefully constructed documents, to set limits to the growth of a people. Resolutions were introduced in the very first session of the new Canadian legislature insisting upon the purely temporary character of the Act of Union, while, as the country gained confidence in itself, the system which placed the management of its affairs elsewhere inevitably broke down. The provision by Canada of the civil list, the removal of the restrictions laid upon the official use of the French language, the transformation of the upper house, all made serious breaches in the act. Even the specific precautions against too rapid and too easy changes in the constitution, that in certain cases bills of the legislative council and assembly of Canada should be laid for thirty days before both houses of the imperial parliament, and that a bill of the legislative council and assembly altering the number of representatives in the legislative assembly should on its second and third reading in the council and assembly be passed with the concurrence of two-thirds of the members of both bodies, were abandoned. It was estimated in 1860 that thirty out of the sixty-two clauses in the act had gone by the board. Still, the explanation of its ultimate failure lay deeper.

Lord Durham had expressly warned the authors of the 1 The Union Act Amendment Act, 1854.

Union against any attempt to favour the English minority, 'by means of new and strange modes of voting or unfair divisions of the country.' A system of representation based on the census returns would have blotted out the interprovincial line at least for electoral purposes. When, however, the two existing provinces were each assigned an equal number of members in the assembly a permanent barrier was set up. They might in any case have retained their own laws and judicial procedure, but so far from neutralizing the evil effects which this division would have involved, the electoral arrangements increased them. Each section of the country had its representatives in the ministry and in the party councils, and John A. Macdonald could contend at Confederation that the Canadian settlement of 1840 corresponded more nearly with a federal than with a legislative union. But the punishment which the neglect of Durham's advice entailed did not stop there. The division into Canada West and Canada East, serious as it would have been in itself, meant that the representation could not be based on population so long as the Union endured. Canada East suffered at the time, Canada West later, and the one or the other section always enjoyed a vested interest in injustice. When, therefore, the Act of Union is described as Lord Durham's solution of the Canadian problem, we should always remember that where the act departed from his instructions the germs of decay and dissolution entered in.

With the various stratagems by means of which the politicians of the period tried to ride the two horses we are not concerned, except in so far as they illustrate the working of the constitution. It immediately became obvious that if the party line could be drawn at right angles across the provincial line, some of the worst effects of the separation between the two parts of the country would be overcome. The parties attempted, therefore, to unite in their ranks both French and English members. It proved difficult, however, to retain the party divisions, especially among the French. 'Their coherence enabled them to organize a powerful opposition to any Ministry from which they were excluded, but it no less certainly provoked among the British both of Lower

and Upper Canada a feeling of antagonism to one of which they formed a part.' In fact, the government of Canada could scarcely be prevented from becoming a seesaw; when one section of the country was up, the other was down. This situation gave rise to the demand that the administration should possess a double majority-a majority, that is to say, in each half of the country. When, under Lord Metcalfe, after the resignation of Baldwin and La Fontaine, the French had little or no voice in the government, the necessity for a double majority was urged in Lower Canada. When the tables were turned and the majority of the French representatives, but a minority of the English, supported Baldwin and La Fontaine and later the conservative administration, the demand came from the English side of the house. Yet it cannot be said that the double majority was ever accepted either as a principle or a convention of the constitution. Party leaders would have been only too glad to secure it, and in opposition they were sometimes ready to insist upon it, but they were not deterred from holding office by a failure to command it. The governors consistently opposed it. Though Sir Edmund Head in 1856 'looked on MacNab's resignation as a virtual dissolution of the existing administration, he did not by this admit or sanction in any way the doctrine of double or sectional majority as necessary to a government in Canada. On the contrary, he stated unhesitatingly that it was a doctrine at once irrational and unconstitutional, and if carried out might involve the consequence of a ministry being obliged to resign although the party by whom they were defeated did not and could not possess the confidence of the Legislative Assembly.' When the new ministry was constituted, the governor 'told Colonel Taché that he expected the Government formed by him to disavow the practice of a double majority.' The idea lingered, how

1 Elgin to Grey, April 26, 1847

* General Cathcart, writing to Gladstone on April 24, 1846, referred to Draper's attempt to get in the French Canadians, without yielding to unreasonable demands or admitting the principle contended for by Mr La Fontaine, the governing of the united province by the majority of each section of it, the evils of which are too manifest to require notice from me.' It is well known that Baldwin was strongly opposed to the double majority.