I. CANADA, THE FIRST PERIOD

At the end of a long series of wars, France transferred Canada and other territory to the British crown. If we ask what all the fighting was about, we get the answer in the statement of Colonel Seeley in "The Expansion of England:"

"The fact, then, that both in America and in Asia, France and England stood in direct competition for a prize of absolutely incalculable value, explains the fact that France and England fought a second Hundred Years' War."

Thereupon, the King directed the Lords of Trade to enquire:

"By what regulations, the most extensive commercial advantages may be derived from these cessions, and How those advantages may be rendered most permanent and secure to Her Majesty's trading subjects."

In reply, the Lords of Trade reported (June 8, 1763), in part, as follows:

"The most obvious advantages, arising from the cessions made by the Definitive Treaty are: the exclusive fishery of the River St. Lawrence, on all the coasts in the gulf of St. Lawrence and all the islands in that Gulf. The most obvious benefit acquired by the cessions made to your Majesty is the fur and skin trade of all the Indians in North America. Another advantage attending the late treaty is the secure settling of the whole coast of North America, as its produce may invite, or convenience for settlement may offer."

The Lords advised that the limits of Canada on the west and southwest should be a line from Lake Nipissing to the St. Lawrence at the 45th parallel of latitude. Why?

"The advantages," they said, "resulting from the restriction of the colony of Canada will be that of preventing by proper and natural boundaries, as well the ancient inhabitants as others, from removing and settling in remote places where they neither could be so conveniently made amenable to the jurisdiction of any colony nor made subservient to the interests of the trade and commerce of the Kingdom by an easy communication with, and vicinity to, the great River St. Lawrence."

That was all in accordance with the accepted ideas of the time. It was comprehended under the phrase the mercantile system -- British possessions exist for the benefit of the British: (1) exclusive markets for British products; (2) exclusive employment for British shipping; and (3) exclusive British right to colonial exports.

Between 1763, when Canada with 60,000 French people became British, and 1792, government was carried on for eleven years by a Governor, and for the remaining eighteen by a Governor and a nominated Council, it being " at present inexpedient," the statute of 1774 said, "to call an Assembly." With these arrangements, the French -- still the large majority of the inhabitants -- were well satisfied. But -- and here commenced the perturbing influence of having the United States as a neighbor -- the flight into Canada, during and after the War of Independence, of many thousands who regarded themselves as "loyalists" made the indefinite continuation of paternal government impossible. These men were British.[i] As such, they had been accustomed to a large measure of self-government. And they were no less British when they settled in their new homes. For that reason, as well as that, "in order to provide for objects of internal Government, some power of Taxation should reside upon the spot."[ii]

But the British government was loath to make the concession. The Assemblies in the American colonies had been sources of perpetual worry. They were not only restless, but disrespectfully contentious, and even upon occasion flagrantly disobedient. Would it be possible to get on without them? Perhaps so. Let the experts of the Colonial Office study the situation, and say if it were really necessary to take up a position on the slippery slope leading opportunity to independence. The experts did what they could (1789), and reported[iii] their opinion upon the great question

"by what means the connection, & dependence of Canada, on this Country, may be so preserved, & cultivated, as to be render'd most beneficial to Great Britain, during its continuance, & most permanent in its duration.

"It may, perhaps, be justly doubted, whether any form of Administration which could now be established would prevent the separation of so great, & distant a dominion, after it should have arrived at a certain point of extension, & improvement. But the real question now to be decided is, what system is best calculated to remove this event to a distant period & to render the connection, in the interval, advantageous to the Mother Country without oppression or injury to the Colony?

"It is certainly very material to examine the constitution of our former Colonies with a view to this Question, in order that we may profit by our experience there, & avoid, if possible in the Government of Canada, those defects which hastened the independence of our antient possessions in America.

"The establishment of a separate and local Legislature in a distant province, under any form or model which can be adopted for the purpose, leads so evidently to habitual Notions of a distinct interest, & to the existence of a virtual independence as to many of the most important points of Government, that it seems naturally to prepare the way for an entire separation, whenever other circumstances shall bring it forward. If therefore the subject were entirely new, & if the preservation of the dependence of a colony on its Mother Country were the only object to be considered, it should seem that this would best be attained by reserving at home the whole right & exercise of the power of Legislation; and that this system, tho certainly less adapted to promote the prosperity of the province, would probably be effectual to maintain, for a very considerable time, the union of the Empire."

But that could not be done. Assemblies had been established in "all the British Colonies," even in Nova Scotia and New Brunswick. There must be a Legislature. But, that granted,

"it remains to compare the plan which is now proposed for Canada, with the Constitution of the ancient Colonies,"

with a view to avoiding "those defects." And, first, it should be observed --

"That in the formation of those Governments, while full Scope & Vigour were given to the principles of Democracy by the establishment of a popular representation, in their houses of Assembly, no care was taken to preserve a due mixture of the Monarchical, & Aristocratical parts of the British Constitution."

That was particularly noticeable in the formation "of the second branch of the Legislature," in which the "aristocratical" part of the British constitution was not sufficiently reproduced, the appointees being men who

"Were liable to be removed from their Legislative Function, at the pleasure of the Crown, & acquired no permanent rank or distinction above the rest of the Community. To the want of an intermediate Power, to operate as a check, both on the misconduct of Governors, & on the democratical Spirit, which prevailed in the Assemblies, the defection of the American Provinces, may perhaps, be more justly ascribed, than to any other general cause which can be assigned. And there seems to be no one point of more consequence, in this view, than the labouring to establish, in the remaining provinces, a respectable Aristocracy, as a support, and safe guard to the Monarchy, removed, as it is, at so great a distance, & on that account, so much less powerful, in its weight, & influence upon the people at large."

Another defect was the absence from the colonies of the Sovereign.

"Whatever effect arises, here, from the immediate presence of the Sovereign, or from the influence of His Court, was therefore, necessarily lost, at so great a distance from the Mother-Country."

Another defect was the character and helplessness of the Colonial Governors.

"The nature of the Situation allotted to the Governors in America, the limited extent of their Authority, the dependence in which they frequently found themselves on the Colonies even for their own support, & Maintenance, the little consequence annexed to their Station, &, sometimes, the character and rank of the persons sent there, were but ill adapted to remedy the defect arising from the absence of the Sovereign."

Another defect was the fact, that although

"the power of conferring honours, and emoluments, enables the Sovereign, in this country, to animate the exertions of individuals, & to secure their attachment to the existing form of Government, by all the fair objects of just, & honourable ambition," the "case was widely different in the Colonies. The rewards of the Crown were few, they were such, as conferred little distinction, & they were perhaps sometimes bestowed with a very small degree of attention to the principle, which has here been stated."

Another defect was that theretofore offices in the colonies had been given to men who never left England, to men who appointed, and by their patents were permitted to appoint, colonials or others to do the work on a bargained percentage basis.

Another defect was the absence of revenue. In the United Kingdom

"the King possesses a large hereditary Revenue. . . . applicable to the Expences of the Civil Government." In Canada, "nothing of this sort has been established: The expences of the Government, there, have either been borne by this Country, or they have been defrayed by Taxes, imposed by the Provincial Legislatures . . . . No additional expence to Great Britain, on this account, can, or ought to be proposed: and the difficulties, which prevented the levying a sufficient revenue, for the purposes of Government, in the American Atlantic provinces, are likely to operate, with quite as much force, in that of Canada."

The list of defects was formidable. What could the experts propose for remedies?

As a check on gubernatorial misconduct and on the "democratical spirit," it will be advisable that the members of the second Chamber should be "appointed for life," instead of, as heretofore, "at the pleasure of the Crown," and that there should be conferred "on the persons who may be called to the Upper House of the Legislature, some personal, or hereditary distinction of Honour & Nobility." To the London experts that appeared to be a simple and natural way of meeting the difficulty. In Canada it was regarded as impracticable. It was never put into operation.

The absence of the Sovereign was irremediable; but something could be done with reference to both that defect and the position of the Governors. Among the American colonies there had been no cohesion or collaboration. Each Colony had its own Governor, and above them was nobody but the Colonial office. Why not introduce a unifying and loyalty-producing influence by giving to one person -- a Governor-General -- a superintending position over the Governors of the various Provinces? That, it was said, "must operate to give weight, & dignity to the representation of the executive authority." To add to the "weight" of the Governor-General, Sir Guy Carleton became Lord Dorchester, and in him were united "the Supreme Civil & Military Power." But that, too, would not work in Canada. Dorchester did what he could. But Simcoe, the Lieutenant-Governor of Upper Canada, disputed his "assumptions," and the over-Governor idea was abandoned.

Unfortunately, little could be done in the way of animating "the exertions of individuals" by distribution of "honours and emoluments." Perhaps, however, "democratical spirit" will be checked somewhat by the introduction of a House of Lords. That "would afford an additional source of respect, & consequence to them, & would thereby strengthen the principle which has already been explained."

The scandal of granting offices in Canada to friends of the Colonial Office who, remaining at home, farmed them out at profit-percentages to Canadians, was to be stopped. Why? Because it would have

"an extraordinary tendency to produce, in no inconsiderable degree, the object here desired, of having constantly, within the provinces, a certain number of persons, attached by these means to the existing form of Government, & to the connection with the Mother Country."

The difficulty with reference to the absence of revenue -- the difficulty that the assemblies were sometimes courageous or foolish enough to refuse supplies and even the Governors' salaries -- might be met by doing as, in Pennsylvania, Penn did,

"who by reserving to himself, & to his heirs, a certain portion of Land, situated in the middle of every Grant made to individuals, secured a property, which could not but increase in value, in proportion to the increase of the Colony itself."

One seventh of all the lands, therefore, was to be reserved

"for the purpose of raising, by sale or otherwise, a fund to be hereafter applied towards the support of Government. These reservations should be made in such situations, and to be so intermixed with Lands to be granted to other persons, as may render the possession of them objects to such persons when the Lands originally granted to them shall have been cultivated."[iv]

Rather ruefully, almost despairingly, the experts of the Colonial Office ended their Memorandum by saying that if their ideas

"can, in any sufficient degree, be carried into effect, it may perhaps be thought that they would afford a juster, & more effectual security against the growth of a republican or independent spirit, than any which could be derived from a Government more arbitrary in its form or principles. But even if the advantages which appear to result from these measures were visionary & chimerical & if it were agreed, that the danger of separation would be increased by giving to Canada a Constitution, assimilated, as is here proposed, to that of Great Britain, it may still be asked whether this plan is not become a point of almost inevitable necessity. The neighbourhood of the United States, & even of the remaining British Colonies seems to make it impossible that the people of Canada should acquiesce for any considerable length of time, in the continuance of a system at all resembling that under which they are now governed."

It was inevitable that the newly created Assemblies should develop the characteristics dreaded by the experts. Control of the purse gave to the Governor's opponents the same power that in England had almost extinguished the prerogatives of the Crown. And, for substantially the reasons which produced rebellion there in 1648, the Canadians rebelled in 1837.

II. THE SECOND PERIOD

The rebellion was little more than an émeute, but it produced the conviction that not only must the colonies have Assemblies, but that the Governors must subside and their precious prerogatives disappear. Would Great Britain make the necessary concessions? For a time that was doubtful. Happily, her adoption in the 1840's of the principles of free trade and her consequent abandonment of the mercantile system terminated the financial reasons for the possession of colonies. British statesmen now became indifferent to the fate of Canada. The Times said to her:

"From this day forth look after your own business: you are big enough, you are strong enough. . . . We are both now in a false position, and the time has arrived when we should be relieved of it. Take up your freedom; your days of apprenticeship are over."[v]

Tennyson, for the purpose of opposing public sentiment, embodied it in these words:

"So loyal is too costly! Friends, your love Is but a burden; break the bonds and go!"

Disraeli referred to "these wretched colonies" as "a millstone round our necks."[vi] Gladstone, in a speech at Chester, November 12, 1855, said that Canadian political demands were being conceded "not from terror but because, on seriously looking at the case, it was found that after all we had no possible interest in withholding them."[vii] And on a later occasion, he suggested that if the Northern States of the American Union "thought fit to let the South go, it might in time be indemnified by the Union of Canada with the Northern States."[viii]

III. THE THIRD PERIOD

As Canada became stronger, British affection for her budded and blossomed. Sir Charles Bruce, when dealing with "the three stages of the evolution of our colonial policy," said, "during the first our colonies were held to be politically and commercially necessary, during the next to be politically mischievous and commercially useless; now they have again come to be considered of the first importance both in politics and commerce. Every step in the expansion of England was guided by some motive of political or commercial necessity."[ix] The series of great continental wars between 1864 and 1871 and other disturbing factors revolutionized Disraeli's attitude towards the colonies. Instead of being a "millstone," they might be of service. And so, in a notable speech in 1872, he said that while he agreed that self-government ought to have been conceded to the colonies, it ought to have been accompanied by (among other things) "a military code which should have precisely defined the means and the responsibilities by which the Colonies should be defended, and by which, if necessary, this country should call for aid from the Colonies themselves."[x]

This new attitude found organized expression in the formation of The Imperial Federation League: Canada and the other more important colonies were to be accorded representation in the imperial parliament, and that body would regulate the military affairs, including the necessary taxation, of all the members of the federation. Afterwards the Colonial (now known as the Imperial) Conferences were instituted with a view to securing the voluntary military coöperation of the colonies. At the first of these (1887), the British Prime Minister, Lord Salisbury, said: "I will . . . point your attention to the Kriegsverein, which I believe is the real and most important business upon which you will be engaged, that is to say, the union for purposes of mutual defense." And at every subsequent Conference, the British representatives have endeavored, with much success, to place the Dominions under moral obligation to participate in future British wars. Canada has made no actual promises in that respect. But her Prime Ministers have placed themselves in a position more nearly approaching pledge than that in which Sir Edward Grey found himself on August 3, 1914.

Meanwhile, Canada's political relationship with the United Kingdom had been passing rapidly out of the colonial stage. At the Imperial Conference of 1926 it was unanimously declared that Great Britain and the Dominions

"are autonomous Communities within the British Empire, equal in status, in no way subordinate one to another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations."

What that means, exactly, nobody knows. For the Dominions cannot, at the same moment of their history, be "within the British Empire" -- that is, in a position of subordination to the United Kingdom -- and also outside the British Empire -- that is, "in no way subordinate" to the United Kingdom. But for the confusing words "the British Empire" and "the British Commonwealth of Nations," the declaration would be an unmistakable assertion that the relation between the United Kingdom and the Dominions was that known to international law as a Personal Union -- that is, that the only relation between them was acknowledgment of the same King. That sort of union would not be a novelty in English history. Indeed, until the ascension of Queen Victoria, the English sovereigns had normally been sovereigns of some other country. With Victoria, the Personal Union with Hanover came to an end, owing to the existence of the Salic law in Hanover. But while it had lasted, the political independence of the two countries was so complete that for a time the King of Hanover was at war with Russia, while the same man as King of Great Britain was at peace.

IV. INDEPENDENCE

Prior to the recent war, the present writer regarded a Personal Union of Canada with the United Kingdom as all that Canada could desire. Having in mind the Great Britain and Hanover union, he imagined that a similar relationship might be established between the United Kingdom and Canada: the United Kingdom might continue its immersion in European complications, while Canadian policy would be guided by Canadian interest. The outbreak of the war dispelled that idea. The difference between the two cases became obvious. Behind the Great Britain and Hanover union there was no unified history, no sympathy, no common tradition and achievement, and the two peoples spoke different languages. One nation might be at war without materially disturbing the feelings of the other. Between the United Kingdom and Canada, on the other hand, there was the relation (metaphorically) of mother and daughter, and there were the ties of sentiment, language, and tradition. In the case of Great Britain and Hanover, Personal Union was the creation of an exiguous association of two alien peoples. In the case of the United Kingdom and Canada, Personal Union would be only a misunderstood modification of a previous life-blood association. Consummation of it would not efface traditionary mental attitude. The United Kingdom could not be at war and Canada be indifferent.

All this became startlingly clear in 1914. During the afternoon of August 3 Sir Edward Grey delivered his notable speech in the Commons indicating the possibility of war with Germany. At the moment a majority of the ministers were opposed to hostilities, and it was not until the morning of the next day that, because of the invasion of Belgium, the majority turned the other way. Two days prior to Grey's speech, and three days prior to the German invasion, the Canadian Governor cabled to London as follows:

"My Government, in view of the impending danger of war involving the Empire, are anxiously considering the most effective means of rendering every possible aid. They will welcome any suggestions and advice which the Imperial naval and military authorities may deem it expedient to offer. They are confident that a considerable force would be available for service abroad."

"Theirs not to reason why." And Canadians, pretty unanimously, applauded the action of their government.

These considerations convinced the present writer that nothing short of complete separation would enable Canada to take an independent attitude with reference to wars in which the United Kingdom might in future be engaged. While it is true that, were a Personal Union consummated, Canada would not become a belligerent merely because the United Kingdom was engaged in war, the general public would not appreciate that fact. They would be inclined to reject the assertion that the Sovereign could be at war in one capacity and at peace in another. They would remain in the belief that duty and loyalty demanded participation in wars in which their King was engaged. They would not consider that they were free from all obligation. Lawyers might so declare, but an unwillingness to accept the technical truth would leave the people practically in the state of legal subordination from which they had passed by termination of the imperial relationship.

Canada is not yet ready for a declaration of independence. But her approach towards it has recently been very rapid. For his advocacy, prior to the war, of a Personal Union with the United Kingdom, the present writer was accustomed to receive such comfortable encouragements as, "I wish you would choke." Now, "equality of status" is almost unanimously accepted and acclaimed. It was the chief note in scores of speeches in the recent Jubilee jubilations. But people do not understand that "equality of status" means, for Canada, sovereignty. That they will learn; and the process of development will continue.

V. CANADA AND THE UNITED STATES

The immigration of the American "Tories " into Canada during the War of Independence still affects the attitude of Canada towards the United States. As Woodrow Wilson said in his "History of the American People:"

"Not a little poise, not a little of the sentiment of law, not a little of the solidity of tradition and the steadiness of established ways of thought and action, not a little of the conservative strength of the young communities had gone out of the country with the loyalists -- not a little of the training, the pride of reputation, the compulsion of class spirit, the loyalty and honor of a class accustomed to rule and to furnish rulers."

That happened, indeed, one hundred and forty years ago, and the "United Empire Loyalists," as they called themselves, are long since dead. But the antipathies of them passed to their descendants, and have been kept alive by later happenings -- the war of 1812-14; American action during the Canadian rebellion in 1837-8; the Trent Affair; the Fenian raids; the Atlantic fishery difficulties; the Behring Sea seizures; the various boundary disputes; the American delay in entering upon the recent war, etc. In none of these could Canadian imperialists detect anything but American anti-British spleen, arrogance, duplicity, and selfishness. Intercourse has moderated the antagonism, but the defeat of Sir Wilfrid Laurier and his reciprocity agreement at the elections of 1911 made clear that it still was a potent factor in the Canadian attitude.

VI. THE FUTURE

The future depends upon circumstances. In the opinion of the present writer (differing, no doubt, from the opinion of many others), the Canadian attitude is developing along the following lines:

1. Antipathy towards Americans has decreased, and is now tending to disappear. The removal of various subjects of dispute; rapidly developing trade exchanges (last year well over a billion dollars); American capital in Canadian industry (nearly a billion and a quarter dollars); development of international associations (labor societies, social service societies, sport societies, etc.); daily inundations of American literature; establishment of cordially commenced diplomatic relations; and lastly, realization of a common outlook with reference to Pacific Ocean affairs -- all these influences are making impossible the perpetuation of a Canadian feeling of antagonism to the United States.

2. Very few Canadians desire, or contemplate within forecastable time, the possibility of political union with the United States.

3. There is an increasing disinclination to participate actively in British wars merely because they are British. Many years ago Canadian Prime Ministers disavowed the existence of a duty in that respect, and Canada's recent refusal to accept obligations with reference to future wars between France and Germany, which the United Kingdom had agreed to in the Locarno treaty, made the existence of that disinclination indisputable. On the other hand, as already indicated, recent Prime Ministers have not been careful to avoid the appearance of obligation to render assistance in time of war, contenting themselves (but not everybody else) by declaring that Parliament will always be untrammelled by anything they may have done.

4. There is a general desire in Canada for the complete termination of colonialism. That part of the declaration of the last Imperial Conference which declared for equality of status between the United Kingdom and the Dominions was accepted by the leading men of both political parties; and the qualifications in the declaration were, to a large extent, disregarded. People do not quite understand the situation, but they like the British renunciation of subordination of the Dominions "in any aspect of their domestic or external affairs."

5. To the present writer, the declaration of equality of status is equivalent to a declaration of Canadian sovereignty; for the United Kingdom is a sovereign state, and the status of the Dominion is said to be equal to that of the United Kingdom. But many people would shrink from that conclusion.

6. The few incidents attaching to Canada's political status which prevent her assumption of all the attributes of sovereignty will soon disappear. The Imperial Conference made provision for a study of the method of their disappearance.

7. If Canada, as a sovereign state, continues to acknowledge as her sovereign the individual who occupies the British throne, the relationship will be that known to international law as a Personal Union. The old imperial relationship will have come to an end.

[i] The British settlers prior to the war were estimated at 6,000, and the "Loyalists," chiefly settled in the Upper Country, at another 6,000. Can. Arch., C. O. 42, vol. 21, p. 55.

[ii] The right of the imperial parliament to impose taxation for the purposes of general defence or of internal regulation and improvement had been renounced by the British parliament as early as 1774.

[iii]Can. Arch., C. O. 42, vol. 21, p. 55. The report is little known, but of great importance.

[iv] Dundas to Dorchester, 16 Sept. 1791: Can. Arch., Q. 52, p. 211.

[v] Spencer Walpole's History of Twenty-five Years, III, 87.

[vi] Letter to Lord Malmsbury, 13 Aug. 1852.

[vii] Quoted in The Letters and Journals of Lord Elgin, 32.

[viii] Goldwin Smith, My Memory of Gladstone, 43-44.

[ix]The Broad Stone of Empire, I, 92.

[x]The Broad Stone of Empire, I, 167.

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  • JOHN S. EWART, K. C., Chief Counsel for Canada in the North Atlantic Fisheries case, author of volumes on legal and international matters
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