David Mills and the remedial bill of 1896: Some comments on Dr. Morton’s recent article

Dialogue: DAVID MILLS AND THE REMEDIAL BILL OF 1896 (1) Some comments on Dr. Morton's recent article LOVELL ·C. CLARK Dr. Morton's article in the first issue of the Journal- "The End of the Macdonaldian Constitution and the return to Duality" - is so clearly a valuable contribution to historical understanding that perhaps one may venture some critical comments upon it without appearing to be merely captious. The first comment may seem to be only a quibble about the title. In tracing the defeat of the 'Macdonaldian Constitution' Dr. Morton depicts this defeat as ·a 'return to duality', by which he evidently means a return to the sectionalism (and consequent deadlock) which prevailed during the Union of the two Canadas in the pre-Confederation era. There is another more important meaning, however, which can be given to the term 'duality', namely, that of a partnership between French-speaking and English-speaking Canadians . This kind of duality was embodied in the Liberal-Conservative Party of Macdonald and Cartier, in the B. N. A. Act, in the Manitoba Act of 1870, and in the North West Territories Act of 1875 (as amended in 1877); all of which implied that both French and English would have an equal 'right of way' throughout a transcontinental Dominion. The 'Macdonaldian Constitution' espoused this kind of duality (or equality of the 'two founding races'), as Dr. Morton's paper so cogently argues. Indeed, as he himself shows, it was the failure to protect this duality, on the occasion of the New Brunswick school legislation of 1871, which helped to bring about the eventual defeat of the 'Macdonaldian Constitution '. 50 In summary on this point then, the title of Dr. Morton's article is misleading. The 'duality' of his title (although not of his paper) refers to a particular situation in the United Canadas of the pre-Confederation era, whereas the more important (and topical) meaning of the term 'duality' is the very one with which his paper is actually concerned, and which the 'Macdonaldian Constitution' was intended to protect and promote. Thus the defeat of that Constitution was hardly a 'return to duality' but instead a rejection of it. In this connection it is worth noting that it was Sir John A. Macdonald himself who failed in the first challenge to the Federal Government's role of guarantor of minority rights. In declining to disallow the New Brunswick school legislation, Macdonald gave as grounds for disallowance that the provincial legislation must be either unconstitutional or to "the detriment of the general interests of the Dominion". He found that neither condition existed with regard to the New Brunswick school legislation. Dr. Morton's comment is that this stand by Macdonald was "surprising". Indeed it was, but would it not have been worthwhile, given the general theme of Dr. Morton's paper, to make clear why? Macdonald's first ground for disallowance, viz., the presumption that provincial legislation is unconstitutional, was surely invalid. After all, unconstitutional legislation is no law at all - the courts will see to that-and hence it would make no sense to disallow non-existent law. In short, the question of the constitutionality of provincial legislation is irrelevant in determining whether or not the Federal Government should exercise its power of disallowance. The second ground which Macdonald gave for disallowance, that of "detriment of the general interests of the Dominion ", certainly was a valid one, and since the New Brunswick school legislation fell within this category he should have disallowed it. Finally, I should like to disagree with the view which Dr. Morton has taken of David Mills' stand on the Remedial Bill of 1896. Needless to say, I do not in the least feel that Mills' position has been misrepresented; indeed, Dr. Morton's Revue d'etudes canadiennes succinct synopsis may well express the 'true significance' of Mills' speech. (It is this kind of historical insight which is so valuable in the article.) But Mills' speech is a tremendously long one covering sixty-two pages of Hansard, and I think it can be fairly argued that, contrary to Dr. Morton's contention, it very strongly upholds the 'Macdonaldian Constitution'. I do not at...