together, in the light of history and aided by common sense, endeavour to clear the air, to remove uncertainties, to dispel causes of misunderstanding, to extricate from the jumble of opinions and recriminations the essential principles which should guide our national life. 1 hope that some of my fellow-members will help me to recall the fundamental principles which should underlie the relations between the dominion and the provinces. As to the facts which I shall have the honour to lay before the house, I have taken them in part from the report of the special committee of inquiry on the British North America Act which sat during the session of 1935 and from the excellent brief presented to the Rowell commission by Professor Frank Scott, of the faculty of law of McGill university, Montreal.
I do hope, sir, that no sarcastic motive will be attributed to the motion you have just read. I must admit, however, that it is a little difficult to avoid being sarcastic when one sees, for instance, a government, that had been pushed into power for damning trusts, objecting to a national unemployment insurance scheme on the plea of autonomy-which of course cannot be to the liking of the trusts- or when one sees a provincial prime minister refusing all contribution to an unemployment insurance scheme, arguing that his province is an agricultural province, but asking in the same breath a national crop insurance scheme at the expense of the whole of the Canadian people including the industrial workers.
We must ask ourselves, sir, what was the idea of the fathers of confederation on the subject of our constitution; how that idea has changed since 1867 and what means are to be adopted in order better to understand the powers and responsibilities of the different legislative authorities in our country. Those are, I may say, the three points which should be considered in order to reach the end I had in mind when moving the resolution.
After I have dealt with those three points, I hope I will have contributed in a measure to the understanding and cooperation which must exist in Canada and its provinces, if the nation created in 1867 is to achieve its aims. It is quite possible that in doing so I will be merely voicing commonplaces and stock phrases. Consequently I will be brief. There are in this chamber learned, wise and experienced men better able than I am to deal with such a complicated matter and to give appropriate advice and directions.
A perusal of contemporary documents leaves no doubt but that the fathers of confederation, in 1867, had a great idea. They aimed not only at the bringing together of the British colonies of North America, but also at the
creation of a new nation. As a matter of fact, the British North America Act is not, as many think, a pact, a compromise, a treaty of alliance; it is the constitution of a new nation and the charter of a new country. The raison d'etre of confederation is set out clearly in the preamble to the British North America Act. There, it is declared that the provinces of Canada, of Nova Scotia and of New Brunswick have expressed a desire to contract a federal union with a view to form a single power under the British crown.
Section 4 states that the provisions of that act would commence and have effect on and after the Union, and that the name Canada would be taken to mean Canada as constituted under this act.
In the language of the speech from the throne, 1865, a new nationality and a new country were created for the purpose of weaving the local particularistic views of the small colonies into a larger entity. A united body replaced the various provincial entities. A new state of things replaced the previous one and Canada of 1867 absorbed the former colonies which became administrative districts thereof.
The Hon. John Rose was therefore right when he said:
The feeling of nationality will soon become deeply rooted in our souls.
In creating that new nation, the fathers of confederation surely intended to create a national government fully empowered to deal with all questions of a national character and presenting a common interest for all the country's citizens. That was quite clear in their minds. They had before their eyes the example of the American civil war brought about by the unreasonable claims of the various states and they were determined to preserve from such a fate the new nation they were creating. In the opinion of everyone the jurisdiction of the new federal government was not to be limited to certain specific or enumerated powers as in the case of the United States Congress. Sir John Macdonald dealt witlh this matter quite clearly and frankly:
Ever since the union was formed, the difficulty of what is called "state rights" has existed, and this as we know-
-he was referring to the constitution of the United States-
[DOT]-has much to do in bringing on the present unhappy war in the United States. In fact they-
-the separate provinces which became the United States-
-commenced at the wrong end. They declared by their constitution that each state was a
sovereignty in itself, and that all the powers incident to a sovereignty belonged to each state, except those powers which, by the constitution, were conferred upon the general congress. Here, we have adopted a different system. We have strengthened the general government. We have given the general legislature all the great subjects of legislation. We have conferred on them not only specifically and in detail all the powers which are incident to sovereignty, but we have expressly declared that all subjects of general interest not distinctly and exclusively conferred upon the local legislatures, shall be conferred upon the general government and that local subjects shall be conferred upon local legislatures. We have thus ' strengthened _ the general government and legislature and avoided that great source of weakness which has been the cause of the disruption of the United States.
Those words of Sir John Macdonald may be found in the Debates on Confederation, session of 1865, page 33. In the course of the same speech, page 41, Sir John is quoted as follows:
This is precisely the provision which is wanting in the constitution of the United States. It is here that we find the weakness of the American system-the point where the American constitution breaks down.
Kindly take note of this:
It is in itself a wise and necessary provision. We thereby strengthen the central parliament, and make the confederation one people and one government, instead of five peoples and five governments, with merely a point of_ authority connecting us to a limited and insufficient extent.
During the same debates, Sir Georges Etienne Cartier, is reported as follows on page 60:
Under the federation system, granting to the control of the general government these large questions of general interest in which the differences of race or religion had no place, it could not be pretended that the rights of either race or religion could be invaded at all. We were to have a general parliament to deal with matters of defence, tariff, excise, public works, and these matters absorbed all individual interest.
Here is now the opinion expressed by Hon. George Brown:
For all dealings with the imperial government and foreign countries we have clothed the general government with the most ample powers. The measure, in fact, shuns the faults of the federal and legislative systems and adopts the best part of both, and I am well persuaded it will work efficiently and satisfactorily.
I could quote many more similar statements to show that in the early days of confederation there was no ambiguity and that everybody agreed perfectly well on the distribution of powers as between the central government and the provincial governments. There was no conflict on the question of autonomy, or rather each institution was autonomous
in its own sphere. The federal government had all the powers which are necessary to a national government, and the provinces, all those belonging to a territorial administration. It is made clear in the very wording of section 91 of the British North America Act which says in the first place that generally speaking, it shall be lawful for the Federal Parliament to make laws for the peace, order and good government of Canada and that these general powers shall not be restricted by the enumeration following the first paragraph of the section, which is given just as an illustration.
On the contrary, when it is a question of laying down the powers of the provinces in section 92, particulars are given, and the section ends by saying that the provinces shall have jurisdiction in matters of local interest within their borders.