1 Canada, Parliament, Senate, Report Pursuant to Resolution of the Senate… relating to the Enactment of the British North America Act, 1867 (Ottawa: King's Printer, 1939Google Scholar), annex I, 47 [hereafter O'Connor Report].

2 Can. Sess. Papers (1873) no. 50.

3 Browne, G. P., ed., Documents on the Confederation of British North America (Toronto: McClelland and Stewart, 1969), 168–171Google Scholar; Saywell, John, The Office of Lieutenant-Governor: A Study in Canadian Government and Politics (Toronto: University of Toronto Press, 1957), 8–10, 15Google Scholar; and Morrison, J. C., “Sir Oliver Mowat and the Development of Provincial Rights in Ontario,” in Three History Theses (Toronto: Ontario Department of Public Records and Archives. 1961). 50–57.Google Scholar

4 National Archives of Canada, Macdonald Papers, Mowat to Macdonald, vol. 331, p. 114971 (Mowat to Macdonald, Feb. 18, 1873); 36 Vict. (1873), c. 3.

5 Can. Sess. Papers (1873) no. 50. The second challenge was issued in 1886: see Ont. Scss. Papers (1888) no. 37. 24, 27–29. The other three statutes were the Escheats and Forfeitures Acts of 1874 and 1877 (37 Vict., c. 8: 40 Vict., c. 3) and the Executive Administration Act, 1888 (51 Vict., c. 5). See, in general, Romney, Paul, Mr. Attorney: The Attorney-General for Ontario in Court, Cabinet and Legislature, 1791–1899 (Toronto: Osgoode Society/University of Toronto Press, 1982), 240–259, 274–81.Google Scholar

6 The British North America Act, 1867: 30 and 31 Vict., c. 3 (U.K.).

7 W. F. O'Connor's comment, quoted above, continues: “When the London Conference framed its terms and the Imperial Parliament enacted them the true guardians of the autonomy of the provinces had done, in their way, what Lord Watson was later presuming, without the necessary equipment, to do in his way.”

8 Browne, G. P., The Judicial Committee and the British North America Act: An Analysis of the Interpretative Scheme for the Distribution of Legislative Powers (Toronto: University of Toronto Press, 1967)CrossRefGoogle Scholar; Russell, Peter H., ed., Leading Constitutional Decisions (3rd ed.; Ottawa: Carleton University Press, 1982)Google Scholar; Cairns, Alan C., “The Judicial Committee and Its Critics,” this Journal 4 (1971), 301–345Google Scholar; and Vaughan, Frederick, “Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation,” this Journal 19 (1986), 495–519Google Scholar. See also the “Comments” of Alan C. Cairns and Peter H. Russell, in reply to Vaughan, 521–36.

9 Cairns, “Judicial Committee,” 319–27.

10 Russell, Leading Constitutional Decisions, 12–13.

11 Ibid., 8, and Cairns, “Judicial Committee,” 319, 323.

12 Vipond, Robert C., Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University of New York Press, 1991)Google Scholar. Earlier writers had emphasized the Lower Canadian viewpoint: Loranger, T. J. J., Letters upon the Interpretation of the Federal Constitution known as the British North America Act (1867). First Letter (Quebec: “Morning Chronicle” Office, 1884)Google Scholar; Stanley, G. F. G., “Act or Pact? Another Look at Confederation,” Canadian Historical Association Report (1956), 1–25Google Scholar; Black, Edwin R., Divided Loyalties: Canadian Concepts of Federalism (Montreal: McGill-Queen's University Press, 1975), 149–257CrossRefGoogle Scholar; and Silver, A. I., The French-Canadian Idea of Confederation, 1864–1900 (Toronto: University of Toronto Press, 1982), 33–50.Google Scholar

13 Terms such as “the Macdonald constitution” and “Macdonald's centralist orthodoxy” implicitly accord Macdonald's centralism a constitutional or juridical legitimacy which Mowat for one denied (Vipond, Liberty and Community, 10, 12).

14 A. G. for Ontario v. A. G. for the Dominion [1896] A.C. 348.

15 Vipond, Liberty and Community, 172, and Risk, R. C. B., “Canadian Courts Under the Influence,” University of Toronto Law Journal 40 (1990), 731–734.CrossRefGoogle Scholar

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17 Cook, Ramsay, Provincial Autonomy, Minority Rights and the Compact Theory, 1867–1921 (Ottawa: Queen's Printer, 1969), 8–9Google Scholar; Vipond, Robert Charles, “Federalism and the Problem of Sovereignty: Constitutional Politics and the Rise of the Provincial Rights Movement in Canada” (unpublished doctoral dissertation, Harvard University, 1984), 80–81, 105–10. 116–18Google Scholar; and Vipond, Robert C., “Constitutional Politics and the Legacy of the Provincial Rights Movement,” this Journal 18 (1985). 267–294.Google Scholar

18 Wheare, K. C., Federal Government (3rd ed.; London: Oxford University Press, 1953), 11–15Google Scholar. For an influential contemporary discussion, see A. V. Dicey's Introduction to the Study of the Law of the Constitution, first published in 1885.

19 Cairns, “Judicial Committee,” 303–07, and see the epigraph to this article.

20 Davvson, Robert MacGregor, The Government of Canada (Toronto: University of Toronto Press, 1947), 36Google Scholar; Mac Donald, Vincent C., “The Privy Council and the Canadian Constitution,” Canadian Bar Review 29(1951), 1030–1031Google Scholar; and F. R. Scott, “Centralization and Decentralization in Canadian Federalism,” ibid., 1100–03. Compare Vaughan, “Critics of the Judicial Committee,” 510, 513: “The confederation plan clearly contained a deceptive constitutionalism by giving the impression that the new constitution embodied the federal principle in an effective manner,” but in reality the BNA Act was “crudely centralist,” a character which “was not a result of shoddy draughtsmanship but the conscious effort of the framers of the Act.”

21 Canada, Legislative Assembly, Parliamentary Debates on the Subject of the Confederation of the British North American Provinces (Quebec: Hunter, Rose, 1865). The response to the Confederation proposals in the Maritime Provinces is reviewed in Phillip Buckner, “CHR Dialogue: The Maritimes and Confederation: A Reassessment,” Canadian Historical Review 71 (1990), 1–30.

22 Debates on… Confederation, 87.

23 Vipond, Liberty and Community, 114–31.

24 Ibid., 20–21.

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26 Vipond, Liberty and Community, 30; see generally ibid., 22–36.

27 Ibid., 30, and see below, 18, 27–28.

28 Ibid., 27.

29 The letter is reprinted and discussed in McRae, K. D., “An Upper Canada Letter of 1829 on Responsible Government,” Canadian Historical Review 31 (1950), 288–296CrossRefGoogle Scholar: quotations at 292–93 (emphasis in original).

30 Romney, Paul, “A Conservative Reformer in Upper Canada: Charles Fothergill, Responsible Government and the ‘British Party,’ 1824–1840,” Canadian Historical Association Historical Papers (1984), 46–57Google Scholar; Romney, , “From the Rule of Law to Responsible Government: Ontario Political Culture and the Origins of Canadian Statism,” Historical Papers (1988), 108–109Google Scholar; and see Patterson, Graeme, “Whiggery, Nationality and the Upper Canadian Reform Tradition,” Canadian Historical Review 56 (1975), 25–44CrossRefGoogle Scholar; and Morton, W. L., “The Local Executive in the British Empire, 1763–1828,” English Historical Review 78 (1963), 441–445, 455–57.Google Scholar

31 Romney, “From the Rule of Law to Responsible Government,” 110–11.

32 Gibbs, Elizabeth, ed., Debates of the Legislative Assembly of United Canada, Vol. 1 (Montreal, 1970), 790 (September 3, 1841).Google Scholar

33 Examiner (Toronto), September 8, 1841, and Cross, Michael S. and Fraser, Robert Lochiel, “Robert Baldwin,” in Dictionary of Canadian Biography (hereafter DCB), Vol. 8, 49–50.Google Scholar

34 Browne, ed., Documents, 162; 30 and 31 Vict., c. 3, ss. 55, 56, 90.

35 Globe (Toronto) July 4, 1887; ibid., March 1, 1888; Biggar, C. R. W., Sir Oliver Mowat: A Biographical Sketch (2 vols.; Toronto: Warwick Bros, and Rutter, 1905), Vol. 1, 131–132Google Scholar; and Browne, ed., Documents, 86.

36 See, for example, Donald Creighton's denunciation of Mowat as betraying a “tacit assumption” of the Quebec Conference (Canada's First Century, 1867–1967 [New York: St. Martin's Press, 1970], 47), and the inconsistent reasoning of Saywell, Office of Lieutenant-Governor, 192–93. In 1969 Ramsay Cook began his chapter on the origins of the provincial rights controversy by remarking: “Though it was not always so, it now seems unnecessary to offer an elaborate proof of the contention that the Fathers of Confederation intended to establish a highly centralized federal system in which the central government would exercise a well-understood predominance” (Provincial Autonomy, 7). The persistence of the centralist interpretation is evident in Armstrong, Christopher, The Politics of Federalism: Ontario's Relations with the Federal Government, 1867–1942 (Toronto: University of Toronto Press, 1982), 8–12.Google Scholar

37 See below, 13–14.

38 Brown, George W., “The Grit Party and the Great Reform Convention of 1859,” Canadian Historical Review 16 (1935), 245–265CrossRefGoogle Scholar, and Jones, Elwood H., “Ephemeral Compromise: The Great Reform Convention Revisited,” Journal of Canadian Studies 3/1 (1968), 21–28.CrossRefGoogle Scholar

39 Vipond, “Constitutional Politics,” 275, 285.

40 Mills, David, The Idea of Loyalty in Upper Canada, 1784–1850 (Montreal: McGill-Queen's University Press, 1988).Google Scholar

41 Debates of… United Canada, Vol. 1, 790.

42 Beer, Donald R., “Charles Theophilus, 1st Baron Metcalfe,” in DCB, Vol. 7, 603–608Google Scholar, Careless, J. M. S., “Robert Baldwin,” in Careless, J. M. S., ed., The Pre-Confederation Premiers: Ontario Government Leaders, 1841–1867 (Toronto: University of Toronto Press, 1980), 124–128.Google Scholar

43 Examiner, July 31, 1844.

44 Ibid. This was one of a series of letters which Sullivan published under the nomde-plume “Legion” and the title Letters on Responsible Government (Toronto, 1844). On Sullivan, see DCB, Vol. 8, 845–50.

45 On Canadian party politics at this period see Careless, J. M. S., Brown of the Globe (2 vols.; Toronto: Macmillan, 1963)Google Scholar, and Cornell, Paul G., The Alignment of Political Groups in Canada, 1841–1867 (Toronto: University of Toronto Press, 1962).CrossRefGoogle Scholar

46 Jones, “Ephemeral Compromise.”

47 Careless, , Brown of the Globe, Vol. 2, 167–170.Google Scholar

48 Quoted in Vipond, Liberty and Community, 33.

49 House of Commons Debates, June 11, 1869, 722–28, and Globe, November 24, 1869. The compact theory was at least a striking echo of the Baldwins’ “compact theory” of the Constitutional Act but probably more than that, since Blake came from the same Irish political tradition as the Baldwins and was to end his political career as an Irish Nationalist MP at Westminster (Schull, Joseph, Edward Blake [2 vols.; Toronto: Macmillan, 1975–1976]Google Scholar, and Banks, Margaret A., Edward Blake, Irish Nationalist: A Canadian Statesman in Irish Politics, 1892–1907 [Toronto: University of Toronto Press, 1957]).Google Scholar

50 Globe, November 30, 1872.

51 Macdonald's latest biographers see them as establishing “a new and exacting use of disallowance, so that even the strongest of provincial rights was to be subject to central surveillance,” and Vipond says the guidelines meant that the dominion couldeffectively define the boundaries of provincial autonomy (Johnson, J. K. and Waite, P. B., “Sir John Alexander Macdonald,” in DCB, Vol. 12, 598Google Scholar, and Vipond, “Constitutional Politics,” 285). These opinions overlook the constraints on the veto which to Reformers were inherent in the imperial model.

52 Hodgins, W. E., comp., Correspondence, Reports of the Ministers of Justice, and Orders in Council upon the Subject of Dominion and Provincial Legislation, 1867–1895 (Ottawa, 1896), 61.Google Scholar

53 Severn v. The Queen (1878), 2 S.C.R. 770, at 80–86, 96, per Richards, C.J. Fournier, J. echoed Richards's argument, ibid., 131. Risk, “Canadian Courts Under the Influence,” 695, 696, 705, cites other cases in which Mowat used this argument. Risk mistakenly supposes that Mowat's use of this argument was inconsistent with his statements in the political arena. As Vipond points out, the Reformers never objected to the veto as such and favoured its abolition in the 1880s only because they did not trust Macdonald to apply it constitutionally (Liberty and Community, 189–90).

54 Vipond, “Constitutional Politics,” 282–84, and Romney, “From the Rule of Law to Responsible Government,” 112.

55 On Gwynne, see Romney, Paul, “From Railway Construction to Constitutional Construction: John Wellington Gwynne's National Dream,” Manitoba Law Journal 20 (1991), 91–106Google Scholar, and DCB, Vol. 13 (forthcoming).

56 City of Fredericton v. The Queen (1880), 3 S.C.R. 505, at 560; see also Lenoir v. Ritchie (1879), 3 S.C.R. 575, at 630, and Citizens’ Insurance Co. v. Parsons (1880), 4 S.C.R. 215, at 329.

57 4 S.C.R. 215; 7 App. Cas. 96. In the Supreme Court the case consisted of three lawsuits, two of which were heard a fortnight after judgment was given in Lenoir and the third five months later, four days before judgment was given in Fredericton. Mowat appeared in this final hearing, presumably in order to counteract the damage occasioned by Lenoir, though he may also have been forewarned of the judgments in Fredericton.

58 4 S.C.R. 215, at 229–30.

59 Ibid., 346.

60 Sir Blackstone, William, Commentaries on the Laws of England (4 vols.; Oxford, 1765–1769), 1:49.Google Scholar

61 (1883) 9 App. Cas. 117; and see below, 27–28.

62 Liquidators of the Maritime Bank of Canada v. Receiver-General of New Brunswick [1892] A.C. 437.

63 Armstrong, Politics of Federalism, 24, and Morrison, “Oliver Mowat,” 92–93.

64 O'Connor Report, annex I, 39–50, 63–67, 71–72.

65 City of Fredericton v. The Queen (1880), 3 S.C.R. 505, at 566, and In re Prohibitory Liquor Laws (1895), 24 S.C.R. 170, at 212.

66 3 S.C.R. 505, at 566 (Gwynne's emphasis), and see generally ibid., 563–70.

67 “The general object [of section 91] was to give to the Federal Parliament authority ‘to make laws for the peace, order and good government of Canada in relation to’ not all matters absolutely, but to ‘all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.’ “ Mowat's analysis appears in his brief to respondent's counsel in the JCPC appeal of Citizens’ Insurance, reprinted in Ont. Sess. Papers (1882) no. 31. Emphasis added.

68 See, for example, Severn v. The Queen (1878), 2 S.C.R. 70, at 88 (per Richards, C.J.), 112 (per J.-T. Taschereau, J.), 138–39 (per Henry, J.); City of Fredericton v. The Queen (1880). 3 S.C.R. 505, at 533. 536–37, 540–41 (per Ritchie. C.J.). 558 (per H.-E. Taschereau. J.), 565–68 (per Gwynne. J.); and Citizens’ Insurance v. Parsons (1880). 4 S.C.R. 215, at 316 (per H.-E. Taschereau, J.), 330–31, 333–34 (per Gwynne, J.).

69 O'Connor Report, annex I, 27, 43, 48–50.

70 Laskin, Bora, “The Supreme Court of Canada: A Final Court of and for Canadians,” in Lederman, W. R., ed., The Courts and the Canadian Constitution (Toronto: McClelland and Stewart, 1964), 131.Google Scholar

71 Severn, Fredericton and Mercer v. Attorney General for Ontario (1883), 5 S.C.R. 538, all reversed the courts below. Lenoir did not, but the constitutional question had not been raised below (Ont. Sess. Papers [1888] no. 37, 12–13).

72 The Canada Temperance Act. 1878 (41 Vict., c. 16).

73 Or so Gwynne construed it (Can. Sess. Papers [1885] no. 85, 176).

74 The JCPC was criticized both then and subsequently for basing its construction of the trade and commerce power on the Act of Union, 1707, by which England and Scotland were united. See, for example, Can. Sess. Papers (1885) no. 85, 202; Vaughan, “Critics of the Judicial Committee,” 513; Laskin, “Supreme Court of Canada,” 132–33; and the comments of Gwynne and Sedgewick JJ. cited therein. When the decision is read alongside Mowat's brief, however, it seems that the JCPC cited the Act of Union simply as one more illustration of Mowat's contention that “trade and commerce” need not have the all-embracing meaning apparently ascribed to it by Gwynne (and by his colleague, H.-E. Taschereau)—see 7 App. Cas. 96, at 112–13.

75 The full statement was: “Notwithstanding this endeavour to give pre-eminence to the dominion parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the legislature could not have intended that the powers exclusively assigned to the provincial legislature should be absorbed in those given to the dominion parliament” (7 App. Cas. 96, at 108). The JCPC's suggestion that the “deeming” clause applied only to art. 92(16) gave O'Connor ammunition to use against the Prohibition decision, but this was irrelevant; what mattered was the fact that, in both decisions, the clause was construed as an aid to federal rather than a bar to provincial legislation.

76 Russell v. The Queen (1882), 7 App. Cas. 829 (quotations at 837–42).

77 Can. Sess. Papers (1885) no. 85, 62.

78 The Ontario Liquor Licence Act. 1876 (39 Vict., 3. 26; R.S.O. 1877, c. 181).

79 The Dominion Licensing Act. 1883 (46 Vict., c. 30).

80 Archives of Ontario [AO], Alexander Campbell Papers, Macdonald to Campbell, August 28, 1882.

81 Can. Sess. Papers (1885) no. 85, 74, 127.

82 Ibid., 174, 178. See also 182–83 (per Ritchie, C.J.), 54, 119, 134, 182–83, 185 (per Strong, J.), 68, 172, 189 (per Henry, J.), and see Loranger, Letters, vi, where Russell and the McCarthy Act are condemned as tending to promote legislative union. At the time neither the Supreme Court not the JCPC were required to publish the reasons for their decisions in referred cases; the cited source is the verbatim record of the Supreme Court hearing. That of the JCPC hearing was printed under the title Report of the Proceedings of the Judicial Committee of the Privy Council on the hearing of the petition of the Governor-General of Canada in relation to the Dominion Liquor License Acts of 1883 and 1884; there is a copy in AO, Irving Papers, box 80, item 15.

83 Compare V. Evan Gray, “ ‘The O'Connor Report’ on the British North America Act, 1867,” Canadian Bar Review 17 (1939), 319: ‘The real difficulty confronting the Privy Council in deciding the Prohibition Case of 1896 was the previous decision in Russell v. The Queen…. followed by Hodge v. The Queen and the McCarthy Act decision of 1885….”

84 Can. Sess. Papers, no. 85, 51–53, 65, 75, 127, 128, 169, 183, 192, 200 (Strong); ibid., 153ff. (Bethune, QC, for the dominion); and Report of the Proceedings, 82–84.

85 53 Vict., c. 56, s. 18, amended by 54 Vict., c. 46.

86 In re Local Option Act, 18 Ont. App. Rep. 573.

87 Hudson v. South Norwich (1895), 24 S.C.R. 145, and In re Prohibitory Liquor Laws (1895), 24 S.C.R. 170. In these simultaneous cases different panels, each of five judges, decided the question differently.

88 The Liquor Prohibition Appeal, 1895. An Appeal from the Supreme Court of Canada to Her Majesty the Queen in Council (London: William Brown, 1895), 117, 142.Google Scholar

89 Browne, Judicial Committee, 14–20.

90 [1896] A.C. 348, at 358.

91 Ibid., 362.

92 Ibid., 359–61.

93 This assumption was consistent with Lord Carnarvon's explanation in Parliament: “I ought to point out that… the residue of legislation, if any, unprovided for in the specific classification … will belong to the central body” (emphasis added). Oddly enough, centralist writers liked to quote this remark as showing the breadth of the federal power. See, for example, MacDonald, Vincent C., “Judicial Interpretation of the Canadian Constitution,” University of Toronto Law Journal 1 (1935–1936), 163Google Scholar; O'Connor Report, annex 1, 59; ibid., annex 4, 77; Creighton, D. G., British North America at Confederation: A Study Prepared for the Royal Commission on Dominion-Provincial Relations (Ottawa: J. O. Patenaude, 1939), 50Google Scholar; and Kennedy, W. P. M., “The Interpretation of the British North America Act,” Cambridge Law Journal 8 (1943), 150CrossRefGoogle Scholar. Scott, F. R. tended to stop quoting Carnarvon just before the italicized words, see his “The Development of Canadian Federalism,” Proc. Can. Pol. Sci. Assoc. 3 (1931), 233Google Scholar, and “Centralization and Decentralization in Canadian Federalism,” 1108.

94 Globe, July 4, 1887; ibid., March 1, 1888.

95 See above, 19.

96 9 App. Cas. 117, at 132. This was a paraphrase of the judgment of Burton, J., in the Ontario Court of Appeal, where Mowat had argued Ontario's case in person (Hodge v. the Queen [1882], 7 Ont. App. Rep. 246, at 278).