Canada An American Nation

The Winning of Legislative Independence

The new Dominion of Canada, though it spanned a continent, remained a colony; this was made most clear by the British North America Act which brought it into being. Its self-governing powers were limited to domestic questions; and even in these spheres it was subject to an overriding authority when the British Parliament passed laws imperial in their scope and intention. The governor-general was also an imperial official with special responsibilities. The right of the King to disallow Canadian legislation, upon the advice of his British ministers, was affirmed. The external relations of the Dominion were wholly in the hands of the British Foreign Office. Thus the Dominion of Canada began its existence in 1867 with a system of government substantially in keeping with the terms of the compromise which had been submitted to the British government by the first American Congress ninety-three years before, and had been rejected by it. The “perfect subordination” of the colony to the {64} metropolis in all matters of external policy stipulated by Durham still continued and had the appearance of permanency.

The inadequacy of the system by which Great Britain looked after their external affairs was recognized at once by the Canadians when they came to have dealings with the United States. Their instinctive feeling was that their interests would be better served if they attended to the job themselves. Even before confederation the British American colonies sent unofficial representatives to Washington in an attempt to save the reciprocity treaty, to the great scandal of Lord Lyons, the British Ambassador, who in vigorous letters to the Governor-General of Canada and the Foreign Minister of Great Britain, protested this irruption of amateurs into his preserve. The movement by which Canada won the right to control her foreign affairs was in the established tradition. It began deferentially, pursued its purpose over a long period of years, established precedents from which new advances could be made, and attained its end at last by an aggressive stroke. In 1870 the propriety of Canada seeking power directly to negotiate commercial treaties was urged unavailingly in the Canadian Parliament by Galt. Recognizing Canadian feeling on this question, the British government in 1871 appointed Sir John A. Macdonald, the Canadian Prime Minister, one of the six British plenipotentiaries who negotiated the Treaty of Washington. His experience with his {65} British colleagues—knowledge of which became general in Canada—strengthened the Canadians in their belief that they had better look after their own affairs in treaty making, in fact if not in form. “My colleagues,” Sir John A. Macdonald wrote, “were continually pressing me to yield; I was obliged to stand out and, I am afraid, to make myself extremely disagreeable to them.”

The lesson of this was not lost and three years later when negotiations were renewed looking to the settlement of questions outstanding between the United States and Canada, the Canadian government insisted that the British plenipotentiaries should be only two in number: George Brown of Canada and the British Minister at Washington. The treaty was completed and signed. It provided, among other things, for the renewal of the former reciprocity treaty; for reciprocity in coasting; for a joint commission to look after boundary waters; and for the enlargement of the Canadian canals, including those on the St. Lawrence. This enlightened treaty was evidence of vast improvement in the relations between at least the governments of the two countries. Had it been in effect for the twenty-one-year period, for which it was negotiated, it would have profoundly affected for all time the relations between the two countries. Do you ask what became of this treaty? It has its place of rest in what John Hay called the “grave-yard of treaties”—the United States Senate.

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The precedent of 1874 was thereafter followed in all treaty negotiations in which Canadian interests were predominant. Negotiations were in the hands of the British plenipotentiary who was appointed at the instance of the Canadian government. The resulting treaty or convention represented the view of the Canadian government; but the ratification rested with the British government. This procedure, however, did not quiet the agitation in Canada for the right of direct negotiation. In 1882 and again in 1892 the Liberal opposition raised the issue in Parliament, contending that the proximity of Canada to the United States and the intimacy of their relationships made it necessary that they should be able to deal with one another directly. When they attained office the Liberals did not press this claim but in practice they kept the making of commercial treaties in their own hands, the purely British contribution being nominal. In the negotiations which led up to the reciprocity agreement of 1911 the part played by the British Minister at Washington was that of simply introducing the Canadian Ministers to the American Secretary of State.

Twelve years later a Liberal government in Canada seized the occasion, offered by negotiations with the government of the United States, to claim—and give practical effect to the claim—that Canada was in control of her external relations. The antecedent circumstances suggested that the time was ripe for this final step. In 1917 there had been the declaration by the {67} Imperial Conference that the relationship among the British nations was one of equality. Canada’s representatives at the Peace Conference attended under powers given by the King upon the advice of his Canadian ministers. Canada, as a member of the League of Nations, was subordinate to no other member nation. Canada’s status of nationhood and her equality with Great Britain had been affirmed by leading public men in Canada and in Great Britain alike. The Canadian government, having meditated upon these developments, decided, when the need of an arrangement with the United States for the protection of the halibut fisheries of the north Pacific became pressing, to put this claim of nationhood to the test by undertaking to make the treaty one between the Dominion of Canada, a nation of North America, and the United States, another North American nation. The Canadian government appointed Mr. Lapointe, Minister of Justice, plenipotentiary, securing powers for him from the King; Mr. Lapointe negotiated the treaty, and signed it alone as the representative of Canada and not as the representative of the British Empire as previously had been invariably the case.

The significance of this act was not realized until the deed was done; there then arose a tremendous clamor in Canada, in Great Britain, and in all parts of the British Empire. In strict law Canada was in 1923 a dependent country wholly incapable of {68} completing an international instrument. What the Canadian government did was calmly to assume that the constitutional right to equality and nationhood, which had been recognized, carried with it, of necessity, the legal power to make these rights effective. This daring innovation, entirely at variance with the traditional British way of having legal rights slowly overlaid and destroyed by successive deposits of precedents representing the growth of constitutional rights, brought definitely to a close the experiment in imperialism upon which Great Britain embarked on the morrow of the American Revolution. One of the formerly dependent colonies had in fact established its independence of control by the British government and the British Parliament, and thereby revealed the fact that the Second Empire had made way for the Commonwealth. The situation created by Canada in 1923 had to be accepted and regularized; and there followed in inevitable succession the recognition by the Conference of 1923 of the right of the Dominion to make treaties, the Balfour declaration of 1926, the meeting of the constitutional committee in 1929, and the passing of the Westminster Act in 1931.

To the chain of events, with the results which I have indicated, no conscious contribution was made by the United States nor by any agency American in character. I have already said the United States pursued its own interests and applied the policies which it regarded as appropriate; the conditions thus created, as {69} they affected Canada, led to adjustments which affected, one way or another, national movements. These Canadian developments toward parliamentary independence and nationhood were displeasing to many Canadians; they hoped for a federal union of the British nations instead. In expressing their regrets at what has come to pass they are somewhat inclined to hold the United States in large measure responsible for what happened. But those Canadians who promoted this movement toward nationhood and were always conscious of the objectives they sought will give the American government and their people a clean bill of health in this regard. They undoubtedly contributed, but this was done by inadvertence.

Let me illustrate this by a brief reference to an American-Canadian episode, long forgotten, I imagine, by Americans, which, in my judgment, is one of the prime reasons why Canada today is in complete charge of her external affairs. My reference is to the Alaskan boundary controversy, which was settled by the finding of the Alaska Commission in 1903.[16] A majority made up of the three United States commissioners and Lord Alverstone, the nominee of the British government, made the award; the two Canadian commissioners refused to sign it on the ground that the finding was political, not judicial, and that it ignored the just rights of Canada. The details of {70} this controversy cannot be here stated even in outline; it is necessary for the present argument only to say that from the circumstances antecedent to the meeting of the Commission and from the proceedings of the Commission itself, the people of Canada came to suspect that the Commission was a political, not a judicial body, which would, under diplomatic pressure from Washington, reject the Canadian case. The confirmation, to the Canadian mind, of these suspicions by the course taken by the Canadian commissioners was followed by an outburst of popular wrath, surprising in its depth and intensity. Instinctively, the sure safeguard against future mishaps of this kind occurred to great numbers of Canadians, and expression was given to their feelings by Canadian public men who had an intimate knowledge of the circumstances which attended the hearing of the dispute. “The difficulty as I conceive it to be,” said Sir Wilfrid Laurier, Prime Minister, in Parliament, “is that so long as Canada remains a dependency of the British Crown, the present powers that we have are not sufficient for the maintenance of our rights.” He foretold a demand upon the British Parliament for additional rights “so that if we ever have to deal with matters of a similar nature again, we shall deal with them in our own way, in our own fashion, according to the best light we have.” Mr. A. B. Aylesworth, one of the Canadian commissioners, in a newspaper interview expressed the same view. Clifford Sifton, a member of {71} the Canadian government, who had had charge of the Canadian case, was outspoken. In the future, he said, in similar cases, all the commissioners should be Canadians; “a somewhat radical readjustment will have to be made before a great while.”

It is my belief that the movement for enlarging Canada’s powers to those of nationhood took definite form at that time. Perhaps on this point I might repeat what I have already said in my biography of Clifford Sifton:

In this strong illumination of the inadequacies of the existing relationship and with the revelation to themselves of their national spirit, the Canadian people passed at a single stride from the plane of willing dependency to one of conscious aspiration for the powers of nationhood. A definite turning was taken, although the goal lay far down the years.

So little did the United States authorities know about the constitutional developments that were going on in Canada that the enterprise upon which Canada embarked in 1923 in entering into direct diplomatic relations with the United States nearly suffered shipwreck at their hands. The draft of the halibut treaty made by the United States Department of State made the British Empire as a whole the other party to the arrangement. When this difficulty was straightened out and the completed treaty was submitted to the Senate, that august body added a reservation that made it, in effect, an empire treaty. Incidentally, by {72} the wording of the reservation, it was revealed that the Senate thought that Canada was a part of Great Britain. This setback to their plans did not seriously embarrass the Canadian government. The Canadian Parliament ratified the original treaty and awaited with dignity and patience the withdrawal by the United States of its reservation. This was done quietly and discreetly the following year. Perhaps this was the first time an outside nation brought the United States Senate to time; if, so, it was a considerable achievement for Canada in the first exercise of her claimed powers.

With the acceptance, by all parties, of the principle that each British nation could, at will, take charge of its foreign affairs, Canada proceeded to establish a number of legations. It was inevitable that Washington should be chosen as the home of the first of these legations, since it was the variety, complexity and importance of our relations with the United States that led to recognition by Canada of the necessity of taking charge of her own affairs abroad. We have sent distinguished Canadians to Washington and have had the honor of receiving worthy representatives of the President of the United States. That these two nations should have intimate and direct diplomatic relations is so reasonable, so in keeping with commonsense, that the arrangement takes on the appearance of being part of the natural order of things; and there is difficulty in remembering that less than ten years ago this was a subject of bitter controversy in Canada.