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Rights Talk in Canada in the Late Nineteenth Century: “The Good Sense and Right Feeling of the People”

Published online by Cambridge University Press:  28 October 2011

Richard Risk  and
Robert C. Vipond
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Extract

I am a friend to the preservation of the rights of property…but I believe in the subordination of those rights to the public good…. I deny that the people of my Province are insensible to or careless about the true principles of legislation. I believe they are thoroughly alive to them, and I am content that my rights of property, humble though they are, and those of my children, shall belong to the Legislature of my country to be disposed of subject to the good sense and right feeling of the people of that Province.

Edward Blake made this declaration about property in 1882. Presumably his beliefs were widely shared by Canadian lawyers, for he was the leader of the Liberal party, the Treasurer of the Law Society of Upper Canada (Ontario), and one of the leading counsel. We seek to explore his beliefs and to reconstruct the understandings of rights in late nineteenth-century Canada, and especially the understandings of common-law lawyers.

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Articles
Information
Law and History Review , Volume 14 , Issue 1 , Spring 1996 , pp. 1 - 32
Copyright
Copyright © the American Society for Legal History, Inc. 1996

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References

1. Canada, House of Commons, Debates, April 14, 1882, at 915.

2. 198 U.S. 45(1905).

3. Gillman, H., The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993).Google Scholar

4. Sunstein, C., “Lochner's Legacy,” 87 Columbia Law Review 873 at 875 (1987).CrossRefGoogle Scholar

5. Blake spoke on April 14, 1882, and the Charter was established on April 17, 1982.

6. For accounts of this story, see Armstrong, C., The Politics of Federalism: Ontario's Relations with the Federal Government 1867–1942 (Toronto: University of Toronto Press, 1981) at 22–27CrossRefGoogle Scholar; Morrison, J., “Oliver Mowat and the Development of Provincial Rights in Ontario: A Study in Dominion Provincial Relations, 1867–1896,” in Three History Theses (Toronto: Ontario Department of Public Records and Archives, 1961) at 206–23Google Scholar; Vipond, R., Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: SUNY Press, 1991) at 125–31Google Scholar; Benidickson, J., “Private Rights and Public Purposes in the Lakes, Rivers, and Streams of Ontario 1870–1930,” in Flaherty, D., ed., Essays in the History of Canadian Law (Toronto: The Osgoode Society, 1983) 365 at 368–78Google Scholar; and Stychin, C., “The Rivers and Streams Dispute: A Challenge to the Public/Private Distinction in Nineteenth Century Canada,” 46 University of Toronto Faculty of Law Review 341 (1988).Google Scholar

7. Canada, House of Commons, Debates, April 14, 1882 at 893, 889, 891, 894, 890, and 891. McCarthy was supported by other Conservatives, especially Macdonald, who mingled appeals to both rights and the national interest. He invoked the “laws which bind civilized society together, which distinguish civilization from barbarism, which protect life, reputation and property.” These laws were “the common law of all civilized countries” and must be uniform throughout the country. “We are not half a dozen Provinces. We are one great Dominion.” Disallowance was necessary to enforce these fundamental laws, thereby to prevent a “great wrong” and protect the national interest. If this “great wrong” were permitted, “What property would be safe? What man would make an investment in this country.” Canada, House of Commons, Debates, April 14, 1882 at 924. Among the other supporters, some stressed private property and some the national interest; see, e.g., the speeches by John Haggart and William McDougall, Canada, House of Commons, Debates, April 14, 1882. William Meredith, the leader of the Conservative opposition in the Ontario legislature, made the same claims as McCarthy.

8. Canada, House of Commons, Debates, April 14, 1882 at 913, 912, and 915. Other Liberals supported Blake, speaking in much the same way. See, e.g., the speeches by Wilfrid Laurier and Charles Weldon, Canada, House of Commons, Debates, April 14, 1882. Most emphasized provincial autonomy rather than McLaren's rights; Laurier, for example, said, “the Provinces are supreme in their sphere, and … their judgment should not be superseded by the judgment of another power.” Ibid, at 907.

9. McCarthy's reference to the American constitution was not a rejection of the faith in the British constitution. The American example was useful only because “the same spirit which regulates the written law on the other side has governed and always governs British legislation.” He condemned the Act because it was contrary to “the history of British legislation.” Canada, House of Commons, Debates, April 14, 1882 at 890.

10. Constitutional and individual are not the terms they would usually have used, but they are expressive now. See Reid, J. P., The Concept of Liberty in the Age of the American Revolution (Chicago: University of Chicago Press, 1988)Google Scholar; Gunn, J., Beyond Liberty and Property (Kingston: McGill-Queen's University Press, 1983) at 229–59Google Scholar; and Risk, R., “Blake and Liberty,” in Ajzenstat, J., ed., Canadian Constitutionalism: 1791–1991 (Ottawa: Canadian Study of Parliament Group, 1993) at 195–211.Google Scholar

11. The classic expression of this faith is Dicey's account of the rule of law; see Dicey, A. V., An Introduction to the Law of the Constitution (London: Macmillan, 1885) at 167–216.Google Scholar

12. Blackstone, William, Commentaries on the Laws of England (1765; reprint, Chicago: University of Chicago Press, 1979) at 121.Google Scholar

13. Book six, chapter five.

14. Supra note 11 at 36.

15. See “Editorial Note: Retroactive Legislation,” 18 Can. L.J 201 (1882); and Lefroy, A. F. N., “Dominion Control over Provincial Legislation” 17 Can. L.J. 217, 234 (1881).Google Scholar

16. Blake's papers are stored in the Public Archives of Ontario. Election Speeches, 1886, #4 (B-15-d Box 112 Env. 19). See also a speech given on September 16, 1884, at a banquet for Mowat (B-15-a Box 110 Env. 3).

17. Mills's papers are stored in the Regional Collection of the Weldon Library, University of Western Ontario. Because their organization is rudimentary, we refer simply to the collection.

18. Caldwell v. McClaren, 9 H.L. 392 (1884); rev'g, 8 S.C.R. 435 (1883); rev'g, 6 O.A.R. 456 (1881). The Vice-Chancellor did not give written reasons at trial; the Court of Appeal dismissed an application for an interlocutory injunction, 5 O.A.R. 363 (1880).

19. William Ritchie, C.J.C., said, “If the development of the public domain, the exigencies of the public, or the business of the country, is of such importance in comparison with individual loss or inconvenience as to require that private rights should give way to the public necessity, the remedy must be sought at the hands of the legislature through the instrumentality of expropriation, with suitable and full compensation under and by virtue of the right of eminent domain.” Ibid. S.C.R. at 444. Note here the thought that “balancing” is a function for legislatures. The judgments of Burton, J.A., and the Supreme Court express no dislike of interference with property.

20. In 1883 Macdonald, concerned about vested rights, said that they should not be denied if there was any way they could be fairly protected. But he also said (a year after the Rivers and Streams debate!) that “individual rights must yield to the public good.” Canada, House of Commons, Debates, May 21, 1883 at 1353.

21. Canada, House of Commons, Debates, May 20, 1891 at 289. Coatsworth's memory was correct—and if he really had not read Blackstone for years, his recollection is impressive indeed.

22. See, e.g., speeches in Parliament by Thomas Christie on March 4, 1878, and February 27, 1879.

23. Canada, House of Commons, Debates, May 30, 1894 at 3404. For other comments about freedom of conscience, see, e.g., speeches in Parliament by John McLennan on February 27, 1879; by Joseph Chapleau on February 26, 1885; by James Armstrong on April 6, 1892; and by Amyot on June 6, 1892.

24. See, e.g., the shift in the speeches in Parliament by John Charlton on February 26, 1885, February 27, 1889, May 5, 1890, and June 4, 1891.

25. This perception was not widely discussed, but it was strongly supported by a few lawyers. The most articulate was Henry O'Brien, a lawyer from Barrie, Ontario, a supporter of McCarthy's campaign for an English Canada, and later editor of the Canadian Law Times; see his speech in Parliament (Canada, House of Commons, Debates, May 9, 1892 at 2301). See also speeches by Coats worth on May 30 and June 6, 1892, and Armstrong, on April 6 and June 6, 1892. The justifications for this sort of regulation were the public franchise of the railroads and the vulnerability of their employees. O'Brien also argued strongly that prohibition improperly limited liberty (Canada, House of Commons, Debates, May 20, 1891), but he would have had no difficulty demonstrating that his two positions were consistent. Prohibition did not involve a public franchise or a vulnerable group.

26. See Tucker, E., Administering Danger in the Workplace (Toronto: University of Toronto Press, 1990), chapters 4, 5, and 6.Google Scholar

27. See the debates in Commons on December 16, 1880; February 23, 1881; March 9, 1882; April 26 and May 23, 1883; January 17, 31, February 26, 1884; April 1, 1885; May 21, 1888; and in the Senate on April 18, 19, 21, 1882.

28. See Cruikshank, K., Close Ties: Railways, Government and the Board of Railway Commissioners, 1851–1933 (McGill-Queen's University Press, 1991) at 46–64.Google Scholar

29. See the debates in Commons on February 25, 1880; March 2, 1882; April 11, 1883; March 14 and April 8, 1886; and the “Report of the Select Standing Committee on Railways and Canals,” Canada, House of Commons, Journals, 1883, Appendix 1.

30. See Siegel, S., “Understanding the Lochner Era: Lessons from the Controversy over Railroad and Utility Rate Regulation,” 70 Virginia Law Review 187 (1984).Google Scholar

31. An Act … to Amend the Railway Act, 34 Viet. (1871) ch. 43, s. 5. This act was amended several times, but the differences among its various forms are not relevant here. In addition, there was no cry about freedom of contract: see the debates in the Commons, May 18, 1868; February 9, April 1, 1875; February 16, March 13, 28, and April 4, 1883.

32. 11 S.C.R. 612 at 622 (1886). The conspicuous exception to this tendency was Henry Strong, J., who combined a faith in freedom with congenital crankiness.

33. Supra note 11.

34. Blake papers, supra note 16; speech at Bowmanville, August 26, 1873 (B-15-a Box 110 Env. 10).

35. Blake papers, supra note 16; speech in Bruce County, no date, probably 1887 (B-15–a Box llO Env. 4).

36. In a speech about the Pacific Scandal, he said, “Unless there exists in the people a high degree of public virtue, they will be unequal to the grave responsibility of self-government.” Blake papers, supra note 16; speech at Bowmanville, August 26, 1873 (B-15-a Box 110 Env. 10).

37. Blake papers, supra note 16; speech at Bowmanville, August 26, 1873 (B-15-a Box 110 Env. 10).

38. The Presidential and Cabinet Systems of Government Compared, Mills Papers, n.d., p. 21.

39. Blake papers, supra note 16; speech entitled “The Irish Movement,” January 11, 1896 (B-15-d Box 114 Env. 58).

40. Paul Romney has explored this topic, especially in “From Rule of Law to Responsible Government: Ontario Political Culture and the Origins of Statism,” [1988] Canadian Historical Association Papers 86; and “From Constitutionalism to Legalismi Trial by Jury, Responsible Government, and the Rule of Law in the Canadian Political Culture,” 7 Law and History Review 120 (1989).

41. Horwitz, M. emphasizes this fear in his recent book, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992) at 9–31.Google Scholar For a sampling of the recent literature, see H. Gillman, The Constitution Besieged, supra note 3; Benedict, M., “Laissez-Faire and Liberty: A Re-evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism,” 3 Law and History Review 293 (1985)Google Scholar; Chomsky, C., “Progressive Judges in a Progressive Age: Regulatory Legislation in the Minnesota Supreme Court, 1880–1925,” 11 Law and History Review 387 (1993)Google Scholar; Halper, L., “Christopher G. Tiedeman, ‘Laissez-Faire Constitutionalism’ and the Dilemmas of Small-Scale Property in the Gilded Age,” 51 Ohio State Law Journal 1283 (1990)Google Scholar; Jones, A., “Thomas M. Cooley and ‘Laissez-Faire Constitutionalism’: A Reconsideration,” 53 Journal of American History 751 (1966)Google Scholar; Siegel, S., “Lochner Era Jurisprudence and the Americari Constitutional Tradition,” 70 North Carolina Law Review 1 (1991)Google Scholar; and Soifer, A., “The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888–1921,” 5 Law and History Review 249 (1987).Google Scholar

42. One of the few comments about rights was Macdonald's well-known statement that the Senate would protect property.

43. Shklar, J., American Citizenship: The Quest for Inclusion (Cambridge, Mass.: Harvard University Press, 1991) at 63–101.Google Scholar

44. Ultimately this belief depended upon an assumption that the division of powers in the B.N.A. Act gave the provinces extensive powers to legislate about individual rights. No one expressed this assumption clearly, let alone considered it carefully, except perhaps David Mills. Throughout his speeches in Parliament he gave an expansive reading to the power of the provinces to legislate about “property and civil rights” and equated it to the “police power,” which he derived from American sources, especially Cooley. For example, in arguing that Parliament did not have power to enact legislation about conditions of work in factories, he said, “All those regulations which a community find it necessary to make in order to prevent one man from interfering with the comfort and well-being of another in the use of that freedom which the law allows him are police regulations, and are a part of that department of jurisprudence embraced with the division, designated—‘Property and Civil Rights.’” Canada, House of Commons, Debates, April 1, 1885.

45. See Ackerman, B., We the People, vol. 1, Foundations (Cambridge: Harvard University Press, 1991) at 186–95Google Scholar; Beer, S., To Make a Nation (Cambridge: Harvard University Press, 1993) at 256–61, 372–77Google Scholar; and Wood, G., The Creation of the American Republic, 1775–1787 (Chapel Hill: University of North Carolina Press, 1969) at 499–506.Google Scholar

46. The eventual resolution was an avowed compromise proposed by John Thompson, the Minister of Justice, building on an agreement between Blake and Macdonald. It condemned the spirit of McCarthy's preamble and preserved the right to use French in the courts, while permitting the territorial assembly itself to make the choice about the language of its own proceedings, after an election.

47. Canada, House of Commons, Debates, January 22, 1890 at 38–55.

48. Three major representatives of this group were Blake, Laurier, and Macdonald. For Blake, the diversity of race, language, and creed was a both a danger and a challenge for Canada. He hoped that it might inspire “still higher and deeper and broader feelings of justice and liberality and tolerance than are permitted to a wholly homogeneous people.” What was needed was “recognition of the provincial and covenanted rights … [and] a generous and liberal consideration for those minorities which are under our [the provinces] control.” Canada, House of Commons, Debates, February 14, 1890 at 682 and 679. Laurier celebrated the cherished values of British liberty and claimed, powerfully and at length, that what McCarthy proposed was profoundly un British. He urged that the duality of language and race be accommodated by mutual forbearance and respect, and local autonomy, ibid., February 17, 1882, at 725–45. Last, Macdonald called for compromise; any attempt to oppress the French would be “impossible if it were tried, and it would be foolish and wicked if it were possible.” Ibid., at 745. These three and their supporters all argued that the choice of language for the Northwest should be made by the local government, and that the outcome should depend upon the patterns of settlement.

49. See speeches in Parliament by Cleophas Beausoleil on February 12, 1890; George Gigault and Hector Langevin on February 13, 1890; James Masson on February 20, 1890; and Amyot and Alphonse LaRiviere on February 21, 1890.

50. [1892] A.C. 445, rev'g 19 S.C.R. 374, aff'g 7 Man. L.R. 273.

51. [1895] A.C. 202, rev'g 22 S.C.R 577. See Bale, G., “Law, Politics and the Manitoba School Question,” 63 Canadian Bar Review 461 (1985)Google Scholar for a thorough discussion of these two cases.

52. The most detailed account of the episode is Crunican, P., Priests and Politicians: Manitoba Schools and the Election of 1896 (Toronto: University of Toronto Press, 1974).CrossRefGoogle Scholar

53. Canada, House of Commons, Debates, March 3, 1896 at 2736–59. During this speech Laurier made a comment about rights that parallels Blake's speeches about the Rivers and Streams Act: “[u]nder popular government, the majority must rule. … It may be that the majority will … do wrong to the minority. What is the remedy of the minority under these circumstances? The remedy of a minority under a free government is to agitate and endeavor to bring over the majority to their way of thinking.” Canada, House of Commons, Debates, March 3, 1896 at 2742–43.

54. George Foster, Canada, House of Commons, Debates, March 13, 1896 at 3502.

55. Laurier did not say much about rights in his speech about the Remedial Bill, but he had argued earlier that rights to separate schools were given by both the B.N.A. Act and by section 22. In 1893 he derived rights from section 22 and from the spirit of section 93: “whatever privileges are guaranteed to one minority in a province, I claim in the name of justice and fairness for all minorities in all of the provinces.” Canada, House of Commons, Debates, March 8, 1896 at 1995.

56. Canada, House of Commons, Debates, March 18, 1896 at 3824–25, 3835, 3838, and 3861. In addition to stating the general arguments so powerfully, Mills offered a unique solution to the obstacle of Barrett and the awkward division between legal and moral rights. He made a distinction between denominational schools and separate schools, which limited Barrett to subsection (1). This argument was typical of the worst parts of Mills's speeches. It was probably utterly confusing to all of his listeners, but it is rigorous and impressive, so long as it can be read and reread. Other typical speeches arguing for the existence of the right were given by Charles Dickey on March 3, Ezekiel McLeod on March 11, and Foster on March 12. The Quebeckers' claims about rights, like their claims about language, tended to be brief and vague, and based on a wider range of sources.

57. In 1895 the question whether a right given by a community (a “constitutional right”) could be modified or withdrawn was debated by William Caven, a professor of biblical studies at Knox College in Toronto, and John Skirving Ewart, known to Canadian historians as an early advocate of Canadian independence and a brilliant lawyer, who represented the Roman Catholics. Newspaper clippings of the debate are in the Ewart papers, Library of the Legislature of Manitoba, Winnipeg. Whatever a persuasive or comprehensive answer to the question might be, Ewart seems to have got the better of Caven.

58. The first sentence of Maxwell, one of the standard texts, declared, “Statute law is the will of the Legislature; and the object of all judicial interpretation is to determine what intention is either expressly or by implication conveyed by the language used.” Maxwell, P., On the Interpretation of Statutes (London: William Maxwell, 1875) at 1.Google Scholar

59. Typical speeches arguing against the existence of the right were given by two Liberals, Joseph Martin on March 6 and Louis Davies on March 13, and by three Conservatives, McCarthy on March 17 and Richard Weldon and Alexander McNeill on March 19.

60. (Toronto: J. C. Stuart, 1879); 2d ed., Government in Canada: The Principles and Institutions of Our Federal and Provincial Constitution (Toronto: Carswell, 1887).

61. (Toronto: The Carswell Company, 1892) at 1–25.

62. (Toronto: Law Book and Publishing, 1897–1898) at xlv.

63. Mills papers, supra note 17. There is no indication of where and when this lecture was given. A pamphlet written by J. S. Ewart, representing the Roman Catholics in the Man itoba schools crisis, exemplifies the call for decency: “Arguments, I have supplied. Sympathy, and kindness; tenderness and good-will, are, alas, beyond my power to bestow.” “The Manitoba School Question: A Reply to Mr. Wade” (Pamphlet, 1895, Ewart Papers). Ewart expressed the same thought in a debate with Armour, where he spoke of a “spirit of fairness and sympathy” and a moral obligation (Week, July 11, 1892).

64. Mills gave a course on federalism; his notes for part of it are in his papers, supra note 17, and a student's notes for another part are in the Archives of the University of Toronto. Weldon gave a course on Canadian constitutional law. A student's notes for the entire course are available in the Library of the Faculty of Law, Dalhousie University, although the student's attention seems often to have wavered.

65. Rights were occasionally discussed in the nonlegal journals. One debate in 1877–78 between R. K. Allen and “Fidelis” (Agnes Machar, already well known to students of Canadian literature) needs special mention. Allen defended mid-nineteenth-century liberal beliefs, and Machar espoused the cause of the new liberalism, both in a thoughtful and scholarly manner. (Is it suggestive that neither one was a lawyer?) See 11 Can Monthly 369 (1877), 12 Can Monthly 24, 183, 282, 369 (1878). Fidelis also wrote about rights a decade later in the Week, February 16, 1888. Also in the Week are a series of editorials expressing loss of faith in Spenser (January 31, April 24, and May 22, 1884) and a good debate between the editor and Ewart about freedom of religion (March 25 to May 13, 1892).

66. Articles in the Canadian Law Times during the 1890s sought to make this distinction in writing about the Manitoba schools crisis—and in avoiding it.

67. See Ferguson, B., Remaking Liberalism: The Intellectual Legacy of Adam Shortt, O. D. Skelton, W. C. Clark, and W. A. Macintosh, 1890–1925 (Kingston: McGill-Queen's University Press, 1993).Google Scholar