![4 The Canadian Senate in BicameralPerspective
dian equivalent of what Garry Wills discovered in the decades leading
up to the American revolution, when colonists verbally pummelled
English politicians using 'accusation as an instrument of reform.'4
Whether the goal is abolition or reform, denigration is meant to under-
mine the Senate's legitimacy.And it works. Consider, for instance, that
doubt about the Senate's status is asserted by informed and respected
commentators: '[I]t lacks legitimacy as a representative body/ says
C.E.S. Franks; Gordon Robertsonbelievesthat 'the Senatewill achievea
faint tincture of legitimacy as a voice of regional interests if ... federal
patronage is diluted by recommendation from a province for anomina-
tion to fill a Senate vacancy/ while the Royal Commission on the
Economic Union and Development Prospects for Canada (the
Macdonald Commission) uses phrases like 'institutional failure' and
speaks favourably of second chamber models designed to incorporate
provincial representation in the central institutions of government.5
Consider, again, that even within the Senate, members deplore the
'constant denigration of the institution by ourselves [whichcontributes
to] the gulf between public perception of the Senate and its reality.'6
Lamentation from all sides cannot be dismissed. Nonetheless, such
uniformly negative opinion leads one to ask how much of this criticism
is echo. Familiarity breeds more than contempt; it encourages inatten-
tion. When a close observer of Canadian political institutions writes
that 'Senate reform is not worth the effort if it does not terminate
appointment and substitute election as the basis of membership/ then
the purpose of a bicameral legislature is thrown seriously into doubt.7
There is much to be said against the Senate, but the fact that it is not
elected is not one of them. Nor (despite repetition sincethe early 1980s)
is election necessary for or an aid to effective bicameralism.
In both the criticisms and the proposals for reform, there is slight
regard for the Senate as a chamber of a single Parliament. The title of
Gordon Robertson's book is taken from StMark's Gospel; itsinjunction
- that a divided house cannot stand - however could beapplied with
profit to Parliament itself - where the work of each house should
complement the other. The reasons for this disposition to see the parts
and not the whole of Parliament are both short-term and long-term. In
the short term, that is the last forty years, Canada has been preoccu-
pied with reducing strains within its federal system. Neither federal-
provincial nor English-French tensions are new phenomena, but
large-scale, concerted attempts to address their causes, in the form of
language legislation and almost continuous constitutional negotiation,](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-21-320.jpg)
![8 The Canadian Senate in Bicameral Perspective
not elected; they vote en bloc rather than as individuals; and they are
more at home approving regulations than they are debating policy.
None of these features speaks directly to Canadian experience, where
senators act as individual members of the Senate, sometimes voting at
variance with their party's stand in the lower house. They are allocated
by region, and sit for a province or a district within the province of
Quebec.
For reformers, the attraction of the German over the British model
lies in the interpenetration ofstate (or lander) and federal politics in the
Bundesrat. The attraction is twofold: there is the legal or constitutional
right of state ministers to participate in policy formation, and the politi-
cal sanction that comes from high-profile politicians of both levels of
government uniting behind policies. Agreement in the Bundesrat and
between the Bundesrat and Bundestag means nearly certainacceptance
of policy by the Germanpeople. For those who see the Canadian Senate
as too national in concerns and composition, the charm of the German
alternative is captured in one argument recently advanced for itsimita-
tion in the new constitution of the Republic of South Africa: 'The
Bundesrat model was attractive to South Africans because it made the
second house an integral part of the system of decentralized govern-
ment agreed to by the negotiators in 1993.'19
Historically, the strongest analogy for the Canadian Senate was al-
ways assumed to be the House of Lords. Sir George Ross, former
Ontario premier (1899-1905) and author of an early full-length study of
the upper house, The Senate of Canada: Its Constitution, Powers and Du-
ties, Historically Considered (1914), once described the Canadian consti-
tution as 'more in harmony with the British constitution than that of
any dependency beyond the sea.'20
This was a view widely held a
century ago and in some quarters is still heard, though it was from the
first a debatable proposition. Canada was a federation, the United
Kingdom was not. Federal and provincial legislatures could not be
'replicas' of the United Kingdom's Parliament, if only because of the
division of legislative power. In England, 'all different branches of
government' were subject to 'legislative supremacy.' Becausethe Con-
stitution Act, 1867 apportions authority to different agencies of the
state, there actually is no separate federal constitution.21
Nor was it
accurate to say, as the Preamble of the federative act implied, that the
'Constitution [was] similar in principle to that of the United Kingdom,'
unless the constitution in question was the unwritten conventions of
responsible government.](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-25-320.jpg)
![Bicameralism: A Concept in Search of a Theory 11
and the Australian founders repeated the institutional rebellion in the
1890s. At the Adelaide session of the convention leading to federation,
the premier of New South Wales, spoke specifically to this point: '[W]e
must here deviate from the British Constitution and give the Senate
powers which have ceased practically to belong to the House of Lords
for a long period/28
While admitting that the senates of Canada and Australia may be
similar in principle but not in detail to the House of Lords, the occasion
of Lords' reform might still have been expected to nourish the impover-
ished theory of bicameralism. In fact, that has not happened. From the
outset, the royal commission report adopts an insular approach to the
subject: 'We did not consider that any other second chamberprovided a
sufficiently close parallel to justify making an overseas visit.'29
More
promising was an active publication program of the Constitution Unit,
University College London. The unit produced a series of monographs
on aspects of second chambers culminating in a book by Meg Russell,
Reforming the House of Lords: Lessons from Overseas, which appeared
simultaneously with release of the royal commission Report.30
The
Russell book looks at Australia, Canada, France, Germany, Ireland,
Italy, and Spain, comparing each country's second chamber in termsof
its performance of a range of functions such as committee work and
participation in constitutional matters.
In the tradition of bicameralism studies, the discussion is heavily
factual. Several pages are devoted to the size of upper houses in twenty
countries. For each, the reader is given the number of members in both
upper and lower chambers, the percentage of upper to lower house
seats, occupants' terms, and their methods of selection. But there is
nothing that links the chambers, nothing about representation (the
word does not appear in the book's index), nor any reference in the
bibliography to the work of people such as William Riker. Yetthere is a
chapter with the title 'Binding Different Levels of Government To-
gether,' in which the senators of Canada and Australia, along with
those of Italy, are described as 'basically another brand of national
party politician, indistinguishable in this sense from their colleagues in
the lower house.' The more basic critique turns on the failure of these
upper houses as territorial chambers. In one respect this is an unex-
pected indictment, since territorial representation is to be such a minor
(albeit hitherto unknown) function of Britain's new second chamber.
Russell claims that 'to carry out these territorial functions it [is] essen-
tial that members of the upper house [be] genuine representatives of](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-28-320.jpg)
![Bicameralism: A Concept in Search of a Theory 13
movement with party political ambitions posed a new order to a he-
reditary landed aristocracy and an established church entrenched in
Parliament's upper house. Baron Stockmar, sometime constitutional
adviser to the royal family, caught the spirit of the age when he said
of the Lords that it 'wounds democratic feeling.'34
Opposition to
Gladstone's Home Rule bills aside, there was little in what the Lords
had done to merit that indictment. One observer predicted, correctly,
that 'the unreformed House of Lords, if it falls at all, will fall a sacrifice
to theory - asthe unreformed House ofCommons did.'35
In 1907SirEdwardGrey,foreign secretary in the Campbell-Bannerman
Government, sent a circular to more than a dozen European powers
and to the United States seeking an array of information on upper
chambers: selection process, membership qualifications, mode of op-
eration, provisions for dissolution (ifany), the resolution of intercameral
conflict, and 'all other relevant information respecting the constitution
and status of such Upper Chambers.' The resulting parliamentary re-
turn ran to 107 pages along with a fifteen-page supplementary return,
both tobe found in the Sessional Papers ofCanada's Parliament (1914).36
More important than the answers to Grey's queries were the themes
that appear in the replies from Budapest and Washington, Oslo and
Madrid, and in between. Repeatedly,reform or evolution of a country's
upper house is coupled with changes in (or as an alternative to) modifi-
cation of the electoral system used to select members of the lower
houses; to questions about the suffrage (universal as opposed to one
based on a property qualification);to concerns about rural and urban
representation; to the matter of government accountability to the sec-
ond chamber; to questions about the role played by the upper house in
the control of public finances.The intricacies and complexities that this
ninety-year-old survey reveals leads to a very modern conclusion:
Practically everywhere there is a recognized Second Chamber problem...
Everywhere there is dissatisfaction and irritation, a feeling that the secret
of combiningconstitutional stability with legislative efficiency has not yet
been discovered... [W]hat constitutes the ideal Second Chamber? This is to
enter a field that is peculiarly one of opinion, and one moreover in which
political tempers and theories of the social union play a large part.37
The conclusion of the First World War introduced an era of constitu-
tional debate equalled only in range by that at the end of the twentieth
century in Great Britain.The Speaker's Conference on electoral reform](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-30-320.jpg)
![14 The Canadian Senate in Bicameral Perspective
(1918) and the Representation of the Peoples Act (1918) coincided with
major constitutional changes in postwar Europe, such as the rise of
republicanism and the introduction of proportional representation. In
1917-18James (Viscount) Bryce, diplomat and political observer, chaired
a conference and wrote a report on "The Reform of the Second Cham-
ber.' Bryce attributes a role for second chambers that includes the
examination and revision of bills sent from the Commons, the discus-
sion of large policy questions (foreign policy is the example given) that
do not threaten the government's life, and, occasionally,the initiationof
bills. Each of these speaks of the role of the second chamber in improv-
ing legislation for the benefit of the people. The second chamber is there
not as champion of vested interests; rather it is 'the ally, and not the
opponent, to the popular will.'38
In this respect, the second chamber
has the same function as reservation exercised by the Crown or the
referendum activated by the people.
The populist dimension of second chamber debate is seldom evident
in Canada. Yet it was a central premise of the debate in the United
States that fuelled the unicameral movement, which achieved its objec-
tive of a single-house legislature only in Nebraska. Distrust motivated
unicameralism - tobeprecise, popular distrust ofstate legislatures and
their members who would use a two-chamber system to pass the buck
and avoid responsibility. Abicamerallegislature composed oftwo elected
houses would allow legislators to mock the people they were chosen to
serve.39
Contrary to the argument heard in parliamentary systems,
where the tension associated with bicameralism is said to arise out of
the incompatibility ofan elected and non-elected chamber,in the United
States unicameralists saw the source of the problem in the presence of
two elected houses. In fact, that rhetoric still has a constituency and was
being used at the beginning of the twenty-first century by the only
American governor then advocating a unicameral state legislature -
Jesse Ventura of Minnesota. Asingle house, he says, will produce better
legislation, since 'legislators will... debate important issues as a whole
body' and it will make politicians more accountableto the public, since
'legislators will [no longer] be able to use the other legislative body to
justify why a bill... didn't pass.'40
In the context of this chapter's argument, the unicameral literature
parallels its bicameral genre in one important respect: neither solution
perceives itself as the only solution to the problem it seeks to remedy.
That is, where WilliamRiker saw the benefits of redundancy and sober
second thought in bicameralism, he also recognized that the same](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-31-320.jpg)
![Bicameralism: A Conceptin Search of a Theory 15
benefits could be achieved through the requirement ofsupermajorities
Similarly, the benefit of unicameraliam in checking legislative malfea-
sance is achievable in ways other than imposing a single chamber;
examples would be constitutional restrictions on the frequency and
length of legislative sessions or on the size of the legislature.
Nebraska remains the legislative exception in the United States.
Everywhere else state constitutions still cleave to some congressional
analogy, although in 1963 the Supreme Court of the United States
struck down as unconstitutional 'little federal' schemes, which saw
state upper houses based on territorial representation and the lower
houses based on population. The court ruled that both houses must
henceforth be based on population. In the course of its judgment, the
court spoke directly to the continued reason forbicameralism:
We do not believe that the concept of bicameralismis rendered anachro-
nistic and meaningless when the predominant basis of representation in
the two state legislative bodies is required to be the same - population.A
prime reason for bicameralism, modernly considered, is to insure mature
and deliberate consideration of, and to prevent precipitate action on,
proposed legislative measures. Simply because the controlling criterion
for apportioning representation is required to be the same in both houses
does not mean that there will be no differences in the composition and
complexion of the two bodies.41
The preceding paragraphs make clear why bicameralism is an unsat-
isfactory subject of study. Taken as a whole, the literature and the
history of the subject can be contradictory: houses check other houses;
houses check executives; houses expand (or constrict) the opportunity
for the people to be heard. Bicameralism,as a theory, lacks independ-
ence. It is bound up with analogies and models. One of the arguments
in the United States for moving to unicameralism was that 'the pattern
used by our forefathers has been abandoned [as a result of the 1911
Parliament Act] by the mother country/42
By contrast, J.G.Bourinot
could see no alternative to a bicameral parliament for the Canadian
nation: "The bicameral system has met the approval of most of the
leading political writers and is realized in practiceby the legislatures of
the principal countries/43
In this respect the recent royal commission
on reform of the Lords was right: comparisons are meaningless (some-
times even invidious) because political systems are distinct. How dis-
tinct, even when the systems are institutionally similar,becomes evident](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-32-320.jpg)
![18 The Canadian Senate in Bicameral Perspective
Eireann).49
A review of the Irish constitution in 1996 observes that 'the
primary issue, of course, is whether Seanad Eireann should continue to
exist in any form, an issue which ... has been discussed inconclusively
in the past.'50
At one point during that inconclusive debate Eamon de
Valera, the founder of modern Ireland and a president of the republic
after 1949, concluded that 'an ideal Senate was not... possible.'51
In that comment may rest Ireland's principal contribution to Cana-
da's bicameral quandary. Not only is an ideal not possible, but in all
likelihood it is unknowable. Or, even where there is substantial agree-
ment on the purpose of a second chamber, no assurance that that
understanding will be permanent. It is a matter of some importance to
explain why today, but not for most of Canada's history, 'regional
representation ... [is] virtually the universal preoccupation of [Senate]
reformers.'52
The preoccupation of reformers is more specific still: it
focuses on neither sectional nor regional but rather provincial interests
defined by territory and articulated by provincially appointed or peri-
odically elected senators. It is a long reach from saying that 'primarily,
the role of the Senate [in 1867]was to give the federal principle its place
in the Parliament of Canada' to maintaining that 'one of the dysfunc-
tional features of Canadian parliamentary democracy is that the prov-
inces have cometo exercise a regional role that should more properly be
exercised by the Senate.'53
The transformation of the Senate from a federal into a provincial
body, or at least the ease with which this new interpretation of its
purpose has taken the field, reveals much about the nature of modern
Canadian politics. At the same time, the idea behind the concept of
recasting one of Parliament's chambers into a house of the provinces
raises theoretical and practical concerns. Is the primary function of
upper houses in federal systems to represent and articulate the interests
of those jurisdictions? And even if the answer to that question is yes,
who determines what these interests are? The vocabularyof reformers
who want to make the Senate more sensitive to provincial issues sug-
gests that they are willing to limit the independence ofsenators. Aswill
be seen in later chapters, this argument is both more complex and less
provincial-centric than these few sentences suggest. Nonetheless, they
indicate a shift in perspective on the purpose of Parliament's upper
house.
Whatever the criticism voiced about the way senators are selected by
the prime minister, whatever the unhappiness manifested at a partisan
upper chamber that almost totally excludes anyone who is not identi-](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-35-320.jpg)
![Bicameralism: A Concept in Search of a Theory 19
fied with the country's two old parties, the Senate was at its inception,
and for many still is, a national institution. That was how thechamber
was viewed by Australian politicians who had reason to examine it
closely in the 1890s.
The politicians of Australia and New Zealand convened four times
during the 1890s to discuss the terms of federation for the eventual
Commonwealth.54
A primary theme running through the convention
debates is the structure of the new upper house. Was it to be a states'
house and, if so, how constructed? The Australian founders were gen-
erally well informed about North America's two federal systems, with
the result that a subsidiary theme on the comparative advantages ofthe
Canadian and American federal systems weaves its way through the
debate. It would be only a slight exaggeration to say that the federal
arrangement ofthe United Stateswon the contesthands down.Andrew
Inglis Clark, whose name is immortalized in the Hare-Clark systemof
proportional representation, isolated the crucialweakness of the Cana-
dian arrangement as far asmost Australians wereconcerned: 'In Canada
they have only one system.Canada is what may practicallybe calleda
unified community.'55
Speaking only a few months before the deathof
Sir John A. Macdonald, Clark was less impressed than some of his
fellow delegates at Canada's political stability as represented by the old
man's long tenure in office: 'When we know that he has the powerof
nominating every member of the senate [etc.] ... his term of office is
easily accountedfor. With such reins in his hands he might beexpected
to remain in the saddle an indefinite term.'56
(Macdonald was the first
of several prime ministers to hold office for extraordinarily long peri-
ods of time compared to leaders in Australia or Great Britain.) The
relationship betweenprimeministerial tenure and the compositionand
operation of the second chamber is a subjectfor later examination.
Clark's opinion was not his alone. At a session of the second confer-
ence, Isaac Isaacs, then attorney general of Victoria but later the first
native-born Australianto be named governor general in 1931,expressed
a more nuanced appreciation ofCanada's federativearrangement: 'I do
not understand that sentiment that Canada has no Federation ... It is a
Federation upon the centralising principle, just as the United States isa
Federation on the decentralisation principle, the principle I hope we
shall follow.'57
However, there could be no following the Canadian
model, even though it, like Australia, was a federal parliamentary
monarchy, because the delegates were committed to having a Parlia-
ment of two chambers of near equal powers - a house of the people to](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-36-320.jpg)
![20 The CanadianSenate in Bicameral Perspective
which the government was accountable, and a house of the states. At
one level the Australian debate was about institutional design, but at
another it was about the shape of the new nation. Structures matter at
the beginning because they are part ofan interpretive order that makes
a constitution coherent. It is one of the weaknesses of today's Canadian
Senate that it is not seen to contribute to the constitution's coherency.
To the outsider, the unification of Australia seems to have been
inevitable - a nation for a continent, a continent for a nation. Such was
never the casewith Canada's federation,could (notwould)itbe brought
about? Canada was created, and the confidence for that undertaking
had to be encouraged, said one Australian delegate: 'Canadians have
had [the idea of unity] preached to them, and inculcated in them since
the time of Lord Durham, but which took a long time to bear fruit.'58
John A. Macdonald shared this view, and it explains his centralist
policies, ranging from the protective tariff to establishing a federal
franchise. But it also explained Macdonald's support for those features
of the Senate that today spark criticism. The purpose of the Senate,
according to long-time member Arthur Roebuck, was to perform a
unifying function, and its success in this task depended upon its mem-
bers not being elected by a constituency,however defined.59
Following
the close results in the Quebec referendum of October 1995, calls were
heard 'to makefederal organs such as the Senatemorerepresentativeof
the linguistic duality of Canada, the regions, the provinces, and the
Aboriginal Peoples.'60
It is never clear what such pleas imply.Assum-
ing, as is the case with the Canadian Senate, some upper limit to
membership, what can being 'more representative of the linguistic
duality of Canada' mean? Less representative of some other Canadian
feature? And which feature? Towhat extent should 'features' be partof
this discussion at all?
The Roebuckway is to see the Senate as representative of no faction
or territory but of the whole community. Because of the nature of its
appointment and because it has no constituency base, as does the
House of Commons, the Senate is better situated to offer a national
outlook. Yetthat national perspective must be qualified; the Supreme
Court of Canada said in its 1980 advisory opinion on the government's
authority to amend those provisions of the Constitution relating to the
Senate unilaterally, that the smaller provinces only consented to Con-
federation on the understanding that there would be a regional upper
house.61
In this respect the Senate helped define, and this book will
argue is still capable of defining, Canada's all-embracing identity.](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-37-320.jpg)
![24 The Canadian Senate in Bicameral Perspective
tionship to the House of Commons? Another two decades were re-
quired before a partial answer was forthcoming in the ParliamentAct,
1911, and nearly a century before the royal commission report on a
reconstituted House ofLords in 1999. Thus, at the time the delegates in
Sydney and, later,Adelaide and Melbourne were meeting, there was no
consensus on the model the Lords provided, except in this respect: the
chamber had entered upon an era of prolonged decline as a legislative
institution. For Australians embarking upon a new constitutional ven-
ture that sought chambers of equal status, the Lords were inimitable:
'[W]e must here deviate from the British Constitution and give the
Senate powers which have ceased practicallyto belong to the House of
Lords for a long period. We know well that for some time past the
House of Lords has given up any pretence to financial control, any
pretence to amending the Appropriation Bill... any pretence to amend-
ing a Taxation Bill.'5
Interpreters in Britain were unanimous that, notwithstanding the
law, the conventions of the constitution allowed the Lords a delaying
function only. The will of the people, expressed more forcefully with
each extension of the franchise (1832,1867 and 1885), had drowned out
the aristocratic voice. Or so it seemed before the budget crisis of 1909.
The diverging paths of constitutional development in London and in a
unifying Australia drove some colonial delegates to imagine the unim-
aginable: Is thecommonly called responsible government system - the
Cabinet system - consistent with true Federation?'6
Here wasthesource
of every major problem to confront the delegates - that is, 'the financial
problem, the basis of state representation in the Senate, the power of the
Senate with regard to money bills, and the insertion of a provision
for deadlocks.'7
If equal representation in the Senate was viewed as
compensatory treatment for unequal representation in the House of
Representatives, because already the bulk of Australia's population
congregated in the southeastern states ofVictoria and New SouthWales,
then that compensation had to be respected, especially when money
was the issue. Otherwise majoritarianism would win the day every
time.
Yet, as is repeatedly demonstrated throughout the Convention de-
bates in Australia, there was reluctance to confront the contradiction or
even to articulateits essence: was coordinate authority to prevail or was
government responsible to one chamber? The will of the people, ex-
pressed through lower house elections, was more representative than
that expressed through upper house elections, if only because there](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-41-320.jpg)
![Bicameral Perspectives 25
were twice as many representatives as senators. Nor did the American
example always fit, and never less so than when the upper house was
depicted as a check on popular legislation. In America, noted one
Australian critic, '[federation cannot exist, co-ordinate houses cannot
exist and work together unless they both recognize [and yield to] the
sovereignty of the people/8
Thus, on one hand the argument posited that the essence of federal-
ism lay in two houses, on the other hand that the essence of responsible
government implied a single chamber. The issue turned on the power
of the upper house to amend moneybills. In no instance ofa 'consolida-
tion constitution of the British type, [was] the power of amending
money bills given to the upper house/9
Thetension between these two
positions runs throughout the decade-long discussion of Australian
federation. Finessed, disguised, depreciated, it never disappears. In
fact, the incompatibility of the parliamentary and congressional norms
at play in these discussions becomesentrenched in the resolution ofone
of the great problems to confront the delegates - what to do in case of
deadlock between the two chambers.
In Britain this dilemma ultimately was resolved by confining the
Lords to a suspensive (or delaying) veto. Before 1911 the solution lay in
the threat by government to advise the sovereign to create a sufficient
number ofpeers to swamp opposition in the upper house. Limitingthe
Senate was not appropriate for Australia, a federation whose bargain
respected the states through the Senate: 'It would require plain lan-
guage in a bicameral legislative system to provide that on some occa-
sions the federal Parliamentshould operateas aunicameral institution/10
Instead of lapsing into unicameralism in the face of disagreement,
section 57of the Australianconstitution sets out an 'ingenious' method
for solving deadlocks.11
The ingredients of that method weresimulta-
neous dissolution (of both houses of Parliament) followed by a joint
sitting. The stages of resolution are easier to describe than the instance
in which they might be applied. The criteria of what constitutes a
deadlock have proved contentious, since the essence of parliamentary
business is conflict and opposition.
From the perspective of bicameralism,the key issue is the weight to
be given the respective chambers in securing a resolution to deadlock.
One of the most important provisions of Australian bicameralism is
section 24,the nexusprovision ofthe constitution,which states that 'the
number of [House of Representatives] members shall be, as nearly as
practicable, twice the number of the senators/ In 1901 the relevant](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-42-320.jpg)
![26 The CanadianSenate in Bicameral Perspective
numbers were seventy-five and thirty-six; a century later, they are148
and seventy-six. In later chapters of this book, there will be reason to
return to the nexus provision; for the moment section 24is noteworthy
because of the respect it signals for the Senate. Whatever governments
may think of the Senate's behaviour and whatever constraints the
Senate places on executive autonomy, the Australian second chamber
enjoys a protection that neither its Britishnor its Canadian counterparts
have.
Most observers of the Australian constitution are aware of its un-
British provision for a referendum in the amending process. They are
also aware that the constitution came into force in 1901, following
endorsement by the voters in the colonies. In that light, it is significant
that the deadlock clause avoids the use of a referendum. The proposal
to use a referendum was made at the federationconvention but rejected
on the grounds that such a general vote posed a threat to small states,
while a so-called dual referendum (as occurs in the amendment proce-
dure which requires support from a majority of the popular vote and a
majority of the states) might be inconclusive. This concern has been
borne out since 1901by the large number ofproposed amendments that
have gone down to defeat before the double hurdle.
Much more than the Canadian Fathers ofConfederation, the Austral-
ian founders 'thought bicameral thoughts and adopted bicameralprin-
ciples.'12
It is a characteristic even more evident inAustralia today.The
convention delegates of the 1890s thought of the Senate as a states
house devoted to protecting states rights. They did not anticipate,
anymore than did the Founding Fathers at Philadelphia, the rise and
extension of national political parties to the states. In time theAustral-
ian Senate became no more a states house than did the United States
Senate. The transformation that parties wrought on the Senate, thanks
to the plurality and then alternative voting systems in place up to 1949,
has already been noted. Withthe introduction ofproportional represen-
tation that year, on the occasion of the first enlargement since 1901of
the House of Representatives (and, thanks to the nexus, also the Sen-
ate), the influence of partisanism on the Senate continued but, after a
brief period of quiescence, significantly changed. The result, say some
observers, is 'a regime change,' with minor parties holding the balance
of power for over thirty of the last forty-five years. As a result, the
Senate has become the forum for expressing minority interests but with
this distinctiveness: '[T]he womens, environment, gay, Aboriginal,con-](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-43-320.jpg)
![Bicameral Perspectives 27
sumer, multi-cultural... movements are all organised independently of
the major parties/13
Following this line ofargument, the Senate in Australia has becomea
house of minorities whose primary concern is to broker interests that
go un- or under-represented in the lower house. Passage ofthe Howard
government's GST legislation in June 1999 depended upon support
from the leader of the Australian Democrats in the Senate. In addition
to winning a GST exemption for food, the Democrats won a govern-
ment commitment to increase social benefit spending. Some observers
have said that the Senate has yet to define its role in Australian politics.
That may be true from where Australians stand, but from the vantage
point ofan outsider what is significant is that the Senate is not now, nor
has ever been, the states' house so dear to federal theorists. Nor, ifstates
rights was the objective,was the introduction ofproportional represen-
tation in 1949 the solution, since it did 'nothing to keep state delega-
tions cohesive.'14
Reminiscent of the Charter in Canada, the Senate is viewed as a
forum that articulates and authoritates multiple interests whose com-
mon characteristic is their lack of a territorial base. More than that, the
Senate, especially in its modern transmutation, is cited as confirmation
of 'Australia's indigenous experience of government ... enshrined in
such institutions as bicameralism, federalism and entrenched constitu-
tions/15
Others go further and see 'Australia a constitutional hybrid ...
thanks in no small part to its vigorous bicameralism/16
Not everyone
agrees. Critics of the 'Washminster' interpretation point out that Aus-
tralia's government isresponsible to the lower chamber,its leader and a
majority of its members come from that chamber, and legislative initia-
tive overwhelmingly rests with that government and chamber.17
They also posit an alternative explanation for the appearance of an
upper house of co-equal power with the lower house: the experience
convention delegates had with colonial legislative councils who pos-
sessed similar powers. In the last half of the nineteenth century,colo-
nies such as Queensland, Victoriaand SouthAustraliadebated whether
their upper houses 'should be guided by the convention rule against
amending [or rejecting] money bills which the House of Lords had
accepted in the United Kingdom/ It was out of these disputes that the
distinctive Australian provision that allows the upper house to request
amendments (section 53,Constitution Act 1900)originates.18
Formally, the legislative powers of the Senate in Canberra are no](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-44-320.jpg)
![Bicameral Perspectives 29
as a 'partner in policy making'; it is even unusual to see it overtlyclaim
the role of 'agent of accountability/ In Australia, however, these are live
questions that stem directly from a situation where each house of
Parliament has - and is understood to have - equal power over the
legislative process.
A second concern originates in the non-simultaneous election of the
two houses of the Australian Parliament. Not only are there different
terms, which only coincide in the unusual event of a double dissolution
and simultaneous election for both houses, but different electoral sys-
tems are used for each house - a PRlist system with the state as a single
unit for the Senate and a preferential ballot for the House, to determine
the outcome in individual constituencies. The effect is to separate the
parts of the bicameral system. While it is true that the nexus provision
is a countervailing, that is a uniting, force, in general Australia's consti-
tution works to promote independence between the two chambers. Is
this a problem, and could it happen in Canada if both houses were
elected without concern being given to linkage? The answer to both
questions is yes. The events of 1975demonstrate that, in certain circum-
stances, the Senate can bring about the defeat of a government and
perhaps even the dissolution of the lower house if the resulting dead-
lock between the chambers is not resolved. The ultimate power of
resolution lies with the governor general's prerogative to summon new
advisers or dissolve the lower house. The Crown is one part of a
tripartite parliament and in those situations where the conventions of
responsible government fail to obtain, it alone possesses the power to
restore harmony. Butthe Crown exercises its prerogative on advice that
is partisan.
It is one of the most important, though least observed, features of
political life in the United States that all elections are held simultane-
ously. Canadians, but not Australians, take this for granted. In 1988 the
Constitutional Commission ofAustralia recommended that
the maximum term for the House of Representatives be raised to four
years, and that Senators should serve for two terms of the House of
Representatives, with one half retiring at eachelection, save in the case ofa
double dissolution ... [T]heHouse ofRepresentatives... should ordinarily
serve a minimum of at least three years and should only be dissolved in
less than three years if the Prime Minister loses a vote of confidence.
During the three year minimumterm, the Senate would lose its power to
reject money bills.22](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-46-320.jpg)
![30 The CanadianSenatein BicameralPerspective
Bicameralism in Australia, and by inference in Canada, is a matter
not only of composition and power, it is also intimately tied to ques-
tions about the use of the Senate's veto, the implications of votes of
confidence in the lower house, terms of Parliament, the definition of
money bills, and the exercise of the Crown's prerogatives to dissolve
Parliament and dismiss governments. Few political subjectscould be as
structural in appearance yet as influenced by process as bicameralism.
Australia's contribution to the study of bicameralismlies in its intent,if
not success, in adapting the practices of Westminster-style government
to a non-executive dominated Parliament.
Great Britain
The history of bicameralism in central Canada begins with the creation
of two-chambered legislatures for Upper and Lower Canada by the
Constitutional Act, 1791. Whatever theory of stability and balance lay
behind this arrangement of legislative powers in company with the
Crown's representative, the councils were from the outset 'the weak
part of the constitution.' That was the opinion of the colonial secretary
(Earl Grey) in 1849, even before the achievement of responsible govern-
ment whose central principle of accountability to the peoples' elected
representatives awarded primacy to the lower house. Grey was corre-
sponding with the governor general, Lord Elgin, who, in reply, echoed
his political master's view. In his opinion, the councils were 'worse
than useless,' since they brought criticism upon themselves if they
resisted the popular branch and upon the Crown if new appointments
were made in order to manufactureharmony. In what was to becomea
pronounced Canadian trait in the discussion of upper house matters,
the source of grievance arose as much from comparison with the prac-
tice of upper chambers elsewhere as it did from the behaviour of the
local councils themselves. According to Lord Elgin, 'an inexhaustible
fund of declamation and denuntiation [sic] is supplied by analogies
sought in the BritishHouse of Peers. Analogies which are utterly faulty,
but satisfactory enough to people in a passion.'23
Analogies with the House of Lords were singularly inapt then or
later, once Confederation was achieved. For a start, there was no aristo-
cratic class from which to make appointments; and as long as British
honours were awarded to Canadians (until 1919, with a brief return in
the early 1930s), they displaced political appointments as desired pre-
ferment.24
Second, Canada was a federation, and Great Britain, despite](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-47-320.jpg)
![Bicameral Perspectives 37
repeated in two succeeding Parliaments, to overbear the Senate? ...
[W]hy not establish by law in Canada the practice which time and
wisdom have created among ourselves?'45
Modern attitudes to the Senate's absolute veto power reveal a timid-
ity foreign to the Fathers of Confederation. Even when it was still a
predominantly hereditary body,the House of Lords with its suspensive
veto was an example Canadian Senate reformers liked to invoke. The
proposals for Senatereform that peppered the constitutional discussion
of the last three decades of the twentieth century frequently displayed
great willingness to trade an absolute for a suspensive veto. To the
degree that a rationale was offered for this one-sided bargain, it gener-
ally suggested that with reduced power would come legitimacy, a
quality reformers of the Senate were united in maintaining the present
Senate lacked.46
The United States
The Australian Senate may charm some Canadian reformers today and
the non-elected House of Lords may impress others as the original
model for Canada's Senate that must now be abandoned,but whatever
their respective merits, they pale in comparison to the influence the
United States Senate has exercised over debate on Canada's upper
house. Cautionisrequired when explaining the nature ofthis influence,
for while there are frequent, even predictable, references to the Great
Compromise at Philadelphia, which saw the Founding Fathers agree to
a Congress composed of one chamber based on equal representation of
the states and another on representation by population, it is rare that
Canadian commentators examinethe bicameralarrangement thatcom-
promise produced. Instead, attention is focused almost totally on the
United States Senate and on the equal representation of each state
regardless of population. Yet the importance of the compromise was
not that each house had a different representational base but that both
representational bases would co-exist within one legislature.47
Intercameral linkage of a different sort has already been observed in
the nexus provision (section 24)of the Australian constitution. The one
bicameral legislature barren of this type of connection is the British
Parliament, for there the House of Lords had no representation func-
tion. Indeed, the royal commission report of 1999recommended that in
a reformed upper chamber up to 20 percent of its members should be
elected (using some variant of proportional representation) from 'the](https://image.slidesharecdn.com/25795094-250512122130-b8327871/85/The-Canadian-Senate-In-Bicameral-Perspective-1st-Edition-David-E-Smith-54-320.jpg)
The Canadian Senate In Bicameral Perspective 1st Edition David E Smith
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- 6. THE CANADIANSENATE IN BICAMERAL PERSPECTIVE The Canadian Senate in Bicameral Perspective is the first scholarly study of the Senate in over a quarter century and the first analysis of the upper house as one chamber of a bicamerallegislature. David E, Smith's aim in this workis to demonstrate the interrelationship of the two chambers and the constraints this relationship poses for Senate reform. He analy- sespastliterature on theSenate and currentproposals for reform - such asaTriple-E Senate- and comparesCanada's upper chamberwith those of Australia, the United States,Germany,and the United Kingdom, not- ing a revival of interest in Canada and abroad in upper chambers and bicameralism. Drawing on parliamentary debates and committee reports, as well as a broad range of secondary sources, The Canadian Senate in Bicameral Perspective examines the Canadian Senate within the international con- text, shedding light on its role as a political institution and arguing for a renewed investigation into its future. DAVID E. SMITH is a professor emeritus sin the Departmentof Political Studies at the UniversityofSaskatchewan.
- 7. This page intentionally left blank
- 8. David E. Smith UNIVERSITY OF TORONTO PRESS Toronto Buffalo London The Canadian Senate in Bicameral Perspective
- 9. University of TorontoPress Incorporated 2003 Toronto Buffalo London Printed inCanada ISBN 0-8020-8788-4 Printed on acid-free paper National Library of Canada Cataloguing in Publication Smith, David E., 1936- The Canadian senate in bicameral perspective / David E.Smith. Includes bibliographical referencesand index. ISBN0-8020-8788-4 1. Canada. Parliament. Senate. I. Title. JL155.S65 2003 328.71'071 C2003-900685-9 This book has been published with the help of a grant from the Humanities and Social Sciences Federation of Canada, using funds provided by the Social Sciences and Humanities Research Council of Canada. University of Toronto Press acknowledges the financial assistance to its publishing program of the Canada Council for the Arts and the Ontario Arts Council. University of Toronto Press acknowledges the financial support for its publishing activities of the Government of Canada through the Book Publishing Industry Development Program (BPIDP). www.utppublishing.com
- 10. For my students
- 11. This page intentionally left blank
- 12. Contents Preface ix Parti 1 Bicameralism:AConcept in Search of a Theory 3 2 BicameralPerspectives 22 3 The Senate as an Object of Study 47 Part II 4 Representation 67 5 Federalism 89 6 Legislation 110 7 Responsible Government 131 Part III 8 The Canadian Senate: What Is to BeDone? 149 9 Conclusion 176 Notes 185 Bibliography 227 Index 251
- 13. This page intentionally left blank
- 14. Preface Is it time for another book about the Senate of Canada? The upper house of Canada's Parliamentis the subject of perpetual complaint but the siteoflittle formal reform. In 1965lifetime appointment was changed to mandatory retirement at age seventy-five,and two decades later the Constitution Act, 1982, limited the Senate to a suspensive or delaying veto on subsequent amendments to the constitution of Canada. None- theless, much has changed in the recent operation and composition of the Senate, albeit not by formal amendment, and for that reason readers may deem a new book on Canada's only remaining upper chamber useful. Public opinion about theSenate being what it is - largely critical - some justification for this enterprise is in order. It is worth noting that every two or three decades for almost a century,Canada's upper house has been the subject of an academic study. Such episodic treatment requires elaboration. There appears to be, first, a recurring need to renew public understanding of one of the major institutions of govern- ment; secondly,a sense of obligation to explain why the Senate appears impervious to formal change; and, lastly, an imperative to interpret the constitutional role of the Senate in a manner that is theoretically coher- ent. This last task has assumed renewed importance in recent decades as emphasis on political structures, accountability, and participation grow and asdomestic criticsinvidiously compare Canada's upper house with those ofAustralia and the United States. Legitimacy is often cited when discussing the Canadian Senate, although the word is usually employed in its negative form because an unelected Senate is deemed not legitimate. The meaning of that label is rarely analysed, although presumably it is not to suggest that the
- 15. x Preface senators hold their position illegally or even unconstitutionally, since the manner by which they achieve and conduct their office is consistent with the practice and usages of the Constitution. Rather it is implied that, as an upper chamber, the Canadian Senate is counterfeit: no other country of Canada's political and constitutional repute has a second chamber that is wholly appointed. It is this uniqueness that explains a steady succession of governmental and non-governmental studies, as well as journalistic articles, promoting a change in the system of sena- torial selection. These proposals offer a splendid array of alternatives. The only char- acteristic they share in common is that they are hermetic: that is, they treat the Senate as a self-contained entity. There is no acknowledgment of the profound implications for the political system that would flow from such changes. Nor is there recognition that an elected Senate, but without a separation of powers, is a very different entity from the United States Senate; or that an elected Senate in a British-styledparlia- mentary system that does not subscribe to a theory ofpopular constitu- tionalism (as found in Australia)is theoretically suspect; or,finally, that an earlier enthusiasm for a provincially constituted senate modelled on the German Bundesrat will result in a different arrangement of power in Canada, where there is neither a Bundestag (with its mixed electoral base) nor Germany's administrative style offederalism. Here, then, is the first reason for a new book on the Senate: to summarize second chamber developments over the past three decades and to place these in a comparative context. But this study of the Canadian Senate differs from past treatments by analysing the second chamber as an institution ofCanada's onlybicamerallegislature.Canada is unique among federations in being bicameral at the centre but uni- cameral on the periphery. That helps to explain the insensitivity itsanti- historical politicians and academics display toward the complexitiesof bicameralism. And there are complexities because bicameralism is on the rise. The high tide of unicameralism - New Zealand 1952, Denmark 1953, and Sweden 1970 - has ebbed. In the new European democracies, in the restored civilian rule of Latin American republics, in the European Union (where in 2001 German Chancellor Gerhard Schroder proposed that the community's existing Council of Ministers become an upper chamber on Bundesrat lines), bicameralism prospers but goes un- remarked and unopposed. A new literature has emerged that reflects what might be called the bicameral assumption. This is illustrated by
- 16. Preface xi the Report of the Royal Commission on the Reform of the House of Lords, A House with A Future, along with a series of legislative studies from the Constitution Unit, UniversityCollege London; while the fifti- eth anniversary of the introduction of proportional representation in Senate elections in Australiahas produced a collection ofpapers, Repre- sentation and Institutional Reform, on its consequences. These works and others in the bibliography signify scholarly interest in an area of politics that has often been ignored. This has been the case in Canada, as a survey of the indexes to political science textbookswill confirm. But studies ofSenate reform do not fill the gap. The purpose of this book is to unite the two topics - that is,to integrate the discussion of Senate reform with the theory of bicameralism. Contrary to prevail- ing opinion, it argues that Senate reform is not a question of elections to the second chamber but rather of determining how that body should complement the work of the elected House of Commons. The premise is that, absent this linkage, reform is impossible. The new literature argues that 'bicameralism matters.' This book agrees with this proposi- tion, and it goes further; it maintains that one reason everyone talks about Senate reform but nothing happens isbecause the Senatematters. The difficulty in Canada is that the upper chamber matters to differ- ent people in different ways; in short, it is part of the whole realmof representation. If that is the case - and Canada is not unique in this regard; Eamon de Valera speaking of Ireland's predicament said an ideal Senate was not possible - then it is fundamentally important that Canadians agree on the second chamber'spurpose. Without such agree- ment, there can be no consensus on the design of the chamber. It is essential to escape from imprisoned ideas of what a second chamber should be, to escape the tyranny of example. Many distin- guished men and women (along with some not so distinguished) have sat in the Senate. However, few were as constitutionally acute or articu- late as the late Eugene Forsey. Speaking on one occasion offederalism, but the remark holds equally true for the design ofCanada's Senate, he rhetorically asked: 'What if we started from the premise that Canada is not the exception to the rule but its own rule and then marvel at that rather than try to fit it into some other box.' I have dedicated this book to my students. After nearly forty years of teaching, there are many of them, some even in the Senate. While my responsibility has been to lead them, they have, less overtly, helped mould my interests and questioned my assumptions. Every professor
- 17. xii Preface will attest that students are one of the joysof the occupation. But so too isresearch and writing. Asin the past,Iam indebted to individuals and institutions for their support. Among these are Michael Atkinson, vice president (academic)and provost, University of Saskatchewan, Dianne Brydon, John Courtney, Donna Greschner, John Higley, Andrew Hubbertz and his staff at the Government Publications Room of the University of Saskatchewan Libraries,Senator Serge Joyal and the staff of his office, Paul McCormick,Louis Massicotte, Howard Millard, Ted Morton, Gary O'Brien, Charles Robert, Tom Round, Meg Russell, Campbell Sharman, Donald Shell, Donald Story, and Duff Spafford. I have also received valuable assistance from officials in the Senate of Australia and the National Archives of Canada. I wish especially to acknowledge the help given me in this project by David Brock, a graduate student. As a research assistant, with compu- ter skills I lack, he lightened the load the Internet imposes on the technically challenged. Since this book is dedicated to a generation of students, I have chosen to consider MrBrock the representative type - efficient, enthusiastic, and effective - TripleEin his own right. I am, as Ihave been in the past, indebted to LorrieBurlingham for her patience and perseverance in transforming my nearly indecipherable handwritten manuscript into an admirable typed copy. The University of Toronto Press provided its reliable services, including the assign- ment of that sharp-eyed editor, Diane Mew.Indexer Bobbi Coulter has saved me hours of tedious work, for which I give thanks. The award of a general research grant by the Social Science and Humanities Research Council of Canada helped to defray expenses associated with research in Canada and abroad, and with manuscript preparation. This assistance I am pleased to acknowledge. Finally, although the book could not have written without the helpof others, I alone am responsible for the text that follows.
- 18. PART ONE
- 19. This page intentionally left blank
- 20. Chapter One Bicameralism: A Concept in Search of a Theory The Senate is Canada's only legislative second chamber and Parliament its only bicameral institution. It was not always so: the Maritimeprov- inces, Manitoba, and Quebec once had upper houses called legislative councils but the last, Quebec's, was abolished in 1968.1 Canadian aca- demics have displayed no lack of interest in the Senate as an institution: between 1926and 1978 three major works of political science appeared in English that examined the federal upper chamber.2 Yetwhile they do not ignore the House of Commons, the reciprocal relationship between the two chambers goes largely unexplored. In this respect, research priorities mimic social attitudes, since public disenchantment with the Senate directs attention to discrete aspects of the Senate's composition and work. For instance, the manner of senatorial selection - appoint- ment on recommendation of the prime minister - and the alleged failure of the institution to incorporate and express provincial senti- ment are subjects of repeated commentary.And there are those,always a minority, who wish to abolish the Senate and move directly to unicameralism. Details of criticisms raised against the Senate and of suggested reforms to the current second-chamber arrangement will be analysed in Part Twoofthis book. For the moment it is sufficient to note only public disfavour with the Senate and lack of interest in the bicam- eral arrangement of legislative power currently in place. These introductory remarks lead to the preliminary observation that there is a predisposition to unicameralism in Canadian politics. An extreme conclusion, perhaps, yet one that gains credence when placed in context. Consider the personal invective directed at senatorial ap- pointees - atbest aspartisan loyalists, at worse as '"ethnic vote brokers and cultural pimps" for the federal Liberals.'3 Here is a modern Cana-
- 21. 4 The Canadian Senate in BicameralPerspective dian equivalent of what Garry Wills discovered in the decades leading up to the American revolution, when colonists verbally pummelled English politicians using 'accusation as an instrument of reform.'4 Whether the goal is abolition or reform, denigration is meant to under- mine the Senate's legitimacy.And it works. Consider, for instance, that doubt about the Senate's status is asserted by informed and respected commentators: '[I]t lacks legitimacy as a representative body/ says C.E.S. Franks; Gordon Robertsonbelievesthat 'the Senatewill achievea faint tincture of legitimacy as a voice of regional interests if ... federal patronage is diluted by recommendation from a province for anomina- tion to fill a Senate vacancy/ while the Royal Commission on the Economic Union and Development Prospects for Canada (the Macdonald Commission) uses phrases like 'institutional failure' and speaks favourably of second chamber models designed to incorporate provincial representation in the central institutions of government.5 Consider, again, that even within the Senate, members deplore the 'constant denigration of the institution by ourselves [whichcontributes to] the gulf between public perception of the Senate and its reality.'6 Lamentation from all sides cannot be dismissed. Nonetheless, such uniformly negative opinion leads one to ask how much of this criticism is echo. Familiarity breeds more than contempt; it encourages inatten- tion. When a close observer of Canadian political institutions writes that 'Senate reform is not worth the effort if it does not terminate appointment and substitute election as the basis of membership/ then the purpose of a bicameral legislature is thrown seriously into doubt.7 There is much to be said against the Senate, but the fact that it is not elected is not one of them. Nor (despite repetition sincethe early 1980s) is election necessary for or an aid to effective bicameralism. In both the criticisms and the proposals for reform, there is slight regard for the Senate as a chamber of a single Parliament. The title of Gordon Robertson's book is taken from StMark's Gospel; itsinjunction - that a divided house cannot stand - however could beapplied with profit to Parliament itself - where the work of each house should complement the other. The reasons for this disposition to see the parts and not the whole of Parliament are both short-term and long-term. In the short term, that is the last forty years, Canada has been preoccu- pied with reducing strains within its federal system. Neither federal- provincial nor English-French tensions are new phenomena, but large-scale, concerted attempts to address their causes, in the form of language legislation and almost continuous constitutional negotiation,
- 22. Bicameralism: A Concept in Search of a Theory 5 are unprecedented. The political careers of such leaders as Pierre Trudeau, Joe Clark, and Brian Mulroney have, to a large extent, been moulded by this issue. One result of a constitutional debate defined over decades almost exclusively in terms of federalism is that it ex- hausts interest in other kinds of constitutional issues. Tothe extent that unity concerns in this period have had to share the spotlight, the rival has been the Canadian Charter of Rights and Freedoms. None the less, the one remedy for Canada's federal problem increasingly advocated after the 1970s is Senate reform. While the prescriptions differ, they begin with a common diagnosis: insufficient attention and responsive- ness in the upper house to provincial interests. (As an aside, the same argument is advanced for abandoning the plurality electoral system in favour of some form of proportional representation). From the 'unity' perspective, the health and vigour of a bicameral legislature are of secondary importance. However, this book will argue that a less pro- vincial-centric view might see in the Senate an opportunity to develop national political debate and policy. The long-term explanation inevitably invokes the influence of Walter Bagehot. A journalist, Bagehot is best remembered for his book, The English Constitution,in which he anatomized monarchy and the institu- tions of Parliament.8 If the work had a theme, it was captured in the famous dichotomy he made between 'dignified' and 'efficient' institu- tions. In the British political system, some institutions do the daily work, others confer authority on what is done. The power of his writ- ings, which are really dicta, may have embalmed the constitution; monarchs and their progeny are schooled in Bagehot still - but they have also devalued it as a set of principles. Part of the British political inheritance overseas was to adopt a practical approach to government: keep what worked, romanticize or discard what was deemed superflu- ous.9 Today, in Canada's tripartite Parliament, constitutional matters are the preserve of the government which sits in the Commons. The Crown and the Senate are treated as lower orders of political invention. However, at the end of the twentieth century, it would appear that Bagehot has come in for revisionist treatment. Australians debating a republic have discovered that the Crown, in the form of the governor general, is more than a dignified institution; it also possesses impor- tant prerogative power that has to be dispersed somewhere onceAus- tralia ceases to be a constitutional monarchy. Again, the Royal Commission on Reform of the House of Lords (chaired by Lord Wakeham) discovered that the unreformed Lords had over the past
- 23. 6 The Canadian Senate in Bicameral Perspective forty years reversed the transition Bagehot predicted and had become efficient again.10 Bicameralism offers amplitude for study in topics such as separation of powers, legislative second-thought, executive oversight, and repre- sentation. As attractive as that may be, studies of bicameralism even outside of Canada do not flourish. TheAustralian scholar, Rufus Davis, an expert on federalism, says that 'there is nothing that even remotely approaches a fully articulated theory of bicameralism.'11 His observa- tion is unexpected, since Australia has had more experience with bi- cameralism than any other parliamentary democracy. Each of the six colonies that united to form the Commonwealth of Australia in 1901 had legislative councils and each of the six states following federation had an upper house, until Queensland broke ranks and abolished its chamber in 1921. Some have been nominated, some elected; in 2000 all are elected with three using the proportional representation system found for the past half-century in the Senate of Australia. That body was the world's first popularly elected (initially, by plurality vote) upper house in the world.12 KeithJackson, who has chronicled the end of bicameralism in New Zealand and written comparatively of upper houses in New Zealand, Australia, and Canada, echoes Davis, when he says that commitment to a two-chamber legislature is 'an article of faith buttressed by selected examples.'13 Thus, while bicameralism may be cited as a pillar of Australia's indigenous experience of government, along with federalism and en- trenched constitutions, the theory that sustains it has yet to acquire general consensus.14 The constitutional crisis of 1975, which saw the Senate reject a money bill and the governor general subsequently dis- miss the prime minister because he could not get his legislation through Parliament, underlines an uncertainty about the respective roles of the two houses,onethat setsAustralia apart from Great Britainand Canada. Systems that do not follow the Westminster model of responsible government, where the executive is largely drawn from and is account- able to the lower house, possess something closer to a coherent theory of bicameralism. It is worth emphasizing, none the less, that the theory is not the same for every legislative arrangement. For example, after comparing unicameral and bicameral systems, William Riker offers what he labels a 'normative justification for bicameralism': the two- house arrangement minimizes majority tyranny. By contrast, in the one-house legislature, which in Riker's description includes the British Parliament where the House of Lords has only limited and temporary
- 24. Bicameralism: A Concept in Search of a Theory 7 autonomy, there is 'no test of whether or not an apparent (that is, parliamentary) majority is in fact a real (that is, an electoral or societal) majority/15 Riker's principal purpose is to evaluate the effect that the number of houses has on policy. He claims that unicameralism leads to policy instability, and cites as evidence the nationalization and then denationalization of steel in Great Britain in the 1940s and early 1950s. Depending upon which party is in office, the power of the Lords to delay temporarily has had more effect than Riker suggests. However, Riker's scheme of analysis takes into account factors such as policy preferences as well as alternative methods of delay (for instance, supermajoritarianism), in addition to multicameralism. It directs atten- tion to an important difference between the House of Lords and the upper chambers for which it is said to be a model;neither the senates of Canada nor Australia are confined to a suspensive veto. Two other American political scientists, who look at the operationof bicameralism in France,Germany, Japan,Switzerland, the United States, and the European Union, offer a more guarded opinion: 'Bicameral influence may not be readily visible to the untrained eye.' Notwith- standing this caution, for a study of a system like Canada's where bicameralism is viewed, when viewed at all, through a narrow lensof federalism, the conclusion that 'second chambers matter' is an impor- tant proposition, and one that this book will assess.16 It is not possible to speak of bicameralism and upper house models and not mention the German Bundesrat. That model has long been a favourite of Senate reformers in Canada. In 1979 the Task Force on Canadian Unity (Pepin-Robarts)recommended a Bundesrat-style Sen- ate composed of appointees of the provincial government. Unpub- lished studies carried out by Task Forcestaff speak of a new,reformed upper house, where there would be 'power brokerage operations be- tween the two orders of government.' The Senate's role would be as a symbol, 'a demonstration that a national consensus has been achieved.'17 Like the twenty-three other proposals for Senate reform over the past twenty-five years,Pepin-Robartsand its recommendations disappeared from view and debate,18 except to be cited periodically to confer au- thority on the Bundesrat model. Yet the Bundesratstructure, personnel, and operation are as divorced from Canadian Senate traditions and practices as is German administrative federalism from the jurisdic- tional concerns that dominate Canadian federalism. For instance, the capital (so to speak) which members of the Bundesrat possess takes the form of 'expertise and administrative experience.' They are appointed,
- 25. 8 The Canadian Senate in Bicameral Perspective not elected; they vote en bloc rather than as individuals; and they are more at home approving regulations than they are debating policy. None of these features speaks directly to Canadian experience, where senators act as individual members of the Senate, sometimes voting at variance with their party's stand in the lower house. They are allocated by region, and sit for a province or a district within the province of Quebec. For reformers, the attraction of the German over the British model lies in the interpenetration ofstate (or lander) and federal politics in the Bundesrat. The attraction is twofold: there is the legal or constitutional right of state ministers to participate in policy formation, and the politi- cal sanction that comes from high-profile politicians of both levels of government uniting behind policies. Agreement in the Bundesrat and between the Bundesrat and Bundestag means nearly certainacceptance of policy by the Germanpeople. For those who see the Canadian Senate as too national in concerns and composition, the charm of the German alternative is captured in one argument recently advanced for itsimita- tion in the new constitution of the Republic of South Africa: 'The Bundesrat model was attractive to South Africans because it made the second house an integral part of the system of decentralized govern- ment agreed to by the negotiators in 1993.'19 Historically, the strongest analogy for the Canadian Senate was al- ways assumed to be the House of Lords. Sir George Ross, former Ontario premier (1899-1905) and author of an early full-length study of the upper house, The Senate of Canada: Its Constitution, Powers and Du- ties, Historically Considered (1914), once described the Canadian consti- tution as 'more in harmony with the British constitution than that of any dependency beyond the sea.'20 This was a view widely held a century ago and in some quarters is still heard, though it was from the first a debatable proposition. Canada was a federation, the United Kingdom was not. Federal and provincial legislatures could not be 'replicas' of the United Kingdom's Parliament, if only because of the division of legislative power. In England, 'all different branches of government' were subject to 'legislative supremacy.' Becausethe Con- stitution Act, 1867 apportions authority to different agencies of the state, there actually is no separate federal constitution.21 Nor was it accurate to say, as the Preamble of the federative act implied, that the 'Constitution [was] similar in principle to that of the United Kingdom,' unless the constitution in question was the unwritten conventions of responsible government.
- 26. Bicameralism: A Concept in Search of a Theory 9 As for the Senate, the analogy with the House of Lords was suspect on several grounds. First, and most important, even admitting section 26 of the Constitution Act, 1867, and its provision for appointing addi- tional senators, there is a constitutional limit on the number of senators at any one time. Harold Laski said that part of the reason for the enfeeblement of the House of Lords was its immense size: the political value of membership declined as the number increased.22 The storyof the Lords' eclipse is more complexthan this, certainly.For instance, it is possible to seethe ParliamentAct,1911, which introduced the suspensive veto, and the House of LordsAct, 1999,which severed most of the peers from the Lords, as the culmination of events that began with the Glori- ous Revolution of 1688 and continued through the Reform Act of 1832. Here again is the theme ofthe triumph ofparliamentary and, indirectly, popular power at the expense ofthe Crown and the upper house. None the less, the size oflegislative chambers, and particularlyupper houses, is vitally important to the operation of a bicameral parliament. Section 24 of the Australian constitution recognizes this truth when it requires that the number of members of the House of Representatives 'shall be as nearly as possible, twice the number of the senators/ This so-called nexus provision underlines one tie that exists between the two houses of the Australian Parliament, but it symbolizes a more intricate rela- tionship that links the chambers of all bicameral legislatures. Upper chambers (with the exception of the Lords) are invariably smaller than their lower houses. This encourages a phenomenon com- mon to the study of upper houses, which is to look at them in their 'corporate capacity.'23 In one respect, this feature of upper houses may be explained and treated as a function of their role as a 'state or provin- cial entity.' That rationale is not altogether convincing; more generic is the contrast Norman Ward once noted between Canada's House of Commons and Senate: 'Where proposals for improving the Commons lean heavily toward increasing the role and effectiveness of the indi- vidual MP,the Senate is viewed as a whole, the position of individual senators a secondary consideration.'24 With the exception of United States' senators, there is scant literature on career expectations or job performance of upper house members. One of the reasons for this is the autonomy of the upper house in a parliamentary system. Where inde- pendence is a goal to be sought, then the extent to which it is won isolates the upper house. Size is not the only difference between the Canadian Senate and the House ofLords. Despite what its critics say,the Senate is a chamber in a
- 27. 10 The Canadian Senate in BicameralPerspective federation and its composition reflects that fact. Territory has never been a determining factor in the composition ofthe Lords, although the Wakeham Report calls for around one-fifth of the members of the new second chamber to be selected from regional constituencies. It isantici- pated that these individuals will provide a kind of 'constitutional glue/ because the second chamber will be seen to be 'representative ofBritish society in all its dimensions/25 One recommendation of the report, which ifimplemented will bring GreatBritain's reformedsecond cham- ber closer to Canada's, is the proposal that its membersbe selected by a statutory appointments commission, itself a creature of the govern- ment. From being a hereditary body with a minority of life (appointed) peers, the Lords is to become an appointed body with a minority of elected members. Thus size, selection, and 'constituency' distinguish the Lords from the 'imitation' Canadian Senate. But there is another difference, more fundamental than all of these. Since 1911 and the Parliament Act of that year, the Lords has had only a suspensive veto over legislation. This means it can delay but not defeat government legislation. The delay varies according to whether the bill involves the appropriation ofmoney, but since 1911 (and re-emphasized in 1949), the Lords is definitely an inferior body to the Commons. This description for the Lords does not now, nor has it ever, fit the Canadian Senate. For reasons associated with the original federation agreement, the Senate possesses an absolute veto over all legislation. Possession and practice are different matters, and the Senate has created for itself sets of understandings on when to use its veto.26 The Senate was never conceived in imitation of the Lords. The Parliament Act, 1911, represented a victory of the Commons over the Lords after a battle, waged for fifty years, that began on the eve of Canadian confed- eration: In 1860 the House of Lords rejected Mr. Gladstone's bill to repeal the duties on paper. The Lordshad not rejected a tax bill for manyyears.That date is significant for Canadians. It shows that the authors of the British North AmericaAct, 1867, were fully aware of the possibility of a head-on conflict between the House of Commons and the Senateon tax and appro- priation bills. Yet they made the Senate's powers virtually the same as those of the House of Commons.27 The Britishparliamentary mould was brokenby Canada in the 1860s,
- 28. Bicameralism: A Concept in Search of a Theory 11 and the Australian founders repeated the institutional rebellion in the 1890s. At the Adelaide session of the convention leading to federation, the premier of New South Wales, spoke specifically to this point: '[W]e must here deviate from the British Constitution and give the Senate powers which have ceased practically to belong to the House of Lords for a long period/28 While admitting that the senates of Canada and Australia may be similar in principle but not in detail to the House of Lords, the occasion of Lords' reform might still have been expected to nourish the impover- ished theory of bicameralism. In fact, that has not happened. From the outset, the royal commission report adopts an insular approach to the subject: 'We did not consider that any other second chamberprovided a sufficiently close parallel to justify making an overseas visit.'29 More promising was an active publication program of the Constitution Unit, University College London. The unit produced a series of monographs on aspects of second chambers culminating in a book by Meg Russell, Reforming the House of Lords: Lessons from Overseas, which appeared simultaneously with release of the royal commission Report.30 The Russell book looks at Australia, Canada, France, Germany, Ireland, Italy, and Spain, comparing each country's second chamber in termsof its performance of a range of functions such as committee work and participation in constitutional matters. In the tradition of bicameralism studies, the discussion is heavily factual. Several pages are devoted to the size of upper houses in twenty countries. For each, the reader is given the number of members in both upper and lower chambers, the percentage of upper to lower house seats, occupants' terms, and their methods of selection. But there is nothing that links the chambers, nothing about representation (the word does not appear in the book's index), nor any reference in the bibliography to the work of people such as William Riker. Yetthere is a chapter with the title 'Binding Different Levels of Government To- gether,' in which the senators of Canada and Australia, along with those of Italy, are described as 'basically another brand of national party politician, indistinguishable in this sense from their colleagues in the lower house.' The more basic critique turns on the failure of these upper houses as territorial chambers. In one respect this is an unex- pected indictment, since territorial representation is to be such a minor (albeit hitherto unknown) function of Britain's new second chamber. Russell claims that 'to carry out these territorial functions it [is] essen- tial that members of the upper house [be] genuine representatives of
- 29. 12 The Canadian Senate in Bicameral Perspective the nations and regions, rather than simply being national politicians/ She says that in many countries, Canada and Australia being examples, 'genuine links have not been forged.'31 This is surely a tendentious account of second chamber life in Aus- tralia and Canada, most notably because it depreciates that which is central to second chamber existence in these countries: partisanship. Britain's new second chamber, it is contended, should 'complement' not 'rival' the Commons: in a test of wills, if such a prospect can be contemplated, the second chamber must acquiesce. Yet, with the depar- ture of most of the peers, how to legitimate anew the second chamber? Here is part of the rationale for institutionalizing the territorial dimen- sion in the upper house. The other source of legitimacywill come in the quality and manner of the chamber's work, which, the report says, will not be radically disturbed. A second edited work (1999), this time by two American academics, again looks at comparative bicameralism but uses a country-by- country analysis.32 The countries are the same as found in the Russell book, with the exception that the United States and Poland are included but Ireland omitted. There is an introductory chapter on 'Senates and the Theory of Bicameralism,' but the theory (or justification) for a two- house parliament is restricted, first, to 'representation' (largely a short exploration of the Connecticut Compromise, when the Philadelphia Convention agreed to a Congress comprised of an upper house based on equal state representation and a lower house based on representa- tion by population) and, second, to 'redundancy,' that is, the idea of the upper house as a 'brake' on the 'engine' of the lower house. The indi- vidual chapters offer more detail about national practice and experi- encebut contributeonly slightly to elaborating a theory ofbicameralism. The recent literature has done little to eradicate the sense of staleness that surrounds the theory of bicameralism or to dispel the ambiguity that envelopes the functions of second chambers in a bicamerallegisla- ture. Writing of Australian experience but offering an opinion of much wider application, political scientist Joan Rydon has asserted that 'the basic arguments ... for or against bicameralism, have changed very little.'33 Evidence to support that conclusion is to be found in a survey of the topical literature that appeared in the decades before and after the First World War. Sentiment that 'something' had to be done with the House of Lords grew following the progressive extension of the adult male franchise in the second half of the nineteenth century. Disraeli's Tory democracy and the rise of a non-conformist labour
- 30. Bicameralism: A Concept in Search of a Theory 13 movement with party political ambitions posed a new order to a he- reditary landed aristocracy and an established church entrenched in Parliament's upper house. Baron Stockmar, sometime constitutional adviser to the royal family, caught the spirit of the age when he said of the Lords that it 'wounds democratic feeling.'34 Opposition to Gladstone's Home Rule bills aside, there was little in what the Lords had done to merit that indictment. One observer predicted, correctly, that 'the unreformed House of Lords, if it falls at all, will fall a sacrifice to theory - asthe unreformed House ofCommons did.'35 In 1907SirEdwardGrey,foreign secretary in the Campbell-Bannerman Government, sent a circular to more than a dozen European powers and to the United States seeking an array of information on upper chambers: selection process, membership qualifications, mode of op- eration, provisions for dissolution (ifany), the resolution of intercameral conflict, and 'all other relevant information respecting the constitution and status of such Upper Chambers.' The resulting parliamentary re- turn ran to 107 pages along with a fifteen-page supplementary return, both tobe found in the Sessional Papers ofCanada's Parliament (1914).36 More important than the answers to Grey's queries were the themes that appear in the replies from Budapest and Washington, Oslo and Madrid, and in between. Repeatedly,reform or evolution of a country's upper house is coupled with changes in (or as an alternative to) modifi- cation of the electoral system used to select members of the lower houses; to questions about the suffrage (universal as opposed to one based on a property qualification);to concerns about rural and urban representation; to the matter of government accountability to the sec- ond chamber; to questions about the role played by the upper house in the control of public finances.The intricacies and complexities that this ninety-year-old survey reveals leads to a very modern conclusion: Practically everywhere there is a recognized Second Chamber problem... Everywhere there is dissatisfaction and irritation, a feeling that the secret of combiningconstitutional stability with legislative efficiency has not yet been discovered... [W]hat constitutes the ideal Second Chamber? This is to enter a field that is peculiarly one of opinion, and one moreover in which political tempers and theories of the social union play a large part.37 The conclusion of the First World War introduced an era of constitu- tional debate equalled only in range by that at the end of the twentieth century in Great Britain.The Speaker's Conference on electoral reform
- 31. 14 The Canadian Senate in Bicameral Perspective (1918) and the Representation of the Peoples Act (1918) coincided with major constitutional changes in postwar Europe, such as the rise of republicanism and the introduction of proportional representation. In 1917-18James (Viscount) Bryce, diplomat and political observer, chaired a conference and wrote a report on "The Reform of the Second Cham- ber.' Bryce attributes a role for second chambers that includes the examination and revision of bills sent from the Commons, the discus- sion of large policy questions (foreign policy is the example given) that do not threaten the government's life, and, occasionally,the initiationof bills. Each of these speaks of the role of the second chamber in improv- ing legislation for the benefit of the people. The second chamber is there not as champion of vested interests; rather it is 'the ally, and not the opponent, to the popular will.'38 In this respect, the second chamber has the same function as reservation exercised by the Crown or the referendum activated by the people. The populist dimension of second chamber debate is seldom evident in Canada. Yet it was a central premise of the debate in the United States that fuelled the unicameral movement, which achieved its objec- tive of a single-house legislature only in Nebraska. Distrust motivated unicameralism - tobeprecise, popular distrust ofstate legislatures and their members who would use a two-chamber system to pass the buck and avoid responsibility. Abicamerallegislature composed oftwo elected houses would allow legislators to mock the people they were chosen to serve.39 Contrary to the argument heard in parliamentary systems, where the tension associated with bicameralism is said to arise out of the incompatibility ofan elected and non-elected chamber,in the United States unicameralists saw the source of the problem in the presence of two elected houses. In fact, that rhetoric still has a constituency and was being used at the beginning of the twenty-first century by the only American governor then advocating a unicameral state legislature - Jesse Ventura of Minnesota. Asingle house, he says, will produce better legislation, since 'legislators will... debate important issues as a whole body' and it will make politicians more accountableto the public, since 'legislators will [no longer] be able to use the other legislative body to justify why a bill... didn't pass.'40 In the context of this chapter's argument, the unicameral literature parallels its bicameral genre in one important respect: neither solution perceives itself as the only solution to the problem it seeks to remedy. That is, where WilliamRiker saw the benefits of redundancy and sober second thought in bicameralism, he also recognized that the same
- 32. Bicameralism: A Conceptin Search of a Theory 15 benefits could be achieved through the requirement ofsupermajorities Similarly, the benefit of unicameraliam in checking legislative malfea- sance is achievable in ways other than imposing a single chamber; examples would be constitutional restrictions on the frequency and length of legislative sessions or on the size of the legislature. Nebraska remains the legislative exception in the United States. Everywhere else state constitutions still cleave to some congressional analogy, although in 1963 the Supreme Court of the United States struck down as unconstitutional 'little federal' schemes, which saw state upper houses based on territorial representation and the lower houses based on population. The court ruled that both houses must henceforth be based on population. In the course of its judgment, the court spoke directly to the continued reason forbicameralism: We do not believe that the concept of bicameralismis rendered anachro- nistic and meaningless when the predominant basis of representation in the two state legislative bodies is required to be the same - population.A prime reason for bicameralism, modernly considered, is to insure mature and deliberate consideration of, and to prevent precipitate action on, proposed legislative measures. Simply because the controlling criterion for apportioning representation is required to be the same in both houses does not mean that there will be no differences in the composition and complexion of the two bodies.41 The preceding paragraphs make clear why bicameralism is an unsat- isfactory subject of study. Taken as a whole, the literature and the history of the subject can be contradictory: houses check other houses; houses check executives; houses expand (or constrict) the opportunity for the people to be heard. Bicameralism,as a theory, lacks independ- ence. It is bound up with analogies and models. One of the arguments in the United States for moving to unicameralism was that 'the pattern used by our forefathers has been abandoned [as a result of the 1911 Parliament Act] by the mother country/42 By contrast, J.G.Bourinot could see no alternative to a bicameral parliament for the Canadian nation: "The bicameral system has met the approval of most of the leading political writers and is realized in practiceby the legislatures of the principal countries/43 In this respect the recent royal commission on reform of the Lords was right: comparisons are meaningless (some- times even invidious) because political systems are distinct. How dis- tinct, even when the systems are institutionally similar,becomes evident
- 33. 16 The Canadian Senate in Bicameral Perspective in a comparison of countries that share a common (that is, British) constitutional root. The history of bicameralism in these countries, as opposed to the classical theory of bicameralism, begins in the late eighteenth century in debates leading to the Constitutional Act, 1791, which divided Que- bec into Upper and Lower Canada and statutorily provided each with an upper and lower legislative house. The background to the act was the American Revolution and the lessons British politicians took from the loss of the thirteen colonies. The old assemblies had grown too strong because the governors had been too weak. Elevenof the thirteen colonies were bicameral (Georgia and Pennsylvania being the excep- tions), but their upper houses were not second chambers in the sense accepted today; rather the governor's advisory council acted as the second branch of the legislature.44 The innovation of the Constitutional Act, 1791, was to provide for two councils, one executive, the other legislative, with the first to act as adviser to the governor (in modern guise, the cabinet) and the second to - todowhat? Debate at Westminster makes clear that the intent of the tripartite arrangement (Assembly, Legislative Council, and Governor-in-Coun- cil) was to confine democracy and thus prevent a repetition of rebellion. The theory that informed the plan was that ofabalanced constitution.45 In a matter of six decades, that constitution, whose origins lay in the arrangement of power introduced by the Glorious Revolution of 1688, was displaced by the arrival of responsible government and the con- centration of power in the lower house. As important as that transfor- mation was to the development of parliamentary government, it is not the centrepiece of this discussion. The focus here is on the consequences of this transformation for bicameralism. Even in the debates preceding the Constitutional Act, 1791, it was clear that the composition of the upper chamber presented a problem. The theory ofthe balanced consti- tution achieved an internal coherence by positing a link between mon- archy, aristocracy, and democracy on one hand, and the three parts of Parliament or the legislature on the other. From the outset the weak spot in the theory was the legislative council. Neither in Canada, nor Australia, nor New Zealand was there a societal aristocracy.Compacts, cliques, squatters, perhaps, but no acknowledged superior class enti- tled because of heredity to govern.46 Yet there was throughout the British Empire a belief that 'an essentially atypical second chamber, the House of Lords, represented a basic element of a stable constitution.'47 In colonial eyes, it would have been inconceivable not to have fol-
- 34. Bicameralism: A Concept in Search of a Theory 17 lowed the model. In Whitehall, between 1830 and I860, there was a more open mind on the subject. The paladins of the second British empire, the .secretaries and under-secretaries of the Colonial Office, debated the comparative merits of elected upper houses, nominated upper houses, and unicameral bodies composed of both elected and appointed members. Concern was repeatedly voiced about theimplica- tions of the choice for republicanism, radicalism, conservatism, and constitutional tradition. It was in this atmosphere that the decision was taken to replace the nominated upper house ofthe now United Canadas with an elected body to be introduced in stages (beginning in 1856, but not completed before Confederation). The raison d'etre of an upper chamber became more puzzling once responsible government had been achieved, for what had been sought during the 'struggle' - the Crown to accept advice from those who commanded the support of the popu- larly elected Assembly - had now been won. An upper house, and particularly an elected upper house, might challenge that monopoly by asserting some competing legitimacy.Yetbicameralism, in fact if not in philosophy, remained an integral part of the constitution.48 Everywhere but in the United States, it would appear, the story of second chambers is one of dissatisfaction. On all sides critics claim to want change. The Canadian Senate may be unusual in terms of its composition (unique among advanced democracies if the United King- dom adopts the recommendations of the royal commission on Lords' reform), but Canadians are not alone in desiring an improvement in the structure and operation of their upper house. For this reason, the next chapter will place Canada's bicameral parliament in comparative per- spective. Becauseofhistorical,cultural, and constitutional parallels, the salient exemplars are the United States, Great Britain, and Australia. But since the Inter-Parliamentary Union in 1996 found fifty-eight of 178 parliamentary democracies to be bicameral, the latitude for comparison is wide indeed. Arguably,Ireland, despite its unitary system (minus the six counties of the North) and turbulent constitutional history, offers enlightenment about some of the problems associated with bicameral- ism. In the decades leading up to the republic in 1949, the Irish, more than any other people of the Commonwealth, debated questions of constitutional theory and practice, and the institutional forms required to implement them. If ever there was a country that seemed to have no need for a second chamber,it was Ireland, whose Dail Eireann from the start acted as a constituent assembly and thereafter displayed what one writer described as 'imperfect sympathy' for the Senate (Seanad
- 35. 18 The Canadian Senate in Bicameral Perspective Eireann).49 A review of the Irish constitution in 1996 observes that 'the primary issue, of course, is whether Seanad Eireann should continue to exist in any form, an issue which ... has been discussed inconclusively in the past.'50 At one point during that inconclusive debate Eamon de Valera, the founder of modern Ireland and a president of the republic after 1949, concluded that 'an ideal Senate was not... possible.'51 In that comment may rest Ireland's principal contribution to Cana- da's bicameral quandary. Not only is an ideal not possible, but in all likelihood it is unknowable. Or, even where there is substantial agree- ment on the purpose of a second chamber, no assurance that that understanding will be permanent. It is a matter of some importance to explain why today, but not for most of Canada's history, 'regional representation ... [is] virtually the universal preoccupation of [Senate] reformers.'52 The preoccupation of reformers is more specific still: it focuses on neither sectional nor regional but rather provincial interests defined by territory and articulated by provincially appointed or peri- odically elected senators. It is a long reach from saying that 'primarily, the role of the Senate [in 1867]was to give the federal principle its place in the Parliament of Canada' to maintaining that 'one of the dysfunc- tional features of Canadian parliamentary democracy is that the prov- inces have cometo exercise a regional role that should more properly be exercised by the Senate.'53 The transformation of the Senate from a federal into a provincial body, or at least the ease with which this new interpretation of its purpose has taken the field, reveals much about the nature of modern Canadian politics. At the same time, the idea behind the concept of recasting one of Parliament's chambers into a house of the provinces raises theoretical and practical concerns. Is the primary function of upper houses in federal systems to represent and articulate the interests of those jurisdictions? And even if the answer to that question is yes, who determines what these interests are? The vocabularyof reformers who want to make the Senate more sensitive to provincial issues sug- gests that they are willing to limit the independence ofsenators. Aswill be seen in later chapters, this argument is both more complex and less provincial-centric than these few sentences suggest. Nonetheless, they indicate a shift in perspective on the purpose of Parliament's upper house. Whatever the criticism voiced about the way senators are selected by the prime minister, whatever the unhappiness manifested at a partisan upper chamber that almost totally excludes anyone who is not identi-
- 36. Bicameralism: A Concept in Search of a Theory 19 fied with the country's two old parties, the Senate was at its inception, and for many still is, a national institution. That was how thechamber was viewed by Australian politicians who had reason to examine it closely in the 1890s. The politicians of Australia and New Zealand convened four times during the 1890s to discuss the terms of federation for the eventual Commonwealth.54 A primary theme running through the convention debates is the structure of the new upper house. Was it to be a states' house and, if so, how constructed? The Australian founders were gen- erally well informed about North America's two federal systems, with the result that a subsidiary theme on the comparative advantages ofthe Canadian and American federal systems weaves its way through the debate. It would be only a slight exaggeration to say that the federal arrangement ofthe United Stateswon the contesthands down.Andrew Inglis Clark, whose name is immortalized in the Hare-Clark systemof proportional representation, isolated the crucialweakness of the Cana- dian arrangement as far asmost Australians wereconcerned: 'In Canada they have only one system.Canada is what may practicallybe calleda unified community.'55 Speaking only a few months before the deathof Sir John A. Macdonald, Clark was less impressed than some of his fellow delegates at Canada's political stability as represented by the old man's long tenure in office: 'When we know that he has the powerof nominating every member of the senate [etc.] ... his term of office is easily accountedfor. With such reins in his hands he might beexpected to remain in the saddle an indefinite term.'56 (Macdonald was the first of several prime ministers to hold office for extraordinarily long peri- ods of time compared to leaders in Australia or Great Britain.) The relationship betweenprimeministerial tenure and the compositionand operation of the second chamber is a subjectfor later examination. Clark's opinion was not his alone. At a session of the second confer- ence, Isaac Isaacs, then attorney general of Victoria but later the first native-born Australianto be named governor general in 1931,expressed a more nuanced appreciation ofCanada's federativearrangement: 'I do not understand that sentiment that Canada has no Federation ... It is a Federation upon the centralising principle, just as the United States isa Federation on the decentralisation principle, the principle I hope we shall follow.'57 However, there could be no following the Canadian model, even though it, like Australia, was a federal parliamentary monarchy, because the delegates were committed to having a Parlia- ment of two chambers of near equal powers - a house of the people to
- 37. 20 The CanadianSenate in Bicameral Perspective which the government was accountable, and a house of the states. At one level the Australian debate was about institutional design, but at another it was about the shape of the new nation. Structures matter at the beginning because they are part ofan interpretive order that makes a constitution coherent. It is one of the weaknesses of today's Canadian Senate that it is not seen to contribute to the constitution's coherency. To the outsider, the unification of Australia seems to have been inevitable - a nation for a continent, a continent for a nation. Such was never the casewith Canada's federation,could (notwould)itbe brought about? Canada was created, and the confidence for that undertaking had to be encouraged, said one Australian delegate: 'Canadians have had [the idea of unity] preached to them, and inculcated in them since the time of Lord Durham, but which took a long time to bear fruit.'58 John A. Macdonald shared this view, and it explains his centralist policies, ranging from the protective tariff to establishing a federal franchise. But it also explained Macdonald's support for those features of the Senate that today spark criticism. The purpose of the Senate, according to long-time member Arthur Roebuck, was to perform a unifying function, and its success in this task depended upon its mem- bers not being elected by a constituency,however defined.59 Following the close results in the Quebec referendum of October 1995, calls were heard 'to makefederal organs such as the Senatemorerepresentativeof the linguistic duality of Canada, the regions, the provinces, and the Aboriginal Peoples.'60 It is never clear what such pleas imply.Assum- ing, as is the case with the Canadian Senate, some upper limit to membership, what can being 'more representative of the linguistic duality of Canada' mean? Less representative of some other Canadian feature? And which feature? Towhat extent should 'features' be partof this discussion at all? The Roebuckway is to see the Senate as representative of no faction or territory but of the whole community. Because of the nature of its appointment and because it has no constituency base, as does the House of Commons, the Senate is better situated to offer a national outlook. Yetthat national perspective must be qualified; the Supreme Court of Canada said in its 1980 advisory opinion on the government's authority to amend those provisions of the Constitution relating to the Senate unilaterally, that the smaller provinces only consented to Con- federation on the understanding that there would be a regional upper house.61 In this respect the Senate helped define, and this book will argue is still capable of defining, Canada's all-embracing identity.
- 38. Bicameralism: A Concept in Searchof a Theory 21 Albert Breton has written extensively on what he calls the 'vertical competition' that exists between the federal and provincial (state) gov- ernments in federations. In this arrangement upper chambers have a crucial role to play in monitoring competition, and Breton attributes to Canada's Supreme Court in 1980 'a profound understanding of federal- ism.'62 Still, to speak of the Senate in this way risks reifying an institu- tion composed of human beings, treating it as a monolith, when in fact it is the individual voices of senators that are heard speaking on behalf of minority or sectional concerns. And it is the labour of individual senators that constitutes the chamber's legislative contribution at the same time as it illuminates Arthur Meighen's description of the Senate as 'a workshop and not a theatre.'63
- 39. Chapter Two Bicameral Perspectives Australia In the minds of Canadian reformers, the Australian Senate is every- thing they want in an upper house. It was the first popularly elected second chamber in the world, coming more than a decade before the seventeenth amendment, to provide for the direct election of senators, was adopted in the United States in 1913. It was equal - originally having six,now twelve, senators per state with the NorthernTerritory and the Australian Capital Territory having one apiece. And it was effective; while the meaning of the word may be open to interpretation, there isno question that the AustralianSenatecan stop a government in its policy tracks and force a compromise. It can even, indirectly,dis- lodge a government, as happened in 1975, when the Senate blocked passage ofsupply, thus preventing the government from carryingon its work. In consequence, the governor general dismissed the prime minis- ter and appointed as his successor someone who did not enjoy the confidence of the lower house. A dissolution quickly followed.1 Here effectiveness lay in the eye of the beholder, since some saw the Senate's action as destructive. The events of 1975 gave rise to prolonged and intense constitutional debate. The Australian Constitutional Convention of the 1970s, the Constitutional Commission of the 1980s, and the ConstitutionalCon- vention convened in February 1998to debate the terms of areferendum on a republican option, have all confronted but failed to resolve the uncertainties that attend the government's dismissal or tests ofparlia- mentary confidence; nor did they agree on means of strengthening responsible government or limiting opportunities for Senate blockage
- 40. Bicameral Perspectives 23 of money bills.2 At first glance, these questions appear to go far beyond conventional interpretations of the meaning of bicameralism. For one thing, they speak of matters that transcend the customary tripartite separation ofinstitutions into executive,legislative and judicial branches of government. Yet,in a system of government based on the Britishor Westminster model, where the functional executive is drawn from, sits in, and is responsible to the legislature, the concept of separation itself is somewhat inapt. But only somewhat, since a study of second cham- bers in bicamerallegislatures looks at that aspect of the legislature least likely to overlap with the executive.Even in Australia,and certainly in Canada and Great Britain, fewer members of the upper than the lower house enter the executive, while that executive by popular agreement and by constitutional convention isexpectedto control the lower house. In the bicameral parliaments of the old Commonwealth countries, the upper chambers swing both ways: they may be considered outside and, to some extent, distant from the political fray, but they may alsobe viewed as part of it, if only because all upper chambers are partisan institutions. For this reason, it misrepresents their role to label them as institutions of federalism, or of legislation, or of review.They may be all of these and more, and it is for this reason that in the Westminster tradition bicameralism and the operation of the constitution areclosely interwoven. Nowhere is this so apparent as in Australia, who deliber- ately undertook to marry American ideas of separation with British practices of executive dominance. Sir Samuel Griffith, later the Com- monwealth's first chief justice, recognized early the unprecedented nature of the project: 'It is absolutely new to us in the British empire, that every law shall receive the assent of a majority of the people, as well as a majority of the states.'3 Australia's founding fathers set out to create an upper house, co- equal with the lower, in which the states would be represented. Here the federal principle would be institutionalized. It is no slight on this invention to note parallels with the United States Senate or the exten- sive discussion of the American model that preceded its adoption. At the same time, it is important to recallthe originality ofthe undertaking in light of the political tradition with which the convention delegates were most familiar - that is, the bicameralarrangement of the United Kingdom Parliament. The very year of the first Australian convention on federation (1891) witnessed a heightening of debate in Britainon the 'House of Lords question.'4 What role was the Lords to have and, depending upon the answer to that question, what was to be its rela-
- 41. 24 The Canadian Senate in Bicameral Perspective tionship to the House of Commons? Another two decades were re- quired before a partial answer was forthcoming in the ParliamentAct, 1911, and nearly a century before the royal commission report on a reconstituted House ofLords in 1999. Thus, at the time the delegates in Sydney and, later,Adelaide and Melbourne were meeting, there was no consensus on the model the Lords provided, except in this respect: the chamber had entered upon an era of prolonged decline as a legislative institution. For Australians embarking upon a new constitutional ven- ture that sought chambers of equal status, the Lords were inimitable: '[W]e must here deviate from the British Constitution and give the Senate powers which have ceased practicallyto belong to the House of Lords for a long period. We know well that for some time past the House of Lords has given up any pretence to financial control, any pretence to amending the Appropriation Bill... any pretence to amend- ing a Taxation Bill.'5 Interpreters in Britain were unanimous that, notwithstanding the law, the conventions of the constitution allowed the Lords a delaying function only. The will of the people, expressed more forcefully with each extension of the franchise (1832,1867 and 1885), had drowned out the aristocratic voice. Or so it seemed before the budget crisis of 1909. The diverging paths of constitutional development in London and in a unifying Australia drove some colonial delegates to imagine the unim- aginable: Is thecommonly called responsible government system - the Cabinet system - consistent with true Federation?'6 Here wasthesource of every major problem to confront the delegates - that is, 'the financial problem, the basis of state representation in the Senate, the power of the Senate with regard to money bills, and the insertion of a provision for deadlocks.'7 If equal representation in the Senate was viewed as compensatory treatment for unequal representation in the House of Representatives, because already the bulk of Australia's population congregated in the southeastern states ofVictoria and New SouthWales, then that compensation had to be respected, especially when money was the issue. Otherwise majoritarianism would win the day every time. Yet, as is repeatedly demonstrated throughout the Convention de- bates in Australia, there was reluctance to confront the contradiction or even to articulateits essence: was coordinate authority to prevail or was government responsible to one chamber? The will of the people, ex- pressed through lower house elections, was more representative than that expressed through upper house elections, if only because there
- 42. Bicameral Perspectives 25 were twice as many representatives as senators. Nor did the American example always fit, and never less so than when the upper house was depicted as a check on popular legislation. In America, noted one Australian critic, '[federation cannot exist, co-ordinate houses cannot exist and work together unless they both recognize [and yield to] the sovereignty of the people/8 Thus, on one hand the argument posited that the essence of federal- ism lay in two houses, on the other hand that the essence of responsible government implied a single chamber. The issue turned on the power of the upper house to amend moneybills. In no instance ofa 'consolida- tion constitution of the British type, [was] the power of amending money bills given to the upper house/9 Thetension between these two positions runs throughout the decade-long discussion of Australian federation. Finessed, disguised, depreciated, it never disappears. In fact, the incompatibility of the parliamentary and congressional norms at play in these discussions becomesentrenched in the resolution ofone of the great problems to confront the delegates - what to do in case of deadlock between the two chambers. In Britain this dilemma ultimately was resolved by confining the Lords to a suspensive (or delaying) veto. Before 1911 the solution lay in the threat by government to advise the sovereign to create a sufficient number ofpeers to swamp opposition in the upper house. Limitingthe Senate was not appropriate for Australia, a federation whose bargain respected the states through the Senate: 'It would require plain lan- guage in a bicameral legislative system to provide that on some occa- sions the federal Parliamentshould operateas aunicameral institution/10 Instead of lapsing into unicameralism in the face of disagreement, section 57of the Australianconstitution sets out an 'ingenious' method for solving deadlocks.11 The ingredients of that method weresimulta- neous dissolution (of both houses of Parliament) followed by a joint sitting. The stages of resolution are easier to describe than the instance in which they might be applied. The criteria of what constitutes a deadlock have proved contentious, since the essence of parliamentary business is conflict and opposition. From the perspective of bicameralism,the key issue is the weight to be given the respective chambers in securing a resolution to deadlock. One of the most important provisions of Australian bicameralism is section 24,the nexusprovision ofthe constitution,which states that 'the number of [House of Representatives] members shall be, as nearly as practicable, twice the number of the senators/ In 1901 the relevant
- 43. 26 The CanadianSenate in Bicameral Perspective numbers were seventy-five and thirty-six; a century later, they are148 and seventy-six. In later chapters of this book, there will be reason to return to the nexus provision; for the moment section 24is noteworthy because of the respect it signals for the Senate. Whatever governments may think of the Senate's behaviour and whatever constraints the Senate places on executive autonomy, the Australian second chamber enjoys a protection that neither its Britishnor its Canadian counterparts have. Most observers of the Australian constitution are aware of its un- British provision for a referendum in the amending process. They are also aware that the constitution came into force in 1901, following endorsement by the voters in the colonies. In that light, it is significant that the deadlock clause avoids the use of a referendum. The proposal to use a referendum was made at the federationconvention but rejected on the grounds that such a general vote posed a threat to small states, while a so-called dual referendum (as occurs in the amendment proce- dure which requires support from a majority of the popular vote and a majority of the states) might be inconclusive. This concern has been borne out since 1901by the large number ofproposed amendments that have gone down to defeat before the double hurdle. Much more than the Canadian Fathers ofConfederation, the Austral- ian founders 'thought bicameral thoughts and adopted bicameralprin- ciples.'12 It is a characteristic even more evident inAustralia today.The convention delegates of the 1890s thought of the Senate as a states house devoted to protecting states rights. They did not anticipate, anymore than did the Founding Fathers at Philadelphia, the rise and extension of national political parties to the states. In time theAustral- ian Senate became no more a states house than did the United States Senate. The transformation that parties wrought on the Senate, thanks to the plurality and then alternative voting systems in place up to 1949, has already been noted. Withthe introduction ofproportional represen- tation that year, on the occasion of the first enlargement since 1901of the House of Representatives (and, thanks to the nexus, also the Sen- ate), the influence of partisanism on the Senate continued but, after a brief period of quiescence, significantly changed. The result, say some observers, is 'a regime change,' with minor parties holding the balance of power for over thirty of the last forty-five years. As a result, the Senate has become the forum for expressing minority interests but with this distinctiveness: '[T]he womens, environment, gay, Aboriginal,con-
- 44. Bicameral Perspectives 27 sumer, multi-cultural... movements are all organised independently of the major parties/13 Following this line ofargument, the Senate in Australia has becomea house of minorities whose primary concern is to broker interests that go un- or under-represented in the lower house. Passage ofthe Howard government's GST legislation in June 1999 depended upon support from the leader of the Australian Democrats in the Senate. In addition to winning a GST exemption for food, the Democrats won a govern- ment commitment to increase social benefit spending. Some observers have said that the Senate has yet to define its role in Australian politics. That may be true from where Australians stand, but from the vantage point ofan outsider what is significant is that the Senate is not now, nor has ever been, the states' house so dear to federal theorists. Nor, ifstates rights was the objective,was the introduction ofproportional represen- tation in 1949 the solution, since it did 'nothing to keep state delega- tions cohesive.'14 Reminiscent of the Charter in Canada, the Senate is viewed as a forum that articulates and authoritates multiple interests whose com- mon characteristic is their lack of a territorial base. More than that, the Senate, especially in its modern transmutation, is cited as confirmation of 'Australia's indigenous experience of government ... enshrined in such institutions as bicameralism, federalism and entrenched constitu- tions/15 Others go further and see 'Australia a constitutional hybrid ... thanks in no small part to its vigorous bicameralism/16 Not everyone agrees. Critics of the 'Washminster' interpretation point out that Aus- tralia's government isresponsible to the lower chamber,its leader and a majority of its members come from that chamber, and legislative initia- tive overwhelmingly rests with that government and chamber.17 They also posit an alternative explanation for the appearance of an upper house of co-equal power with the lower house: the experience convention delegates had with colonial legislative councils who pos- sessed similar powers. In the last half of the nineteenth century,colo- nies such as Queensland, Victoriaand SouthAustraliadebated whether their upper houses 'should be guided by the convention rule against amending [or rejecting] money bills which the House of Lords had accepted in the United Kingdom/ It was out of these disputes that the distinctive Australian provision that allows the upper house to request amendments (section 53,Constitution Act 1900)originates.18 Formally, the legislative powers of the Senate in Canberra are no
- 45. 28 The Canadian Senate in Bicameral Perspective different from those of the Senate in Ottawa. In neither (nor in the Senate in Washington) can financial bills be initiated; in fact, the Aus- tralian Senate (but not the Canadian) is limited to requesting amend- ments to financial bills. Notwithstanding what the constitution says, in practice, because the Australian body is popularly elected, there is among its members a greater perceived sense of independence than is found in Ottawa among appointed senators.19 TheAustralian Senate remains a partisan body: the large majority of its members are of the Labor and Liberal-National parties and those with career ambitions accept the party whip imposed according to the calculations of the government and its opponents in the lower house. That being said, there is a sense of drama in the upper house that arises from the uncertainty of its politics, the lack of agreement on its role, and the absence of controlling figures like the prime minister and the leader of the opposition. A comparative study of print media coverage of the Senates in Canberra and Ottawa would bear out the greater attention the Australian press pay to the upper house of their Parliament. Thus, compared with the Canadian upper house, the Australian Senate is close to the centre of political interest and speculation. In the last decade it has become the cynosure of academic interest, much as the Charterhas in Canada. And, as in Canada, where an active schoolof thought raises alarms at the influence of the Charter on political prac- tice, so a proportion of commentary in Australia deals with concerns about the destabilizing effect of nearly balanced legislative chambers in a Westminster parliamentary system. These concerns should have par- ticular interest for Canadians who advocate institutional reform along Australian lines. Putting aside the question of the composition of a revised Canadian Senate and assuming for the moment that the upper house acquired a measure of the legitimacy its critics say it currently lacks, what issues might confront the Senate? Using Australia as a guide, one major con- cern is the question of the mandate: could one expect to see senators assert 'a counter-mandate to justify resistance to the government's mandate?' Or, given the prevalence and persistence of partisanism, could one expect to see a 'clash of mandates' within the Senate?20 Could the Senate, or some of its members, agree that it was their job to see that the government abided by its promises?21 On rare occasions the Canadian Senate has interpreted its review function narrowly, as when it has criticized specific government policy on grounds of omis- sion or commission. Todate, it is exceptional for the Senate to see itself
- 46. Bicameral Perspectives 29 as a 'partner in policy making'; it is even unusual to see it overtlyclaim the role of 'agent of accountability/ In Australia, however, these are live questions that stem directly from a situation where each house of Parliament has - and is understood to have - equal power over the legislative process. A second concern originates in the non-simultaneous election of the two houses of the Australian Parliament. Not only are there different terms, which only coincide in the unusual event of a double dissolution and simultaneous election for both houses, but different electoral sys- tems are used for each house - a PRlist system with the state as a single unit for the Senate and a preferential ballot for the House, to determine the outcome in individual constituencies. The effect is to separate the parts of the bicameral system. While it is true that the nexus provision is a countervailing, that is a uniting, force, in general Australia's consti- tution works to promote independence between the two chambers. Is this a problem, and could it happen in Canada if both houses were elected without concern being given to linkage? The answer to both questions is yes. The events of 1975demonstrate that, in certain circum- stances, the Senate can bring about the defeat of a government and perhaps even the dissolution of the lower house if the resulting dead- lock between the chambers is not resolved. The ultimate power of resolution lies with the governor general's prerogative to summon new advisers or dissolve the lower house. The Crown is one part of a tripartite parliament and in those situations where the conventions of responsible government fail to obtain, it alone possesses the power to restore harmony. Butthe Crown exercises its prerogative on advice that is partisan. It is one of the most important, though least observed, features of political life in the United States that all elections are held simultane- ously. Canadians, but not Australians, take this for granted. In 1988 the Constitutional Commission ofAustralia recommended that the maximum term for the House of Representatives be raised to four years, and that Senators should serve for two terms of the House of Representatives, with one half retiring at eachelection, save in the case ofa double dissolution ... [T]heHouse ofRepresentatives... should ordinarily serve a minimum of at least three years and should only be dissolved in less than three years if the Prime Minister loses a vote of confidence. During the three year minimumterm, the Senate would lose its power to reject money bills.22
- 47. 30 The CanadianSenatein BicameralPerspective Bicameralism in Australia, and by inference in Canada, is a matter not only of composition and power, it is also intimately tied to ques- tions about the use of the Senate's veto, the implications of votes of confidence in the lower house, terms of Parliament, the definition of money bills, and the exercise of the Crown's prerogatives to dissolve Parliament and dismiss governments. Few political subjectscould be as structural in appearance yet as influenced by process as bicameralism. Australia's contribution to the study of bicameralismlies in its intent,if not success, in adapting the practices of Westminster-style government to a non-executive dominated Parliament. Great Britain The history of bicameralism in central Canada begins with the creation of two-chambered legislatures for Upper and Lower Canada by the Constitutional Act, 1791. Whatever theory of stability and balance lay behind this arrangement of legislative powers in company with the Crown's representative, the councils were from the outset 'the weak part of the constitution.' That was the opinion of the colonial secretary (Earl Grey) in 1849, even before the achievement of responsible govern- ment whose central principle of accountability to the peoples' elected representatives awarded primacy to the lower house. Grey was corre- sponding with the governor general, Lord Elgin, who, in reply, echoed his political master's view. In his opinion, the councils were 'worse than useless,' since they brought criticism upon themselves if they resisted the popular branch and upon the Crown if new appointments were made in order to manufactureharmony. In what was to becomea pronounced Canadian trait in the discussion of upper house matters, the source of grievance arose as much from comparison with the prac- tice of upper chambers elsewhere as it did from the behaviour of the local councils themselves. According to Lord Elgin, 'an inexhaustible fund of declamation and denuntiation [sic] is supplied by analogies sought in the BritishHouse of Peers. Analogies which are utterly faulty, but satisfactory enough to people in a passion.'23 Analogies with the House of Lords were singularly inapt then or later, once Confederation was achieved. For a start, there was no aristo- cratic class from which to make appointments; and as long as British honours were awarded to Canadians (until 1919, with a brief return in the early 1930s), they displaced political appointments as desired pre- ferment.24 Second, Canada was a federation, and Great Britain, despite
- 48. Bicameral Perspectives 31 flirtation with federal solutions to the Irish problem, a unitary system. More than that, the Canadian Senate was a chamber designed to re- spond to the country's regional and sectional interests; the House of Lords was not hostile to diversity, even where, as with the Irish and Scottish peers, there was a territorial base, but that in no way made it federal. Third, because the Senate was a body whose job it was to protect territorially-based interests, its membership was capped. Had the Canadian prime minister shared with the Britishprime minister the right to advise the use of the sovereign's prerogative to create new members as he saw fit, the federal bargain, which had occupied so much of the Fathers of Confederations' time at Quebec City, would have been no guarantee of protection to the smaller provinces. Fourth, the Canadian Parliament,contraryto the constitution's preamble which spoke of Canada having 'a Constitution similar in principle to that of the United Kingdom,' was fundamentally different from the British Parliament in that it was not a body supreme over all others. The Canadian Parliament and the provincial legislatures experienced acon- dition the Parliament at Westminsterdid not encounter until it entered the European Union - limited power and subordination. Lastly, the Canadian Senate differed from the House of Lords in one respect vital to any discussion ofbicameralism:the Senate never acknowledged that it must yield when it and the Commons disagreed on legislation or supply. From the 1860s onward, the Lords' subordination to the Com- mons at Westminster was customarily asserted and, except for the crisis of 1909-10, generally prevailed. The ParliamentAct, 1911, transformed custom into statutory law.At no timein its historywould it be correctto say that the Senate of Canada agreed to accept a role constitutionally inferior to that granted the lower house, exceptfor the power to initiate financial bills. This did not mean that the Canadian Senate acted hastily or aggressively, only that its circumspection in dealings with the Com- mons was self- not constitutionally-imposed. Yet the claim is still made that Canada's 'bicameral legislature ... was closely modelled on its Britishparent.'25 This, despite the fact that the House of Lords was, in KeithJackson's words, 'essentially a-typical.'26 Paradoxically, more than a century after confederation, the recommen- dations of the royal commission on Lords reform will make the 'transi- tional, UK upper house ... very similar' to the Canadian Senate.27 The similarity these comments refer to is limited to the composition of the two houses, and then only to the original lifetime tenure of Canadian senators (since 1965, the retirement age is seventy-five) and to the
- 49. 32 The CanadianSenate in BicameralPerspective nature of their appointment, by the Crown on recommendation of the prime minister. Yetthere have always been significant differences be- tween the two upper houses, even within these selected areas. With two exceptions, the House of Lords was a hereditary body until the arrival of life peers in 1958. These exceptions were the law lords (the twelve Lords of Appeal in Ordinary, first appointed as life peers under the Appellate Jurisdiction Act, 1876) and the archbishops (Canterbury and York) and bishops (London, Durham, and Winchester plus twenty- one other senior diocesan bishops of the Church of England),the latter of whom cease to be members of the Lords on retirement from their bishoprics.28 The Canadian Senate never played a functionalrole in the administration of law or a symbolic role in the practiceof religion.29 Another feature of the Lords that distinguishes it from the Canada's upper house is its size. At the end of the twentieth century but before the beginning of reform, the Lords had 1,210 members, 60 percent of whom were peers by succession and the remainder life peers. Ofpar- ticular note is its exponential growth during the last century. At the time of the Parliament Act, 1911, there were only approximately six hundred peers, but the sale of peerages in the Lloyd George era a decade later vastly enlarged the number. Thus, while it would be diffi- cult to prove a connection, the fact remains that the Lords grew in numbers as its constitutional powers declined.30 Harry Evans, clerk of the Senate of Australia, claims that the separa- tion of powers into executive, legislative and judicialbranches and the division of powers associated with federalism interact in Australia to create a sense of constitutionalism and a belief in the need to limit state power in order to promote individual liberty.31 Whether or not Aus- tralia is the political equivalent of Darwin's Galapagos, whose flora and fauna isolation and time had allowed to develop independently of outside influence, the fact remains that ideas of government in Aus- tralia deviated from the British model. As seen earlier, Australian be- liefs in balance and separation displaced 'the good old constitutional method of fighting it out at the polls.'32 Thus, from before the creation of the Commonwealth, the Australian conception of constitutionalism was unBritish. This contrast was evident in the views each held of the proper relationship between upper and lower houses of Parliament. In British eyes in the 1890s, as in the 1990s, Parliament should be seen not as the sum of its parts but as a whole. And as a single organism, the duty of the upper house was to yield to the lower house. In a discussion of the franchise during the conventions in Australia,
- 50. Bicameral Perspectives 33 one delegate (HenryDobson ofTasmania)recalled a commentby George Eliot to the effect that 'England is a country very much governed by phrases.'33 In the matter ofthe Lords' relationship to the Commons, the governing phrase is the single word 'complementary' and its varia- tions. Thus, the second chamber should not be 'a fully bicameral' body that could force its will on the lower chamber. As well, 'the second chamber should not be given additional powers in respect of constitu- tional issues/ nor should its powers be increased 'in respect of any particular category of legislation.' The upper house must not rival the lower house; deference not defiance is to be its demeanour. The second chamber should have the confidence to make the government and the House of Commons think again about an issue, but it should not oppose them when their views are 'clearly expressed' or when they advance legislation in response to an election commitment. This last consideration, the so-called Salisbury Convention with roots in the late nineteenth century, depends for its authority on the premise that sover- eignty lies with the people manifested in Parliament through the House of Commons chosen by the electorate. This is the same reasoning that supports a suspensory rather than an absolute veto. If the report on the reform of the House of Lords can be said to embrace an elemental political theory, then it is this: 'the House of Commons is the pre-eminent political forum.' In fairness, the commis- sioners had this theory thrust upon them by the opening words of their terms of reference, which enjoined them to have 'regard to the need to maintain the position of the House of Commons as the pre-eminent Chamber of parliament .../34 The Senate in Canberra is an important measure of the values of the Australian political system. In a word, they concern accountability, especially of the executive to the legislature. Similarly, the House of Lords may be seen as an index of the British political system. In this instance, however, the history of the Lords for well over a century reveals an opposing value; the first duty of a second chamber is to support the executivethat commands the Commons. In Britain,there is no sense of the constitution separate from Parliament; Parliament is a true constituent body. Bycontrast, the Australian Parliament shares in constitutional change with the people, as provided for in the amending provisions set out in section 128 of the constitution. Another way of looking at the difference between the two is to view Australia as a system of 'distributed majorities/ and thus analogous to the 'compet- ing legitimacies' provided by the presidency, Congress, the courts, and
- 51. 34 The Canadian Senate in Bicameral Perspective voters in the United States constitution, while in Britain parliamentary sovereignty treats as foreign the premise of accountability to any exter- nal body.35 For the past century and a quarter, the House of Lords has fallen into that external category:'One of the direct results ofthe growth of modern political parties in the late nineteenth century was the devel- opment of a House of Lords question.'36 The 'question' was the belief that, following mass adult male suf- frage, the lower chamber was the house of the people and the upper chamber, the preserve ofhereditary privileges, its opponent. Thatprob- lem was compounded by the partisan imbalance in the second cham- ber, which saw Conservative peers vastly outnumber Liberal peers. The House of Lords question might be the offspring of mass democracy,but its resolution, through curtailment of the Lords' veto power, was the product of minor party pressure. After the Lords rejected the Asquith government's budget in 1909- an action the prime minister labelled 'a breach of the Constitution and an usurpation of the rights of the Com- mons' - the government went to the people in 1910 and emerged with the slimmest of majorities.37 Topass the budget through the Commons now required support from the MPs of the emerging Labourparty and, most crucially, from the seventy-one Irish Nationalists. 'Irish support,' says John Fair, 'was contingent mainly on the provision of assurances by the government for a delimitation of the Lords' veto which might ensure and expedite the passage of home rule.'38 It would be not much of an exaggeration to say that the prospect of Irish Home Rule drove the events that led to the Parliament Act, 1911, and adoption of the suspensive veto. The events surrounding adoption of the suspensive veto are impor- tant to an understanding of bicameralism, and not only because they signalled the conclusion in the shift of constitutional power that had begun with patronage reforms even before the great Reform Act of 1832. Debate over schemes to limit the legislative power of the Lords raised issues endemic to the study ofbicameralism. First, there was the question ofhow to curtail the Lords. The plan eventually adopted (and as modified in 1949)provides that 'a non-money Bill can be passed into law over the opposition ofthe House of Lords if it has been passed by a simple majority in two consecutive sessions by the House of Commons and one year has elapsed between the second reading of the Bill in the Commons in the first session and its third reading in the Commons in the second session.'39 This was essentially the scheme of Sir Henry Campbell-Bannnerman, Asquith's predecessor as prime minister and
- 52. Bicameral Perspectives 35 Liberal leader, with one significant difference: Campbell-Bannerman had envisioned the time period as a single session of Parliament. The effect ofthe narrow period was that 'it practically abolished the legisla- tive power of the house of lords.'40 But by the time the Lords rejected the 1909 budget,Asquith was leader. Initially, he had favoured a differ- ent scheme to check the power of the upper house. Its core idea was to place a disputed measure before a joint vote of the House of Commons and a delegation of one hundred from the Lords. The scheme was more complicated than this suggests but its central weakness is clear enough - it did not change the House ofLords. By contrast, the suspensive veto permanently altered the constitutional balance ofparliamentary power. There was more to the suspensive veto scheme than this, however. First, the Parliament Act, 1911, reduced the life of parliaments from seven to five years. This was a concession to the Lords, for the introduc- tion of the suspensive veto brought the British Parliament close to unicameralism and closer than in the past to a potential for arbitrary action. Interestingly, another argument for reducing the statutory lifeof Parliament lay in Liberal fears that seven-year parliaments together with a weakened Lords would lead the opposition to press for an equally unprecedented recourse - thereferendum. Second, unsuccess- ful attempts were made by the opposition 'during the committee stages of the Parliament Bill in 1911 ... to insert a requirement of a qualified majority vote in the House of Commons before it could override the veto of the Lords.'41 No doubt it was to be expected that the Asquith government would resist such a change, since it limited its or any government's freedom. Butthere was a second consideration, the same one that had prompted a Parliament Act in the first place: the imbal- ance in Parliament between the Unionists (Conservatives) and their increasingly fragmented Liberal, Labour, and Irish Nationalist oppo- nents. There is more to be said about the qualified or supermajority, since one ofits effects is the same asbicameralism, that is 'to slow down the pace at which decisions are taken/ Had the override of the Lords' veto been made subject to a qualified majority vote in the Commons, then the Lords might well have been perceived as strengthened rather than curtailed by the reform. In addition to joint sittings and to a short-term veto on legislation, there was a third proposal to handle intercameral disagreement. While it failed to win support, it bears features familiar to Canadians. The idea was to designate organic from ordinary legislation, and to devise special safeguards for the former; in other words, differentiated con-
- 53. 36 The Canadian Senate in Bicameral Perspective stitutional treatment. Once again, that would have run counter to the belief in parliamentary sovereignty and the lower house as the superior chamber. Next to its hereditary foundation, the House of Lords has been most widely known among students of politics for the suspensive veto it may exercise over legislation coming from the House of Commons.42 The delaying function of a second chamber, so often cited as a proper role for an upper house in a parliamentary system, isperfectly encapsu- lated in the suspensive vote. Because of that sense of appropriateness, which belies the four-year struggle between 1907 and 1911 to secure its adoption, the suspensive veto has been assimilated into British parlia- mentary culture. Early in its report, the Royal Commission on Houseof Lords Reform recommends that 'the second chamber should continue to have a suspensory veto of the present length in respect of most primary legislation.'43 It is not necessarily a sign of its weakness that the Parliament Act has been implemented only five times in the last ninety years. Quite the reverse. There is a school of thought that believes that, absent an abso- lute veto, the Lords have greater potential to disrupt government legis- lativeplanning and, as aresult, governments aremore, not less, solicitous of the Lords' opinion. As a former Speaker of the House of Commons has observed, the Lords can ask the Commons 'to think again,' and in that request 'they have the constitutional clout to ensure that what they say is heard by the Government.' In this respect, it can be argued, the Lords are more powerful than the media.44 In light of what has been said about bicameralism in Britain, it is convenient to see the suspensive veto as a predictable outcome of the country's constitutional development. The democratization ofthe (male) franchise by 1885 broke the last of the Lords' constitutional moorings, which had definitely begun to fray in 1832. Of course, Canada experi- enced no similar constitutional development after 1867, and even if it had, there was no contradiction between the franchise and the upper house. What set Canada apart was that it was a federation of provinces from each of which the governor general appointed senators to consti- tute Parliament's upper chamber. Among their tasks was to protect sectional and minority interests. Here was the rationale for endowing the Senate with an absolute veto. And it should not be forgotten that there was a choice, since in the mind of The Economist, alternatives existed on the eve of confederation: '[WJould it not be expedient to allow a two-third vote of the Commons, if accepted by the Viceroy, and
- 54. Bicameral Perspectives 37 repeated in two succeeding Parliaments, to overbear the Senate? ... [W]hy not establish by law in Canada the practice which time and wisdom have created among ourselves?'45 Modern attitudes to the Senate's absolute veto power reveal a timid- ity foreign to the Fathers of Confederation. Even when it was still a predominantly hereditary body,the House of Lords with its suspensive veto was an example Canadian Senate reformers liked to invoke. The proposals for Senatereform that peppered the constitutional discussion of the last three decades of the twentieth century frequently displayed great willingness to trade an absolute for a suspensive veto. To the degree that a rationale was offered for this one-sided bargain, it gener- ally suggested that with reduced power would come legitimacy, a quality reformers of the Senate were united in maintaining the present Senate lacked.46 The United States The Australian Senate may charm some Canadian reformers today and the non-elected House of Lords may impress others as the original model for Canada's Senate that must now be abandoned,but whatever their respective merits, they pale in comparison to the influence the United States Senate has exercised over debate on Canada's upper house. Cautionisrequired when explaining the nature ofthis influence, for while there are frequent, even predictable, references to the Great Compromise at Philadelphia, which saw the Founding Fathers agree to a Congress composed of one chamber based on equal representation of the states and another on representation by population, it is rare that Canadian commentators examinethe bicameralarrangement thatcom- promise produced. Instead, attention is focused almost totally on the United States Senate and on the equal representation of each state regardless of population. Yet the importance of the compromise was not that each house had a different representational base but that both representational bases would co-exist within one legislature.47 Intercameral linkage of a different sort has already been observed in the nexus provision (section 24)of the Australian constitution. The one bicameral legislature barren of this type of connection is the British Parliament, for there the House of Lords had no representation func- tion. Indeed, the royal commission report of 1999recommended that in a reformed upper chamber up to 20 percent of its members should be elected (using some variant of proportional representation) from 'the
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- 56. CHAPTER XXI. The sudden death of John Bond caused an interruption in the lives of most of the people concerned in this history. George Wood had received one of those violent mental impressions from which men do not recover for many weeks. It was long before he could rid his dreams of the ever-repeated scene. When he closed his eyes the white sail of the little cutter rose before them, the sharp and sudden squall struck the canvas, and almost at the same instant he felt himself once more in the cool depths, struggling with a man already almost dead, striving with agonised determination to hold his breath, then abandoning the effort and losing consciousness, only to awake with a violent start and a short, smothered cry. Even Totty, who was not naturally nervous, was haunted by terrible visions in the night and was a little pale and subdued during a fortnight after the accident. Mamie wore a strange expression, which neither George nor her mother could understand. Her lips were often tightly set together as though in some desperate effort, in which her eyelids drooped and her fingers grasped convulsively whatever they held. She was living over again that awful moment when she had clutched what she had believed to be the dead body of the man she loved, and almost unaided, she knew not how, had dragged it into the boat. There was another instant, too, which recalled itself vividly to her memory, the one in which the reviving man had pronounced Constance’s name, and Constance had shown her triumph in her eyes. As often happens in such cases, both George and Mamie had been less exhausted on the evening of the fatal day than they had been
- 57. for several days afterwards. It was long before Mamie made any reference again to the first word he had spoken with returning consciousness. She often, indeed, stood gazing across the river, towards the scene of the tragedy and beyond the tall trees in the direction of the house that was hidden behind them, and George knew what was in her thoughts better than he could tell what was in his own. He had learned soon enough that he owed a large share of gratitude for the preservation of his life to Mamie herself. The young doctor who had done so much, had been to see him more than once and had repeated to him that if he had been left, even with his head above water, but without the immediate assistance necessary in such cases, during two or three minutes more, he would in all likelihood never have breathed again. The presence of a boat on the spot, and above all Mamie’s exhibition of an almost supernatural strength in getting George into the wherry, had really saved his life. Without her, the four men who had acted so promptly would have been helpless. Their own craft was adrift and empty, and they had been unable to right the cutter so as to make use of her, light as she was. The doctor did not fail to say the same thing to Mamie, complimenting her on her presence of mind and extraordinary energy in a way that brought the colour to her pale cheeks. George felt that a new tie bound him to his cousin. It was indeed impossible that where there was already so much genuine affection on the one side and so much devoted love on the other, such an accident should not increase both in a like proportion. Whether it were really true that Mamie had been the immediate means of saving George or not, the testimony was universally in favour of that opinion, and the girl herself was persuaded that without her help he would have perished. She had saved him at the moment of death, and she loved him ten times more passionately than before. As for him, he doubted his own power to reason in the matter. He had been fond of her before; he was devotedly attached to her now. His whole nature was full of gratitude and trust where she was concerned, and his relations with Constance Fearing began to take the appearance of an infidelity to Mamie. If he asked himself
- 58. whether he felt or could ever feel for his cousin what he had felt so strongly for Constance, the answer was plain enough. It was impossible. But if he put the matter differently he found a different response in his heart. If, thought he, the two young girls were drowning before his eyes, as John Bond and he had been drowning before theirs, and if it were only possible to save one, which should it be? In that imaginary moment that was so real from his recent experience, when he was swimming forward with all his might to reach the spot in time, would he have struck out to the right and saved Mamie, or would he have turned to the left and drawn Constance ashore? There was no hesitation. Mamie should have lived and Constance might have died, though he would have risked his own life a hundred times to help her after the first was safe, and though the thought of her death sent a sharp pain through his heart. Was he then in love with both? That was an impossibility, he thought, an absurdity that could never be a reality, the creation perhaps of some morbid story-maker, evolved without experience from the elaboration of imaginary circumstances. Since he had entered upon this frame of mind he had grown very cautious and reticent. He was playing with fire on both sides. That Mamie loved him with all her heart he now no longer doubted, and as for Constance, now that he had not seen her for some time and had found leisure to reflect upon her conduct, it seemed clear that the latter could not be explained upon any ordinary theory of friendship, and if so, she also loved him in her own strange way. He wished it had been easier to decide between the two, if he must decide at all. If there was to be no decision, he should lose no time in leaving the neighbourhood. To stay where he was would be to play a contemptibly irresponsible part. He was disturbing Constance’s peace of mind, and he was not sure that at any moment he might not do or say something that would make Mamie believe that he loved her. He owed too much to these two beings, about whom his strongest affections were centred, he could not and would not give either the one or the other a moment’s pain.
- 59. Totty was also not without her apprehensions in the matter. When she had somewhat recovered from the impression of the accident, she began to think it very odd that George should have been sitting alone with Constance under the trees on that Sunday afternoon. She remembered that he had disappeared mysteriously soon after luncheon, without saying anything of his intentions. She argued that he had certainly not met Constance by accident, and that if the meeting had been agreed upon the two must have met before. She knew that George had once loved the girl, and all she positively knew of the cause of the coldness between them was what she had learned from himself. She had undoubtedly refused him and he had been very angry, but that did not prevent his offering himself again, and did not by any means exclude the possibility of his being accepted. Totty was worldly-wise, and she understood young women of Constance’s type better than most of them understand themselves. They imagine that in refusing men they are temporarily, and by an act of their own volition, putting them back from the state of love to the state of devoted friendship, in order to discover whether they themselves are in earnest. Many men bear the treatment kindly and reappear at the expected time with their second declaration, are accepted, happily married and forgotten promptly by designing mothers. Occasionally a man appears who is like George Wood, who raves, storms, grows thin and refuses to speak to the heartless little flirt who has wrecked his existence, until, on a summer’s day he is unexpectedly forced into her society again, when he finds that he loves her still, tells her so and receives a kind answer, prompted by the fear of losing him altogether. The prospect was not a pleasant one. If at the present juncture Constance were to succeed in winning George back, Totty was capable of being roused to great and revengeful wrath. Hitherto she had not even thought of such a catastrophe as probable, but the discovery that the two had been spending a quiet afternoon together under the trees strangely altered the face of the situation. If, however, George still felt anything for the girl, Totty had not failed to see that she also had gained something by the accident. It was a
- 60. great point that Mamie should have saved George’s life, and the longer Mrs. Trimm thought of it, the more sure she became that he had owed his salvation to the young girl alone, and that the four gentlemen who had appeared so opportunely had only been accessories to her action. George must be hard-hearted indeed if he were not grateful, and the natural way of showing his gratitude should be to fall in love without delay. But George was an inscrutable being, as was sufficiently shown by his secretly meeting Constance. Totty wondered whether she ought not to give him a hint, to convey tactfully to him the information that Mamie was deeply in love, to let him know that he was welcome to marry her. She hesitated to do this, however, fearing lest George should take to flight. She knew better than any one that he had been more attracted by the comfort, the quiet and the luxury of her home than by Mamie, when he had consented to spend the summer under the roof, and though Mamie herself had now grown to be an attraction in his eyes, she did not believe that the girl had inspired in him anything like the sincere passion he had felt for Constance. Meanwhile those who had been most nearly affected by the calamity were passing through one of those periods of life upon which men and women afterwards look back with amazement, wondering how they could have borne so much without breaking under the strain. Grace was beside herself with grief. After the first few days of passionate weeping she regained some command over her actions, but the deep-seated, unrelenting pain, which no longer found vent in tears was harder to bear, inasmuch as it was more conscious of itself and of its own fearful proportions. For many days, the miserable woman never left her room, sitting from morning till evening in the same attitude, dry-eyed and motionless, gazing at the place where her dead husband had lain; and in that same place she lay all night, sleepless, waiting for the dawn, looking for the first grey light at the window, listening for his breathing, in the mad hope that it had all been but a dream which would vanish before the morning sun. Her heart would not break, her strong, well-balanced intelligence would
- 61. not give way, though she longed for death or madness to end her sufferings. At first Constance was always with her, but before long she understood that the strong woman preferred to be alone. All that could be done was to insist upon her taking food at regular intervals and to pray that her state might soon change. Once or twice Constance urged her to leave the place and to allow herself to be taken to the city, to the seaside, abroad, anywhere away from everything that reminded her of the past. But Grace stared at her with coldly wondering eyes. “It is all I have left—the memory,” she said, and relapsed into silence. Constance consulted physicians without her sister’s knowledge, but they said that there was nothing to be done, that such cases were rare but not unknown, that Mrs. Bond’s great strength of constitution would survive the strain since it had resisted the first shock. And so it proved in the end. For on a certain morning in September, when Constance was seated alone in a corner of the old-fashioned garden, she had been startled by the sudden appearance of a tall figure in black, and of a face which she hardly recognised as being her sister’s. She had been accustomed to seeing her in the dimness of a darkened room, wrapped in loose garments, her smooth brown hair hanging down in straight plaits. She was dressed now with all the scrupulous care of appearance that was natural to her, with perfect simplicity as became her deep mourning, but also with perfect taste. But the correctness of her costume only served to show the changes that had taken place during the past weeks. She was thin almost to emaciation, her smooth young cheeks were hollow and absolutely colourless, her brown eyes were sunken and their depth was accentuated by the dark rings that surrounded them. But she was erect as she walked, and she held her head as proudly as ever. Her strength was not gone, for she moved easily and without effort. Any one would have said, however, that, instead of being nearly two
- 62. years younger than Constance, as she actually was, she must be several years older. When Constance saw her, she rose quickly with the first expression of joy that had escaped her lips for many a day. “Thank God!” she exclaimed. “At last!” “At last,” Grace answered quietly. “One thing only, Constance,” she continued after a pause. “I will be myself again. But do not talk of going away, and never speak of what has happened.” “I never will, dear,” answered the older girl. There had been many inquiries made at the house by messengers from Mrs. Trimm, but neither she, nor Mamie nor George had ventured to approach the place upon which such awful sorrow had descended. They had been surprised at not learning that the two sisters had left their country-seat, and had made all sorts of conjectures concerning their delay in going away, but they gradually became accustomed to the idea that Grace might prefer to stay where she was. “It would kill me!” Totty exclaimed with much emphasis. “I could not do it,” said Mamie, looking at George and feeling suddenly how hateful the sight of the river would have been to her if she had not seen his eyes open on that terrible day when he lay like dead before her. “I would not, whether I could or not,” George said. And he on his part wondered what he would have felt, had Constance or Mamie, or both, perished instead of John Bond. A slight shiver ran through him, and told him that he would have felt something he had never experienced before. One morning when they were all at breakfast a note was brought to George in a handwriting he did not recognise, but which was oddly familiar from its resemblance to Constance’s.
- 63. “Do see what it is!” exclaimed Totty before he had time to ask permission to read it. His face expressed nothing as he glanced over the few lines the note contained, folded it again and put it into his pocket. “Mrs. Bond wants me to go and see her,” he said, in explanation. “I wonder why!” “It is very natural,” Totty answered. “She wants to thank you for what you did.” “Very unnecessary, considering the unfortunate result,” observed George thoughtfully. “Will you go to-day?” Mamie asked in the hope that he would suggest taking her with him. “Of course,” he answered shortly. As soon as breakfast was over he went to his work, without spending what he called his quarter of an hour’s grace in the garden with his cousin. George Wood was a nervous and sensitive man in spite of his strong organisation, and he felt a strong repugnance to revisiting the scene of the fatal accident. He had indeed been on the river several times since Bond had been drowned, and had taken Mamie with him, telling her that one ought to get over the first impression at once, lest one should lose the power of getting over them at all. But to row into the very water in which John had died and he himself had nearly lost his life, was as yet more than he cared to do when there was no definite object to be gained. Though the little wooded point of land was nearer to the house than the landing, he went to the latter without hesitation. He was shocked at Grace’s appearance when he met her in the great old drawing-room. Her face was very grave, almost solemn in its immobility, and her eyes looked unnaturally large. “I fear I have given you a great deal of trouble, Mr. Wood,” she said as she laid her thin cold fingers in his hand. He remembered that her grasp had formerly been warm and full of life.
- 64. “Nothing that you could ask of me would give me trouble,” George answered earnestly. He had an idea that she wanted him to do her some service, in some way connected with the accident, but he could not imagine what it might be. “Thank you,” she said. He noticed that she continued to stand, and that she was apparently dressed for going out. “That is one reason why I asked you to come. I have not been myself and have seen no one until now. Let me thank you—as only I can—for your noble and gallant attempt to save my husband.” Her voice did not tremble nor did the glance of her deep eyes waver as she spoke of the dead man, but George felt that he had never seen nor dreamed of such grief as hers. “I could not do less,” he said hoarsely, for he found it hard to speak at all. “No man ever did more. No man could do more,” Grace said gravely. “And now, will you do me a great service? A great kindness?” “Anything,” George answered readily. “It will be hard for you. It will be harder for me. Will you come with me to the place and tell me as well as you can, how it all happened?” George looked at her in astonishment. Her eyes were fixed on his face and her expression had not changed. “It is the only kindness any one can do for me,” she said simply; and then without waiting for any further answer she turned towards the door. George walked by her side in silence. They left the house and took the direction of the wooded point, never exchanging a word as they went. From time to time George glanced at his companion’s face, wondering inwardly what manner of woman she might be who was able to suffer as she evidently had suffered, and yet could of her own accord face such an explanation of events as she had asked him to give her. In less than ten minutes they had reached the spot.
- 65. Grace stood a few seconds without speaking, her thin face fixed in its unchangeable look of pain, her arms hanging down, her hands clasped loosely together. “Now tell me. Tell me everything. Do not be afraid—I am very strong.” George collected his thoughts. He wished to make the story as short as possible, while omitting nothing that was of vital importance. “I was rowing,” he said, “and I saw what happened. The boat was lying to and drifting very slowly. Your husband put the helm up and she began to turn. At that moment the squall came. He tried to let out the sail—that would have taken off the pressure—but it seemed as though he could not. The last I saw of him was just as the boat heeled over. He seemed to be trying to get the sheet—the rope, you know—loose, so that it would run. Then the boat went over and I thought he had merely fallen overboard upon the other side. I asked you if he could swim. When you cried out, I jumped over and swam as hard as I could. Not seeing him I dived under. He seemed to be entangled in the ropes and the sail and was struggling furiously. I tried to drag him back, but he could not get out and caught me by the arm so that I could not move either. I did my best, but my breath would not hold out, and I could not get my head from under. He was not moving then, though he held me still. That is the last I remember, his grip upon my arm. Then I took in the water and it was all over.” He ceased speaking and looked at Grace. She was, if possible, paler than before, but she had not changed her position and she was gazing at the water. Many seconds elapsed, until George began to fear that she had fallen into a sort of trance. He waited a little longer and then spoke to her. “Mrs. Bond!” She made no reply. “Are you ill?” he asked. She turned her head slowly towards him. “No. I am not ill. Let us go back,” she said.
- 66. They returned to the house as silently as they had come. Her step did not falter and her face did not change. When they reached the door, she stood still and put out her hand, evidently wishing him to leave her. “You were very brave,” she said. “And you have been very kind to- day. I hope you will come and see me sometimes.” George bowed his head silently and took leave of her. He had not the heart to ask for Constance, and, indeed, he preferred to be alone for a time. He had experienced a new and strange emotion, and his eyes had been opened concerning the ways of human suffering. If he had not seen and heard, he would never have believed that a woman capable of such calmness was in reality heartbroken. But it was impossible to look at Grace’s face and to hear the tones of her voice without understanding instantly that the whole fabric of her life was wrecked. As she had told her sister, she had nothing left but the memory, and she had been determined that it should be complete, that no detail should be wanting to the very end. It was a satisfaction to remember that his last words— insignificant enough—had been addressed to her. She had wanted to know what his last movement had been, his last struggle for life. She knew it all now, and she was satisfied, for there was nothing more to be known. As he rowed himself slowly across the river, George could not help remembering the Grace Fearing he remembered in old times and comparing her with the woman he had just left. The words she had spoken in praise of his courage were still in his ear with their ring of heartfelt gratitude and with the look that had accompanied them. There was something grand about her which he admired. She had never been afraid to show that she disliked him when she had feared that he might marry her sister. When Constance had at last determined upon her answer, it had been Grace who had conveyed it, with a frankness which he had once distrusted, but which he remembered and knew now to have been real. She had never done anything of which she was ashamed and she had been able now to
- 67. thank him from her heart, looking fearlessly into his eyes. She would have behaved otherwise if she had ever deceived him. She would have said too much or too little, or she might have felt bound to confess at such a moment that she had formerly done him a wrong. A strange woman she was, he thought, but a strong one and very honest. She had never hesitated in her life, and had never regretted anything she had done—it was written in her face even now. He did not understand why she wished to see him often, for he could have supposed that his mere presence must call up the most painful memories. But he determined that if she remained some time longer he would once or twice cross the river and spend an hour with her. The remembrance of to-day’s interview would make all subsequent meetings seem pleasant by comparison. The circumstances of the afternoon had wearied him, and he was glad to find himself again in the midst of more pleasant and familiar associations. In answer to Totty’s inquiries as to how Grace looked and behaved during his visit, he said very little. She looked very ill, she behaved with great self-possession, and she had wished to know some details about the accident. More than that George would not say, and his imperturbable face did not betray that there was anything more to be said. In the evening he found himself alone with Mamie on the verandah, Totty having gone within as usual, on pretence of writing letters. The weather was still pleasant, though it had grown much cooler, and Mamie had thrown a soft white shawl over her shoulders, of which George could see the outlines in the gloom. “Tell me, what did she really do?” Mamie asked, after a long silence. George hesitated a moment. He was willing to tell her many things which he would not have told her mother, for he felt that she could understand them and sympathise with them when Totty would only pretend to do so. “Why do you want to know?” he asked, by way of giving himself more time to think.
- 68. “Is it not natural? I would like to know how a woman acts when the man she loves is dead.” “Poor thing!” said George. “There is not much to tell, but I would not have it known—do you understand? She made me walk with her to the place where it happened and go over the whole story. She never said a word, though she looked like death. She suffers terribly—so terribly that there is something grand in it.” “Poor Grace! I can understand. She wanted to know all there was to be known. It is very natural.” “Is it? It seemed strange to me. Even I did not like to go near the place, and it was very hard to tell her all about it—how poor Bond gripped my arm, and then the grip after he was dead.” He shuddered and was silent for a moment. “I said it all as quickly and clearly as I could,” he added presently. “She thanked me for telling her, and for what I had done to save her husband. She said she hoped I would come again sometimes, and then I left.” “You did not see Constance, I suppose?” “No. She did not appear. I fancy her sister told her not to interrupt us and so she kept out of the way. It was horribly sad—the whole thing. I could not help thinking that if it had not been for you, the poor creature would never have known how it happened. I should not have been alive to tell the tale.” “Are you glad that you were not drowned?” Mamie asked in a rather constrained voice. “For myself? I hardly know. I cannot tell whether I set much value on life or not. Sometimes it seems to be worth living, and sometimes I hardly care.” “How can you say that, George!” exclaimed the young girl indignantly. “You, so young and so successful.”
- 69. “Whether life is worth living or not—who knows? It has been said to depend on climate and the affections.” “The climate is not bad here—and as for the affections——” Mamie broke off in a nervous laugh. “No,” George said as though answering an unspoken reproach. “I do not mean that. I know that you are all very fond of me and very good to me. But look at poor John Bond. He always seemed to you to be an uninteresting fellow, and I used to wonder why he found life worth living. I know now. He was loved—loved as I fancy very few men have ever been. If you could have seen that poor woman’s face to-day, you would understand what I mean.” “I can understand without having seen it,” said Mamie in a smothered voice. “No,” said George, pursuing his train of thought, tactless and manlike. “You cannot understand—nobody can, who has not seen her. There is something grand, magnificent, queenly in a sorrow like that, and it shows what she felt for the man and what he knew she felt. No wonder that he looked happy! Now I, if I had been drowned the other day—if you had not saved me—of course people would have been very sorry, but there would have been no grief like that.” He was silent. Then a sharp short sob broke the stillness, and as he turned his head he saw that Mamie had risen and was passing swiftly through the door into the drawing-room. He rose to his feet and then stood still, knowing that it was of no use to follow her. “What a brute I am!” he thought as he sat down again. Several minutes passed. He could hear the sound of subdued voices within, and then a door was opened and closed. A moment later Totty came out and looked about. She was dazzled by the light and could not see him. He rose and went forward. “Here I am,” he said. She laid her hand upon his arm and looked at his face as she spoke, very gently.
- 70. “George, dear—things cannot go on like this,” she said. “You are quite right, Totty,” he answered. “I will go away to-morrow.” “Sit down,” said Totty. “Have you got one of those cigars? Light it. I want to have a long talk with you.” Totty Trimm had determined to bring matters to a crisis.
- 71. CHAPTER XXII. George felt that his heart was beating faster as he prepared to hear what Totty had to say. He knew that the moment had come for making a decision of some sort, and he was annoyed that it should be thrust upon him, especially by Totty Trimm. He could not be sure of what she was about to say, but he supposed that it was her intention to deliver him a lecture upon his conduct towards Mamie, and to request him to make it clear to the girl, either by words or by an immediate departure, that he could never love her and much less marry her, considering his relatively impecunious position. It struck him that many women would have spoken in a more severe tone of voice than his cousin used, but this he attributed to her native good humour as much as to her tact. He drew his chair nearer to hers, nearer than it had been to Mamie’s, and prepared to listen. “George, dear boy,” said Totty, “this is a very delicate matter. I really hardly know how to begin, unless you will help me.” A little laugh, half shy, half affectionate, rippled pleasantly in the dusky air. Totty meant to show from the first that she was not angry. “About Mamie?” George suggested. “Yes,” Totty answered with a quick change to the intonation of sadness. “About Mamie. I am very much troubled about her. Poor child! She is so unhappy—you do not know.” “I am sincerely sorry,” said George gravely. “I am very fond of her.” “Yes, I know you are. If things had not been precisely as they are ——” She paused as though asking his help.
- 72. “You would have been glad of it. I understand.” George thought that she was referring to his want of fortune, as she meant that he should think. She wanted to depress him a little, in order to surprise him the more afterwards. “No, George dear. You do not understand. I mean that if you loved her, instead of being merely fond of her, it would be easier to speak of it.” “To tell me to go away?” he asked, in some perplexity. “No indeed! Do you think I am such a bad friend as that? You must not be so unkind. Do you think I would have begged you so hard to come and stay all summer with us, that I would have left you so often together——” “You cannot mean that you wish me to marry her!” George exclaimed in great astonishment. “It would make me very happy,” said Totty gently. “I am amazed!” exclaimed George. “I do not know what to say—it seems so strange!” “Does it? It seems so natural to me. Mamie is always first in my mind—whatever can contribute to her happiness in any way—and especially in such a way as this——” “And she?” George asked. “She loves you, George—with all her heart.” Totty touched his hand softly. “And she could not love a man whom we should be more glad to see her marry,” she added, putting into her voice all the friendly tenderness she could command. George let his head sink on his breast. Totty held his hand a moment longer, gave it an infinitesimal squeeze and then withdrew her own, sinking back into her chair with a little sigh as though she had unburdened her heart. For some seconds neither spoke again. “Cousin Totty,” George said at last, “I believe you are the best friend I have in the world. I can never thank you for all your disinterested
- 73. kindness.” Totty smiled sweetly in the dark, partly at the words he used and partly at the hopes she founded upon them. “It would be strange if I were not,” she said. “I have many reasons for not being your enemy, at all events. I have thought a great deal about you during the last year. Will you let me speak quite frankly?” “You have every right to say what you think,” George answered gratefully. “You have taken me in when I was in need of all the friendship and kindness you have given me. You have made me a home, you have given me back the power to work, which seemed gone, you have——” “No, no, George, do not talk of such wretched things. There are hundreds of people who would be only too proud and delighted to have George Winton Wood spend a summer with them—yes, or marry their daughters. You do not seem to realise that—a man of your character, of your rising reputation—not to say celebrity—a man of your qualities is a match for any girl. But that is not what I meant to say. It is something much harder to express, something about which I have never talked to you, and never thought I should. Will you forgive me, if I speak now? It is about Constance Fearing.” George looked up quickly. “Provided you say nothing unkind or unjust about her,” he answered without hesitation. “I?” ejaculated Totty in surprise. “Am I not so fond of her, that I wanted you to marry her? I cannot say more, I am sure. Constance is a noble-hearted girl, a little too sensitive perhaps, but good beyond expression. Yes, she is good. That is just the word. Scrupulous to a degree! She has the most finely balanced conscience I have ever known. Dr. Drinkwater—you know, our dear rector in New York—says that there is no one who does more for the poor, or who takes a greater interest in the church, and that she consults him upon everything, upon every point of duty in her life—it is splendid, you know. I never knew such a girl—and then, so clever! A Lady
- 74. Bountiful and a Countess Matilda in one! Only—no, I am not going to say anything against her, because there is simply nothing to be said —only I really do not believe that she is the wife for you, dear boy. I do not pretend to say why. There is some reason, some subtle, undefinable reason why you would not suit each other. I do not mean to say that she is vacillating or irresolute. On the contrary, her sensitive conscience is one of the great beauties of her character. But I have always noticed that people who are long in deciding anything irritate you. Is it not true? Of course I cannot understand you, George, but I sometimes feel what you think, almost as soon as you. That is not exactly what I mean, but you understand. That is one reason. There are others, no doubt. Do you know what I think? I believe that Constance Fearing ought to marry one of those splendid young clergymen one hears about, who devote their lives to doing good, and to the poor—and that kind of thing.” “I daresay,” said George, as Totty paused. The idea was new to him, but somehow it seemed very just. “At all events,” he added, “she ought to marry a better man than I am.” “Not better—as good in a different way,” suggested Totty. “An especially good man, rather than an especially clever one.” “I am not especially clever,” George answered. “I have worked harder than most men and have succeeded sooner. That is all.” “Of course it is your duty to be modest about yourself. We all have our opinions. Some people call that greatness—never mind. The principle is the same. Tell me—you admire her, and all that, but you do not honestly believe that you and she are suited to each other, do you?” Totty managed her voice so well that she made the question seem natural, and not at all offensive. George considered his reply for a moment before he spoke. “I think you are right,” he said. “We are not suited to each other.” Totty breathed more freely, for the moment had been a critical one.
- 75. “I was sure of it, though I used to wish it had been otherwise. I used to hope that you would marry her, until I knew you both better —until I saw there was somebody else who was—well—in short, who loves you better. You do not mind my saying it.” “I am sorry if it is true——” “Why should you be sorry? Could anything be more natural? I should think that a man would be very glad and very happy to find that he is dearly loved by a thoroughly nice girl——” “Yes, if——” “No! I know what you are going to say. If he loves her. My dear George, it is of no use to deny it. You do love Mamie. Any one can see it, though she would die rather than have me think that she believed it. I do not say it is a romantic passion and all that. It is not. You have outgrown that kind of thing, and you are far too sensible, besides. But I do say that you are devotedly attached to her, that you seek her society, that you show how much you like to be alone with her—a thousand things, that we can all see.” “All” referred to Totty herself, of course, but George was too much disturbed to notice the fact. He could find nothing to say and Totty continued. “Not that I blame you in the least. I ought to blame myself for bringing you together. I should if I were not so sure that it is the best thing for your happiness as well as for Mamie’s. You two are made for each other, positively made for each other. Mamie is not beautiful, of course—if she were I would not give you a catalogue of her advantages. She is not rich——” “You forget that I have only my profession,” said George, rather sharply. “But what a profession—besides if it came to that, we should always wish our daughter to live as she has been accustomed to live. That is not the question. She is not beautiful and she is not rich, but you cannot deny it, George, she has a charm of her own, a grace, a
- 76. something that a man will never be tired of because he can never find out just what it is, nor just where it lies. That is quite true, is it not?” “Dear cousin Totty, I deny nothing——” “No, of course not! You cannot deny that, at least—and then, do you know? You have the very same thing yourself, the something undefinable that a woman likes. Has no one ever told you that?” “No indeed!” exclaimed George, laughing a little in spite of himself. “I am quite serious,” said Totty. “Mamie and you are made for each other. There can be no doubt about it, any more than there can be about your loving each other, each in your own way.” “If it were in the same way——” “It is not so different. I was thinking of it only the other day. Suppose that several people were in danger at once—in that dreadful river, for instance—you would save her first.” George glanced sharply at his cousin. The same idea had crossed his own mind. “How do you know that?” he asked. “Is it not true?” “Yes—I suppose it is. But I cannot imagine how you guessed——” “Do you think I am blind?” asked Totty, almost indignantly. “Do you think Mamie does not know it as well as I do? After all these months of devotion! You must think me very dull—the only wonder is that you should not yet have told her so.” George wondered why she took it for granted that he had not. “What I should have to tell her would be very hard to say, as it ought to be said,” he answered thoughtfully. Totty’s manner changed again and she turned her head towards him, lowering her voice and speaking in a tone of sincere sympathy.
- 77. “Oh, I know how hard it must be!” she said. “Most of all for you. To say, ‘I love you,’ and then to add, ‘I do not love you in the same way as I once loved another.’ But then, must one add that? Is it not self- evident? Ah no! There is no love like the first, indeed there is not!” Totty sighed deeply, as though the recollection of some long buried fondness were still dear, and sweet and painful. “And yet, one does love,” she continued a little more cheerfully. “One loves again, often more truly, if one knew it, and more sincerely than the first time. It is better so—the affection of later years is happier and brighter and more lasting than that other. And it is love, in the best sense of the word, believe me it is.” If there had been the least false note of insincerity in her voice, George would have detected it. But what Totty attempted to do, she did well, with a consummate appreciation of details and their value which would have deceived a keener man than he. Moreover, he himself was in great doubt. He was really so strongly attracted by Mamie as to know that a feather’s weight would turn the scale. But for the recollection of Constance he would have loved her long ago with a love in which there might have been more of real passion and less of illusion. Mamie was in many ways a more real personage in his appreciation than Constance. Totty had defined the difference between the two very cleverly by what she had said. The more he thought of it, the more ideal Constance seemed to become. But there was another element at work in his judgment. He was obliged to confess that Totty was right in another of her facts. During the long months of the summer he had undoubtedly acted in a way to make ordinary people believe that he loved Mamie. He had more than once shown that he resented Totty’s presence, and Totty had taken the hint and had gone away, with a readiness he only understood now. He had been very much spoiled by her, but had never supposed that she desired the marriage. It had been enough for him to show that he wished to talk to Mamie without interruption and he had been immediately humoured as he was humoured in everything in that charming establishment. Totty, however, and, of
- 78. course, poor Mamie herself, had put an especial construction upon all his slightest words and gestures. To use the language of the world, he had compromised the girl, and had made her believe that he was to some extent in love with her, which was infinitely worse. It was very kind of Totty to be so tactful and diplomatic. Honest Sherry Trimm would have asked him his intentions in two words and would have required an answer in one, a mode of procedure which would have been far less agreeable. “You owe her something, George,” Totty said after a long pause. “She saved your life. You must not break her heart—it would be a poor return.” “God forbid! Totty, do you think seriously that I have acted in a way to make Mamie believe I love her?” “I am sure you have—she knew it long ago. You need hardly tell her, she is so sure of it.” “I am very glad,” George answered. “What will cousin Sherry say to this?” “Oh, George! How can you ask? You know how fond he is of you— he will be as glad as I if——” “There shall be no ‘ifs,’” George interrupted. “I will ask Mamie to- morrow.” He had made up his mind, for he detested uncertainties of all sorts. He felt that however he might compare Mamie with Constance, he was on the verge of some sort of passion for the former, whereas the latter represented something never to be realised, something which, even if offered him now, he could not accept without misgivings and doubts. Since he had made Mamie believe that he loved her, no matter how unintentionally the result had been produced, and since he felt that he could love her in return, and be faithful to her, and, lastly, since her father and mother believed that the happiness of her life depended upon him, it seemed most honourable to disappoint no one, and if it turned out that he was
- 79. making a sacrifice he would keep it to himself throughout his natural life. Totty held her breath for a moment after he had made his statement, fearing lest she should utter some involuntary exclamation of delight, too great even for the occasion. Then she rose and came to his side, laid her hands upon his shoulders and touched his dark forehead with her salmon-coloured lips. George remembered that a humming-bird had once brushed his face with its wings, and the one sensation reminded him of the other. “God bless you, my dear son!” said Totty in accents that would have carried the conviction of sincerity to an angel’s heart. George pressed her hand warmly, but with an odd feeling that the action was not spontaneous. He felt as though he were doing something that was expected of him, and was doing it as well as he could, without enthusiasm. He looked up in the gloom and felt that something warm fell upon his face. “Why, cousin Totty, you are crying!” he exclaimed. “Happy tears,” answered Mrs. Sherrington Trimm in a voice trembling with emotion. Then she turned and swiftly entered the drawing-room, leaving him alone in the verandah in the darkness. “So the die is cast, and I am to marry Mamie,” he thought, as soon as she was gone. In the first moments it was hard to realise that he had bound himself by an engagement from which he could not draw back, and that so soon after he had broken with Constance Fearing. Five months had not gone by since the first of May, since he had believed that his life was ruined and his heart broken. What had there been in his love for Constance which had made it unreal from first to last, real only in the moment of disappointment? He found no answer to the question, and he thought of Mamie, his future wife. Yes, Totty was right. So far as it was possible to judge they were suited to each other in all respects except in his own lack of fortune. “Suited” was the very word. He would never feel what he had felt for the other,
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