Documents on the Confederation of British North America 9780773576094

Citation preview

CARLETON LIBRARY SERIES The Carleton Library Series, funded by Carleton University under the general editorship of the dean of the School of Graduate Studies and Research, publishes books about Canadian economics, geography, history, politics, society, and related subjects. It includes important new works as well as reprints of classics in the fields. The editorial committee welcomes manuscripts and suggestions, which should be sent to the dean of the School of Graduate Studies and Research, Carleton University. 192 The Blacks in Canada: A History (second edition) Robin Winks 193 A Disciplined Intelligence Critical Inquiry and Canadian Thought in the , Victorian Era A.B. McKillop 194 Land, Power, and Economics on the Frontier of Upper Canada John Clarke 195 The Children ofAataentsic A History of the Huron People to 1660 Bruce G. Trigger 196 Silent Surrender The Multinational Corporation in Canada Kari Levitt 197 Cree Narrative Expressing the Personal Meanings of Events Richard J. Preston 198 The Dream of Nation A Social and Intellectual History of Quebec Susan Mann

199 A Great Duty Canadian Responses to Modern Life and Mass Culture, 1939-1967 L.B. Kuffert 200 The Politics of Development Forests, Mines, and HydroElectric Power in Ontario, 1849-1941 H.V. Nelles 201 Watching Quebec Selected Essays Ramsay Cook 202 Land of the Midnight Sun A History of the Yukon Ken S. Coates and William R. Morrison 203 The Canadian Quandary Harry Johnson (New edition) 204 Canada and the Cost of World War II The International Operation of the Department of Finance, 1939-1947 Robert B, Bryce Edited by Mathew Bellamy

205 Lament for a Nation George Grant (Anniversary edition) 206 Confederation Debates in the Province of Canada, 1865 P.B. Waite (New edition) 207 The History of Canadian Business, 1867-1914 R.T. Naylor 208 Lord Durham's Report Based on the Abridgement by Gerald M. Craig (New edition) 209 The Fighting Newfo und lander A History of the Royal Newfoundland Regiment G.W.L. Nicholson 210 Staples and Beyond Selected Writings of Mel Watkins Edited by Hugh Grant and David Wolfe 211 77?£ Making of the Nations and Cultures of the New World An Essay in Comparative History Gerard Bouchard

212 The Quest of the Folk Antimodernism and Cultural Selection in Twentieth-Century Nova Scotia Ian McKay 213 Health Insurance and Canadian Public Policy The Seven Decisions That Created the Canadian Health Insurance System and Their Outcomes Malcolm G. Taylor 214 Inventing Canada Early Victorian Science and the Idea of a Transcontinental Nation Suzanne Zeller 215 Documents on the Confederation of Canada G.R Browne

DOCUMENTS ON THE CONFEDERATION OF BRITISH NORTH AMERICA A COMPILATION BASED ON SIR JOSEPH POPE S CONFEDERATION DOCUMENTS SUPPLEMENTED BY OTHER OFFICIAL M A T E R I A L EDITED AND WITH AN INTRODUCTION BY

G. P. BROWNE Introduction by Janet Ajzenstat

Carleton Library Series 215 McGill-Queen's University Press Montreal & Kingston • London • Ithaca

©McGill-Queen's University Press 2009 ISBN 978-0-7735-3602-9 Legal deposit third quarter 2009 Bibliotheque nationale du Quebec Printed in Canada on acid-free paper that is 100 % ancient forest free (100% post-consumer recycled), processed chlorine free. McGill-Queen's University Press acknowledges the support of the Canada Council for the Arts for our publishing program. We also acknowledge the financial support of the Government of Canada through the Book Publishing Industry Development Program (BPIDP) for our publishing activities. The principal basis for this volume was Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act, edited by Joseph Pope and published by Carswell (Toronto, 1895).

Library and Archives Canada Cataloguing in Publication Documents on the confederation of British North America: a compilation based on Sir Joseph Pope's Confederation documents supplemented by other official material / edited and with and introduction by G. P. Browne; introduction by Janet Ajzenstat. (Carleton library series; 215) First published, as no. 40 in the Carleton library series, Toronto: McClelland and Stewart, 1969 Includes bibliographical references and index. ISBN 978-0-7735-3602-9 (bnd) ISBN 978-0-7735-3609-8 (pbk) 1. Canada - Politics and government - 1841 -1867 - Sources. 2. Constitutional history - Canada - Sources. 3. Canada. Constitution Act, 1867 - Sources. 4. Canada - History - Confederation, 1867 - Sources. I. Browne, G. P. (Gerald Peter) II. Ajzenstat, Janet, 1936- III. Series: Carleton library 215 FC474.D64 2009

971.04

C2009-901632-X

CONTENTS

Introduction G. P. Browne Introduction to the 2009 CLS Edition Janet Ajzenstat Preface to Sir Joseph Pope's Confederation Abbreviations

ix xxix xlix lii

DOCUMENTS - SECTION A: THE REACTION OF THE COLONIAL OFFICE TO THE CANADIAN INITIATIVE OF 1858 1. Extract from the Speech by Gov.-General Sir Edmund Head on Proroguing the Canadian Legislature, 16 August, 1858 (enclosed in Gov.-General Head to Sir Edward Bulwer Lytton, 16 August, 1858), 2. Report of a Committee of The Executive Council dated 4 September, 1858, Approved by the Governor General in Council on 9 September, 1858, (enclosed in Gov.-Gen. Head to Sir Edward Bulwer Lytton, 9 September, 1858), 3. Sir Edward Bulwer Lytton to Gov.-General Head, 10 September, 1858, 4. Gov.-General Head to Sir Edward Bulwer Lytton, 27 September, 1858, 5. Memorandum from the Executive Council of New Brunswick to Lieut.-Governor J. H. T. Manners-Sutton (enclosed in Lieut.-Governor Manners-Sutton to Sir Edward Bulwer Lytton, 29 September, 1858), 6. Lieut.-Governor Manners-Sutton to Sir Edward Bulwer Lytton, 2 October, 1858 (private and confidential), 7. Governor Sir Alexander Bannerman to Sir Edward Bulwer Lytton, 11 October, 1858, 8. Lieut.-Governor Manners-Sutton to Sir Edward Bulwer Lytton, 11 October, 1858 (private), 9. Gov.-General Head to Sir Edward Bulwer Lytton, 22 October, 1858 (confidential), 10. G. E. Cartier, J. J. Ross, and M. East [A. T. Gait] to Sir Edward Bulwer Lytton, 25 October, 1858, 11. G. E. Cartier, J. J. Ross, and M. East [A. T. Gait] to Sir Edward Bulwer Lytton, 25 October, 1858 (private and confidential), 12. Memorandum by T. F. Elliott, 4 November, 1858 (confidential), 13. Memorandum for the Cabinet by Sir Edward Bulwer Lytton, 10 November, 1858 (most confidential),

1

1 2 2

3 5 13 13 13 15 17 19

25

CONTENTS

14. Sir Edward Bulwer Lytton to Gov.-General Head, 26 November, 1858, 27 15. Lieut-Governor Lord Mulgrave's Reply to the Circular Despatch of 26 November, 1858, Asking for the opinion of the Governors of the British North American Provinces on the Question of Union, 30 December, 1858 (as summarised in a memorandum, unsigned, undated), 28 DOCUMENTS-SECTION B: THE ATTITUDE OF THE COLONIAL OFFICE, 1859-1864 16. Minute by the Duke of Newcastle on Lieut.-Governor Manners-Sutton to the Duke of Newcastle, 29 September, 1859 (private and confidential), 29 17. Circular Despatch from the Duke of Newcastle, 27 January, 1860, 30 18. Minute by the Duke of Newcastle on Lieut.-Governor Mulgrave to the Duke of Newcastle, 21 May, 1860, 30 19. The Duke of Newcastle to Lieut.-Governor Mulgrave, 6 July, 1862, 30 20. The Duke of Newcastle to Gov.-General Lord Monck, 21 August, 1862, 32 DOCUMENTS - SECTION C: THE CHARLOTTETOWN CONFERENCE, SEPTEMBER, 1864 21. Charles Tupper's Minutes of the Charlottetown Conference, 1-16 September, 1864, 32 22. Lieut.-Governor A. H. Gordon to Edward Cardwell, 12 September, 1864, 40 23. Lieut.-Governor Gordon to Edward Cardwell, 26 September, 1864, 44 DOCUMENTS-SECTION D: PREPARATION FOR THE QUEBEC CONFERENCE, SEPTEMBER-OCTOBER, 1864 24. Gov.-General Monck to the Lieutenant Governors of Nova Scotia, New Brunswick, and Prince Edward Island, and the Governor of Newfoundland, 23 September, 1864, 50 25. Gov.-General Monck to Edward Cardwell, 23 September, 1864, 51 26. Lieut.-Governor Gordon to Edward Cardwell, 26 September, 1864, 52 27. Lieut.-Governor Sir Richard MacDonnell to Gov.-General Monck, 3 October, 1864, 52

CONTENTS

28. Lieut-Governor George Dundas to Gov.-General Monck, 6 October, 1864, 53 29. Edward Cardwell to Lieut.-Governor Gordon, 1 October, 1864, 54 30. Edward Cardwell to Gov.-General Monck, 14 October, 1864, 54 DOCUMENTS - SECTION E: THE QUEBEC CONFERENCE, OCTOBER, 1864 31. Hewitt Bernard's Minutes of the Quebec Conference, 10-29 October, 1864, 55 32. Hewitt Bernard's Notes on the Quebec Conference, 11-25 October, 1864 93 33. A. A. Macdonald's Notes on the Quebec Conference, 10-29 October, 1864, 126 34. The Quebec Resolutions, October, 1864, 153 DOCUMENTS - SECTION F: THE REACTION TO THE QUEBEC RESOLUTIONS, OCTOBER, 1864-SEPTEMBER, 1865 35. Edward Cardwell to Lieut.-Governor Gordon, 14 October, 1864, 36. Lieut.-Governor Gordon to Edward Cardwell, 7 November, 1864, 37. Gov.-General Monck to Edward Cardwell, 7 November, 1864, 38. Edward Cardwell to Lieut-Governor Gordon, 12 November, 1864, 39. Lieut.-Governor Gordon to Edward Cardwell, undated, 40. Edward Cardwell to Gov.-General Monck, 3 December, 1864, 41. Lieut.-Governor Gordon to Edward Cardwell, 5 December, 1864, 42. Edward Cardwell to Lieut.-Governor Gordon, 10 December, 1864, 43. Lieut.-Governor Gordon to Edward Cardwell, 2 January, 1865, 44. Speech by the Prime Minister of New Brunswick, S. L. Tilley (enclosed in Lieut.-Governor Gordon to Edward Cardwell, 2 January, 1865),

166 166 166 167 167 168 171 172 172

172

CONTENTS

48. Edward Cardwell to Lieut.-Governor Gordon, 4 March, 1865, 49. Lieut.-Governor Gordon to Gov.-General Monck, April, 1865, 50. Lieut.-Governor Gordon to Edward Cardwell, 5 June, 1865, 51. Edward Cardwell to Lieut.-Governor Gordon, 15 September, 1865,

174 175 178 178

DOCUMENTS - SECTION G: PREPARATION FOR THE LONDON CONFERENCE, JULY-DECEMBER, 1866 52. Edward Cardwell to Lord Carnarvon, 6 July, 1866, 179 53. Edward Cardwell to Lord Carnarvon, 19 July, 1866, 179 54. Edward Cardwell to Lord Carnarvon, 20 July, 1866, 180 55. Lord Carnarvon to Edward Cardwell, 20 July, 1866, 180 56. Heads of a Bill for (Union of the British North American Colonies; and for the Government of the United Provinces, unsigned, undated, 181 57. Gov.-General Monck to Lord Carnarvon, 21 July, 1866 184 58. Observations and Notes on the Quebec Resolutions, unsigned, 24 July, 1866, 185 59. Draft of a Bill to Provide for a Union of the Provinces of British North America, and for the Government of the United Province, unsigned, undated, 189 60. Lord Carnarvon to Gov.-General Monck, 26 July, 1866, 191 61. Charles Tupper to Lord Carnarvon, 28 July, 1866 191 62. Lord Carnarvon to Gov.-General Monck, 10 August, 1866. 193 63. Resolutions of the Canadian Legislature, 11 August, 1866, 193 64. Lord Derby to Lord Carnarvon, 5 September, 1866, 197 65. Lord Carnarvon to Lord Derby, 11 October, 1866, 197 66. Gov.-General Monck to Lord Carnarvon, 29 November, 1866, 198 67. John A. Macdonald to Lord Carnarvon, 4 December, 1866, 200 DOCUMENTS-SECTION H: THE LONDON CONFERENCE, DECEMBER, 1866 68. Hewitt Bernard's Minutes of the London Conference, 4-24 December, 1861, 69. Hewitt Bernard's Notes on the London Conference, 4-14 December, 1866, 70. Lord Carnarvon to Gov.-General Monck, 17 December, 1866, 71. Archbishop T. L. Connolly to Lord Carnarvon, 24 December, 1866,

201 205

215 216

CONTENTS

72. John A. Macdonald to Lord Carnarvon, 25 1866, 73. John A. Macdonald to Lord Carnarvon, 26 1866, 74. The London Resolutions, December, 1866, 75. Frederic Rogers to John A. Macdonald, 28 1866, 76. Lord Carnarvon to John A. Macdonald, 28 1866,

December, December, December, December,

DOCUMENTS - SECTION I: THE FRAMING OF THE BRITISH NORTH AMERICA ACT, JANUARY-MARCH, 1867 77. Gov.-General Monck to Lord Carnarvon, 13 January, 1867, 78. Rough Draft of the London Conference for a British North America Bill, undated, 79. Initial Draft of the British North America Bill, 23 January, 1867, 80. Archbishop Connolly to Lord Carnarvon, 30 January, 1867, 81. Memorandum concerning Proposed Alterations in Clauses 9-14 of the Draft Bill, unsigned, 30 January, 1867, 82. Resolution of the North American Delegates with regard 81. to the Elasticity of the Senate, 1 February, 1867, 83. Memorandum for Consideration of the Cabinet by Lord Carnarvon, 2 February, 1867, 84. Third Draft of the British North America Bill, 2 February, 1867, 85. Fourth Draft of the British North America Bill, undated, 86. Final Draft of the British North America Bill, 9 February, 1867 87. Lord Carnarvon to Edward Cardwell, 11 February, 1867 88. Edward Cardwell to Lord Carnarvon, 13 February, 1867, 89. John A. Macdonald to Lord Carnarvon, 28 February, 1867, 90. John A. Macdonald to Lord Carnarvon, 28 February, 1867, SELECT BIBLIOGRAPHY, CHART OF IMPERIAL STATESMEN

1858-1868,

216 216 217

229 229

230

230 247 262

263 263 264 264 278 302 337 337 337 338 339

AND COLONIAL GOVERNORS,

352

NOTE ON THE EDITOR,

354

INDEX,

355

This page intentionally left blank

INTRODUCTION

The confederation of the United Province of Canada, Nova Scotia, and New Brunswick was achieved through the passage of the British North America Act, 1867. Canada was thus founded on an Imperial statute, and so, unlike the United States, is the outcome of constitutional, as opposed to revolutionary, action. Historians of this action consequently lack both the amount and type of primary material that is available to historians of the American federation movement; for the preliminary discussions among the Imperial and colonial founders were largely conducted within the confines and conventions of the governmental process. But all these meetings took place behind closed doors, and there is scant evidence as to what happened at them, much less before, between, and after. In fact, apart from the debates and papers of the Imperial Parliament and the colonial legislatures, the accounts of only five contemporaries have been readily accessible, and of these no more than three are even quasi-official. In 1865, in The Union of the British Provinces, Edward Whelan, who had attended the Charlottetown Conference as a reporter and the Quebec Conference as a delegate of Prince Edward Island, compiled "all the principal speeches delivered upon those occasions."1 In 1872, John Hamilton Gray, a delegate of New Brunswick at both conferences, brought out a

1

Ed ward Whelan, The Union of the British Provinces. A Brief Account of the Several Conferences Held in the Maritime Provinces and in Canada, in September and October, 1864, on the Proposed Confederation of the Provinces, together with a Report of the Speeches Delivered by the Delegates from the Provinces, on Important Public Occasions (Charlottetown, G. T. Hazard, 1865; Gardenvale, Quebec, Garden City Press, 1927). The reports that Whelan sent back to his paper, the Charlottetown Examiner, have also been published: see "Edward Whelan Reports on the Quebec Conference," ed. P. B. Waite, C.H.R.. XLII (March. 1961), pp. 23-45.

X - DOCUMENTS ON CONFEDERATION

similar compilation of speeches under the shortened title of the Confederation of Canada.2 In 1895, the minutes and notes kept by Hewitt Bernard, Executive Secretary of the Quebec and London Conferences, were edited, together with a number of other documents from the Macdonald Papers, by Sir Joseph Pope, private secretary, literary executor, and biographer of Sir John A. Macdonald.3 In 1920, the notes of Andrew Archibald Macdonald, another delegate of Prince Edward Island to the Quebec Conference, were transcribed from the Macdonald Papers by Sir Arthur Doughty, Dominion Archivist from 1904 to 1935.4 And in 1967, the minutes on the Charlottetown Conference that had been made by Charles Tupper, delegate of Nova Scotia, were introduced by Mr. W. I. Smith, the Assistant Dominion Archivist.5 While each of these accounts has its value, for one purpose or another, the last three not only contain a different type of material from the others, but reach a deeper level. The public .speeches of the Fathers of Confederation, still more obscurantist than their debates in the legislatures, supply only implicit information as to the course of the discussions; and "unlike the notes of Hewitt Bernard and A. A. Macdonald, Whelan's reports to the Examiner are not a detailed description, resolution by resolution, of the business of the Conference."6 In contrast, the quasi-official records of Bernard, Macdonald, and Tupper, with the addition of the drafts and letters edited by Pope, afford glimpses of the inner workings. Neither Bernard nor Macdonald covered the Charlottetown Conference; Tupper's minutes are, at the. most, sketchy; and as Pope was the first to admit of his collection, "it is obviously deficient, and, in places, fragmentary."7 Nevertheless, these sources, together, provide the basis for "a history of Confederation as distinguished from accounts chiefly reminiscent in their character - of concomitant social functions and after-dinner speeches."8 This compilation is essentially a reprint of Pope's Confederation Documents, supplemented by Macdonald's notes, Tupper's minutes, and extracts from various official documents found among the Cardwell and Carnarvon Papers, in the Public Record Office, London. It does not include any extracts from Whelan or Gray, or from the parliamentary or legislative debates and papers; an effort was made to avoid duplicating other collections of pre-Confederation documents;9 the supplementary material was chosen more to provoke speculation over the common historiographical controversies than to tell a

INTRODUCTION - XI

fuller story. On the other hand, while a guide to the major secondary references is provided in the Select Bibliography, no attempt has been made to spell out the inferences of this material; and the following introductory remarks, which are directed at the university student rather than the general reader or advanced scholar, were intended merely to outline the controversies and not to resolve them. The object of this compilation, in short, was to produce a body of official and quasi-official material, most of it out of print or unpublished, that would complement other documentary collections, suggest a few interpretative guidelines, and furnish a documentary foundation for a study of the origins, and intended character, of the Canadian confederacy. 2

J. H. Gray, Confederation; or, The Political and Parliamentary History of Canada, from the Conference at Quebec, in October, 1864j to the Admission of British Columbia, in July, 1871 (2 vols. planned, only Vol. I published, Toronto, Copp Clark, 1872). 3 Joseph Pope, ed., Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto, Carswell, 1895). Pope also produced The Day of Sir John Macdonald (Toronto, Glasgow Brook, 1915), the Cor respondence of Sir John Macdonald (Toronto, Oxford University Press, 1921), and the Memoirs of the Right Honourable Sir John Alexander Macdonald (Toronto, Musson, n.d.; Toronto, Oxford University Press, 1930). 4 A. A. Macdonald, "Notes on the Quebec Conference, 1864," ed. Sir Arthur Doughty, C.H.R., I (March, 1920), pp. 26-47. 5 Charles Tupper, "Charles Tupper's Minutes of the Charlottetown Conference," ed. W. I. Smith, C.H.R., XLVII (June, 1967), pp. 101-12 (including A. H. Gordon to Edward Cardwell, 12 September, 1864, C.O. 188/229-35, and George Brown to His Wife, 13 September, 1864, George Brown Papers). 6 Waite, ed., "Edward Whelan Reports," C.H.R., XLII (March, 1961), pp. 23-24. Tope, ed., Confederation Documents, p. v. s lbid., p. iii. °Documents illustrating the political, economic, and social background of Confederation will be found in J. H. S. Reid, K. McNaught, and H. S. Crowe, eds., A Source-book of Canadian History (rev. ed., Toronto, 1964); P. B. Waite, ed., Pre-Confederation (Scarborough, 1965, Canadian Historical Documents Series, Vol. II); and J. M. Bliss, ed., Canadian History Documents, 1763-1966 (Toronto, 1966). Older collections, primarily of constitutional material, include H. E. Egerton and W. L. Grant, eds., Canadian Constitutional Development (London, 1907); A. B. Keith, ed., Selected Speeches and Documents on British Colonial Policy, 1763-1917 (Oxford, 1918); and W. P. M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929 (2nd ed., Toronto, 1930).

Xll - DOCUMENTS ON CONFEDERATION

Although the documents in this compilation could be mined for a variety of purposes, the university student might find them most enlightening with reference to four standard problems.10The first, concerning the forces behind the Confederation movement, covers the general condition of British North America during the mid-1850's, the particular incentives for establishing a federal union, and the steps that led to the passage of the Act of 1867. The second, concerning the degree to which Canada was created by colonial as distinct from Imperial efforts, directs attention to the evolution of Colonial Office policy between 1858 and 1867. The third, concerning the method by which union was achieved, evokes the related debate over the "Compact Theory of Confederation." And the fourth, concerning the type of federal system intended by the framers of the British North America Act, can be related to the interpretative scheme for the distribution of legislative powers that was constructed by the Judicial Committee of the Privy Council between 1873 and I960.11 By the middle of the nineteenth century, the social and cultural life of the English-speaking colonies in North America, while still basically British in character, had become not only distinctive but practically national. The resulting sense of affinity intensified by new communication links, a revived interest in the country beyond the Great Lakes, a tendency once again to think in continental rather than Laurentian terms, and a growing fear that the remainder of North America might become part of the United States-was the vital condition of Confederation. The economic situation was another force. Following the collapse of the wartime and railway booms, the British North American colonies suffered one of the worst depressions of the century; and their dependence on the Reciprocity Treaty of 1854, compounded by the conversion of Great Britain from mercantilism to free trade, underlined the need for larger economic as well as national units. It had also become apparent that no matter how content the Maritimes might be with their political status, the Province of Canada was bound for dissolution. The English-speaking elements, more numerous than the French since 1851, were becoming increasingly dissatisfied with both the system of equal representation12 and the practice of indirect taxation, through which the former section paid almost three quarters of the government costs. Montreal traders were afraid that western expansion, backed by business interests in Toronto and London, would threaten their commercial hegemony. And

INTRODUCTION - Xlll

throughout the province, gaps had widened not only between English and French, Protestants and Roman Catholics, Tories and Liberals, and bleus and rouges, but also between Tories and Conservatives, Liberals and Reformers, Reformers and Clear Grits, progressive rouges and radical rouges, and most fundamentally of all, democrats and authoritarians. Under such conditions, the public statesmanship and personal ambition that had inspired union proposals since the time of the Conquest were afforded freer scope; and the small minority of Imperial and colonial leaders who transacted Confederation acquired an unprecedented opportunity. By 1858, these leaders had several particular incentives for changing the shape of British North America. The Maritimers, politically stable, protected by British sea power, and with an exporting economy based on fish, timber, and shipping, were not so desperate as the Canadians. At the same time, they could appreciate the advantages of lower taxes, a removal of tariff barriers, less dependence on the markets of New England, a rationalization of their railway projects, a diminution of the public debts incurred for those projects, and a larger stage for their politicians. If the notion of an enlarged union - though not necessarily one that would include the Province of Canada - had become acceptable to Maritime statesmen, however, it seemed imperative to the Canadian Government. For in addition to a similar interest in the economies and opportunities of scale, this government was faced with special difficulties. In the coveted western territory, trouble with the Hudson's Bay Company, Indians, and half-breeds assumed a new dimension with the development of trading and settlement ties between the Red River and Mississippi valleys. American incursions into the 10

Tlie references listed in the Select Bibliography, which represents only a sampling of the work on Confederation, were chosen largely on the basis of these problems. The references noted at appropriate places in this Introduction are either convenient background^ surveys for the problem under discussion, or else scholarly contributions to the historiographical controversy. n ln 1949, by 13 Geo. VI, c. 37, appeals to the Privy Council were abolished and the Supreme Court of Canada given ultimate appellate jurisdiction (see also R.S.C. 1952, c. 259). The first judgment delivered by the Judicial Committee was The Queen v. Coote (1873), 4 A.C. 599; the last was Ponoka-Calmar Oils v. Earl F. Wakefield, [1960] A.C. 18. The resulting interpretative scheme, while modified in certain respects, has been generally sustained by the Supreme Court of Canada. "Required by Section XII of the Union Act, 1840, 3 & 4 Viet, c. 35.

XIV - DOCUMENTS ON CONFEDERATION

Fraser River valley, where gold had been discovered in late 1856, posed another threat to continental pretensions; and Canadian-American relations reached their lowest point since the Oregon dispute of 1846. Finally, the political situation in the Province of Canada had become stultified. By giving a majority to the Reformers in Canada West and the bleus in Canada East, the electors of 1857 ended the "double majority" arrangement that had produced uneasy but workable administrations since 1848. Embarrassed by the lack of support in Canada West, forced to resign over the "seat of government question," effectively brought back to office by the "double shuffle" fiasco, and joined by Gait only on condition that they endorse his federation proposals, the Cartier-Macdonald Government of August, 1858, committed themselves — whether genuinely or insincerely, at any rate, officially — to the federation of British North America. While federal schemes had been current for more than a decade previously, the Confederation movement may thus be dated from the announcement made by Governor-General Head, on the 16th of August, 1858, that his Ministry would open unification discussions with the Imperial and Maritime Governments [1, 2, 4, 9].13 Somewhat taken aback by this usurpation of authority, the Colonial Secretary, Sir Edward Bulwer Lytton, felt it necessary to assert both the Imperial character of the question and the exclusive executive responsibility of the British Government [3]. His unenthusiastic reaction [13, 14], confirmed by the warnings of the Maritime governors [5, 6, 7, 15] and Colonial Office advisers [12], was not affected by the arguments of a Canadian delegation [10, 11]; and whether owing to this lack of support or because of a change in their own political fortunes, the Cartier-Macdonald Ministry marked time. So it was only after a political deadlock had been reached, in June of 1864, that the "Great Coalition" of Brown and Macdonald was formed,14 and the Canadian Government, sensible of the hostility roused in the North by British policies during the American Civil War, pressed forward to Confederation. The subsequent steps can be quickly traced. Acting on the authority of a despatch sent by the new Colonial Secretary, the Duke of Newcastle, to Lieutenant-Governor Mulgrave of Nova Scotia [19], the Maritime Governments had arranged to hold a "constitutional conference" at Charlottetown, in September of

INTRODUCTION - XV

1864. Although the subject for discussion was a legislative union of the Maritime colonies alone, the Canadian Government requested permission to send a delegation, which then presented an alternative plan for the federal union of all British North America [21, 22, 23]. Convinced of the merits of this larger project, the representatives agreed to reconvene the following month at Quebec [24, 25, 27, 28, 30]; and the scheme for union, known as the "Quebec Resolutions" [34], that emerged from this second conference [31-33] was in turn used as the basis for a third [36, 40-42, 44, 45, 48, 49, 51-59, 61-63], to be held at London during December of 1866 [67-69]., In the meantime, relations with the United States, already tense after such incidents as the Trent, Chesapeake, Tallahassee, and Philo Parsons affairs, were further strained by the St. Alban's raid, the abrogation of the Reciprocity Treaty, the threatened cancellation of both the Rush-Bagot Agreement of 1817 and the bonding privileges of 1845, and on top of all these, the Fenian invasions. Despite the failure of the Nova Scotian and New Brunswick Legislatures to ratify the Quebec Resolutions [57, 58, 61], despite the defeat of the federationist government in New Brunswick and their return to power only after the Lieutenant-Governor had virtually forced another election [58, 61], despite even the decision by Prince Edward Island and Newfoundland to remain separate and so not to participate in the London Conference [57, 58], the Imperial authorities were consequently more than willing to support the creation of a general union [48, 51, 53, 55, 65]. On the 29th of March, 1867, a Bill for the Confederation of British North America [86] - derived from the London Resolutions [74-85] which had in turn required "some slight changes"15 in the Quebec Resolutions received the royal assent;16 and on the 22nd of May it was announced by royal proclamation that the 1st of July, 1867, 13

The figures in square brackets refer to the documents in this compilation that were added to the records of Pope, Macdonald, and Tupper. Subject references to all this material, including the last three sources, will be found in the Index. 14 See P. G. Cornell, The Great Coalition, June 1864 (Ottawa, 1966, Canadian Historical Association Booklet No. 19). 15 Lord Carnarvon, in his speech on the Second Reading of the Bill, 19 February, 1867, Hansard, 3rd series, Vol. 185, p. 558. 16 To become the British North America Act, 1867, 30 & 31 Viet, c. 3.

XVI - DOCUMENTS ON CONFEDERATION

would witness the founding of a kingdom, or "dominion," under the name of Canada.17 Such summaries are inevitably inadequate: as Professor Creighton warned in Appendix 2 of the Rowell-Sirois Report, "any brief review of the forces leading to Confederation must, to a certain extent, be misleading through its very abstractions and incompleteness."18 But even if they were able to cover all the forces at work, historians would labour in vain to determine the relative importance of those forces. For "in the sense that it involved every major interest and touched upon every important endeavour, Confederation was the work of a whole people, of an entire society. Its origins cannot be found exclusively in any one order of human activity: its beginnings lie in the fields of economic enterprise and social purpose, as well as in the realm of political purpose."19 In any case, this is not the place for another attempt at causal analysis: the most that can be done is to remind the student of both the diversity of the underlying forces and the many, often conflicting, interpretations that could be correlated with the primary material in this compilation.20 In contrast, the problem of Colonial Office policy lends itself to the development of a plausible hypothesis. Between 1858 and 1864 the Imperial authorities reacted coolly, if not adversely, to the notion of federating British North America [3, 12, 13, 14, 16-19]. The attitude of the Derby Ministry can be seen in the memorandum drawn up by T. F. Elliot, the Assistant Undersecretary, on the 4th of November, 1858 [12], and the subsequent Cabinet memorandum prepared by Lytton on November 10th [13]. Similarly, in his despatches of 27 January, 1860 [17] and 6 July, 1862 [19], Newcastle indicated that while he was sympathetically disposed towards a legislative union of the Maritime colonies, he would not encourage a wider scheme at that juncture. Indeed, it was not until the end of 1864, several months after he became Colonial Secretary, that Edward Cardwell gave official approval to the holding of "a conference on the subject of the proposed Union of the British North American Provinces" [30]. This approval has accordingly been characterized as not only "a violent reversal of policy,"21 but a "conversion"22 on the part of a previously sceptical Colonial Secretary. And the critical force behind the Confederation of British North America has been found in the diplomatic strains that were imposed on Anglo-American relations during the last three

INTRODUCTION - XV11

months of 1864, especially as a result of the St. Alban's raid of October 19th.23 It is doubtful, however, whether Cardwell's decision amounted to a "violent reversal." Neither Lytton nor Newcastle had definitely ruled out the possibility of federal union; and the latter's willingness to consider a customs union of all the provinces,24 his recommendation of a common system of defence [20],25 his offer of an Imperial guarantee of interest (though still no financial contribution) to the Intercolonial Railway [18],26 and his reversal of priorities with regard to the achievement of Maritime union before the completion of the railway,27 all 17

While the product of the union was to be "One Dominion under the name of Canada," and while the descriptive term "Dominion" is also employed in the Preamble, the title "Dominion of Canada" does not appear in the British North America Act. This title, which none the less became both popular and official usage, was formally discarded in the Letters Patent of October, 1947, where the references were simply to 'Canada." The new usage, which actually conforms to the text of the Act, though not to the final draft of the Bill [see Doc. 86], has been generally adopted by the federal government since then. 1S D. G. Creighton, British North America at Confederation: A Study Prepared for the Royal Commission on Dominion-Provincial Relations, Appendix 2 of the Report of the Royal Commission on Dominion-Provincial Relations (the "Rowell-Sirois Report"), (Ottawa, 1939), p. 59. 19 Loc. cit. ^Professor Creighton's interpretation was developed in John A. Macdonald (2 vols., Toronto, 1952 and 1955) and The Road to Confederation: The Emergence of Canada: 1863-1867 (Toronto, 1964). His views, methods, and style might be contrasted, generally, with those of A. R. M. Lower, in Colony to Nation (3rd ed., Toronto, 1957) and Canadians in the Making (Toronto, 1958); more carefully, with those of W. L. Morton, in The Kingdom of Canada (Toronto, 1963) and The Critical Years: The Union of British North America, 1857-1873 (Toronto, 1964). From there the student could proceed to R. G. Trotter's Canadian Federation (Toronto, 1924); W. M. Whitelaw's The Maritimes and Canada before Confederation (Toronto, 1934 and 1966); P. B. Wake's The Life and Times of Confederation, 1864-1867 (Toronto, 1962); and the other books and articles listed in the Select Bibliography. ^Chester Martin, "British Policy in Canadian Confederation," C.H.R., XIII (March, 1932), p. 3. sa R. W. Winks, Canada and the United States: The Civil War Years (Baltimore, 1960), p. 339. ^See Martin, ibid., pp. 14 and 18-19; Winks, ibid., p. 340 and passim. ^See Whitelaw, Maritimes and Canada before Confederation, p. 163. ^See Morton, Critical Years, pp. 116 and 120-21. ^See loc. cit. ^See ibid., p. 133.

XV111 - DOCUMENTS ON CONFEDERATION

suggest a more flexible outlook than is sometimes assumed. Moreover, the interval between Cardwell's assumption of office and his approval of the Quebec scheme might be more accurately described as a period of consideration, leading to the drawing of a conclusion, than one of fixed policy, which was later reversed because of an overwhelming argument. Actually, these three ministers shared the conviction that the Imperial Government should play a subsidiary role — not merely cooperating with the colonists, but predisposing themselves in favour of "any wellconsidered plan which has the consent of all Parties concerned" [17, 18]. It is also doubtful whether the critical force behind the achievement of Confederation was the growing friction, let alone the October crisis, in Anglo-American relations. By approving, as opposed to merely acknowledging, Governor-General Monck's initiation of the Quebec discussions [24, 25], A. J. Blackwood, Chief Clerk of the North American Department, consciously inferred - before he had heard of the St. Alban's raid — "a connivance on the part of the Queen's confidential servants in a preliminary step" towards accomplishing federation.28 Nor can the change of personnel at the Colonial Office be dismissed as irrelevant.29 With his pragmatic approach and concern for economy, Cardwell was anxious to reduce Great Britain's responsibilities on the North American continent.30 In contrast, the imperialistically-minded Newcastle preferred Maritime to federal union at least partly on the ground that the former would keep the colonies more closely linked to the mother country.31 Then, too, the influence of Lieutenant-Governors Gordon and MacDonnell, both of whom favoured Maritime union over federation [22, 23, 26, 36, 39, 41, 43, 46, 47, 50], had evidently waned by late 1864, when Monck's support of Sir Edmund Head's views began to carry more weight [25, 29, 35, 37, 38, 40, 42, 45, 48, 51], But most important of all, the new Colonial Secretary seems to have been impressed with the strong drive for a federal union that was now made by the Government of Canada.[40, 42, 48, 51]. Representing a coalition of Conservatives and Reformers and commanding a large majority in the House, this government had been formed for the express purpose of attempting constitutional reform; and it was Cardwell's growing awareness of both the arguments and the political support behind their efforts that apparently led to his conclusion, though hardly his "conversion," after the receipt of the Quebec Resolutions [40, 42, 45, 48, 51].

INTRODUCTION - XIX

This is not to deny that the straining of Anglo-American relations contributed to Confederation. The numerous crises of the Civil War, culminating in the victory of a hostile North, served to place the defence question at a higher premium than ever;32 the Jervois Report of November, 1864, had made the costs of defending Canada only too clear;33 and it seemed to follow, as Gladstone argued in his Cabinet memorandum of the previous July, that if a British North American union or federation became a political possibility, the Colonial Office should encourage its formation "by every means in its power."34 Nevertheless, the ground had already been prepared by the appointment of Cardwell, the representations of Monck, the relative decline in the influence of Gordon and MacDonnell, the particular incentives that had appeared during the previous six years, and the general conditions of the 1850's. And to judge by both the timing and terms of his despatch of 3 December, 1864 [40], it was the Canadian drive, and specifically the formulation of the Quebec Resolutions, that made up Cardwell's mind. Confederation was to some extent - perhaps to a greater extent than some Canadian historians have been prepared to admit — the result of Imperial encouragement, and even, in the case of Nova Scotia and New Brunswick, of Imperial pressure. In the last analysis, however, the new self-governing colony of Canada would appear to have been shaped in British North America, by the colonists themselves. Whether this colony was the product of an inter-provincial "compact" is another matter. On the 10th of September, 1930, in response to a proposal by the federal government designed to secure a repeal of the Colonial Laws Validity Act of 1865 in ^Quoted in J. A. Gibson, "The Colonial Office View of Canadian Federation, 1856-1868," C.H.R., XXXV (December, 1954), p. 301. ^See Martin, "British Policy," C.H.R., XIII (March, 1932), p. 9. ^See Creighton, Road to Confederation, p. 82. ^See J. A. Gibson, "The Duke of Newcastle and British North American Affairs, 1859-1864," C.H.R., XLIV (June, 1963), pp. 155-56 and passim. ^See C. P. Stacey, "British Military Policy in Canada in the Era of Federation," Canadian Historical Association, Report, 1934, pp. 20-29, and "Britain's Withdrawal from North America, 18641871," C.H.R., XXXVI (September, 1955), pp. 185-98. M See-C. P. Stacey, Canada and the British Army, 1846-1871 (London, 1963), pp. 165-78. 34 W. E. Gladstone, Memorandum on the Defence of Canada, 12 July, 1864, quoted from the Palmerston Papers in Creighton, Road to Confederation, p. 88.

XX - DOCUMENTS ON CONFEDERATION

its application to the Dominions, G. H. Ferguson, Premier of Ontario, addressed a memorandum to the Prime Minister of Canada.35 This memorandum, subsequently printed in the Toronto Globe on the 20th of September, 1930, revealed the implications of the "Compact Theory of Confederation." Contending that the Colonial Laws Validity Act should not be repealed without the passage of some measure that would prevent the federal parliament from unilaterally amending the British North America Act, Ferguson argued that since this statute was based on the Quebec Resolutions - which "were in the nature of a compact or treaty among the Provinces" ~ "no re-statement of the procedure for amending the constitution of Canada can be accepted by the Province of Ontario that does not fully and frankly acknowledge the right of all the Provinces to be consulted, and to become parties to the decision arrived at." From the viewpoint of a lawyer, and some political theorists, this position might well appear untenable.36 Even if a "treaty" were defined solely as an agreement between sovereign states — that is, regardless of such normal requirements as the exchange of 'full powers, actual negotiation, subsequent ratification by all parties, and the exchange of ratifications - it would still seem that in 1867 nothing of the kind was, or could have been, contracted. For the colonies of British North America simply lacked the essential sovereignty. As Lytton had been so determined to assert in 1858 [3], the Imperial Government possessed exclusive executive responsibility for the Empire; no attempt was made to invest any of the provincial delegations with treaty-making powers; all Newcastle actually "authorized" in his despatch to Mulgrave [19] was a "consultation on the subject amongst the leading members of the Governments concerned"; and even this "authority" was hedged with the caution that "whatever the result of such consultation might be, the most satisfactory mode of testing the opinion of the people of British North America would probably be by means of Resolution or Address, proposed in the Legislature of each Province by its own Government." Besides, whatever status Nova Scotia or New Brunswick might have claimed, the fact that Upper and Lower Canada had been joined through the passage of the Union Act of 1840 made it legally impossible for the constitution of the United Province of Canada to be changed except through the passage of another statute by the parliament at Westminster. Moreover, while they were formally approved by the Canadian Legislature

INTRODUCTION - XXI

[63], the Quebec Resolutions were never submitted to the Legislatures of Nova Scotia or New Brunswick [57, 58, 61]; none of those legislatures, not even the Canadian, attempted to ratify either the London Resolutions or the terms of the British North America Act; two of the supposedly contracting parties, the subsequent provinces of Ontario and Quebec, did not exist until after the statute came into effect; and even on the dubious assumption that there was an "implicit" compact between the original members of Confederation and the six later provinces, no contract was ever made among the latter - three of which, Manitoba, Alberta, and Saskatchewan, were actually created by the Parliament of Canada. On the other hand, this argument might be considered too legalistic. The Compact Theory need presume no more than a general agreement, and that would not have to meet the requirements of a formal treaty. Moreover, a case can be developed, on historical grounds, to show that Confederation was achieved through such an agreement. The colonists generally assumed as much [44, 45] and many of the leading figures-whether ignorantly, unconventionally, or for political purposes-freely employed such terms as "compromise," "compact," and "treaty" [88].37 Furthermore, if they insisted on the exclusivity of their executive responsibility, the Imperial authorities were just as explicit on the need for consultation and concurrence by the colonists [40, 45, 51, 53-55, 60, 62, 64,75,76,87]. As Newcastle pointed out, the questions of Maritime and general union were "of a nature which renders it especially fit that if either of them be proposed for adoption it should emanate in the first instance ^Quoted in the "O'Connor Report" (Canada, the Senate, Report Pursuant to Resolution of the Senate . . .), (Ottawa, 1939), pp. 134-39; see also the commentary on pp. 139-52. 36 The following summary of the debate over the Compact Theory of Confederation could be expanded through the articles in Section D of the Select Bibliography — beginning with those by N. M. Rogers, and then, for the defence, those by L.-P. Pigeon and G. F. Stanley (in Section B). 37 For a brief sampling, compare the terms and arguments used during the debate on the Quebec Resolutions in the Canadian Legislature: see Province of Canada, Parliamentary Debates on the Subject of the British North American Provinces (Quebec, 1865) — especially the comments by J. A. Macdonald (pp. 15, 16, 31, 648), Brown (pp. 103, 110), Cartier (p. 741), Tache (p. 240), J. S. Macdonald (pp. 651-52), Dunkin (pp. 541-42), and A. A. Dorion (pp. 252, 255, 947).

XX11 - DOCUMENTS ON CONFEDERATION

from the Provinces, and should be concurred in by all of them which it would affect" [19]. Thus in fact, if not in theory, the British North America Act was largely the outcome of the "constitutional conferences" at Charlottetown, Quebec, and London. The Bill presented to Parliament expressly referred to the desire of the provinces of Canada, Nova Scotia, and New Brunswick "to be federally united into one Dominion" [86].38 The Addresses of those provincial legislatures in favour of the proposed union were similarly mentioned in the preambles to the third and fourth drafts of the Bill [84, 85], as well as in the preamble to the Act. As Adderley, the Parliamentary Under-Secretary, informed the House of Commons, the proposed federation "has in this case specially been a matter of most delicate treaty and compact between the Provinces... a matter of mutual concession anci compromise."39 And according to the Colonial Secretary, Lord Carnarvon,40 since the Bill was based on the Quebec Resolutions, to which "all the British Provinces in North America were, as I have said, consenting parties . . . the measure founded upon them must be accepted as a treaty of union." This measure consequently "purports to rest upon the free consent of the various contracting parties"; it "partook somewhat of the nature of a treaty of union, every single clause in which had been submitted to the closest scouting, and, in fact, each represented a compromise between the different interests involved"; and it would therefore be "his duty to resist ^the alteration of anything which was in the nature of a compromise, and which, if carried, would be fatal to the measure." The compact theory can also be defended if the confederation of 1867 is considered to embody not merely a provincial, but a cultural agreement. Possibly the main strand in the constitutional evolution of British North America consists in the safeguards, or bribes, given the French Canadians in Quebec. From the Quebec Act of 1774 through the Constitutional Act of 1791, and even the Union Act of 1840, their religion, laws, and customs were left inviolate, if not bolstered. In return, the French Canadians - or at any rate, the more influential sections of Quebec society at the time - appear to have at least accepted the British connection, if for no better reason than that it seemed preferable to domination by an expansionist, and historically intolerant, United States. This working agreement, perhaps the Great Compact in the history of British North America, must have been implicit in the new

INTRODUCTION - XX111

compromise of 1867; and if there is a frustrating lack of evidence as to the understandings reached between Macdonald and his French-Canadian supporters, there can be no doubt that some compromise was being continuously worked out [77], At all events, as the Judicial Committee decided, the underlying notion of a cultural agreement seems the key not only to the meaning of "property and civil rights," in Section 92 (13) of the British North America Act, but also to the interpretation of both the distribution of legislative powers in that statute and the general character of the Canadian federal system.41 This does not mean that the principle of biculturalism, whatever its current political or social justification, can be supported historically.42 But it does mean that if Anglo-French "equality" was clearly not considered, let alone agreed to in 1867, the "special status" of the French Canadians in Quebec surely was. As for the intended degree of federalism, or rather the intended distribution of legislative powers,43 since Canada is ^See Hansard, 3rd series, Vol. 185, pp. 558, 563, 571, 582, 1018-19, 1165, 1167, and 1169. ^Hansard, 3rd series, Vol. 185, p. 1169. ^Ibid., pp. 558, 571, and 582. ^See G. P. Browne, The Judicial Committee and the British North America Act (Toronto, 1967), passim, and references therein. A selection of essays on the judgments of the Judicial Committee will be found in W. R. Lederman, ed., The Courts and the Canadian Constitution (Toronto, 1964, Carleton Library No. 16); the major judgments are abridged and commented on in P. H. Russell, ed., Leading Constitutional Decisions (Toronto, 1965, Carleton Library No. 23). 42 As D. G. Creighton has been denying recently: see his article "The Myth of Biculturalism," Saturday Night, LXXXI (September, 1967), pp. 35-39, and C. J. Jaenen's rejoinder in "Creighton, Confederation and Conspiracy," Canadian Dimension, IV (May-June, 1967), pp. 22-25. See also D. G. Creighton, "Confederation: The Uses and Abuses of History," Journal of Canadian Studies, I (May, 1966), pp. 3-11; W. L. Morton, "Confederation, 18701896," ibid., pp. 11-24; and L. C. Clark and W. L. Morton, "Dialogue," ibid. (November, 1966), pp. 50-53. 43 While. these subjects are not synonymous, and might well be distinguished more carefully, a strong case has been made for considering the distribution arrangement the definitive characteristic of federal government: see K. C. Wheare, Federal Government (3rd ed., London, 1953), pp. 11-15 and passim. Admittedly, though, this definition might not be so applicable to the Canadian system - and might even serve to distract attention from such peculiar features of the 1867 scheme as the presumed function of the Senate: see Waite, Life and Times of Confederation, pp. Ill and 115-16; Carnarvon's speech of 19 February, 1867, in Hansard, Vol. 185, pp. 560-61, 563ff.; and below, Docs. 37 and 77-79.

XXIV - DOCUMENTS ON CONFEDERATION

founded on an Imperial statute, the courts may not consider the intentions of the Fathers of Confederation except in so far as they are manifest in the statute itself.44 Moreover, this rule of statutory interpretation must be followed whether one views the British North America Act as a "constituent" or "ordinary" statute: that is, irrespective of whether one thinks it should be construed "organically," and so continually adapted to changing conditions, or whether one favours a "strict" construction, preferring to leave major adaptions to the legislature, rather than to the judiciary.45 No matter how "liberal" or how "literal" their jurisprudential assumptions might be, most lawyers would probably agree with Baron Alderson in Gorham v. Bishop of Exeter** 1850, that "we do not construe Acts of Parliament by reference to history." And anyone who has attempted to unravel the intentions of the Fathers of Confederation will be thankful that this historical pitfall, at least, was generally avoided in the judgments delivered by the Judicial Committee of the Privy Council. Uninhibited by legal scruples, however, many political theorists and historians have contrived hypotheses to support either the federal or the provincial side.47 It has been argued, for instance, that regardless of how the courts might have felt it necessary to construe the British North America Act, the Canadian federal system was "intended" to be more centralist, or devolutibnary,48 than the American. Certainly the contemporary situation would have made such a preference understandable. The economic tangle throughout British North America, the decline of Imperial aid and direction, the political stalemate in the Province of Canada, the recent spectacle of a "states' rights" war, the expansionist atmosphere in the United States - all were warnings against loose confederacies. And most of the leading participants, including Macdonald, Cartier, Brown, Gait, and Tupper, every one of the governors, and the Imperial Government, were fully aware of those warnings [22, 23, 26, 29, 35-41, 43-55, 58, 80, 88].49 Finally, the wish to establish a strong central authority is evident in such features of the British North America Act as the ability of the federal government to appoint the lieutenant-governors of the provinces and to reserve or to disallow provincial legislation, as well as in the unrestricted taxing rights and residuary legislative power of the federal parliament. On the other hand, in 1867 the British provinces were still largely unconnected with each other, and their economies con-

INTRODUCTION - XXV

tinued to be based on a trade that was mainly conducted, or projected, outside British North America. Social distinctions founded on differences of race, language, culture, and religion also separated both English from French and Maritimers from Canadians. The embryonic state of municipal government, especially in the Maritimes and to a lesser extent in Lower Canada, would have made it difficult, if not impossible, for a central government to carry out their administrative responsibilities without the continuance of the provincial governments. A "federal precedent" had already been established in the Province of Canada by both the electoral arrangements of the Union Act of 1840 and the practice of "double majority" governments. Whatever many of them might have wished, the founders of Canada accepted the fact that regional and cultural differences made a legislative union out of the question [22,23, 36, 39-4.1,43,44,46,47*55,58,61, 81, 87]. And regardless of how one evaluates the Judicial Committee's interpretation of sections 91 and 92 - and in particular, of the "Peace, Order, and good Government" clause and the "Trade and Commerce" and "Property and Civil Rights" heads-legislative powers are divided in the British North America Act between authorities which, under normal circumstances, possess exclusive rights — and which are consequently, in some spheres at least, "coordinate and independent."50 Indeed, if the widest historical ^According to the "Rules of Statutory Interpretation": see Browne, Judicial Committee, p. 10, and Odgers, Sir C. E., Craies on Statute Law (London, 1952), pp. 120-21. ^See Browne, Judicial Committee, pp. 12-13, 20-29, and 164. ^5 Ex. 630, at 667. 47 A start might be made with R. M. Dawson, Democratic Government in Canada (3rd ed., Toronto, 1963), Chap. II; J. A. Corry, Democratic Government and Politics (3rd ed., Toronto, 1946), Chap. XVII; A. R. M. Lower, F. R. Scott, et al., Evolving Canadian Federalism (Durham, N.C., 1958), Chaps. 1, 2, and 3; and the "Rowell-Sirois Report" (Ottawa, 1954), Book I, Chaps. I, II, and IX, and Appendices 2, 7, and 8; after which there are the books and articles listed in the Select Bibliography. ^This term is defined, and contrasted with "federal" and "confederal," in Wheare, Federal Government, pp. 31-32. 49 For example, see below, Docs. 32-35, 38, 40, 42-44, 53-54, and 84; J. A. Macdonald, in the Confederation Debates, pp. 32, 33, 41, and 1002-3; Carnarvon's speech of 19 February, 1867, in Hansard, Vol. 185, pp. 563-68; and Adderley's speech of 28 February, 1867, in ibid., p. 1169. ^See Browne, Judicial Committee, pp. 13, 29-33, 39, 158, 160-61, and 168-70.

XXVI - DOCUMENTS ON CONFEDERATION

interpretation of "property and civil rights" is accepted,81 aiid the intended character of the Senate given due weight [23, 40, 81-83],52 a markedly centralist view of the Canadian federal system seems dubious. In 1939, the Rowell-Sirois Commission concluded that "there is no final certainty as to what the framers meant by the use of these phrases."53 Yet even if there were, it would be no easier to implement their meaning. For many of the laws that the courts had to consign to one or other legislative authority were simply not conceived of in 1867: as the Commissioners realized, "the framers of the constitution could not foresee the" revolutionary economic and social changes that have since taken place and therefore could have no intention at all concerning them."54 It is accordingly impossible to say whether the Fathers of Confederation would have preferred to see such laws consigned to the federal parliament - which would thereby be supported, if not strengthened out of all proportion - or whether they would have felt that legislation dealing mainly, or perhaps even partly, with "matters" that were essentially cultural in nature should be left to the provincial legislatures - which would thus retain the primary responsibility for regional and, above all, FrenchCanadian rights. On the other hand, providing the question is limited to the type of laws that the Fathers of Confederation probably assumed in 1867, it is possible to consider their intentions. How did they balance the need to maintain a certain relative position between the federal and provincial authorities against the need to keep control over cultural matters in the hands of the provinces? As long as this question, like that concerning the execution of some form of compact, is put with an historical, as opposed to a legal or political, purpose, it will continue to constitute a legitimate field for speculation. Hopefully, this compilation will help to stimulate that kind of speculation. In order to produce a more coherent collection than might have been obtained if the various sources had been kept separate, Pope's Confederation Documents, which constitute approximately four-fifths of the present volume, are used as a framework for the other material. His work has been altered in accordance with the errata on p. viii of the 1895 edition and the corrections he noted on the copy deposited in the Public Archives of Canada.55 The order of his documents has also

INTRODUCTION - XXV11

been revised in places, and the cross-references in his footnotes suited to the new order. The other major changes, made in the interests of space, are the partial consolidation of the various drafts of the British North America Bill, and the omission of the final version of the Act, the title page, the table of contents, and the indexes. A. A. Macdonald's notes and Tupper's minutes are reproduced exactly as edited and introduced by Sir Arthur Doughty and Mr. W. I. Smith respectively; and the latter's inclusion of the letter by Gordon to Gardwell, though not the one by Brown to his wife, is followed as well. The documents from the Public Record Office are changed only in that ampersands are written out and the punctuation slightly altered to improve the readability; the source of each document is also given in parentheses after the heading. Omissions are indicated by ellipses, interpolations by either square brackets or tildes,56 and where footnotes other than mine appear, the original editors are identified in square brackets. The transcripts of Crown-copyright records in the Public Record Office appear by permission of the Controller of Her Majesty's Stationery Office; Sir Joseph Pope's Confederation Documents, by permission .of Lieutenant-General Maurice Pope, Edward Pope, Esq., and the Carswell Company Limited; A. A. Macdonald's "Notes on the Quebec Conference, 1864," edited by Sir Arthur Doughty for the Canadian Historical Review, Vol. I (March, 1920), by permission of the Public Archives of Canada and the University of Toronto Press; and "Charles Tupper's Minutes of the Charlottetown Conference," edited by W. I. Smith for the Canadian Historical Review, Vol. XLVIII (June, 1967), by permission of the Public Archives of Canada, the University of Toronto Press, and Mr. Smith. I appreciate all this consent, as well as the many suggestions that went with it and I could not have done my work without the assistance of the staffs of the Public Record Office and the Public Archives of Canada. The work itself is another byproduct of the doctoral research I did under the supervision of ^See ibid., pp. 96-98 and 162-64, and the "Rowell-Sirois Report/' Book I, pp. 34-35. 52 See above, n. 43; below, pp. 136, 138, 211; Index, under Senate. 53 The "Rowell-Sirois Report/' Book I, p. 36. ^Loc. cit. ^I am indebted to Miss Juliette Bourque, Librarian of the Public Archives of Canada, for bringing this copy to my attention. ^Tildes were considered to provide a clearer differentiation than square brackets in Docs. 58, 84, and 85.

XXV111 - DOCUMENTS ON CONFEDERATION

Professor Bryan Keith-Lucas, now Professor of Political Studies at the University of Kent, and Dr. A. F. Madden, the Reader in Commonwealth Government at Oxford: their example set me a standard of scholarship; the reading I had done as an undergraduate, under the tutorship of Dr. Madden, roused my interest in Confederation documentation; and I took as a model V. T. Harlow and A. F. Madden, British Colonial Developments, 1774-1834. My way was smoothed on many occasions by Professor Robert L. McDougall, General Editor of the Carleton Library; and I am most grateful to Dean David M. L. Fair, Subject Editor in History of the Carleton Library, who first proposed the re-publication of Pope's Confederation Documents, and then helped so much in planning the extended volume. Full responsibility for the latter must, however, rest with me. G. P. BROWNE Carleton University January, 1968

INTRODUCTION to the 2009 Edition

G.P Browne's Documents on the Confederation ofCanadais an invaluable resource. I am happy to see it back in print. It includes records from the constitutional conferences of 1864 and 1866-67 (drawn from papers preserved by John A. Macdonald and published originally by Sir Joseph Pope) and Browne's judicious selection of Colonial Office memoranda and correspondence with the colonies. In his Introduction, retained in this edition, Professor Browne directs readers to four "standard problems" in the study of Confederation. The first concerns timing: the union of the British North American provinces had been talked of for decades - why did matters come to a head in 1858? The second addresses the role of British elites; did they favour colonial union? Did they help or hinder its development? The third, in Browne's words, "evokes the debate over the Compact Theory of Confederation." Is Confederation a compact between peoples, that is, between the French and the English in British North America, or a contract among provinces! And the fourth asks the perennial question in Canadian constitutional studies, the one on which the oceans of ink have been spilt: did the British law lords' interpretation of the constitutional division of legislative powers in the British North America Act (1867) betray the intentions of the Fathers of Confederation? Scholars still address these "problems"; students still write essays on them. The first two usefully direct our attention to concrete questions about the process of making the Canadian Constitution: what happened and when? The third and fourth invite reflection on the outcome: what was accomplished? In this essay I focus on the accomplishments. I do not entirely neglect issues of process but my primary question is, what do the documents in this compilation tell us about the laws and institutions that still shape Canadian public life? Just what did we get in 1867? Did we get a good constitution?

XXX - INTRODUCTION TO THE 2009 CLS EDITION

The Formula Canadians forget the novelty of what was done at Confederation. They forget the audacity! Canada was the first political community to combine federalism with British parliamentary institutions. To give effect to the federal union of the British North American provinces, it was necessary to create a national legislature and the founders chose, understandably, to model that legislature on the British Parliament. It was the obvious choice, recommended by history and by their experience with parliamentary institutions at the provincial level. There was a difficulty, however. (I am here relying on arguments advanced by the constitutionalist A.V. Dicey in his Introduction to the Study of the Law of the Constitution.) It is not clear that parliamentary sovereignty can be reconciled with the division of legislative powers required for a federal union. In law, a British legislature may not delegate its powers, and it especially may not delegate powers as a way of avoiding accountability to the people. Would the British North America Act permit or encourage delegation, with the attendant adverse consequences? Some British North Americans and not a few observers in Britain would have preferred to unite British North America under a single government, abolishing the provincial parliaments. To use the language of the period, they would have preferred a 'legislative union." A legislative union resembles a unitary state and unambiguously preserves parliamentary sovereignty and accountability. John A. Macdonald argued strenuously for legislative union, finally conceding defeat more or less gracefully, but only under pressure. To meet the constitutionalists' objections to a federal union the Fathers followed the American precedent, making what is called an "exhaustive" distribution of legislative powers: that is. they assigned all such powers to one level of government or the other - to either the national parliament or the provincial parliaments - leaving, so to speak, no leftover, unallocated scraps of sovereignty. Thus the principle of parliamentary sovereignty was preserved in the sense that all laws were to be made in parliaments accountable to the people. But to this day scholars ask whether enough was done to forestall delegation between the national parliament and the provincial parliaments. That the founders meant to do this, that they hoped to, is clear. In a letter of 1858, marked private and confidential and intended for the

INTRODUCTION TO THE 2009 CLS EDITION - XXxi

perusal of officials at the Colonial Office [II], 1 the governing Tories in the Province of Canada roughed out a list of the powers to be allowed the "Federal Government" in the event of British North American union. To it they appended this observation: "the Local Legislatures [the provinces] would not be in a position to claim the exercise of the same sovereign powers, which have frequently been the cause of difference between the American States and their General Government." The Canadian Tories are saying that they can and will do more than the American Founders to prevent problems of delegation and quarrelling between levels of government. They have read the American Constitution; they have observed the American scene and are in a position to make improvements on the American prescription. In the debates on Confederation in the colonial legislatures the Fathers, Tories and Liberals alike, contended that the union scheme drafted at the Quebec Conference of 1864 would forbid the national parliament to trespass on provincial powers and forbid the provincial parliaments to take on powers appropriate to a national body. In later years the Judicial Committee of the Privy Council (the British law lords) would use the term "watertight compartments" to describe the division of legislative powers in the British North America Act. Each level of government was to be strictly confined to the powers allocated to it in the 1867 Constitution. "Watertight compartments" exactly reflects the Fathers'-thinking. Looking back from the twenty-first century, however, we find ourselves admitting that Dicey's fears were justified. Over the years ambitious governments have found it relatively easy to breach the "compartments," with the expected result: muddled lines of accountability and an impaired democracy. But the Introduction to a book like this is not the place to dwell on the Constitution's shortcomings. Instead, I wish to emphasize the fact that, all in all, the Canadian federation has been remarkably successful. It is old, by the modern world's standards, it has survived the inevitable crises, and our quarrels among ourselves over accountability have been matters for "jaw, jaw, not war, war," to use Winston Churchill's phrase. A civil war on the scale of the American would have been unthinkable in the Canada of the nineteenth century and remains unthinkable. (Consider again the Fathers' audacity - they were making the world's second federation while watching the 'Numbers in square brackets refer to documents in this volume.

XXXii - INTRODUCTION TO THE 2009 CLS EDITION

world's first tear itself apart. The bulk of their work was done at the Quebec Conference of 1864 when the outcome of the Civil War was still unknown. The carnage was evident, the aftermath unpredictable.) A survey of liberal democracies today would show that most have found their way to the Canadian prescription: a federation governed by a national parliament. The institutions of 1867 suited political conditions in the nineteenth and twentieth centuries; they suit conditions in the twenty-first. Thus we have it: at the Quebec Conference of 1864 the Fathers laid Canada's foundations - parliamentary government and federal union [34]. At the subsequent London Conference, where a committee of colonists met with representatives of the British Government to prepare the Quebec Resolutions for the perusal of the British Parliament, delegates made only minor changes [78, 79, 84, 85, 86]. No changes were made during the bill's course through the legislative process. There have been a few amendments to the Canadian Constitution since 1867, but not many. In 1982 Canadians created an additional constitutional document that includes a bill of rights (the Canadian Charter of Rights and Freedoms), an amending formula, and some other matters. We have changed the name of our original document: what the Fathers of Confederation called the British North America Act (1867) is now known as the Constitution Act (1867). But under its new title it is still recognizably their work, their design for a new nation. Once the formula - federation/parliamentary government was established, there remained two recalcitrant issues. We might call them "problems." The first was that the scheme developed at the Quebec Conference described a sovereign nation: it reserved no "watertight compartment," no legislative list, for the British Parliament. Once the British North America Act became law, the Mother Country's right to interfere in colonial affairs would be curtailed, if not abolished altogether. How then would the imperial connection be maintained? The second problem became apparent in its full dimensions when the Quebec Conference ended and the Fathers prepared themselves to defend the Quebec Resolutions at the bar of public opinion. By the 1860s most of the colonies were governed by parliaments. They were surprisingly independent and proud of their independence, resembling self-sufficient small nations. In the Maritime Provinces and Newfoundland, not a few colonists argued vehemently against sacrificing provincial self-sufficiency for the sake of an American-inspired experiment called

INTRODUCTION TO THE 2009 CLS EDITION - XXXiii

Confederation. What especially galled these refuseniks was that once the deed had been done, it would be virtually impossible to repeal. A Nation Within an Empire Would Britain - metropolis of the greatest empire of the modern age - willingly relinquish its role in British North America? To repeat: in the scheme devised by the Fathers, the British would have no formal jurisdiction. In what then would the imperial connection consist? Recall Sir John A's famous assertion: "A British subject I was born and a British subject I will die." Not all the Fathers of Confederation were as enamoured of Britain as Macdonald, but it was generally accepted that there would be no breach. We are entitled to ask, what arrangement was made to prevent one? The question was not rudely pressed in the years immediately after Confederation but we in the twenty-first century may ask it. One might say that we are required to ask it. The age of European imperialism is over, but historiography inevitably lags and scholars are only now beginning to reflect in disciplined fashion on that global phenomenon. Canada's chapter cannot be ignored. This country was the first of the British Empire's Senior Dominions. The problem of maintaining the imperial connection in the absence of legal constraints had arisen years before when, after years of struggle, the British North American colonists were successful in persuading the British Government to allow the introduction of "responsible government" in the colonial legislatures. Today we define responsible government as the parliamentary practice that requires a party in office to resign when it loses the confidence of the majority of representatives in the elective chamber on major issues and especially on issues of taxing. In the first decades of the nineteenth century the term was used more loosely. Some liberals and radicals used it to demand a congressional system, with an elective governor and elective executive council; others had in mind a sort of Jacksonian populism; all were dissatisfied with the situation then prevailing; all wanted to humble the oligarchs, the gangs of self-serving elites who dominated colonial politics year after year, defying adverse votes in the legislature; all wanted their votes and voices to be effective. In 1837 and 1838, a significant number of colonists in Lower Canada and Upper Canada mounted armed rebellions to protest the lack of responsible government, however defined.

XXXiv - INTRODUCTION TO THE 2009 CLS EDITION

The struggle for responsible government was protracted not only because the British Government hemmed and hawed but also because the colonial Tories objected. It might seem obvious that the Tories would object: they were the party that benefited from the oligarchic system. But they had a more substantial argument. They contended that a colony's governing party could not be held accountable by the local legislature and local electorate because the colonial governors and their advisors in the executive councils were required under the mandate of Empire to answer to the Colonial Office and the British Parliament. In law, the Tories said, colonies are dependencies and for dependencies oligarchic government is the appropriate form of rule. The logic was impeccable and the argument irrefutable, or so it seemed. But of course it did not satisfy-the liberals. And so the quarrel continued, the liberals arguing that autocracy is intolerable, the Tories praising the glories and concrete advantages of empire. At last, assisted by Lord Durham's ex cathedra pronouncements in his Report on the Affairs of British North America (1839), the liberals triumphed. What Durham said, in a word, was that the colonists could have their cake and eat it too. They could have responsible government without relinquishing the connection with Britain. According to Durham, the British North Americans, as peoples of European "stock," were by nature not constituted to live with autocracy. They were naturally entitled to political freedom. Moreover he defined responsible government in terms of parliamentary freedoms, just as we do today; indeed our definition owes much to Durham's - to say the words "responsible government" evokes at least a flicker of memory. The party in office was to be accountable to the elective chamber. We are back with our original question: what would maintain the British connection? There is no agreement among scholars on the subject of Lord Durham's prescription; he certainly said that the colonists would be grateful for the grant of free institutions and thus unlikely to take up arms against the colonizing power. But what did he suppose would prevent them from slowly drifting away? The Nova Scotian Joseph Howe advanced an attractive interpretation of Durham's contention: after responsible government there would be few occasions, indeed in all likelihood no occasions, on which the interests of colonists and the imperial Parliament would so differ as to make the break inevitable. Hence Howe's conclusion, made in Durham's name: 'cutting the colonies loose would cement the imperial connection!

INTRODUCTION TO THE 2009 CLS EDITION - XXXV

In 1848, responsible government was introduced at last in first one colony and then another: the governing parties in the colonial legislatures were to resign from office if defeated on a major legislative issue. The oligarchs went down to defeat. And mirabile dictu, Howe's prediction was realized. The colonies remained within the orbit of Empire. The British and the British North Americans cooperated on matters of mutual interest, such as immigration, disposal of public lands in the colonies for settlement by immigrants, trade, defence, foreign affairs, and so on, with not much more friction than usually obtains between liberal democratic neighbours. The impossible had been accomplished. The colonies had been released and the imperial enterprise carried on, as pink and glorious as ever. It was a stupendous achievement. At Confederation' the Fathers accepted Lord Durham's gift. The Dominion of Canada would have the institutions of a sovereign country while remaining an imperial "possession." And almost all observers were confident that effective informal links would be maintained with minimal fuss and appropriate aplomb. The Experiment Called Confederation By the time the Fathers got down to their work at the Quebec Conference (1864) the provinces of Canada, Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland had enjoyed responsible government for years. They were each a self-governing and, frankly, self-important, "country." They called themselves "countries." It is true that all were linked to the Mother Country in the insubstantial fashion that I have described. But they were all separately linked. Prince Edward Island knew almost nothing of the Canadas; many in New Brunswick and Nova Scotia positively disdained Upper and Lower Canada - provinces that some in the Maritimes regarded as disloyal to British interests; provinces that in 1837 had risen in arms against their legitimate government. British Columbia was a dream on the far horizon [137]. How could representatives of these independent "countries" deliberate in a common parliament? It was one thing to argue that a sense of mutual advantage had sustained and would continue to sustain the imperial connection. It was quite another to suppose that notions of mutuality would hold together the vast national existence projected at Quebec. In the absence of shared history and experiences, what would make the provinces agree to

XXXVJ - INTRODUCTION TO THE 2009 CLS EDITION

a constitutional division of powers? Could the sense of mutuality be manufactured in some fashion? Would it emerge after union, in the course of time? For a complete understanding of this matter we would have to go beyond the resources in Browne's Documents to an examination of the debates on Confederation in the provincial parliaments. (A selection can be found in Canada's Founding Debates, edited by Janet Ajzenstat et al., which includes deliberations in the Province of Canada, the Maritime Provinces, Newfoundland, British Columbia, and the Red River Settlement, from 1864 to 1873.) Professor Browne refers to these debates only briefly. There was no requirement that he describe them he was charting the role of party leaders and governments, British and British North American - and yet one wishes he had said more to indicate their significance. A brief review of the constitutional process is in order. The preliminary negotiations between colonial elites and the British government in the summer and fall of 1858 illustrate the understanding, shared by the colonists and the Colonial office, that the populations of British North America should not be dragged into union at the behest of the British or of ambitious local elites. In a letter of 1862 to the lieutenant governor of Nova Scotia, the colonial secretary gave it as the view of the British Government that "the most satisfactory mode of testing the opinion of the people of British North America would probably be by means of Resolution or Address, proposed in the Legislature of each Province by its own Government" [19]. Hence the order of events as it was envisaged in the run up to the Quebec Conference: delegates from the several colonies would meet to draw up a plan of union, which would then be placed in the hands of the governor or lieutenant governor of each colony "to lay before the Provincial Parliament with as little delay as possible" [2]. The delegates who met at Charlottetown in September of 1864 and at Quebec in the following month are the men we call the Fathers of Confederation. In recent decades Canadians have sometimes allowed themselves to speak of the Fathers as "Tories," as if all were members of the Tory party or all inclined to a Tory ideology. It is sometimes said that Canada was a Tory invention! We forget that the representation at Quebec was diverse with respect to ideology, ethnicity, and religion. There were Liberals, Conservatives, and Independents, Protestants and Catholics, French speakers and English speakers. They

INTRODUCTION TO THE 2009 CLS EDITION - XXXVJi

were aware that they were drafting a constitution to enable the contestation of political parties for office and they did what they could to ensure that it would not be biased in favour of ideology or program. The fact remains nevertheless that the men who met at Quebec, with the exception of a very few, were all Confederates. They were all committed to the idea of colonial union. It was when they returned to their separate provinces, charged with the responsibility of securing the necessary parliamentary resolution of assent, that they came face to face with the anti-Confederates, the legislators strongly of the opinion that the independent colonies of British North America should maintain their separate existences. In the debates in the provincial parliaments - we may call them ratifying debates - we see the Fathers (usually sitting on the front benches) justifying the decisions made at Quebec and supporting their position with references to historical texts and examples: explaining, cajoling, and projecting their thoughts into the future. The anti-Confederates had dozens of questions - about the expense of railways, about the British connection, military preparedness, provincial finances, and, as I have suggested, about the absence of a British North American sensibility. From the perspective of this introduction, the most serious complaint concerned security for individual freedom. The grant of responsible government had endowed each province with the sovereign powers necessary for the protection of the inhabitants' rights and freedoms. Would the limitation of provincial powers envisaged by the Quebec Resolutions undermine that protection? Confederation would reduce provincial powers: would it for that very reason infringe the colonists' rights? We can imagine an appropriate response: since the national parliament and the local parliaments would together occupy all legislative fields, each in accordance with its constitutionally allotted powers, they would together offer complete security. The federation would boast guarantees for individual rights to rival that of the British Parliament. In fact the chief architects of Confederation - I am thinking primarily of George-Etienne Cartier and George Brown - go further, much further. They boldly claim that the combination of federalism and parliamentary government offers better security for freedoms than does a unitary state and parliamentary government. The inhabitants of the British North American federation would enjoy better guarantees than the inhabitants of the British Isles.

XXXviii - INTRODUCTION TO THE 2009 CLS EDITION

Improving British Constitutionalism From 1840 Upper and Lower Canada had been locked together in a legislative union. By 1858 they were chafing to be free; it remained only to conclude the terms of divorce. George Brown's Liberals were proposing to replace the 1840 union with a federal union of two provinces, Upper Canada and Lower Canada. Some of the Tories, prompted by George-Etienne Carder and Alexander Gait, argued for a federal union of Upper Canada, Lower Canada, and as many other provinces as would join [11]. Then abruptly, in 1864, George Brown announced his support for the Tory vision and joined his former political adversaries in what comes to be known as the Great Coalition. The British North American world shifted on its axis. When the Canadian delegation left for the Charlottetown Conference in September of 1864, Brown was one of their number. He played a large role in drafting the Quebec Resolutions and spoke powerfully in defence of them in the ratifying debates in the Canadian Legislative Assembly. Brown is supremely the man who tells the unpleasant truth about the union of 1840 and the years after. The Province of Canada had become ungovernable because ordinary matters of governmental business, like the budget and the distribution of seats in the legislature, had become inextricably and nastily intertwined with issues of "race," that is, issues of "Frenchness" and Englishness. (The term "race" was used in the nineteenth century to designate what today we call an ethnic group.) Brown is said to have disliked French Canadians and this may well have been true. But his likes and dislikes are not an issue for the argument here. What is important is that his experiences in the Canadian Legislative Assembly had convinced him that parliamentary deliberations go badly awry - parliamentary democracy is subverted - when appeals to "race" are allowed. Let me set the issue in the larger context. Parliamentary government is famous for its tolerance of political differences. In the ordinary way of things, the parliamentary majority sets aside time in the legislative schedule to hear the opposition's arguments; the official records of a parliamentary session include speeches from both sides of the House. The opposition, for its part, agrees to abide by majority decisions but is free to organize to repeal or amend them in a subsequent vote, or in a subsequent parliamentary session. Parliamentary tolerance stems from - it may sound paradoxical - the principle of parliamentary sover-

INTRODUCTION TO THE 2009 CLS EDITION - XXXix

eignty. Only a parliament can compel our obedience. But Parliament's edicts can be revisited, amended, thrown out, brought back. As the constitutional lawyers say of parliamentary sovereignty, "one parliament cannot bind another." Thus political losers live in hope and the hope promotes a climate of moderation and respect for the rights of political minorities. The tolerance can break down. It is notably threatened when a parliament is considering binding matters that once enacted cannot be revisited, matters like the making of a federation and the making of a legislature. And - this is the point of interest for the argument here - it breaks down when the issue before the legislators impinges on their sense of themselves as members of a nationality or "race." It breaks down in the face of the intransigence associated with "identity." James Madison uses the term "faction" to designate intransigent issues. Few political leaders at Confederation used it, but all knew the problem. It is perennial; it is with us today; it is the Achilles heel of liberal democracies. It subverts parliamentary tolerance and thwarts the parliamentary deliberation and respect for parliamentary minorities that secures our political and individual freedoms. Hope of future political success does not persuade a faction to abide by majority decisions; promise of future rewards, the chance of attaining objectives in a new parliament does not mollify its leaders. To realize its demands a faction may take to the streets, mount an armed rebellion, invite the intervention of a foreign power. For this perennial problem George Brown believed he had discovered the remedy. And he believed, correctly, that Cartier was of his mind. In brief, the remedy calls for a division of legislative powers. A federation is less vulnerable to the assault of factions than is a unitary state. Consider: Brown wanted to keep discussion of matters of interest solely to French Canadians out of any legislature in which he might sit. Cartier wanted to secure French Canadian interests in the face of an ever-expanding English majority. (Put yourself in Carder's shoes. He was about to lead French Canadians into a sea of English speakers; to the familiar problem of coping with English speakers from Upper Canada would be added the problem of coping with English speakers from the Maritimes, Newfoundland, and, if the course of Confederation went as predicted, much of the West.) Snap! Brown and Cartier had a match. They became partners in the defence of a constitutional division of legislative powers that would assign to the federal level of government the issues of

Xl - INTRODUCTION TO THE 2009 CLS EDITION

general importance, excluding matters of "race," leaving to the provinces responsibility for protecting the "races." To repeat, the general government of the union would legislate only on matters weighing equally on every individual; it would be neutral; it would take no interest in the individual citizen's "race," country of origin, religion, particular history, etc. Here is Carder's description of the body that will become the Parliament of Canada. Heis speaking in the Canadian Legislative Assembly, the date is 1865: "[when] we were united together, if union were attained, we would form a political nationality with which neither the national origin, nor the religion of any individual would interfere." And in the same debate, here is Brown: "We [the men who drafted the Quebec Resolutions] have thrown over on the localities [the provinces] all the questions which experience has shown lead directly to local jealousy and discord." We do not need to ask who saw the "match" first. The documents in this volume suggest that Cartier drafted the scheme for the division of legislative powers in 1858; he dangled the lure and Brown took it. The important thing is that crotchety, opinionated George Brown was willing to risk his political career in support of their shared vision. We may ask whether the Carder-Brown alliance gives us reason to think of Confederation as a "compact" between French and English? Does my description of the "match" support the idea that Confederation is rooted primarily in an agreement between French and English? I would refer readers to Donald Smiley's discussion of the compact theory of Confederation in The Canadian Political Nationality. Smiley argues that in law Confederation was and is unambiguously not an agreement between the French and English peoples: it is an agreement drawn up by representatives of the several provinces and subsequently ratified in the provincial legislatures. His point is amply supported by the documents in this compilation. But Smiley also contends that the process of making Confederation reminded participants of moral obligations beyond those required by the bare legal agreement. He suggests that some variant of the compact theory may be a "necessary myth"! The idea that constitutions require the support of myth is worth exploring, but if we are not to lose our bearings in this short introduction we must focus on the fact that in the debates of 1865 Carder and Brown are describing and defending not a myth but a system of law: to wit, the division of legislative powers put forward by Cartier in the letter of 1858 and subsequently amplified and affirmed at Quebec.

INTRODUCTION TO THE 2009 CLS EDITION - xli

In that letter of 1858, the Canadian Tories - Cartier, JJ. Ross, and Alexander Gait - proposed to allocate to the general government of the federation, "Customs, excise, and all trade questions; postal service, banking, currency ... public works of national character; ... criminal justice ... public lands, public debt." [11]. Readers are invited to compare the federal "list" as it appears in this document with the federal powers elaborated in the Quebec Resolutions [34] and in the drafts of the British North American Bill as worked out at the London Conference [79, 84, 85, 86]. Recall A.V. Dicey's fear that the division of legislative powers required for federal union would undermine parliamentary sovereignty, threatening the guarantee of political accountability and the security for rights that is the boast of parliamentary systems. Federalism impairs parliamentary government: that is Dicey's contention in a nutshell. Now we have Cartier and George Brown arguing that the division of legislative powers proposed in the Quebec Resolutions would improve the parliamentary system: in a federal regime national institutions are less vulnerable to the intransigent demands of nationalist factions. Dicey sees the British North American proposal to marry parliamentary institutions and federalism as a problem; Brown and the French Canadians see an opportunity. Generations of scholars have been surprised by the simplicity of the Fathers' formulation: the general government is to take care of the general matters; the local governments will look after local matters. Did I suggest that the formulation is simple? It appears to be numbingly simplistic. How else could a division of powers have been conceived? The political scientist of today dwells only on the complications of concurrent matters and on clauses that appear to breach the general-local rule. (Careful readers will note that I have omitted discussion of the powers allotted the federal government for the purpose of protecting minority populations within the provinces. The English speakers in Lower Canada had their defenders at the Quebec and London Conferences.) To see the novelty of the Cartier-Brown formulation let me suggest that we read it in this fashion: in giving up the "general matters," the provincial governments agree to relinquish all pretence of political self-sufficiency; they relinquish their perception of themselves as "countries."-(A bitter pill, for some.) In giving up the "local matters," the general government surrenders control of what we might call affairs of the heart: nationality,

Xlii - INTRODUCTION TO THE 2009 CLS EDITION

identity, religion, culture, and language. It.will retain only the cerebral matters, the things that appeal to traders and lawyers and internationalists. Many in the ratifying debates complained that the union described by the Fathers was a dim affair; would anyone ever find Confederation worth fighting for? Would anyone ever love it or identify it as homeland? I do not want to dwell on the arguments of the anti-Confederates. There can be no complete understanding of what was done at Confederation without sympathetic exploration of their views. But they were the losers in the great British North American union stakes and the volume in your hands records the deeds of the winners, the Fathers of Confederation. Scholars examining the Fathers' arguments offer sober accounts of their motives: it is said that they hoped to find a larger political arena for gratification of personal ambition, they sought rewards from the British government, they believed a union would be better prepared than the provinces individually to fend off an American invasion, they hoped to secure financial benefits for their locality. There were undoubtedly many motives. Many of the Fathers and not a few of the ratifying legislators were swayed by what was sometimes called "the glory argument." To make a new nation among the nations of the world, a nation that would in short order stretch from sea to sea, was, yes, glorious, intellectually challenging, an amazing enterprise, a perhaps never-to-be-repeated prospect. But the scholarly accounts miss the Fathers' sense of surprise at what they themselves have done. Brown, Cartier, H.-L. Langevin, and others speak as if they had accomplished something extraordinary, something new under the sun. K Listen to Brown. He prepared his speech in defence of the division of powers with the greatest care; it is a model of the high rhetorical style. It was delivered in the Canadian Legislative Assembly on 8 February 1865. And it is surely one of the most extraordinary speeches ever in Canadian politics. We are striving to do peacefully what Holland and Belgium, after years of strife, were unable to accomplish. We are seeking by calm discussion to settle questions that Austria and Hungary, that Denmark and Germany, that Russia and Poland, could only crush by the iron heel, or armed force. We are seeking to do without foreign intervention that which deluged in blood the sunny plains of Italy. We are striving to settle forever issues hardly less

INTRODUCTION TO THE 2009 CLS EDITION - xliii

momentous than those that have rent the neighbouring republic and are now exposing it to all the horrors of civil war. Have we not then ... great cause of thankfulness that we have found a better way for the solution of our troubles than that which entailed on other countries such deplorable results? "We," that is, the authors of the Quebec Resolutions of 1864 - "we," the Fathers of Confederation - have found a way to forestall rebellions, secessionist claims, civil war, and armed intervention, a "way" unknown in Europe and in the United States.2 The Fathers of Confederation had improved American federalism and used that improved federalism to perfect the form of government inherited from Britain. This is Brown's assertion and it is, surely, an extraordinary boast. Cartier delivers the same message in another key. His rhetorical powers are at least as great as Brown's. But unlike Brown he does not attempt to imitate Demosthenes or Cicero. He professes to be the knowledgeable neighbour, the wise uncle. We have seen that like Brown he argues for a national parliament in which the legislator's religion and national origin are discounted. But he goes further than Brown to argue that under the new regime particular loyalties and cherished traditions will not be threatened. He tackles the issue directly: particular loyalties are secure only under a federal division of legislative powers. "What was the best and most practicable mode of bringing the provinces together so that particular rights and interests should be properly guarded and protected? No other scheme presented itself but the federation system and that was the project which now presented itself to the parliament of Canada." He is speaking in the Canadian Legislative Assembly on 8 February 1865. Reading Browne's Documents: Reprise G.R Browne prepared his edition of the Documents for Canada's centennial decade. In one way the timing was exactly right. After a century of "peace, order and good government," 2

As Paul Romney notes in Ajzenstat et al, Canada's Founding Debates, Brown is referring to the Belgian overthrow of Dutch rule in 1830, the Hungarian uprising against Hapsburg rule in 1848, the uprising of 1863 in Russian Poland, the Danish-German war of 1864 over the provinces of Schleswig and Holstein, the continuing struggle for Italian unity and independence, and the civil war in the United States.

Xliv - INTRODUCTION TO THE 2009 CLS EDITION

Canadians would revisit their founding. Could there be a more appropriate form of celebration? But in another way the timing was exactly wrong. In the 1960s Canadian scholars were on the point of losing interest in the study of constitutional law and parliamentary government. They had been seized by an enthusiasm for "cultural" studies. (I am using "culture" in its broadest sense: it might be read as "society," or "mores," or "way of life.") Our greatest scholars studied the movement of populations and Westward expansion (Donald Creighton), terrain and trade routes (Harold Innis), and European influences on North American political thought (George Grant). Their objective was to discover and describe the particular, that is, the distinctive, Canadian way of life. How was the Canadian way of life different from the America way or the European? Such an approach has its appeal. How is Canada different from the United States? The question is familiar to every Canadian and there is of course every reason why scholars should address it. But it is not the question that takes us to the heart of the Fathers' accomplishment. The Fathers of Confederation did not intend the new nation to embody a particular tradition or way of life. The national government of the British North American federation was to embody not particular but universal principles. The hope was that it would do, and do well, what all good governments should do. Canada would be a good place to live not because its inhabitants had come from this or that European country, not because immigrants had introduced this or that religion or political ideology, and not because its terrain and river routes favoured a continuing connection with Europe and Britain rather than with the United States. It would be a good place to live because it would have good laws. But to my suggestion that in the 1960s scholars were losing interest in constitutional law, I image a chorus of protest. It might as easily be said that in the sixties Canadians were on the point of intense involvement in constitutional matters. The 1960s was the decade in which we took our first steps on the long journey that Peter Russell calls the Canadian "constitutional odyssey." In response to demands from Quebec, Canadians sought a way to acknowledge Quebec's distinctive history and culture in the law of the Constitution. During the first years of the "odyssey," federal and provincial representatives discussed reform of the division of legislative powers and the introduction of a new process of constitutional amendment. Before the decade was out, a constitutional bill of rights

INTRODUCTION TO THE 2009 CLS EDITION - xlv

had been proposed, attracting the attention of particular groups and political interests. The number of participants in the reform discussions increased. "Ordinary Canadians" prepared to express their views. In 1982, we succeeded in creating a document (the Constitution Act, 1982) that included a bill of rights and an amending formula. But it was deemed insufficient as a measure to satisfy Quebec and negotiators were soon at work again. By 1992 Canadians - that is, representatives of the federal level of government, the provinces, the territories, and the First Nations, as well as the political parties, political interest groups, ad hoc groups, and numbers of outstanding individuals - had put together, or cobbled together, an agreement known as the Charlottetown Constitutional Accord, which included among its more than sixty proposals and resolutions the desired clause acknowledging Quebec's distinctive character. The Charlottetown Accord failed in a national referendum. It began in the 1960s; it lasted for three decades. No other settled Western democracy has embraced such a constitutional adventure. Yes, I have to admit that in the sixties Canadians sharpened their awareness of constitutional law and political institutions. But as their interest increased, their respect decreased. Year by year, the reform agenda lengthened; year by year disagreements about the wording and ranking of proposals became more acrimonious. And many Canadians drew the conclusion that although their country's fundamental law was indeed in need of renovation, there was no way to effect repairs. It was a discouraging idea - we would have to live with defective institutions. But there was worse. Many concluded that the original British North American Constitution must have been the product of just such a contentious process. The lesson was often generalized: making and reforming constitutions is merely a way of doing politics. "It's all about politics." Constitutional law then differs from parliamentary edicts and policies only in this one respect: that it is infuriatingly more difficult to change. By 1992, the Constitution Act (1867) - the Act that still defines Canada - no longer had the appearance of superior law. It no longer enshrined an idea of justice; it no longer expressed our common aspirations. The "first" Charlottetown, the Conference held in September 1864, had been a roaring success. Delegates from the several British North American colonies met to determine the prospects

Xlvi - INTRODUCTION TO THE 2009 CLS EDITION

for a British North American union [21, 22, 23]. Then, fired with enthusiasm, they moved to Quebec and within weeks had written the first draft of what would become the Canadian Constitution [34]. The "second" Charlottetown, the one that gave us the failed Accord of 1992, was an embarrassment. It seriously eroded confidence in the regime established in 1867 - parliamentary government and federalism. We Are More Fortunate Today In the 1960s conventions of academic politeness required a book on the Fathers of Confederation to mark the Canadian centenary. But from the beginning Professor Browne's superlative volume was read as a work primarily of antiquarian interest. (What happened, and when?) And as time passed, it was read less often. It is a curious fact that in the thirty years of the Canadian constitutional "odyssey" few Canadians consulted the founding documents with a view to finding out how constitutions should be made. Few - perhaps none - supposed the Fathers of Confederation capable of instructing twentiethcentury Canadians on issues of constitutional process or principles of British constitutionalism. Canadian historiography has often been crudely historicist, and never more so than in the twentieth century's last decades. What could the Fathers of Confederation tell us about parliamentary government or the concept of a constitutional division of legislative powers? What could they tell us about multiculturalism and social diversity? The most striking argument advanced by the Fathers of Confederation is that constitutional and legislative assertions of nationalist and particular identity curtail the free and open parliamentary deliberation on which rests the boast of Westminster systems: that parliaments protect political freedom and individual rights. Particularistic assertions - understandable, even welcome, in private life - are deleterious when advanced in the course of debate in the national parliament. Now consider - the Charlottetown Accord of 1992 proposed to recognize "the right of Aboriginals in Canada to promote their languages, cultures and traditions and to protect the integrity of their societies;" it proposed to celebrate the "vitality" of official language minorities "throughout Canada" and to acknowledge the "citizens from many lands who have contributed to and continue to contribute to the building of a strong Canada that reflects its racial and cultural diversity." (In 1992 these assertions seemed to

INTRODUCTION TO THE 2009 CLS EDITION - xlvii

many to be uncomplicatedly admirable. As I reread them now I can still recall the thrill I felt then.) No one in the debates remembered Brown's fear that deliberation in the national arena on demands of particular groups subverts the sense of national citizenship. No one recalled Carrier's fear that to debate particular demands in the national legislature invites the assimilation of cultural minorities. We approached questions about the reform of the Canadian Constitution and the reform of Parliament in ignorance of our constitutional history and its roots in the British constitutional tradition - and we did not know that we were ignorant. But time has passed since the Charlottetown Accord failed. We may be more fortunate today. It may be that we can now give Browne's Documents the attention it deserves. JANET AJZENSTAT

Hamilton, January 2009 Janet Ajzenstat is grateful for the assistance of Christopher Moore, Samuel Ajzenstat, Katharine Fierlbeck, Patricia Kennedy (Canadian Archives & Special Collections Branch, Library and Archives, Canada), Michel Barriault, (Political Archives Section, Library and Archives Canada), and Carl Spadoni (Archives and Research Collection, Mills Memorial Library, McMaster University). Sources Ajzenstat, Janet. The Canadian Founding, John Locke and Parliament. Montreal: McGill-Queen's University Press, 2007. Ajzenstat, Janet, Paul Romney, Ian Gentles, and William D. Gairdner, eds. Canada's Founding Debates. Toronto: University of Toronto Press, 2003 Consensus Report on the Constitution, Charlottetown, 28 August 1992. Ottawa: Government of Canada, 1992 De Lolme, Jeari Louis. The Constitution of England, ed. David Lieberman. Indianapolis: Liberty Fund, 2007; first published in English, 1775

Xlviii - INTRODUCTION TO THE 2009 CLS EDITION

Dicey, A.V. Introduction to the Study of the Law of the Constitution, seventh edition. London: Macmillan, 1908 Lord Durham's Report on the Affairs of British North America, ed. Gerald Craig. Montreal: McGill-Queen's University Press, 2007 Howe, Joseph. "Letters to Lord John Russell," in W. P. M. Kennedy, ed., Statutes, Treaties and Documents of the Canadian Constitution, 1713-1929, 384-414. Toronto: Oxford University Press, 1930. Kennedy, W.P.M. The Constitution of Canada, An Introduction tolls Development and Law. London: Oxford University Press, 1922 Madison, James. Federalist No. 10, in The Federalist Papers, Clinton Rossiter, ed. New York: Mentor 1961 Moore, Christopher. 1867, How the Fathers Made a Deal Toronto: McClelland and Stewart, 1997 Pope, Joseph ed., Confederation, Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act. Toronto: Carswell, 1895 Russell, Peter H. Constitutional Odyssey; Can Canadians Be a Sovereign People? Toronto: University of Toronto Press, 1992 Smiley, Donald V. The Canadian Political Nationality. Toronto: Methuen, 1967 - Canada in Question: Federalism in the Eighties, third edition. Toronto: McGraw-Hill Ryerson, 1980

PREFACE TO SIR JOSEPH POPE'S Confederation 1895*

One of the chief disadvantages against which biographers of our public men have to contend arises from the dearth of new material at their command. Forced in many instances to make bricks without straw, they have been driven to supplement their scanty store by liberal draughts on the published reports of Parliament and other official documents, already common property. The result is that what purports to be a disclosure of the heretofore unrevealed side of a statesman's career, presents more often than otherwise the appearance of an abridged Hansard, convenient no doubt, and even interesting in a sense, but containing little or nothing not previously known. It was my fortune as Sir John Macdonald's biographer to experience a difficulty precisely the reverse of this. When, on accepting the charge devolving upon me as literary executor of that great man, I approached the task which he had willed I should undertake, I was appalled at the mass of documents awaiting examination. Among them was a large collection of papers relating to the Confederation negotiations of 1864-1867. These documents gave promise of material from which could be prepared a history of Confederation as distinguished from accounts - chiefly reminiscent in their character - of concomitant social functions and after-dinner speeches. Here were drafts of the Minutes of the Quebec Conference, reports of the discussions taken by Lt.-Colonel Bernard, the Secretary of the Conference, motions and amendments by the score in the handwriting of the movers, together with copious memoranda by the Fathers of Confederation. There were also sundry drafts of the British North America Bill in various stages of evolution, from the first rough trial to the Act itself. Not a line of these papers (other than the results arrived at) had ever been published. The first thing to be done was to bring order out of chaos, to separate the wheat from the chaff, and thus to reduce the mass *The introductions written by W. I. Smith and Sir Arthur Doughty for the notes of Charles Tupper and A. A. Macdonald are reproduced immediately before those documents: see below, Docs. 21 and 33.

1 - DOCUMENTS ON CONFEDERATION

of valuable material to the smallest possible compass. But even when this had been accomplished it seemed hopeless to think of incorporating the contents of a volume relating exclusively to one subject, in a book of Memoirs dealing with the events of an exceptionally active political career extending over half a century. In this dilemma I had recourse to Sir John Thompson. "I would publish them all," said he, with special reference to the drafts of the British North America Bill. "As an appendix to the Memoirs?" I asked, "By all means," replied Sir John. "They will be useful to students of our Constitution, and add to the interest and importance of your work." This advice I found impracticable to follow at the time. The. injunction, however, of so distinguished a lawyer and statesman as Sir John Thompson is not lightly to be disregarded, and has impelled me to complete a labour the fulfilment of which I might otherwise have indefinitely postponed. While the documents I publish are to a large extent selfexplanatory, a very few words of mine may possibly lead to a more ready understanding of them. As regards the proceedings of the Quebec Conference, the key to the whole is to be found in the report made to His Excellency the Governor-General by the Provincial Secretary of Canada, dated 4th May, 1865, wherein Mr. McDougall makes' the following observation: "As your Excellency is aware, the proceedings of the Conference towards the close of its deliberations were very much hurried." - (Appendix to Pope's Memoirs of Sir John Macdonald, Vol. I, p. 356.) This is abundantly evident from the papers themselves. Apparently it was the intention at the outset to preserve a complete record of the proceedings of the Conference, for draft minutes of each day's proceedings up till the 20th October were printed. These drafts, however, are meagre, giving only the text of the motions as actually carried, omitting the proposed amendments, and in every case the names of the movers and seconders. On the other hand every scrap of writing has been preserved. The various draft motions, with scarcely an exception, are in the handwriting of the movers; and certain skeleton forms, indicating the order of each day's proceedings, have rendered the work of compiling the minutes a possible task. These minutes, with the exception of the three last sittings, are complete, and, with one or two qualifications which I have indicated in footnotes, may be accepted as constituting an accurate report of the Conference.

PREFACE TO POPE'S CONFEDERATION, 1985 - li

The record of the discussions, unfortunately, is obviously deficient, and, in places, fragmentary. I have contented myself with reproducing Colonel Bernard's notes, taken in longhand, supplying here and there such small words as are clearly necessary to bring out the sense, and leaving the elucidation of doubtful passages to those better qualified than myself to interpret them. The minutes of the London Conference are printed as prepared by Colonel Bernard. They are merely in outline. No detailed record seems to have been kept at London as at Quebec, but from the loose notes and memoranda of Colonel Bernard I have been able to put together an interesting and, as far as it goes, an accurate account of the proceedings which transformed the Quebec Resolutions into those of the London Conference. The various drafts of the Bill are absolutely to be relied upon, the originals being in every case printed and annotated, as well as distinguished by numbers and dates. This little volume makes no pretension to be other than a compilation pure and simple. That it is not more full is to be regretted. At the same time it should be borne in mind (1) that it contains all the hitherto unpublished information available upon the subject, and (2) that it is exceedingly improbable there will ever be anything more brought to light. For these reasons, therefore, I feel that, viewed as supplementary to the thirteenth and fourteenth chapters of my Memoirs of Sir John Macdonald, it may form a not wholly unimportant contribution to the constitutional literature of Canada. JOSEPH POPE

Ottawa, July 1st, 1895

ABBREVIATIONS

C.B.R. Canadian Bar Review C.H.R. Canadian Historical Review C.J.E.P.S. Canadian Journal of Economics and Political Science C.L. T. Canadian Law Times C.O. Colonial Office P.A.C. Public Archives of Canada, Ottawa P.R.O. Public Record Office, London

DOCUMENTS Section A:

The Reaction of the Colonial Office to the Canadian Initiative of 1858 i Extract from the Speech by Gov.-General Sir Edmund Head on Proroguing the Canadian Legislature, 16 August, 1858 (Enclosed in Gov.-General Head to Sir Edward Bulwer Lytton, 16 August, 1858). (P.R.O. 30/6/69; also in P.R.O. 30/6/163 and C.O. 42/614.) I propose, in the course of the recess, to communicate with Her Majesty's Government, and with the Governments of our sister Colonies, on another matter of very great importance. I am desirous of inviting them to discuss with us the principles on which a bond of a Federal character, uniting the Provinces of British North America, may perhaps hereafter be practicable.

2 Report of a Committee of the Executive Council dated 4 September, 1858. Approved by the Governor General in Council on 9 September, 1858, (enclosed in Gov.-General Head to Sir Edward Bulwer Lytton, 9 September, 1858). (P.R.O. 30/6/69; also in C.O. 42/615.) The Committee of Council are respectfully of opinion that it is expedient to bring the subject of the Union of the British North American colonies under the notice of Her Majesty's Government with as little delay as possible, and to inform the Government of each such colony that the attention of Her Majesty has been called to the subject by your Excellency; That your Excellency should submit to the Right Honourable the Secretary of State for the Colonies the propriety of authorizing a meeting of delegates on behalf of each colony, and of Upper and Lower Canada respectively, for the purpose of considering the subject of such Federative union, and reporting on the principles on which the same could properly be based;

2 - DOCUMENTS ON CONFEDERATION

That such delegates should be appointed by the Executive Government of each colony, and meet with as little delay as possible; That the report of such delegates should be addressed to the Secretary of State for the Colonies, and that a copy of it, as soon as it is prepared, should be placed in the hands of the Governor and Lieutenant-Governor of each colony, in order that he may lay the same before the Provincial Parliament with as little delay as possible. 3 Sir Edward Bulwer Lytton to Gov.-General Head, 10 September, 1858.* (P.R.O. 30/6/69; also in P.R.O. 30/6/163 and C.O. 42/614.)

The question of the Federation of the Colonies is one in which Canada has, no doubt, a very deep interest, and in which representations, proceeding from the Legislature of that Province, will be received with the greatest attention. But it is necessarily one of Imperial character, involving the future government of the other North American Colonies, equally bound with Canada by the common tie which unites all the members of that Empire. It is, therefore, one which it properly belongs to the executive authority of the Empire, and not that of any separate Province, to initiate. I do not, however, question the importance of the reasons which led you to advert to it, and shall await the further development of the views of yourself and your advisers on the subject. I have communicated your speech, t and an extract of this part of my despatch, to the Lieutenant-Governors of the other North American Provinces.

4 Gov.-General Head to Sir Edward Bulwer Lytton, 27 September, 1858. (P.R.O. 30/6/69; also in P.R.O. 30/6/163 and C.O. 42/615.)

I have to acknowledge, with many thanks, your despatch of September 10, No. 55.t I rejoice to find that the course pursued by me appears to her Majesty's Government to have been in accordance with constitutional principles. With regard to the subject of the federation of the colonies to

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

3

which you advert, I feel the full force of what is stated by you, and I trust that the terms of the Minute of Council of the 9th of September,§ transmitted with my despatch No. 118, will show that I have not overlooked the "Imperial" character of the question. It is, I conceive, only by the permission and authority of Her Majesty's Government, that the subject can be considered and dealt with. If I may so express it, the starting point of the Union must be in the fact, that all these colonies are Provinces of the same Empire, and subject to the same Sovereign. For this reason my Council have recommended that the report of any delegates on this subject should be made to Her Majesty's Secretary of State for the Colonies. In mentioning the matter to the Canadian Legislature, I merely announced my intention of opening a correspondence with Her Majesty's Government, and with the other Colonies, on the subject, in order to indicate the direction in which we were about to seek escape from the difficulties pressing on the Government of Canada. What that correspondence might lead to, or how far Her Majesty's Government might authorize any practical steps, were questions which I left untouched. 5

Memorandum from the Executive Council of New Brunswick to Lieut.-Governor J. H. T. Manners-Sutton (enclosed in Lieut.Governor Manners-Sutton to Sir Edward Bulwer Lytton, 29 September, 1858J. (P.R.O, 30/6/69.) The Committee of Council have had under consideration the despatch of the Governor-General, of the 9th instant, II containing the report of the Executive Council of Canada on the subject of a Federative union of the British North American Provinces. *This despatch was followed, on the 24th of September, by a private letter in which Lytton warned Head that he had "nq official justification to give of the step you took of initiating, by your messages, the question of Federal union between the provinces - a question of Imperial and not simply Canadian character." (P.R.O. 30/6/ 69.) tSee Doc, 1. JSee Doc. 3. §See Doc. 2. ||SeeDoc.2.

4 - DOCUMENTS ON CONFEDERATION

The Council are deeply impressed with the importance of the subject, requiring, as it does, the most deliberate and mature consideration. The British North American Provinces have each attained a great degree of material prosperity under their present constitution; and the increased power of self-government recently conferred upon them, has left them nothing to envy in the political condition of the citizens of the neighbouring Republic. The Council are of opinion that the interests of this Province, and of all the British North American Provinces, require that when the question of a Federal or Legislative union of the Provinces is formally brought before the people, it should be raised in such a manner, and at such a time, as would afford a reasonable prospect, at least, of arriving at a speedy and satisfactory conclusion. And without expressing any opinion as to the practicability or effect of such a union as that referred to in the Memorandum of the Council of Canada, the Council would state that, although the subject of a union of the Colonies has to some extent been discussed in the public press here, the attention of the Provincial Legislature has never been directed to this matter, nor has it been a prominent subject of consideration among the constituencies, and in this respect New Brunswick occupies a very different position from Canada. And it may be remarked that if the recommendation of the Canadian Government be adopted by the Secretary of State, the question of a Legislative union with any or all of the other Provinces must be excluded from consideration by the Commission. Under these circumstances, the Council would respectfully submit, that a reasonable time should be allowed for consideration, before the commencement of any such inquiry as that contemplated by the Government of Canada. (Signed) CHARLES FISHER S. L. TILLEY JAMES BROWN W. H. STEVENS A. J. SMITH CHARLES WALTERS

September 25,1858.

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE — 5

6

Lieut.-Covernor Manners-Sutton to Sir Edward Bulwer Lytton, 2 October, 1858 (private and confidential). (P.R.O. 30/6/69; summarized in P.R.O. 30/6/132.)

In my despatch of the 29th ultimo, No. 50,* I have officially laid before you a copy of the Memorandum of my Council on the proposal (emanating from the Executive Council of Canada) that the Secretary of State forthwith authorize the appointment, by the respective Governments of the British North American Provinces, of Commissioners to consider the subject of a Federative union of all the British North American Provinces, and to report thereon to the Secretary of State. 2. I confess, Sir, that I learnt, with some surprise, and my Council were equally unprepared for the announcement, that the Executive Council of Canada had advised the GovernorGeneral to recommend the Secretary of State to authorize the appointment of this Commission, without previously ascertaining the views of the Government of this province (or, so far as I am aware, of the Governments of Nova Scotia or Prince Edward's [sic] Island) on the expediency of the proposed inquiry. 3. But, although I do not profess to be conversant with all the details and particulars of the present political condition of Canada, I am sufficiently well informed on the subject to be aware that the exigencies of the present time may form a sufficient justification for the step which has been taken by the Canadian Government, and also afford grounds for inducing Her Majesty's Government to take into consideration, with the hope of allaying excitement in Canada, suggestions which, under other circumstances, they might not be disposed to entertain. 4. It is possible that a Federative union of the British North American Provinces would afford to the Canadian Government the readiest mode of escape from the difficulties and embarrassments which now surround the settlement of the "seat of Government" question, and, I presume that I am right in supposing that, although the ostensible object of the proposed inquiry is the union by Federative bonds with Canada of the other British North American Provinces, the Canadian Government have no less in view the severance of the bond which now joins the two Canadas in a Legislative Union, and the substitution for that *SeeDoc. 5.

6 ~ DOCUMENTS ON CONFEDERATION

bond of a more elastic tie of a Federal or a Federative character. 5. Both these questions, viz. "the seat of Government" question, and the expediency, or non-expediency, of substituting a Federative for the Legislative union between the Canadas, are exclusively Canadian questions. But the proposal of the Canadian Government affects this province equally with Canada, and although I have purposely confined within very narrow limits the remarks contained in my official despatch, it is, I think, my duty to lay before you, confidentially, but frankly, and without reserve, the opinions which I entertain not only with regard to the policy of the proposed inquiry, and the constitution of the proposed Commission, but also with respect to the probable results of a Federal or Federative union of the British North American Provinces. 6. As regards the policy of the proposed inquiry I should observe that, although the Memorandum of my Council is couched in guarded terms, you will have no difficulty in ascertaining from it that they are of opinion, first, that if a union of the British North American Provinces is to be discussed, this discussion should embrace the question of a Legislative, as well as that of a Federal or Federative union, and the expediency of uniting some, as well as that of uniting all the provinces; and, secondly, that the immediate commencement of such an inquiry as that proposed by the Canadian Government, even if that inquiry should embrace the expediency of a Legislative, as well as a Federal, union of some, as well as of all, the British North American Provinces would be, to say the least of it, premature; and in these opinions I entirely concur, not only for the reasons stated in the Memorandum, but also because I believe that the inquiry, if now instituted, would result either in the early completion of a Federal or Federative union of the British North American Provinces (and I/should deprecate the establishment of such a union for reasons which I shall attempt fully to explain in a subsequent part of this despatch), or in the dangerous excitement and agitation which, in these provinces, always accompanies a protracted discussion on constitutional questions of importance. 7. And I should here observe that if (as probably will be the case) it should be urged in favour of the recommendation of the Canadian Government, that the authorization by the Secretary of State of the respective Governments of the British North American Provinces to appoint the Commissioners of inquiry will not render it compulsory on any of those Governments to

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

7

exercise this authority, such an argument, however plausible, would be (so far, at least, as this Government is concerned), entirely fallacious; for, if authority to appoint the Commission of inquiry be granted, the pressure to which my Council would be subjected by Canada would (unless the Government of Nova Scotia should join them in resisting this pressure, of which, as matters now stand, I have no expectation), compel them, although convinced of the impolicy of the step, to advise me to nominate a Commissioner. The arguments, therefore, which my Council have, in their Memorandum, urged against the immediate commencement of the proposed inquiry, are applicable, also, to the immediate authorization by the Secretary of State of the appointment of the Commission. And although it is not expressly stated in the Memorandum, I know that this is the opinion of my Council. 8.1 now turn to the proposed constitution of the Commission. It is true that the authority to appoint the Commission would proceed from the Crown, and it is also true that the Commissioners would address their report to the Secretary of State; but the Commissioners would be appointed by the respective Governments of the British North American Provinces (the Canadian Government nominating two out of five), and copies of their report, as soon as it is prepared, would be necessarily transmitted by the Secretary of State to the respective Governors of the Provinces, to be laid before the Legislature of each Province with as little delay as possible. Now the fact that the appointment of the Commission was authorized by the Secretary of State would give to the report of the Commissioners appointed by the Provincial Governments additional weight and authority, and, although the Secretary of State might, it is true, when transmitting their report to the Governors of the Provinces to be laid before their Legislatures, accompany it with suggestions or instructions, these suggestions or instructions would have far less weight than would attach to them if given before the inquiry commenced; and, if they should be at variance with the wishes of any of the Provincial Legislatures, excitement and discontent might be the result. It appears to me, then, that it would scarcely be possible to constitute a Commission, or to frame an inquiry, in a manner which would give the Canadian Government more power of deciding the question according to their own views, or more completely exclude Her Majesty's Government from exercising

8 - DOCUMENTS ON CONFEDERATION

any influence, other than that of direct coercion, in its settlement. 9. But the question of uniting by Federative bonds the British North Provinces [sic] is confessedly one which not only vitally affects the present condition and future prospects of each of the Provinces, but also involves Imperial interests of immense importance; and, with your permission, I shall now submit to you, as clearly as I can, the reasons which induce me to fear that any such union would be productive of very disastrous consequences. 10.1 have, in a former paragraph of this despatch, stated that the purport of the Governor-General's despatch of the 9th of September* took me, as well as my Council, by surprise. But the question of a Union, whether Federative or Legislative, of all or some of the British North American Provinces is not new to me; on the contrary, it forced itself on my consideration at a very early period after my arrival in the Province, not only because I saw symptoms (vide my despatch Private, June 12, 1855, to Lord John Russell) which led me to believe that the question would, ere long, be raised, in one shape or another, but also because I very soon traced most of the difficulties which have beset the practical working of the system of "responsible Government" in this Province to causes the character of which necessarily led me to consider whether an union of this Province with some, at least, of the other Provinces, might not be productive of benefit to all. 11. And I should observe that, early in the course of the year (1857), I stated, in compliance with a request to that effect which I received from Sir E. Head, to him, the opinions which I had formed on this subject, and these opinions I have seen no reason to alter. The correspondence which passed between the Governor-General and myself on the occasion referred to was strictly private and unofficial, but I feel no difficulty in thus referring to it, because my letter was written to Sir E. Head (who was then on the eve*of visiting England) expressly with the view of its being shown to the then Secretary of State, and I have no reason to doubt that it was laid before the Secretary of State, or, at all events, that its purport was communicated to him. 12. Well, then, Sir, I have no hesitation in saying, that in this province (and I believe that the same state of affairs exists to, at least, an equal extent in Prince Edward's Island, and, to some extent, in Nova Scotia), the smallness of the numbers of seats in the House of Assembly (which gives to one or two members the

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

9

same power over a Government which in England is exercised by a large party, under the guidance of leaders of acknowledged ability and reputation), the petty nature of the questions commonly discussed in the House of Assembly, and the consequent absence of any motive sufficient to induce the men of the highest standing here to compete for legislative honours, or to accept official appointments, and the limited number and inferior attainments of those from among whom the Representative of the Crown must choose his responsible advisers, have combined to degrade both the Government and the Legislature. 13. For the House of Assembly here now generally consists, with few exceptions, of men to whom the pay of a member (about 80 /. currency per annum) is of great importance, who have sought seats in the Legislature, not on public grounds, but for personal objects, and who, having obtained these seats, not on account of their political ability or political principles, but by promises of patronage or local benefits to their constituents, neglect no opportunity of making the best bargain they can, for their supporters and themselves, for their votes in the Legislature. 14. For this state of affairs the province does not, within itself, contain any remedy, which must, therefore, be sought for from without the province; and from a very early period of my government, I have regarded the union of New Brunswick with some of the neighbouring provinces as affording the only cure for the evils to which I have referred. But a Federal or Federative union with the other provinces would, in my humble judgment, only aggravate these evils, and introduce others of a description even more disastrous to the provinces so united, and dangerous to their connection with the mother country. 15.1 presume that the word "Federative" has been used in the Memorandum of the Executive Council of Canada to imply that the union which they contemplate is not to be necessarily of the same character as that which binds together the several States of the neighbouring Republic. But upon whatever basis a Federative union might be formed, it must, I think, be liable to one of two objections, either of which ought, as it appears to me, to be fatal to such a scheme. For if the Local Governments and Local Legislatures are still to continue to exercise the same authority in local legislation and local matters which now *See Doc. 2.

10 — DOCUMENTS ON CONFEDERATION

appertains to them (and there is comparatively little business of any other description which they are now called upon to discuss), then the result of suqh a union will be still further to degrade the Local Governments and Legislatures without diminishing their authority, while the Central Government and Central Legislature, nominally endowed with high powers, and proud of their position, but with little or no business of a purely Colonial character to occupy their attention, would, I fear, claim an authority on subjects not purely Colonial, but also of Imperial importance (such as questions of foreign trade, etc.), and shortly be brought into collision with Her Majesty's Government and with the Imperial Parliament. If, on the other hand, the Local Governments and Local Legislatures were shorn of a large portion of their present powers (to which proposal I do not believe that the Lower Provinces would agree), the inhabitants of the Lower Provinces would, in my opinion, very soon, if not immediately, become discontented with an arrangement which would deprive them of the power they now possess over the management of their own affairs, and render New Brunswick; Nova Scotia, and Prince Edward's Island, Provinces of Canada., instead of being, as they now are, Provinces of the British Empire. And in the attempt to regain that which they had lost, they might, and, as I think, probably would look, not, indeed to the Government at Washington for assistance, but to the Northern States of the Union. Again, the establishment of a Federal or Federative union would, as I believe, be immediately followed by an agitation in favour of the election of the Local Governors, instead of their being nominated by the Crown. And it would be the more difficult to resist this application on account of the purely local or municipal character of the powers with which the Governors would be intrusted; but the compliance with the request would be in my opinion highly dangerous, not only because it would at once be fatal to British influence in the Local Governments and Local Legislatures, but also because it would, I believe, be followed quickly by a similar application from the United Provinces, with regard to the GovernorGeneralship, still more difficult to resist from the force with which it would be pressed, but the compliance with which would at once practically sever the connection between the Crown and British North America. 16. A Legislative union of the British North American Provinces is not liable to all the objections which, as I believe, apply to a Federal or Federative union; but it is liable to the objection

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

11

that great discontent in the Lower Provinces would follow the centralization in one Government, and in one Legislature, at Quebec or Montreal, of the powers and authority now vested in the Governments and Legislatures of the several provinces; and, moreover, I believe that no single Government or single Legislature could, in present circumstances, satisfactorily govern and legislate for a territory extending over an area so immense, and so sparsely populated as many portions of that territory are. Such a union, then (however practicable or expedient it may hereafter become), would at present be, in my opinion, impolitic, even if it were practicable; but it is not practicable, for Canada does not desire such a union, and the Lower Provinces would, I believe, reject it. 17. There are, however, no such objections (at least in my opinion) to a Legislative union between the Lower Provinces,, viz., New Brunswick, Nova Scotia, and Prince Edward's Island. On the contrary, I believe that such a union would confer incalculable benefits on all the three Provinces, and that it would form an additional security for the continuance of harmony between Her Majesty's Government and the Provincial Government, and of the existing connection with the mother-country. The close contiguity of the three Provinces, the identity of their interests, and the existing facilities of the inter-communication between them, which will be materially increased when the railway from Halifax joins the railway from St. John to Shediac Point to such a union, and the fusion of the three Governments and Legislatures into one would not be regarded by the people of any one of the provinces in the light in which they would regard the transference of power now vested in their own Governments and Legislatures to a Government and Legislature stationed at Quebec or Montreal. Indeed, I believe that the people of this province and of Prince Edward [sic] Island might be brought without difficulty to view with favour this union, and, unless the step now taken by the Canadian Government should have altered the views of the people of Nova Scotia, I am inclined to believe that they, too, would approve of it. 18. It would be out of place in this despatch to discuss the details of such a union; but so far as I am able to judge, there would be no insuperable obstacles to carrying it into effect. The financial and commercial questions, which would be necessarily raised, might, as it appears to me, be arranged without much trouble; and although it is very possible that, at

12 - DOCUMENTS ON CONFEDERATION

first, the seat of Government question might present some difficulties, these difficulties might, I think, be overcome. For it is clear that neither Fredericton [sic], nor Halifax, nor St. John could be chosen. Fredricton would have few, if any, supporters; St. John would have none, and Halifax would not have so deep an interest in the matter as would be the case if she were not to continue the head-quarters of the troops stationed in the three provinces, and of the British fleet on the North American station. I am therefore disposed to believe that the three provinces might be brought to concur in the selection of some central spot as the seat of Government for the three provinces. And, at all events, even if it should be found necessary, for a time, to adopt the system of a migratory Government, inconvenient and expensive as this system is, both the inconvenience and expense would be far more than counterbalanced by the political advantages and financial saving that would result from the union. 19.1 fear that I have trespassed at too great a length upon your attention in discussing this question; but I should not have felt myself justified in bringing it before you if I had not given to the details connected with it that consideration which enables me to express a hope that, if you should be of opinion that a Legislative union between the Lower Provinces would be desirable, it might be possible to effect that union. 20. But the institution of the inquiry proposed by the Canadian Government would, even if that inquiry should embrace the Legislative as well as Federal union of some, as well as of all, the British North American provinces, certainly place new and most formidable difficulties in the way of attaining this object; and if this inquiry be now instituted, it will, I think, be difficult to prevent a Federative union of all the British North American provinces, not because the people of New Brunswick, or (so far as I am aware) of Nova Scotia and Prince Edward's Island, are in favour of such a scheme, but because Canada will exercise an overpowering influence in the decision of the question. 21. If, on the other hand, you should think fit, either on the ground that the application of the Canadian Government has not been concurred in by the Governments of all the provinces to be affected by the inquiry, or on any other grounds^ to defer a compliance with, if not absolutely to reject, that application, then I think I could (if such a course seemed desirable to you) be enabled, without committing Her Majesty's Government or myself, to raise the question of a Legislative union of the Lower Provinces, in such a manner as would afford to this scheme a fair

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE — 13

prospect of success, and, at all events, render more difficult the concurrence of the Lower Provinces in any plan for uniting by Federative bonds all the British North American Provinces. 7

Governor Sir Alexander Bannerman to Sir Edward Bulwer Lytton, 11 October, 1858. (P.R.O.30/6/69.) It is understood on this side of the Atlantic that the proposition of a Federative union originated with the British Government; there could not be a worse tribunal for its discussion than Delegates chosen from the Executive Councils.

8 Lieut.-Governor Manners-Sutton to Sir Edward Bulwer Lytton, 11 October, 1858 (private). (P.R.0.30/6/69.) Hitherto there has been a very general impression here that in raising the question of a Federative union, the Executive Council of Canada has acted with the sanction, if not directly at the instance, of Her Majesty's Government. I have not, as you are aware, acted on this impression, in which I do not myself concur, but its prevalence here has created additional difficulties in dealing with the question. These difficulties are removed by your despatch of 10th September, No. 15,* the purport of which I shall immediately communicate to my Council.

9 Gov.-General Head to Sir Edward Bulwer Lytton, 22 October, 1858 (confidential). (C.0.42/615.) I now pass on to the third point - that of having assumed the responsibility of mentioning in the speech proroguing Parliamentt the possibility of an Union of the British North American Provinces. The minute of Council forwarded with my despatch of the *SeeDoc. 1. tSee Doc. 3.

14 — DOCUMENTS ON CONFEDERATION

9th Sept. No. 118* will sufficiently shew that I was not blind to the fact that any practical measure, with regard to such a proposal must originate, not with the Government of Canada, but with that of the Queen. The substance of this minute of Council was suggested by myself with the view of making this important point. Nor did I, in fact, by my speech bring the subject under the notice of the Canadian Parliament for the first time. It was before them at that very time. Early in the last Session, Mr. Gait, then unconnected with the ministry, put on the votes a notice for the consideration of it, which was not yet disposed of. When Mr. Gait therefore came into office it was natural that the question of an Union of the Colonies should at once be discussed. I found him and several of the gentlemen about to assume office deeply impressed with the idea that in some such union alone could be found the ultimate solution of the great question which had been made a ground of agitation by Mr. Brown and his friends at the general election viz: — the existing equality of representation of Upper and Lower Canada, and the alleged injustice inflicted on the former by such equality. This question is one, I need not say, which threatened to touch the root of the present Union of the two sections of Canada as by law established, and might imperil its existence by reviving all the old antagonism of race and religion. Mr. Gait and Mr. Cartier on taking office were naturally anxious to offer to the Legislative Assembly some indication of the policy by which they hoped to meet this difficulty, more especially as Mr. Gait's opinions on the subject were already known, and had been recorded on the journals of the House. It will, I think, be seen that my position was a very difficult one. The Legislature was to be prorogued immediately, and it was thus utterly out of my power to consult Her Majesty's Government in any official shape as to the propriety of the step which I was about to take. The intimation of the ministerial policy to be of any use had to be made at once before Parliament separated. I did not think that I could under the circumstances refuse to announce to the Legislature that I would correspond with Her Majesty's Government and with the other colonies not with reference to the best mode of effectuating such an union — but as to the principles on which it might hereafter be possible.

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

15

10 G. E. Cartier, J. J. Ross, and M. East [A. T. Ga/r]t to Sir Edward Bulwer Lytton, 25 October, 1858. (P.R.O. 30/6/69.)

We have the honour to submit, for the consideration of Her Majesty's Government, that the Governor-General, acting under the advice of his responsible advisers, has been pleased to recommend that the subject of a Federate Union of the Provinces of British North America should form the subject of discussion by Delegates from each Province, to be appointed under the orders of Her Majesty's Government. And we have been instructed to urge the importance of this step, as well upon grounds peculiar to Canada, as from considerations affecting the interests of the other Colonies, and of the whole Empire. It is our duty to state that very grave difficulties now present themselves in conducting the Government of Canada, in such a manner as to show due regard to the wishes of its numerous population. The union of Lower with Upper Canada was based upon perfect equality being preserved between these Provinces '— a condition the more necessary from the differences in their respective language, law, and religion; and although there is now a large English population in Lower Canada, still these differences exist to an extent which prevents any perfect and complete assimilation of the views of the two sections. At the time of the Union Act, Lower Canada possessed a much larger population than Upper Canada, but this produced no difficulty in the government of the Provinces under that Act. Since that period, however, the progress of population has been more rapid in the western section, and claims are now made on behalf of its inhabitants for giving them representation in the Legislature, in proportion to their numbers; which claims, involving, it is believed, a most serious interference with the principles upon which the Union was based, have been and are strenuously resisted by Lower Canada. The result is shown by an agitation fraught with great danger to the peaceful and harmonious working of our constitutional system, and consequently detrimental to the progress of the Province. The necessity of providing a remedy for a state of things that *See Doc. 2. tThe name of "M. East" is printed at the head and end of this document, as well as Doc. 11, but the correct name, "A. T. Gait," is written in the margin.

16 - DOCUMENTS ON CONFEDERATION

is yearly becoming worse, and of allaying feelings that are daily aggravated by the contention of political parties, has impressed the Advisers of Her Majesty's Representative in Canada with the importance of seeking for such a mode of dealing with these difficulties as may for ever remove them. In this view it has appeared to them advisable to consider how far the Union of Lower with Upper Canada could be rendered essentially Federative in combination with the Provinces of New Brunswick, Nova Scotia, Newfoundland, and Prince Edward's [sic] Island, together with such other territories as it may be hereafter desirable to incorporate with such Confederation, from the possessions of the Crown in British North America. The Undersigned are convinced that Her Majesty's Government will be fully alive to the grave nature of the circumstances referred to, which are stated by them under the full responsibility of their position as advisers of the Crown in Canada. They are satisfied that the time has arrived for a Constitutional discussion of all means whereby the evils of internal dissension may be avoided in such an important dependency of the Empire as Canada. But independent of reasons affecting Canada alone, it is respectfully submitted that the interests of the several Colonies, and of the Empire, will be greatly promoted by a more intimate and united government of the entire British North American Possessions. The population, trade, and resources of all these Colonies have so rapidly increased of late years, and the removal of trade-restrictions has made them, in so great a degree, self-sustaining, that it appears to the Government of Canada exceedingly important to bind still more closely the ties of their common allegiance to the British Crown, and to obtain for general purposes, such an identity in legislation as may seem to consolidate their growing power, thus raising, under the protection of the Empire, an important Confederation on the North American Continent. At present, each Colony is totally distinct in its government, its customs and trade, and its general legislation. To each other no greater facilities are extended than to any foreign State; and the only common tie is that which binds all to the British Crown. This state of things is considered to be neither promotive of the physical prosperity of all, nor of that moral union which ought to be preserved in the presence of the powerful Confederation of the United States. With a population of 3,500,000, with a foreign commerce exceeding 25,000,000 /. sterling, and a commercial marine

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE — 17

inferior in extent only to those of Great Britain and the United States, it is in the power of the Imperial Government, by sanctioning a confederation of these Provinces, to constitute a dependency of the Empire valuable in time of peace, and powerful in the event of war; for ever removing the fear that these Colonies may ultimately serve to swell the power of another nation. In the case of the Australian Colonies, the Imperial Government have consented to their discussion of the question of confederation, although the reasons for it, as relates to the Empire, can scarcely be either so urgent, or so important, as those which affect British North America. The Government of Canada do not desire to represent the feelings of the other Provinces; their application is confined to the request that the Imperial Government will be pleased to authorize a meeting of delegates on behalf of each Colony, and of Upper and Lower Canada respectively, for the purpose of considering the subject of a Federative union, and reporting on the principles upon which the same could be properly based; that such delegates should be appointed by the Executive Government of each Colony, and meet with as little delay as possible; and that the report of such delegates should be addressed to the Secretary of State for the Colonies, and that a copy of it, as soon as possible as it is prepared, should be placed in the hands of the Governor and Lieutenant-Governor of each Colony, in order that he may lay the same before the Provincial Parliaments with as little delay as possible. Upon the report of such delegates, it will be for Her Majesty's Government to decide whether the interests of the Empire will be promoted by confederation and to direct the action of the Imperial Parliament thereon, with the concurrence of the Legislatures of the respective colonies. 11 G. E. Carrier, J. J. Ross, and M. East [A. T. Gait]* to Sir Edward Bulwer Lytton, 25 October, 1858 (private and confidential). (P.R.O. 30/6/69.)

In the official communicationt which we have this day the honour to address to you on the confederation of the British *See above, p. 15, n.t. tSee Doc. 10.

18 — DOCUMENTS ON CONFEDERATION

North American Provinces, we have felt it improper to offer any opinion upon the details which will form the subject of the proposed discussion by Delegates. It is also our duty not to cause embarrassment by advancing views which may yet have to be greatly modified. We venture, however, in compliance with your desire for a confidential communication on these points, to suggest: —. That the Federal Government should be composed of a Governor-General, or Viceroy, to be appointed by the Queen; of an Upper House, or Senate, elected upon a territorial basis of representation; and of a House of Assembly, elected on the basis of population. The Executive to be composed of Ministers, responsible to the Legislature; That the powers of the Federal Legislature and Government should comprehend the Customs, Excise, and all trade questions; postal service, militia, banking, currency, weights and measures, and bankruptcy; public works of national character; harbours and lighthouses; fisheries, and their protection; criminal justice; public lands, public debt, and government of unincorporated and Indian territories. It will form a subject for mature deliberation whether the powers of the Federal Government should be confined to the points named, or should be extended to all matters not specially entrusted to the Local Legislatures. The Confederation might include the constitution of a Federal Court of Appeal. The general revenue, having been first charged with the expense of collection, and of civil government, to be subject to the payment of interest on the public debt of the Confederation to be constituted from the existing obligations of each. The surplus to be divided each year, according to population. The net revenue from public lands, in each province, to be its exclusive property, except in the case of new territories. It may be expedient, for a limited time, to provide, from the general revenue, a certain fixed contribution for educational and judicial purposes, until provision is made for the same by each member of the Confederation. It will be observed that the basis of Confederation now proposed differs from that of the United States in several important particulars. It does not profess to be derived from the people, but would be the Constitution provided by the Imperial Parliament; thus affording the means of remedying any defect, which is now practically impossible under the American Constitution.

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE — 19

The Local Legislatures would not be in a position to claim the exercise of the same sovereign powers, which have frequently been the cause of difference between the American States and their General Government. To this may be added that, by the proposed distribution of the revenue, each province would have a direct pecuniary interest in the preservation of the authority of the Federal Government. In these respects it is conceived that the proposed Confederation would possess greater inherent strength than that of the United States, and would combine the advantages of the unity for general purposes of a Legislative union, with so much of the Federative principle as would give all the benefits of local government and legislation upon questions of provincial interest. 12 Memorandum by T.F.Elliot * 4November, 1858 (confidential). (P.R.O. 30/6/69.)

Memorandum on the Question of the Federation of the British Provinces in North America The object of this paper will be to show briefly how the subject has arisen, to ascertain and state the principal points to be settled, and, without attempting any confident solution of a grave and complicated question of policy which can only be determined by the highest authority, to throw together some of the materials for forming a decision. One other prefatory word may be permitted. It is impossible for any one to have made the acquaintance of the three Canadian Ministers now in England, without sentiments of respect and esteem, and without believing that their public views are moderate and patriotic. But it is naturally their function to advocate to the full extent of their power those measures which they believe to be best for the public interest. If, therefore, some of the adverse considerations are pointed out in the course of this paper, it will be in no spirit of opposition to those gentlemen,, but on account of the paramount duty of endeavouring to take care that all the different bearings of so important a case are brought within the notice of Her Majesty's Government. When Lower and Upper Canada were united, an equal *Assistant Under-Secretary, Nov. 1847-Dec. 1868 (currently acting as Permanent Under-Secretary of State for the Colonies in the absence of Herman Merivale).

20 - DOCUMENTS ON CONFEDERATION

representation in the Legislature was assigned to each. The inhabitants of Lower Canada, chiefly French Canadians, at that time formed the majority, and they acquiesced in the arrangement. The inhabitants of Upper Canada, chiefly English Canadians, have now become the majority, and they demand a revision of the measure, apportioning the number of representatives in each of the two sections to the numbers of the population. Mr. Brown and his supporters, who at one time this year gained the majority in the Assembly, and acquired office, are those who urge an immediate readjustment. The present Canadian Ministers are opposed to it, on the ground, amongst others, that it would be fraught with dangerous dissensions between the people of English and French origin. They appear to think, however, that a struggle cannot be averted on this subject, unless it be merged in a larger question. These are the circumstances under which the GovernorGeneral of Canada introduced the subject of a Federal union into his closing speech to the Legislature.* The Secretary of State answeredt that any representation on such a point from Canada would meet with respectful consideration; but that the topic was of an Imperial character: and a copy of the speech, with this answer, was forwarded to the Governors of the North American Provinces. The proposal is that the Imperial Government should authorize the Government of each province to appoint delegates to discuss the expediency and the conditions of the measure. Such having been the origin of the matter, three leading questions suggest themselves for consideration: 1. Whether the projected measure would be good in itself. 2. Whether, at all events, the Imperial Government ought to lend its sanction to its discussion. And, 3. Whether this should be done in the particular manner which is now proposed. l.Now, the first remark which presents itself is, that no Provincial Government or Legislature, until the late public announcement, had asked for a Federal union, and that no evil had occurred for which that would be the natural remedy. There had been no embarrassment between the different Provinces. The difficulty in Canada is a purely Canadian difficulty; and, if a Federal union were declared tomorrow, there would still remain, so far as regards the internal Legislation of Canada, the same inequality between the relative numbers of representatives and of inhabitants which has given rise to the existing uneasiness.

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE - 2 1

The cause of dissension would not be removed, for it is an independent question, with regard to which the Federal union might be a diversion, but could never be a solution. If the proposed Federal body is restricted to objects of a really Federal character, it may well be doubtful whether they will have business enough to occupy them, and, in that case, there will arise the risk that men placed in so high a station, without sufficient legitimate employment, will turn their attention to topics which might prove mischievous or dangerous. If, on the other hand, the central body is to be provided with work by withdrawing it from the separate Legislatures, and reducing these last to more of a municipal character, it may reasonably be feared that the people will yield a less willing obedience to the laws. They become greatly excited on the sort of questions which form the bulk of Colonial legislation, and which are of a very local nature, such as the formation of local roads, canals, harbours, or the regulation of district schools. It will be a critical time, if ever some matter of this kind, exciting eager contests on the spot, is to be determined by the votes of the politicians of a remote Province, being men whose names, history, and position in their own country will be scarcely known to the inhabitants of the place concerned. At present, they may indulge in a little complaining over an unpalatable decision, but at least they feel that it is arrived at by men whom they view as their own representatives. But what will a resident at Sandwich, almost in the heart of the continent, feel, if a question on his school, or the road through his neighbouring forest, or his harbour on the lake, is determined, contrary to his wishes, by a member for Halifax, living at a seaport 1,500 miles off? If it should encroach on the proper functions of a local Legislature, the scheme will contain the seeds of rebellion. Of course it is easy to frame a list of topics which admit, in the abstract, of being ruled by the central authority. But in the particular case of the present provinces, it may be doubted whether, on any of these topics, a common action is needed, whilst on some of them it would be irksome or oppressive. Take, for example, the subject of Customs: none appears more fitted for a comprehensive or Federal regulation. The arguments in favour of a Zollverein, in a vast inland country like Germany, are obvious. But Canada and the Lower Provinces are supplied *See Doc. 1. tSeeDoc. 3.

22 - DOCUMENTS ON CONFEDERATION

with their imports direct from England or the United States; they have little traffic with one another, for they have no products to exchange; and they are separated by difficult tracts of back7 woods. No internal custom-houses have been necessary, nor has inland smuggling been complained of. Moreover, Canada, being more enterprising, or more expensive, has a large debt and a heavy traffic; the other provinces, being more thrifty, or possessed of less credit for contracting loans, have moderate debts and a low tariff. Why, it may be asked, for the sake of a barren symmetry, force the weaker countries into the sphere of the heavy taxation of the stronger? Mr. Manners Sutton has thrown out the idea of not a Federal, but a Legislative union between the Lower Provinces alone;* and this measure (with the exclusion, probably, of Newfoundland) might be very advantageous. It might be worth while to name it as one of the objects open to examination, if the Federal union be submitted to inquiry by some constituted authority. Again, Canada, it is admitted, is divided, at present, between two nearly equal and powerful parties. The proposal is, to avoid the inconvenience of settling their own differences, and to do it by the introduction of strangers. But each of the existing parties would, of course, hope that those strangers might be converted into allies, and the balance of power would fall into the hands of the minority coming from a distance. Less intrinsically weighty, and unavoidably less well informed on Canadian interests, these strangers would be the virtual arbiters of Canadian questions. As both parties would bid for their support, it needs but a moderate acquaintance with the habits of legislative bodies in North America, to anticipate the extravagant race into which contending politicians would enter for gaining the favour of their distant colleagues. All manner of expensive and questionable public works would be embarked on solely for political objects. As to the Imperial part of the question, England can only have one interest in the matter. The more united, flourishing, and powerful that are the British provinces in America, the more durable, as the writer of this paper firmly believes, will be their connection with the mother country. They will be the less likely to desire amalgamation with the great States across their southern frontier, and the more capable of resisting annexation. But then the question is, whether the proposed measure really will add to their union and strength? If not, both the provinces and

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

23

the mother country will suffer from any error committed on this subject. It is true, that the provinces have no intimate connection with one another at present, but the causes are natural and geographical, and these are not to be altered by the annual meeting of a Federal Assembly. Neither do they prevent the existence of a very friendly feeling, and at the first menace of aggression from without, the provinces would be rallied together as one man by the interest of their common safety. But then, if they have had few points of contact, they have also had few of collision. After a few years of such distractions and jealousies as are hinted at above, as possible consequences of bringing into the same Legislature men who have no common ground of knowledge and of action, a very different feeling might be created, and the several provinces might by no means unite together, at a time of emergency, with the same unmixed sympathy and goodwill. Supposing any weight in these objections, it would not be an admissible argument that, although the measure might be ineligible in itself, there could be no harm in its discussion. Great and powerful societies are not with impunity to be trifled with by placing large questions before them, for their amusement, and in order to divert their minds from other topics. When once such an idea as that of the Federal union of the whole of the British American Provinces has been broached, it must be expected to branch into numerous collateral topics, and the wisest man may be unable to foresee what will be the ultimate opinions and feelings to which it will give rise. 2. If, therefore, the question had been whether the project should be propounded at all, there would not have been wanting strong reasons for an opinion in the negative. But, then, it has been propounded by the Governor-General (acting, it is understood, on some former discretionary authority from home, of which, as Sir E. Lytton in his private letter to Sir E. Head, September 24,t observes, there are no official records) in his closing speech to the Legislature; and there is a great difference between demurring to the proposal of a question, and forbidding its examination. The latter step would place the Home Government in a much more invidious light. Somewhat perplexed, perhaps, if they were left to themselves on so grave a problem of State as the union itself, the public men of the Provinces *See Doc. 6. tSee above, p. 3,n. *.

24 — DOCUMENTS ON CONFEDERATION

would find an easy task in declaiming against any attempt to use the Imperial authority to prevent discussion. Indeed, it must be remembered that whether or not a formal appointment of delegates be now provided for, enough has been done to open the topic to every newspaper editor and to every orator at public meetings, so that this danger, whether it be large or small, has been incurred already, and has passed beyond the control of the Government. 3. Without, however, expressing any desire to preclude discussion, the right mode of proceeding may remain a fair subject for consideration. In the first place we have no expression of the opinion of the Lower Provinces, except, indeed that the Council of New Brunswick, in guarded terms, deprecates haste, and shows, pretty plainly, that it thinks the proposal premature, and made for purely Canadian objects.* Were the question brought before them, it is conceivable, on one hand, that the Lower Provinces may regard with apprehension the prospect of a union with a country of such superior magnitude as Canada. Or, on the contrary, their leading politicians may relish a wider sphere and more conspicuous stage, and the bulk of the inhabitants may not be averse to share in the larger outlay and enterprizes of the greater of the provinces. It may be conjectured, perhaps, that the former class of views would be most likely to prevail at first, and the second afterwards; but no person resident in England, nor, probably, in Canada either, can do more than conjecture upon the subject, and all that is certain is, that we have no intimation of their wishes from the Lower Provinces themselves. Next, as respects Canada itself, it is, perhaps, not clear that the Ministers for the time being, eminent as is their position, are to be regarded quite as if they were delegates or envoys entitled to speak the voice of the whole province. They announce the views of one great political party, but there is another party also, and we have no evidence that, if this proposal were submitted to the Legislature of the province, it would command a majority of votes. Those who desire the immediate revision of the representation in Canada might oppose this project as an evasion. It appears, therefore, open to Her Majesty's Government, if they deem it expedient, to decline advising the concurrence of the Crown in so grave a measure as the appointment of delegates to discuss the subject, unless Her Majesty should first be ad-

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE — 25

dressed in favour of that course by the Legislatures of the several provinces concerned. This would adjourn the question, which might turn out for ill or for good, according to circumstances; but it certainly would have the advantage of giving Her Majesty's Government a much surer basis to act upon. It might prove a source of undesirable agitation within the provinces, and of dissension between them; but, after all, in this risk we are embarked, whatever be done. The main arguments that may be pleaded for the other course are: first, that the consequent action would be immediate, and, secondly (which is, perhaps, weighty), that the best men would be selected from each Government, and would go unfettered to the preliminary examination of the subject, whereas after eager debates in the Legislatures, the judgments of any delegates might possibly be less cool, and certainly their action more embarrassed by popular feeling. On the whole, however, there do seem to be powerful reasons for thinking that, before inaugurating a formal meeting of delegates to examine so momentous a subject as the Federation of all these provinces, Her Majesty's Government is not only entitled to expect, but might almost render itself liable to some reproach if it did not invite, a previous authoritative declaration from the respective Legislatures that the inquiry would be acceptable to the people. 13 Memorandum for the Cabinet by Sir Edward Bulwer Lytton, 10 November, 1858 (most confidential). (P.R.O. 30/6/69.)

I commend to the attention of my colleagues the able Memorandum by Mr. Elliot, t who acts as Permanent Under-Secretary in the absence of Mr. Merivale. I do not deem it necessary to point out where I think Mr. Elliot has failed to anticipate the arguments in favour of Federation, both as regards the safety of British North America and the interests of the mother-country, which its advocates would urge, because I arrive at the same conclusion as Mr. Elliot, viz., that it would be premature and unwise in Her Majesty's Government to do anything to encourage an union of the British North American Provinces, whether Federal or Legislative. *See Doc. 5. tSee Doc. 12.

26 - DOCUMENTS ON CONFEDERATION

My objection to the precise form of answer proposed by Mr. Elliot, viz., that we decline to agree to the proposition until addressed by Legislative bodies in all the provinces, is briefly this: we should by that answer invite all the elections throughout British North America to turn upon this one cardinal point — Federation, or not. It is never prudent for the Crown to court popular elections on matters in which the Crown has a visible interest. I submit to the Cabinet, therefore, that the answer should either be to the effect that Her Majesty's Government have the same interest as Canada in desiring whatever can most conduce to the strength of the British Empire in North America, and to the harmony of its constituent parts; but that as yet the Lower Provinces have not, so far as is apparent to Her Majesty's Government, arrived at the same conclusion as Canada; that Her Majesty's Government are still in communication with the Lower Provinces on the question (somewhat unexpectedly by those Provinces) raised by Canada, and until in full possession of their deliberate and well-considered views it is clearly premature to commit them, by a recommendation of the Crown, to an initiatory step towards the actual settlement of a question, the abstract principle of which has not been hitherto discussed in their own Legislatures. The difference between my proposed answer and that expressed in Mr. Elliot's Memorandum may not appear important, but it is so in practice and effect. I would not pointedly invite an opinion from the Legislative bodies; I would rather tacitly obtain it through the Governors: I would make it rather a matter of official correspondence than of popular election. But one fact I cannot too emphatically impress upon the Cabinet - it is this: that the Imperial Government should keep the whole question of Federation, and the details by which it may be hereafter worked out, in their own hands. If they decidedly oppose the principle, the whole question will escape from them: if they appear to give it countenance, it is clear, from Mr. Manners Sutton's despatch,* that they will lend to its agitation an authority which they may see cause to regret, yet have lost the power to retract: if they remain passive, the local difficulties, some of which are lucidly pointed out by Mr. Elliot, are so great, that probably with the next change of Government in Canada the whole matter may drop; or, at all events, if renewed, the Crown will retain unimpaired the power so to regulate and guide negotiations as to strip them of those

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

27

dangers, whether to the connection with the mother-country, or to the internal peace of the provinces, which would, I fear, be the inevitable result of any immediate action on the part of the Imperial Government. At this moment, Federation is really a question raised for the convenience of the present Canadian Administration, and upon which the formidable Opposition, headed by Mr. Brown, have not decidedly committed their policy. An Imperial interest of the utmost magnitude is, in short, in the crude state of a party question, embittered and obscured by fierce party passions. If the British Government were to take a pronounced course either way, it would thus appear to side with one party, be exposed to the assaults of the other, and by participating in the contests of rival politicians, it would lose the character of a calm and impartial arbiter, by which, should the demand for Federation ever become general, it might hereafter dictate conditions with more authority and ease in proportion as the rival jealousies of the Provinces, and the inherent difficulties of their union became felt by the colonists themselves.

14 Sir Edward Bulwer Lytton to Gov.-General Head, 26 November, 1858. (C.O. 42/615.) I have on a former occasion acknowledged your despatch No. 118 of the 9th of September accompanied by a Minute of a Committee of the Executive Council of Canada proposing that Her Majesty's Government should authorize a meeting of delegates to discuss the expediency, and the conditions, of-a federal Union of the British North American Provinces.t By this name I understand to be meant an arrangement for establishing a common legislation in the Provinces upon matters of common concern. I have since received a letter on the same question, dated the 25th of October, from those members of the Executive Council who have recently visited England;t and I have to inform you that the proposal has received from Her Majesty's Government the careful Consideration which its importance demands. The question, however, is one which involves not merely the *SeeDoc. 6. tSeeDocs. 1,2, and 3. JSeeDocs. 10 and 11.

28 - DOCUMENTS ON CONFEDERATION

interests of the important province of Canada and its relations towards the Empire, but also the position and welfare of the other North American Provinces. The Government of one of them has afforded some indication that it deems the question of a Legislative Union of some or all of the Colonies as equally deserving of consideration. With this exception H.M.'s Government have received no expression whatever of the sentiments which may be entertained by the Governments of the Lower Provinces. We think that we should be wanting in proper consideration for those Governments if we were to authorize, without any previous knowledge of their views, a meeting of Delegates from the Executive Councils, and thus to commit them to a preliminary step towards the settlement of a momentous question, of which they have not yet signified their assent to the principle. A communication in terms corresponding with the present Despatch will be addressed to the Governors of the other Provinces, in order to place them and their Responsible advisers in full possession of the actual state of the question. 15 Lieut.-Governor Lord Mulgrave's Reply to the Circular Despatch of 26 November, 1858, asking for the Opinion of the Governors of the British North American Provinces on the Question of Union, 30 December, 1858 (as summarised in a memorandum, unsigned, undated). (P.R.O. 30/6/162.)

Federal Union. He [i.e. Mulgrave] says that "whilst the objections to this course are obvious, the advantages to be derived by the Lower Provinces are problematical," and, "with reference to Imperial Interests the policy of such a union" he believes "to be still more doubtful." He considers that it would be most "unadvisable for the Imperial Government to give any encouragement to the Movement." A Federal Union would be productive of confusion, and a "Constant Source of disagreement and struggle for power between the, Federal Congress and the Local Legislatures." The Case of the United States is dissimilar from that of our American Colonies. There are only 3 subjects which are of common Interest to our Provinces - Post, Currency, and Tariff. Legislative Union he thinks would be attended with obstacles of "even greater magnitude" "the consequences of which would

REACTION OF COLONIAL OFFICE TO CANADIAN INITIATIVE -

29

prove fatal both to the Imperial and Colonial Interests." The plan he thinks would lead to separation of the Colonies from the Mother Country. Their interests, pursuits, and even language differ, and the proposed Union would increase the jealousies which now exist. Canadian Interests would preponderate, and the Lower Provinces would feel that they were sacrificed to the larger and more important Colony. "There are many reasons which would prove it undesirable that the Union should take place, and which he believes would prevent the Legislatures of the Lower Provinces from assenting to it," but his principal objection is that the plan would involve separation. Finally, he is convinced that no Action will be taken by the Legislature of Nova Scotia upon the subject "beyond a long discussion."

Section B:

The Attitude of the Colonial Office, 1859-1864 16 Minute by the Duke of Newcastle on Lieut.-Covernor MannersSutton to the Duke of Newcastle, 29 September, 1859 (private and confidential). (C.0.188/132.) My opinion is in favour of the Legislative Union of the Lower Provinces. I believe it would be beneficial in itself, and so far from being an impediment in any future Union with Canada it would place such a measure upon a more just footing by rendering it more nearly a union of equals instead of appending three weak provinces to one strong one and swamping the divided interests of the former by the united influence of the latter. I do not think however that the time has come for the Secretary of State to take any active steps for bringing it about. . . . I would avow readiness to entertain favourably any proposals which had the concurrence of all three Provinces, but I would

30 - DOCUMENTS ON CONFEDERATION

caution the Governor and Lieutenant-Governors not to come to too hasty conclusions. The success of such a measure must depend much upon details and unless all interests are provided for fresh sources of discontent will arise. 17 Circular Despatch from the Duke of Newcastle, 27 January, 1860. (C.O. 43/125.)

H. M. Government see no reason to depart from the general line of policy which they have hitherto pronounced it their intention to adopt if the occasion should arise.* They do not think it their duty to initiate any movement towards such union [i.e. "a federal union of the British North American provinces"], but they have no wish to impede any well-considered scheme which may have the concurrence of the people of the provinces through their legislatures, assuming of course that it does not interfere with Imperial interests.

18 Minute by the Duke of Newcastle on Lieut.-Covernor Mulgrave to the Duke of Newcastle, 21 May, 1862. (C.O. 217/230.) I have always been of opinion that the necessary preliminary to a Legislative Union of the Lower Provinces is an Intercolonial Railway, and that the completion of both these schemes must precede a Union with Canada. The latter event may be hastened by the present condition of the neighbouring Country, but I do not expect success to any project which attempts it without first settling (if not accomplishing) both the smaller Union and the Railway. . . . I am well inclined to enter heartily into any well-considered plan which has the concurrence of all Parties concerned.

19 The Duke of Newcastle to Lieut.-Covernor Mulgrave, 6 July, 1862. (Pope, Appendix V, 303-4.)

I have duly received Your Lordship's despatch, No. 47, of the 21st of May, accompanied by a copy of a Resolution which was

THE ATTITUDE OF THE COLONIAL OFFICE, 1859-1864 - 31

passed in the House of Assembly on the 15th of April, 1861, relative to an amalgamation of part or all the British Provinces in North America. The Resolution points out that the question might be considered either of a distinct union of the Maritime Provinces or of a general union of them with Canada and suggests that it might be desirable upon so important a subject to ascertain the policy of Her Majesty's Government, and to promote a consultation between the leading men of the Colonies. Your Lordship explains that for various reasons your Government were of opinion that it would be inexpedient to act on this Resolution last year, but that they now wish it to be brought under consideration. No one can be insensible to the importance of the twomeasures which are alluded to, and I am far from considering that they do not form a very proper subject for calm deliberation. They are, however, of a nature which renders it especially fit that if either of them be proposed for adoption it should emanate in the first instance from the Provinces, and should be concurred in by all of them which it would affect. I should see no objection to any consultation on the subject amongst the leading members of the Governments concerned,, but whatever the result of such consultation might be, the most satisfactory mode of testing the opinion of the people of British North America would probably be by means of Resolution or Address, proposed in the Legislature of each Province by its own Government. Beyond this expression of the views of Her Majesty's Government as to the preliminary steps which might be taken towards, the decision of this great question, I am not prepared to announce any course of policy upon an invitation proceeding from one only of the British North American Provinces, and contained in a Resolution of so general and vague a character as that which you have transmitted to me. But if a Union, either partial or complete, should hereafter be proposed with the concurrence of all the Provinces to be united, I am sure that the matter would be weighed in this country both by the public, by Parliament,, and by Her Majesty's Government, with no other feelings than an anxiety to discern, and to promote any course which might be the most conducive to the prosperity, the strength and the harmony of all the British Communities in North America. *SeeDocs. 3, 13, and 14.

32 - DOCUMENTS ON CONFEDERATION

20

The Duke of Newcastle to Gov.-General Lord Monck, 21 August, 1862. (C.O. 43/153.) The growing importance of the colony and its attachment to free institutions, make it every day more essential that it should possess in itself that without which no free institutions can be secure — adequate means of self-defence.. .. The political union of the North American colonies has often been discussed. The merits of that measure, and the difficulties in the way of its accomplishment — have been well considered, but none of the objections which oppose it seem to impede a union for defence. This matter is one in which all the colonies have interests common with each other, and identical with the policy of England.

Section C:

The Charlottetown Conference, September, 1864 21 Charles Tapper's Minutes of the Charlottetown Conference, 1-16 September, 1864. (P.A.C. as edited by W. I. Smith in C.H.R., XLVIII, June, 1967, 101-12.)

Recently a descendant of Sir Charles Tupper kindly presented to the Public Archives of Canada a considerable quantity of additional Tupper papers. Among these papers are several pages and loose notes in Tupper's handwriting which are entitled "Minutes of Conference at P.E. Island, 1864." It is clear that they are a draft of the official minutes of the Charlottetown Conference. At the opening session Charles Tupper and Leonard Tilley were elected joint secretaries but Tupper apparently undertook the task of keeping a record of the proceedings of the

THE CHARLOTTETOWN CONFERENCE, 1864 - 33

conference. The entries are brief and are confined to the official business of a conference whose object was to consider a legislative union of the three Maritime Provinces. There is only a brief indication of the sessions to which the members of the Canadian cabinet were admitted in order to explain their views on a federal union of all the British North American colonies. As official minutes, however, they include copies of motions and resolutions and are a brief record of the ten sessions of the conference, of which six were at Charlottetown (September 1, 2, 3, 5, 6, 7), two at Halifax (September 10, 12), one at Saint John (September 16), and one at Toronto (November 3). The discovery of the minutes at this particular time posed a problem for the Public Archives as they would obviously be of great and immediate interest to many scholars. It seemed fairest to all concerned to release the text in the pages of the Review, and this the Editor has very kindly enabled us to do. In addition, he has made it possible for us to present the text of the other two documents upon which historians have depended hitherto for much of their knowledge of what happened at Charlottetown.* This will be a convenience to those who wish to compare and analyse the three accounts, which inevitably are in some respects conflicting. Obviously the chief value of the Tupper minutes is as an official record which was made on the spot. Gordon's letter to Cardwell was written after the delegates had left Charlottetown and his account was based on conversations with the delegates and the unofficial representatives from Canada. Brown's letter to his wife was written aften the conference had moved to Halifax and his account is confined to the sessions which were attended by the members of the Canadian cabinet. There are a few discrepancies in the accounts in regard to time and dates. For example, Brown reports that the Canadians were presented to the Maritime delegates on Thursday, September 1, the first day of the conference and that the entire session on Friday, September 2, was devoted to the "general arguments" of Macdonald and Cartier. Tupper's minutes show that the conference was organized at 3 P.M. on September 1, that resolutions were read and discussed on the morning of September 2, that the Canadians were not introduced until the third session at 3 P.M. on September 2, and that it was Saturday, *i.e. Lieut.-Governor A. H. Gordon to Edward Cardwell, 12 September, 1864 (see Doc. 22) and George Brown to His Wife, 13 September, 1864 (which has been omitted from this compilation).

34 — DOCUMENTS ON CONFEDERATION

September 3, when Macdonald spoke "at length" on federation after a brief closed session of the conference. The chief discrepancies in these three accounts, however, are in regard^ to the time and attention devoted to the consideration of a legislative union of the Maritime Provinces. Gordon reported that after he left Charlottetown, Maritime union had "gradually drifted out of sight." Brown was more explicit. He said that on Wednesday morning, September 7, "the Conference gave the Canadian Delegates their answer — that they were unanimous in regarding Federation of all the Provinces to be highly desirable // the terms of union could be made satisfactory ••— and that they were prepared to waive their own more limited question until the details of our scheme could be more fully considered & matured." Tupper's minutes record that on Wednesday morning, September 7, a resolution in favour of a legislative union of the Maritime Provinces was moved by Tupper, seconded by Dickey, and discussed before the conference adjourned to meet in Halifax on September 10. The minutes also show that debate on Tupper's resolution continued at the sessions in Halifax and Saint John. The text of the resolutions that were submitted to the conference has been incorporated into the minutes in the appropriate places. Actually they are on separate scraps of paper and one of them has several words crossed out. As originally written it is, "Tilley, Palmer. Resolved that with a view to acting more effectively upon the public opinion in the different Provinces." This portion is crossed out, except for the names of Tilley and Palmer, and the text continues "Resolved that the invitation of the delegates from Nova Scotia to adjourn this Meeting of the Conference to Halifax to meet on Saturday next at XI o'clock be accepted." Finally, a word of explanation may be useful concerning the .brief report of the debate on Tupper's resolution in favour of Maritime union. The report is written on both sides of three loose sheets of paper and there is no indication of the order in which these speeches were given or of the date or dates. The resolution was debated, apparently, at Charlottetown on the morning of September 7, at Halifax on the afternoon of September 10 and the morning of September 12, and in Saint John on the evening of September 16. Perhaps there is internal evidence but there is no notation to indicate how much of the debate was recorded. It seems unlikely, however, that it is a complete record because, although the views of all the delegates from New

THE CHARLOTTETOWN CONFERENCE, 1864

- 35

Brunswick and Prince Edward Island are summarized, there is no reference to the views of the Nova Scotian delegates. However, there are some rough notes which appear to relate to two additional speeches. WILFRED I. SMITH Public Archives of Canada Present Hon. C. Tupper Hon. W. A. Henry Hon. Jonathan McCully Hon. R. B. Dicky [sic] Hon. A. G. Archibald, Esq., M.P.P. Nova Scotia Hon. S. L. Tilley Provincial Secretary Hon. W. H. Steeves M.L.C. & M.E.C. Hon. J. M. Johnson Atty Gen Hon E. B. Chandler M.L.C. Hon. J. H. Gray M.P.P. New Brunswick Hon. Col. J. H. Gray Hon. W. H. Pope Col. Secty Hon. Edward Palmer Aty Gen Hon. Geo. Coles M.P.P. Hon. Andrew A. McDonald M.L.C. P. E. Island Minutes of proceedings of Conference on Union of Maratime Provinces held at Charlottetown on Thursday Sept 1st 1864. Delegates assembled at the Colonial building at 3 o'clock P.M. Present all except the Hon. A. A. McDonald. The Hon. C. Tupper moved that the Hon. Colonel Gray be the President of this conference which was seconded by the Hon. S. L. Tilley & passed unanimously. The Hon. J. H. Gray moved that the Hon. C. Tupper and the Hon. S. L. Tilley be requested to act as the joint Secretaries of this Convention which was seconded by A. G. Archibald Esq M.P.P. & passed unanimously— After some time spent in discussion the conference was on motion adjourned to meet at 10 o'clock A.M. to morrow. Friday Sept 2nd—Met at 10 o'clock A.M. Present—Resolu-

36 '- DOCUMENTS ON CONFEDERATION

tions passed by the Legislatures of N.S. N.B. & P.E. Island were read—and after some time spent in discussion adjourned until 3 o'clock P.M. Met at 3 o'clock and received the members of the Canadian Government who explained their views upon the question of Colonial Union. After some time spent in general discussion the conference adjourned to meet at 10 o'clock tomorrow— Saturday, Sept. 3rd. Conference met at 10 o'clock A.M. Present all the Delegates. Minutes of yesterday having been read correspondence between the Governor General & the Lieut Governor of P.E. Island on the proposed attendance of Delegates from the Government of Canada at the Conference of the Delegates of the Maratime Provinces was laid before the Conference. At XI o'clock the Conference received the members of the Canadian Cabinet on behalf of whom Hon. J. A. McDonald explained at length the views of the Canadian Government in favor of a confederation of all the B.N.A. colonies and the means by which they proposed to obviate the difficulties which would attend such Union. After further discussion the Conference adjourned to meet at 10 o'clock on Monday next with the understanding that they would in future meet at 10 every day and adjourn at 3 p.m. Monday 5th Sept. Conference met at 10 o'clock A.M. All the Delegates Present. Members of Canadian Government also present Discussion on Confederation of Provinces continued by Canadian deputation until 3 o'clock P.M. when conference adjourned until XI o'clock A.M. Tuesday. Tuesday 6th Sept. Conference met at XI A.M. Delegates all present Members of Canadian deputation also present. Discussion on Federation resumed by them & continued until 3 p.m. when conference adjourned until 10 o'clock A.M. Wednesday. Wednesday 7th Sept. Conference assembled at 10 o'clock. Delegates all present & Resolution moved by Dr. Tupper & Seconded by Mr. Dickey: [Whereas in the opinion of this Conference a Union of Nova Scotia New Brunswick and Prince Edward Island under one Government and Legislature would elevate the status—enhance the credit—enlarge the influence—improve the social commercial and political condition—increase the development and promote the interests generally of all these Provinces. Resolved

THE CHARLOTTETOWN CONFERENCE, 1864

- 37

that the time has arrived when such Union should be effected.] Debate adjourned. Resolution moved accepting invitation of N.S. Delegates to Halifax & meeting adjourned to meet there at 3 p.m. on Saturday next. [Tilley Palmer Resolved that the invitation of the delegates from Nova Scotia to adjourn the Meeting of the Conference to Halifax to meet on Saturday next at XI o'clock be accepted.] Conference met pursuant to adjournment at the Legislative Council Chamber at Halifax N.S. at 3 p.m. on Saturday the 10th Sept. Delegates all present except Mr. Johnson Atty Gen N.B. after some time spent in discussion on Dr. Tupper's resolution debate adjourned until Monday 10 A.M. Monday 10 A.M. Conference met delegates all present except Mr. Johnson— Members of Canadian Government rec'd at XI Hon. Mr. Cartier moved vote of thanks to Hon. Col. Gray President of the Conference which was seconded by Hon. Dr. Tupper and passed unanimously Hon. W. A. Henry moved vote of thanks to the members of the Canadian deputation which was seconded by the Hon. E. B. Chandler and passed unanimously. It was announced by the Hon. J. A. McDonald that the Canadian Government would advise His Excellency the Governor General to invite a delegation from the Provinces of N.S. & N.B. & P.E.I. & N. Foundland to meet at Quebec on Monday the 10th of Sept. [sic] to consider officially a proposal to unite the British N. American Provinces in one Confederation. Members of Canadian deputation withdrew and the debate on Dr. Tupper's resolution having been adjourned the Conference adjourned to meet at Stubb's Hotel St. John N.B. on Friday the 16th Sept, at seven o'clock. Friday Sept. 16th 1864 Conference met pursuant to adjournment at Stubbs Hotel. Delegates alL present except Messrs Johnson and Henry. After some discussion the following resolution was passed— Resolved that the debate on Dr. Tupper's resolution be adjourned until after the contemplated meeting of Colonial delegates which is proposed to be held at Quebec on Monday the 10th October next. Resolved that this conference be adjourned to meet at such time and place as may be subsequently decided by the Hon. Col. Grey and notified by the joint secretaries to the members. [Whereas we have reason to believe that the question of a

38 - DOCUMENTS ON CONFEDERATION

Confederation of the British N.A. Provinces is shortly to be formally submitted for the-Consideration of the Maratime Provinces Resolved that the decision of this conference be postponed until after an opportunity shall have been given to consider fully how far such deliberations may affect the question of a Legislative Union of the Maratime Provinces.] A meeting of the Delegates from the Maratime Provinces to the Conference at Charlottetown was called & held pursuant to adjournment at the Queen's Hotel Toronto on -the third of November 1864 Present all the Delegates except Hon. E. B. Chandler Hon. Col. Gray in the chair. It was resolved That in view of the resolutions passed at the Quebec Conference in favor of a Confederation of the British North American Provinces this conference decide to postpone the consideration of a Legislative Union of the Maratime Provinces. It was also Resolved that the joint Secretaries be instructed to draw up a report embracing the facts connected with the proceedings of the Conference of the Maratime Provinces to be signed in triplicate by the Chairman and Secretaries to be submitted to the Lieut. Governors of the three Provinces for the information of their Legislatures. A vote of thanks was then on motion passed unanimously to the Hon. Col. Gray for the able manner in which he had discharged the duties of Chairman and the conference adjourned sine die. Johnson: I am in favor of a Leg. Union of all the Provinces. That is impracticable—If the vote must be taken will vote for Dr. Tupper's resolution but think it better to defer P.E.I. would derive great advantage from becoming a partner in the land of N.B. and the— Pope: Think the advantage of a Leg. Union greater for P.E. Island than a Federal Union—but could not be carried in our Legislature—If we cannot carry a Leg. Union the sooner we turn our attention to a Federal Union the better. If the members around this Board can agree the arrangements will I think be carried out I think the Union of P.E.I, absolutely necessary —Prospect of deadlock in P.E.I.—The Maratime Provinces would probably be able to make better terms separate than united—While I approve of the resolution of Dr. Tupper and am prepared to vote for it I think it better to allow it to lie on the table.

THE CHARLOTTETOWN CONFERENCE, 1864 - 39

Gray: Think the only business like course has been taken by Dr. Tupper in proposing this resolution—but that it will be better to forego the discussion on this question until we find a solution for the larger question, when if we fail in accomplishing the Confederation I am prepared heartily to support it. Tilley: Why do Canadians feel so anxious to have us to unite in a Legislative Union—Because they would have to give us better terms if we went in separately. Better for N.B. not to unite because the lands would have to be divided with N.S. & P.E.I. $90,000— Dickey: But small progress has been made by Mr. Tilley in discovering the views of the Canadians. Entrapped. Steeves: In favor of Federal Union when I came here. We have often begun conventions to deal with this question Leg. Union not so essential. Col. Gray: Must speak the sentiments of others—N.S. & N.B. are united in any respect. We are isolated—Can see the advantage of N.S. & N.B. being united previous to the Confederation—but the disadvantages to P.E.I, would be equally great—Could not get the consideration then we now might expect. If we were united first P.E. Island could not avoid going into a Confederation. Coles: Dr. T. has brought Canada to our doors. We shall get our land question settled on better terms. The federal Govt. would buy the lands with Federal money & give them to the local Govt. to disburse. Chandler: N.B. is quite as strongly in favor of Leg. Union as N.S. It could probably be carried in N.S. easier but would have done our best in N.B. Seat of Govt very difficult question in N.B. If we were to agree to the resolution it would do harm instead of good. A Leg. Union would enable us to enter the Confederacy on better terms, but that would not help us to carry it. Palmer: We are precluded from expressing any opinion by the terms of the resolution passed by the P.E. Island Legislature 9/10 against any Union Federal or Legislative—Rep by Pop would be a farce Four or five colonies separate would be overwhelmed—Suppose the resolution were to pass what then? The question must then be gone into. McDonald: It is necessary to know more of details. The Island hostile to Legislative Union in any shape. Not expected to give any decided expression of opinion Great advantages might induce us [?] to agree to Federal Union.

40 - DOCUMENTS ON CONFEDERATION

Tilley: Would support the resolution heartily if matters remained now as they were when that resolution was passed, believe a satisfactory arrangement may be made for the Confederation doubt whether we can advance that union by a Legislative Union—would be more difficult to carry the Legislative Union than the Confederation—Seat of Government. Could not agree. Would have three parties—To agitate the Leg. Union would delay the Confederation. If we get the Confederation now we could easily unite the Maritime Provinces in a Leg. Union afterwards. Will be in a better position to deal with the question of Leg. Union after the Meeting is held with Canada & the other provinces. If the Confederation cannot be obtained will support strenuously the Leg. Union.—If we were one Province the public men of each would each contend for local interests. Mem[o] Common interest—Law Education—Franchise—Municipal Institutions. Seat of Government. Could we get better terms separate? Not as partners but as man & wife. Relation to Parent state Character of Legislative Union Prospect of deadlock in P.E.I. 1771-93 1784-80 2 No antagonistic interests 1 Homogeneous people 3 Diverse productions Similar institutions Legislation— Franchise Laws Judiciary. Education Currency. Tariff Postal arrangements Free trade. Equally prosperous Debt? Influence—members— 22

Lieut.-Governor A. H. Gordon to Edward Cardwell, 12 September, 1864. (C.O. 288/229, included in C.H.R., XLVIII, June, 1867, 107-9.)

You are already aware that during the spring addresses were presented to me and to the Lieut. Governors of Nova Scotia and Prince Edward Island by the Legislative Bodies of the three Provinces requesting the appointment of delegates who might confer together upon the expediency of effecting an immediate

THE CHARLOTTETOWN CONFERENCE, 1864 - 41

Legislative and administrative union of the maritime Provinces of British North America. It was subsequently settled that the Delegates consequently appointed should meet at Charlotte Town in Prince Edward Island on the 1st instant. 2. According to this arrangement the Delegates of the three Provinces met at Charlottetown on the day appointed. Their meeting however took place under circumstances which had been by no means foreseen at the time when the Conference had been first resolved on. 3. You are aware that in the month, of June a ministerial crisis took place in Canada which led to the formation of a Cabinet, the members of which, among other things, pledged themselves to propose a plan for the Federal Union of the whole of the British North American Provinces. The Canadian Government accordingly suggested that an opportunity should be afforded them during the meeting at Charlottetown of stating the nature of the plans to the Delegates there assembled. The Government of Canada were informed that no objection could be entertained to an unofficial communication of their views, but that as the Delegates were appointed solely for the purpose of considering the proposed Legislative Union of the Lower Provinces, it would not be competent for them officially to discuss the larger, and more novel, proposal now made by Canada. 4. Availing themselves of the opening thus afforded for unofficially discussing the merits of the scheme which they had prepared, nearly all the members of the Canadian Cabinet appeared at Charlottetown on the morning of the 1st September. The avowed and formal object of the Conference thus became in fact subsidiary to one of wider scope and greater importance. 5. I had been requested to visit Charlottetown at this time, and as I have long taken a warm interest in the Legislative and Administrative Union of the Lower Provinces, I willingly repaired there, and have now the honour to report to you the views entertained on this subject, and on that of a Federal Union, by Members of the Conference who as you are aware, comprise the leading men of the existing Governments and also of the opposition in each of the three Provinces. 6. The Delegates from Nova Scotia were unanimous in favour of the immediate legislative and administrative union of the Lower Provinces, but were divided in opinion as to the advantages to be derived from the adoption of any wider scheme. Those from this Province were not all quite so warm in their advocacy of the Legislative Union as those from Nova Scotia,

42 - DOCUMENTS ON CONFEDERATION

but though some doubt and hesitation might exist on the part of individuals there was no dissent expressed by them from the opinion in its favour which was strongly maintained by Mr. Tilley, Mr. Chandler, and the majority of their Colleagues. Those from Prince Edward Island were almost without exception hostile to the original proposal of Legislative Union which the Conference was assembled to consider, but appeared not disinclined to the adoption of a Federal Union with Canada provided their separate Legislature was maintained as now existing, and pledges were given that the whole revenue derived from the Island should be expended within its limits! 7.1 had also a good deal of conversation with the Canadian Ministers especially with Mr. Gait who appears to me by far the ablest of their number. He developed to me at considerable length the details of the scheme of federation which had been agreed upon by the Canadian Cabinet. This scheme involved as an essential preliminary the entire union of the three Maritime Provinces. It was proposed on this being effected that Upper Canada, Lower Canada and the three Maritime Province [sic] should each possess a local Legislature, the powers of which should be carefully restricted to certain local matters to be specified and defined by the act establishing the Confederation, whilst all general Legislation should be dealt with by, and all undefined powers of legislation reside in, a central Legislature which should in fact be not only a federal assembly charged with the consideration of a few topics specially committed to its care, but the real Legislature of the country, whilst the local assemblies were to be allowed to sink to the position of mere municipalities. I need hardly remark on the importance of the distinction between a federative system in which all powers except those specially conceded are retained by the Local Legislatures, and one wheje all powers are vested in the central body except such as are explicitly conferred upon the municipal assemblies. 7. [sic] I asked Mr. Gait whether the local Legislatures according to his plan were to be, not only inferior to, but, under the control of, the Central one, and liable to have their attributes and constitution altered and modified by it from time to time, or whether within their own limits they were to be entirely independent and unsusceptible of further changes except through the agency of an Act of the Imperial Parliament. On this point he was not very clear. His wishes pointed in the direction of making Central authority supreme, but he thought it would be impossible to bring it about at present.

THE CHARLOTTETOWN CONFERENCE, 1864 - 43

8. Whilst however these very rational views are held by Mr. Gait and other members of the Canadian Government, I am bound to state that they are not those generally entertained, nor do they harmonize with the interpretation usually affixed to the word "Federation" in these Provinces. 9. "A federal union" in the mouth of a lower Canadian means the independence of his Province from all English or Protestant influences - in the mouth of an inhabitant of the Maritime Provinces it means the retention of the machinery of the existing local executive government; the expenditure within each Province of the revenue raised from it, except a small quota to be paid towards federal expenses; and the preservation of the existing Legislatures[;] a central Parliament to which the consideration of some few topics of general interest are to be confided under vigorous restraints, prompted by a jealous care for the maintenance of Provincial independence; that is to say facilities for local jobbing. 10. In my conversations with Mr. Gait I was desirous rather to ascertain his opinion than to state my own, but to you, Sir, it is perhaps right that I should express the view I take of this comparatively popular scheme. Such a Central Body feeble and inefficient but costly (for its members like those of all other deliberative bodies in British North America would have to be highly paid) appears to me not only wholly useless but probably mischievous. No federal union which does not comprise a complete subordination of the local assemblies to the Provincial Parliament can in my mind ever be of the smallest utility; and it was therefore with great pleasure that I heard the views enunciated by Mr. Gait and his Colleagues. 11. It is my duty however to inform you, Sir, that I am perfectly convinced from my knowledge of the public men of British North America, of their character and their mode of transacting public business, that, whatever their present views may be, every point in the proposed scheme which distinguishes it from the more popular idea which I have just now sketched will be gradually abandoned, partly from the fear which possesses almost every public man in this country of making any proposal in the slightest degree unpopular, partly in order to render the adoption of some scheme of federation more feasible by rendering it more palatable to the newspaper Editors and the democratic mass of the community. 12. This has indeed already as I am informed, been to some extent the case. I thought it better not to remain long at

44 - DOCUMENTS ON CONFEDERATION

Charlottetown and accordingly left it after two days stay during which I had the opportunity of making myself thoroughly acquainted with the views of the Members of the Conference and other influential persons. Since my departure I understand the project for the immediate union of the Lower Provinces, which alone the Delegates were empowered to discuss, and which then appeared certain of adoption, has gradually drifted out of sight, and that they have since been occupied in the discussion of the details of a federal union of the illusory nature referred to in the preceding paragraph, by which each Province as now existing would retain its virtual independence. But on this point you will doubtless receive fuller information from Sir R. Macdonnell as the Conference has adjourned from Prince Edward Island to Halifax. 13. But for the proposals from Canada I have no hesitation in saying that the Union of the Maritime Provinces would have been effected for the Delegates both of Nova Scotia and New Brunswick were fully agreed in the determination not to permit the reluctance of Prince Edward Island to affect their determination. The ultimate concurrence of that Island was a matter of certainty and in the meanwhile a temporary delay on its part would have inflicted no real inconvenience on the two chief Maritime Provinces in the event of their Union. 23 Lieut.-Governor Gordon to Edward Cardwell, 26 September, 1864.* (C.O. 188/141.)

It is not, however, to chronicle the erratic course of this ambulatory Conference (or "Convention" as its members choose to designate it) that I now address you, but to convey to you such further information as I have been able to collect with respect to the probable results of its deliberations. 2. Messrs. Cartier Gait and Brown remained at my house during their stay in Fredericton, and communicated their views to me with great candour and at considerable length. 3. As I anticipated, the Union of the Lower Provinces appears to be for the present totally lost sight of in the consideration of the larger scheme now proposed; and the apprehension which I expressed in my Confidential Despatch of the 12th Instantt has been already realized; for, not withstanding the vehement remonstrance of Mr. Brown and the more measured expostulations

THE CHARLOTTETOWN CONFERENCE, 1864 - 45

of Mr. Gait, the principle that the Lower Provinces should enter the Federation as three separate and independent bodies was, with little apparent reluctance, conceded by the Canadian Ministers when it became apparent that persistence in their original idea, that a Legislative Union of the Lower Provinces should form a preliminary to the subsequent Federal Union, was likely, at least temporarily, to endanger the success of the latter scheme. 4. The discussions of the Conference were for the most part conducted in a conversational and informal manner. Two subjects, however, were debated at some length in more elaborately prepared speeches. These were — the Composition and mode of election of the Legislative Council - and, the authority from which appointments to the local Judiciary should emanate. 5. With regard to the former subject less difference of opinion was found to exist than I should have anticipated. It was agreed that the Federal Legislative Council should consist of 60 members, 20 from Upper Canada, 20 from Lower Canada, and 20 from the Maritime Provinces. It was generally desired that the members of this body should be nominated for life by the Crown, and with hardly an exception the elective principle as applied to the Legislative Council was decidedly condemned. Mr. Brown, though the leader of the Ultra-democratic party in Canada entirely participated in this disapproval of an elective Upper Chamber and strongly supports the views of those who desire to see a return to the system of nomination abandoned in Canada 8 or 9 years ago. On the whole perhaps this is the best feasible method of appointment. The very best mode of selection would, in my opinion, be that of election for life by a very highly qualified constituency; but in this case a perpetual agitation would undoubtedly be kept alive for the reduction of the qualification. A proof that such would be the case is afforded by recent events in Prince Edward Island. In that Colony an elective Legislative Council was granted in 1862 on the condition that a high franchise was required for the Electors; but even in the short period which has since elapsed their qualification has been *This document might be compared with the virtually identical letter from Gordon to Cardwell dated 22 September, 1864 (C.O. 189/9). The latter was partially transcribed - with unmarked omissions relating to the aims of Lower Canada as regards French Canadian cultural matters (cf. clause 7 of Doc. 23) -in the "O'Connor Report" Annex 2, 84-86. tSee Doc. 22.

46 - DOCUMENTS ON CONFEDERATION

so reduced that the Electors for the Legislative Council are practically the same as those for the Lower House. But, in my opinion, the mode of selection is far less important than the retention of the seat for life when once obtained. The possession of a seat for life tends, (as I have often had occasion to observe) to encourage an honest freedom of thought speech and action, and it is on this character of comparative independence that one of the main uses of the Legislative Council is to be found. Were its members to be elected for a limited period they would, I fear, be too apt to be influenced by the same miserable and cowardly dread of their constituents which too generally paralyzes the utility and saps the honesty of members of the Assembly, but which, while it is to be deplored, cannot be wondered at nor indeed censured with the severity merited under other circumstances, when it is remembered that many of them are to a great measure dependent on the pay which as Members they receive and which, should they displease those who send them to Parliament, they will probably lose. I may observe that, should it be finally determined that the Federal Legislative Council is not to possess an elective character it will be worthy of consideration whether the first members of this chamber ought not to be nominated directly by the Crown in order to avoid that preponderance of a single political party which would probably result from their nomination on the recommendation of the local Ministry of the day. 6. With respect to the appointment of the Judges a very animated discussion took place, and I am informed that the Honourable E. B. Chandler, one of the Delegates from this Province made an extremely effective speech on this subject, in which he displayed all the ability which he is known to possess and more than the courage which from my knowledge of his character I should have expected him to exhibit. He painted in forcible colours the evils attendant on the present system of Judicial appointments. He showed that, were the Federation established and the local Legislatures consequently deprived of much of their present importance, there would be even less temptation than now exists for leading members of the Bar to enter into the petty field of local politics. Those who wished to enter public life at all would naturally look to the Federal Legislature as the scene of* their labours, and if the local Governments were allowed to appoint Judges to be selected from their own supporters in the local Assemblies the Bench would be speedily filled with obscure and incompetent men who would

THE CHARLOTTETOWN CONFERENCE, 1864 - 47

excite the contempt, instead of commanding the respect of those practising before them. He therefore strongly urged that the appointment of Judges should be vested in the Central Government; and he was warmly supported by Mr. Tilley, who also urged the adoption of some measure which should entirely remove these appointments from the influence of party politics. On the other hand, considerable reluctance was exhibited by several of the legal members of the Conference to forego prizes now apparently within their grasp. 7. With respect to the important question of the attributes to be assigned to the respective Legislatures and Governments there was a very great divergence of opinion. The aim of Lower Canada is a local independence as complete as circumstances will permit, and the peculiarities of race, Laws, religion and habits which distinguish its people render their desire respectable and natural. A similar desire, but prompted by less worthy motives, animates the Delegates from Prince Edward Island and some of those from this Province, who fear the loss of the local importance which attaches to a separate Government. Those on the other hand who look chiefly to the future and desire to see the British North American Provinces forming a strong and united State are desirous, as I before observed in my previous Despatch, to reduce the local Legislatures and Governments to the smallest possible dimensions, to invest them with the smallest possible position of independent powers, and to obliterate, as far as practicable, existing Provincial boundaries. 8. The result of the discussion roughly appears to be, the following apportionment of subjects as those to be dealt with by the Federal and local legislatures separately. To the Federal Legislature is given the control of Trade Currency Banking General taxation Interest and Usury laws Insolvency and Bankruptcy Weights and Measures Navigation of rivers and lakes Light Houses Sea Fisheries Patent and Copyright laws Telegraphs Naturalization

48 - DOCUMENTS ON CONFEDERATION

Marriage and Divorce Postal Service Militia and Defence Criminal law Intercolonial Works The local legislatures are to be entrusted with the care of Education (with the exception of Universities) Inland Fisheries Control of public lands Immigration Mines and Minerals Prisons Hospitals and Charities Agriculture Roads and Bridges Registration of Titles Municipal Laws~ With respect to these latter subjects, I should say that the control of Crown Lands and Regulation of Immigration ought certainly to belong to the Central Body; and that probably the management of the Mines and Minerals and that of the greater prisons should be among the duties of the Central Executive. 9. As I have already observed, it is proposed that the Conference should meet again at Quebec on the 10th prox: and I suppose the same decision will then be adopted as to the constitution of the local legislatures and local Executive Governments; a subject which at present has only been touched on with great hesitation and treated with the utmost vagueness. It is true that Mr. Brown, Mr. Gait and some others speak of reducing the local legislatures to a single chamber, the President of which should be the Chief Executive Officer within each Province, but in general the wish appears to prevail that each Province should, as now, retain its Lieutenant Governor, responsible Executive Council, and two Houses of Parliament, with all their existing machinery of public officers. Probably this view will prevail, but I must repeat my opinion that no federative union will be of the slightest worth which does not secure the paramount control of the General Legislature and subordinate the officers of the local Executive to those of the Central Government. If an officer filling the place of Governor is required (for which, however, under the supposed circumstances I can see no necessity) let him be named by the Governor General: - let the bylaws of the

THE CHARLOTTETOWN CONFERENCE, 1864 - 49

local Assemblies cease to be styled "Acts" and be designated as "Ordinances" "Regulations" or by some such term: let the local officials be under central Control: - above all, let the power of the general legislature to modify, alter, or abolish the local Governments be fully recognized. 10. But to this it may be objected that Lower Canada will not consent. Very possibly; but if this is the case, although in my mind it furnishes some argument against any federative union at all, (as shewing that separation not greater identity is the desire with which the project is proposed,) it affords none whatever for effecting an imperfect and valueless one. That the controlling power should rest in the federal legislature and that the federal and local Assemblies should not be of coequal independence and authority is, in my opinion, the main point to attain. Should this be secured, I look upon the keeping up for a time of existing institutions in the separate Provinces, as comparatively immaterial, though I consider it inexpedient: but, if the local bodies are to be exempt from all modification hereafter by the Federal Parliament, I think that, if the scheme proceeds on that footing the existing Provincial organization should at once be entirely broken up and new and arbitrary divisions created; otherwise, although there are no real distinct Provincial interests or ideas to separate the people, the tradition of Provincial independence will perpetuate local jealousies, which it is desirable to efface, and nourish a false idea of local importance to the great and lasting injury of British North America as a whole.

50 - DOCUMENTS ON CONFEDERATION

Section D:

Preparation for the Quebec Conference, September-October, 1864 24 Gov.-General Monck to the Lieutenant-Governors of Nova Scotia, New Brunswick, and Prince Edward Island, and the Governor of Newfoundland, 23 September, 1864. (Pope, Appendix IV, 301-2.) I have the honour to transmit a copy of an approved Minute of the Executive Council of Canada respecting the proposal to hold a Conference of Delegates from the Colonies of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland with the Ministers of Canada to consider the question of a Union of these Colonies and to digest a scheme for the practical realization of the idea which may be submitted as embodying the joint opinions of the Governments of the several Provinces to the Secretary of State for the Colonies with a view to obtaining Jiis sanction for legislation on the subject. In conformity with the request contained in this Minute I have the honour to invite you to name a deputation to represent your Province in the approaching Conference which will meet at Quebec on the 10th October. Copy of a Report of a Committee of the Honourable the Executive Council, approved by His Excellency the GovernorGeneral in Council on the 23rd September, 1864. The Committee of Council has the honour to inform Your Excellency that the Deputation from the Executive Council who met the Delegates from the Maritime Provinces, at Charlottetown, on the 1st instant, in accordance with the Order in Council of the 29th ultimo, have reported that such Conference duly met, and that the question of a Confederation of the British North American Colonies was discussed at length, and such progress made, that it was thought desirable by the Conference that the subject should be resumed in a formal and official manner under the authority of the Government of the several Provinces.

PREPARATION FOR THE QUEBEC CONFERENCE, 1864 - 51

The Committee have therefore the honour to advise and submit for Your Excellency's approval, that the several Governments of Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, be invited to appoint delegates, under the authority of the despatch of the Secretary for the Colonies to the Lieutenant Governor of Nova Scotia, dated 6th July, 1862, and communicated by the Colonial Office to Your Excellency by a despatch of the same date, to confer with the Canadian Government ori the subject of a Union or Federation of the British North American Provinces. The Committee beg leave further to recommend that Quebec be selected as the place, and the 10th October next the time for the meeting, as they have ascertained that such time and place will meet the views and convenience of the several Governments. Certified: W. H. LEE, c. E. c. 25 Gov.-General Monck to Edward Cardwell, 23 September, 1864. (P.R.O. 30/6/167.)

I have the honour to transmit copy of an approved Minute of the Executive Council of Canada,* requesting me to invite the Governments of Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland, to send Representatives to a conference with the Ministers of Canada, at Quebec, to be held for the purpose of considering the question of the Union of these Provinces, and to digest a practical plan for the realization of the idea which should be submitted for your approval. The desire for a closer union amongst these Colonies than has hitherto existed appears to be very generally felt both in Canada and in the Lower Provinces. It appears to me that the mode of proceeding suggested in this Minute is the only one in which the views entertained by the leading politicians of the British North American Colonies on this important subject can be brought intelligibly and in a practical form before your attention. This course is also I think that which was pointed out by the Duke of Newcastle in his Despatch to Lord Mulgrave (Nova Scotia, No. 182), of July 6, 1862,t transmitted to me for my *See Doc. 24. tSee Doc. 19.

52 - DOCUMENTS ON CONFEDERATION

information on the same day, as that which ought to be pursued in the circumstances. I have therefore had no hesitation in complying with the request of my Executive Council, and I have addressed identical communications, of which I enclose a copy,* to the LieutenantGovernors of Nova Scotia, New Brunswick, and Prince Edward Island, and to the Governor of Newfoundland, inviting them to nominate deputations to represent these respective Provinces at the proposed Conference.

26 Lieut,-Governor Gordon to Edward Cardwell, 26 September, 1864. (P.R.O. 30/48/6/39.) The more I see, and the more I reflect on what is going on the more convinced I am that a federal union in any form likely to be adopted will be a great hindrance to the ultimate more intimate connection of these provinces with each other, and unless it wears far more of character of a legislative union than seems possible I trust it will not be carried into effect.

27 Lieut.-Covernor Sir Richard MacDonnell to Gov.-General Monck, 3 October, 1864. (Pope, Appendix /, 294-95.) I have the honour to acknowledge the receipt of your Despatch of the 23rd ult.,t which reached me on the 30th ultimo, transmitting a Copy of an approved Minute of the Executive Council of Canada, dated the 23rd of September, 1864, and inviting me to name a deputation to represent Nova Scotia in the approaching Conference at Quebec on the 10th inst. In reply I have the honour to state for your Lordship's information that I have laid your despatch and its enclosure before my Ministry, and I have appointed the Hon. Provincial Secretary, The Hon. Attorney General, The Hon. R. B. Dickey, the Hon. Jonathan McCully and Adams G. Archibald, Esqr., to form a deputation to meet the Delegates from the other British North American Provinces in Conference at Quebec on the 10th. inst., as proposed in Your Lordship's despatch.

PREPARATION FOR THE QUEBEC CONFERENCE, 1864

- 53

Province of Nova Scotia. R. G. MACDONNELL, Lt.-Governor. By His Excellency, Sir Richard Graves MacDonnell, Knight Companion of the Most Honourable Order of the Bath, Lieutenant-Governor and Commander-in-Chief in and over Her Majesty's Province of Nova Scotia and its Dependencies, &c., &c., &c. To Hon. Charles Tupper, Provincial Secretary; Hon..William A. Henry, Attorney General; Hon. Jonathan McCully, M. L. Council; Hon. Robert B. Dickey, M. L. Council; Adams G. Archibald, M.P.P. GREETING: By virtue of the power and authority in me vested, I have thought fit to constitute and appoint, and do, by the advice of the Executive Council of the said Province, hereby, during pleasure, constitute and appoint you, the said Charles Tupper, William A. Henry, Jonathan McCully, Robert B. Dickey, and Adams G. Archibald, to be Delegates to confer upon the question of a Union of the British North American Colonies at a Conference to be held at Quebec on or about the tenth of October, A.D., 1864. Hereby granting unto you all the rights, powers, and advantages which to the said office do or may lawfully appertain, and requiring you diligently to perform the duties thereof. Given under my Hand and Seal at Arms, at Halifax, this Third Day of October, in the Twenty-eighth year of Her Majesty's Reign, A.D., 1864. By His Excellency's Command, JAMES H. THORNE, Deputy Secretary. 28

Lieut.-Covernor George Dundas to Gov.-General Monck, 6 October, 1864. (Pope, Appendix H, 296.) I have the honour to acknowledge the receipt this day of your despatch dated 23rd September, i transmitting to me a copy of an Approved Minute of the Executive Council of Canada, respecting a proposal to hold at Quebec, on the 10th October, a Conference of Delegates from the Maritime Provinces with the *SeeDoc. 24. f See Doc. 24. [Pope] JSee Doc. 24. [Pope]

54 - DOCUMENTS ON CONFEDERATION

Ministers of Canada to consider the question of a Union of these Provinces. Your Lordship invites me to name a Deputation to represent P. E. I. at this approaching Conference. I have accordingly with the advice of my Ministers named the following gentlemen, who will, I understand, proceed to-day, to Quebec in order to be present there on the 10th inst.: The Hon. J. H. Gray, P. Ex. C. The Hon. Edward Palmer, Att'y Gen'l. The Hon. W. H. Pope, Col. Sec'y. The Hon. D. Davies, M.P.P. The Hon. A. A. Macdonald, M.L.C. The Hon. George Coles, M.P.P. The Hon. T. H. Haviland, M.P.P. The Hon. Edward Whelan, M.P.P. 29 Edward Cardwell to Lieut.-Covernor Gordon, 1 October, 1864. (P.R.O. 30/48/6/39.)

I have read with much interest your despatch* on the subject of Federation. Monck assures me that there is no idea of that feeble Legislature which you so justly object to: that they v/ish a strong central Legislature with subordinate Municipal Institutions. 30

Edward Cardwell to Gov.-General Monck, 14 October, 1864. (P.R.0.30/6/167.) I have the honour to acknowledge the receipt of your Lordship's Despatch, No. 135, of the 23rd of September,t reporting that you had invited the Lieutenant-Governors of Nova Scotia, New Brunswick, and Prince Edward Island, together with the Governor of Newfoundland, to send Delegates to Quebec, to attend a Conference on the subject of the proposed Union of the British North American Provinces. I approve the course which your Lordship has taken in this matter.

THE QUEBEC CONFERENCE, 1864 - 55

Section E:

The Quebec Conference, October, 1864 31 Hewitt Bernard's Minutes of the Quebec Conference, 10-29 October, 1864. (Pope, 1-37.)

CONFERENCE CHAMBER, PARLIAMENT HOUSE, QUEBEC, 10th OCTOBER, 1864.

The following gentlemen assembled at the Conference Chamber in the Parliament House, Quebec, on Monday, the tenth day of October, 1864, at the hour of eleven o'clock in the forenoon: The Honourable Sir E. P. TACHE, M.L.C., Receiver-General and Minister of Militia of Canada. The Honourable JOHN ALEXANDER MACDONALD, M.P.P., Attorney-General of Upper Canada. The Honourable GEORGE ETIENNE CARTIER, M.P.P., Attorney-General of Lower Canada. The Honourable GEORGE BROWN, M.P.P., President of the Executive Council of Canada. The Honourable OLIVER MOWAT, M.P.P., Postmaster-General of Canada. The Honourable ALEXANDER T. GALT, M.P.P., Minister of Finance of Canada. The Honourable WILLIAM McDouGALL, M.P.P., Provincial Secretary of Canada. The Honourable T. D'ARCY McGEE, M.P.P., Minister of Agriculture of Canada.

The Honourable ALEXANDER CAMPBELL, M.L.C., Commissioner of Crown Lands. The Honourable J. C. CHAPAIS, M.P.P., Commissioner of Public Works.

The Honourable H. L. LANGEVIN, M.P.P., Solicitor-General of Lower Canada. *See Doc. 26. tSee Doc. 25.

56 - DOCUMENTS ON CONFEDERATION

The Honourable JAMES COCKBURN, M.P.P., Solicitor-General of Upper Canada. Sir Etienne Tache stated that the several gentlemen representing the Province of Canada were Members of the Executive Council of Canada. Sir Etienne Tache laid before the Conference a despatch dated 3rd October, 1864,* from His Excellency Sir Richard Graves MacDonnell, K.C.B., Lieutenant-Governor of Nova Scotia, to His Excellency The Governor-General of Canada, stating that he had appointed the following gentlemen to form a deputation to meet the delegates in Conference in Quebec, viz.: The Honourable CHARLES TUPPER, M.P.P., Provincial Secretary of Nova Scotia. The Honourable WILLIAM A. HENRY, M.P.P., AttorneyGeneral of Nova Scotia. The Honourable R. B. DICKEY, M.L.C. The Honourable JONATHAN McCuLLY, M.L.C., and ADAMS G. ARCHIBALD, Esquire, M.P.P. The Honourable Charles Tupper then laid before the Conference an instrumentt under the hand and seal at arms of His Excellency Sir R. G. MacDonnell, Lieutenant-Governor of Nova Scotia, appointing Charles Tupper, William A. Henry, Jonathan McCully, Robert B. Dickey and Adams G. Archibald, to be such delegates. The Honourable Samuel L. Tilley, Provincial Secretary of New Brunswick, stated that in consequence of the late date at which the despatch of His Excellency the Governor-General of Canada to His Excellency the Honourable Arthur H. Gordon, Lieutenant-Governor of New Brunswick, requesting the appointment of Members of the Conference, had been received, it had been found impossible to forward a formal instrument of delegation or despatch to that effect, but that he was empowered to present the following as delegates from the Province of New Brunswick to the Conference, viz.: The Honourable SAMUEL L. TILLEY, M.P.P., Provincial Secretary of New Brunswick. The Honourable WILLIAM H. STEEVES, M.L.C. and a Member of the Executive Council. The Honourable J. M. JOHNSON, M.P.P., Attorney-General of New Brunswick. The Honourable P. MITCHELL, M.L.C. and a Member of the Executive Council. The Honourable E. B. CHANDLER, M.L.C.

THE QUEBEC CONFERENCE, 1864 - 57

Lieut.-Colonel the Honourable JOHN HAMILTON GRAY, M.P.P. The Honourable CHARLES FISHER, M.P.P. Sir Etiemie Tache also laid before the Conference a despatch, dated 6th October, 1864,t from His Excellency George Dundas, Esquire, Lieutenant-Governor of Prince Edward Island, to His Excellency the Governor-General of Canada, stating that he had named the following gentlemen to proceed to Quebec, to be present at the Conference on the 10th October instant, viz.: — Colonel the Honourable JOHN HAMILTON GRAY, M.P.P., President of the Executive Council of Prince Edward Island. The Honourable EDWARD PALMER, M.L.C., Attorney-General of Prince Edward Island. The Honourable WILLIAM H. POPE, M.P.P., Colonial Secretary of Prince Edward Island. The Honourable A. A. MACDONALD, M.L.C. The Honourable GEORGE COLES, M.P.P. The Honourable T. HEATH HAVILAND, M.P.P. The Honourable EDWARD WHELAN, M.P.P. The Conference then stood composed of the following gentlemen: — CANADA - The Honourable Sir E. P. Tache, The Honourable JOHN A. MACDONALD, The Honourable G. E. CARTIER, The Honourable GEORGE BROWN, The Honourable OLIVER MOWAT, The Honourable ALEXANDER T. GALT, The Honourable W. MCDOUGALL, The Honourable T. D'ARCY McGEE, The Honourable ALEX. CAMPBELL, The Honourable J. C. CHAPAIS, The Honourable H. L. LANGEVIN, and the Honourable J. COCKBURN. NOVA SCOTIA - The Honourable CHARLES TUPPER, The Honourable WILLIAM A. HENRY, The Honourable JONATHAN McCULLY, The Honourable ROBERT B. DICKEY, and ADAMS G. ARCHIBALD, Esquire. NEW BRUNSWICK - The Honourable SAMUEL L. TILLEY, The Honourable W. H. STEEVES, The Honourable J. M. JOHNSON, The Honourable P. MITCHELL, The Honourable E. B. CHANDLER, Lieut-Col. The Honourable JOHN H. GRAY, The Honourable CHARLES FISHER. NEWFOUNDLAND - The Honourable F. B. T. CARTER, The Honourable AMBROSE SHEA. *See Doc. 27. [Pope] tSee Doc. 27. [Pope] $See Doc. 28. [Pope]

58 - DOCUMENTS ON CONFEDERATION

PRINCE EDWARD ISLAND - Col. The Honourable J. H. GRAY, The Honourable E. PALMER, The Honourable W. H. POPE, The Honourable A. A. MACDONALD, The Honourable G. COLES, The Honourable T. H. HAVILAND, The Honourable E. WHELAN. And the Conference stood accordingly convened. It was moved by Colonel the Honourable John Hamilton Gray (of Prince Edward Island), seconded by the Honourable Mr. Tilley, that the Honourable Sir E. P. Tache be Chairman of the Conference. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mr. Campbell, seconded by the Honourable Mr. McGee: That the Provincial Secretaries of each of the Provinces represented at the Conference, and the Honourable Mr. Shea, of Newfoundland, be the Joint Secretaries of the Conference. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald, seconded by the Honourable Mr. Tupper: — That the sittings of the Conference be held on each day (Sundays excepted) from eleven o'clock in the forenoon to four o'clock in the afternoon. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mu. Palmer, seconded by the Honourable Mr. Dickey: That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province or Colony, by whatever number of delegates represented, shall have one vote, and that in voting Canada be considered as two Provinces. And after debate the further consideration of the same was postponed until to-morrow. It was moved by the Honourable Mr. John A. Macdonald, seconded by the Honourable Mr. Tilley: That the best interests and present and future prosperity of British North America will be promoted by a Federal Union

THE QUEBEC CONFERENCE, 1864 — 59

under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces. And during debate, — The hour of four o'clock ensuing, the Chairman declared the Conference continued until to-morrow. TUESDAY, llth OCTOBER, 1864.

The Chairman took the chair at eleven o'clock a.m., when the members were convened.* The Honourable Mr. McDougall stated that the Joint Secretaries of the Conference having met, had arrived at the conclusion that, to enable them to give their undisturbed attention to the matters of the Conference, they thought it advisable that an Executive Secretary should be appointed, and that they accordingly recommended that Mr. Hewitt Bernard, Chief Clerk of the Crown Law Department of Upper Canada, should be appointed as such Executive Secretary. And the question of concurrence being then put, the same was resolved in the affirmative. The Conference resumed the consideration of the motion: — That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province or Colony, by whatever number of delegates represented, shall have one vote, and that in voting Canada be considered as two Provinces. And after debate, — The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald, seconded by the Honourable Mr. Tilley, that the order of the proceedings in Conference shall be as follows: (1) Free individual discussion and suggestion to be allowed. (2) That all motions and the discussions and votes thereon be in the first place as if in Committee of the Whole. (3) That after vote put no discussion be allowed. (4) That each Province may retire for consultation after vote put. (5) That after the scheme is settled in Committee of the Whole, * All save Mr. Carter, absent through indisposition, and Mr. Whelan. [Pope]

60 - DOCUMENTS ON CONFEDERATION

all the resolutions be reconsidered, as if with Speaker in the chair. (6) That just before the breaking up of the Conference, the Minutes be carefully gone over and settled, with the view of determining what is to be submitted to the Imperial and Provincial Governments, and what to be published for general information. And the question of concurrence being put thereon, the same was unanimously* resolved in the affirmative. The Conference resumed the further consideration of the motion: — That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces. And after debate, The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. Brown, seconded by Mr. Archibald: — That in the Federation of the British North American Provinces the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Maritime Provinces, charged with the control of local matters in their respective sections, provision being made for the admission into the Union on equitable terms of the North-West Territory, British Columbia and Vancouver. And during debate, The hour of four o'clock ensuing, the Chairman declared the Conference continued until to-morrow. WEDNESDAY, 12th OCTOBER, 1864.

The Chairman took the chair at eleven o'clock a.m., when the members were convened, t The Honourable Mr. Carter and the Honourable Mr. Whelan

THE QUEBEC CONFERENCE, 1864 - 61

severally rose and stated that they had been unable to attend at the sitting yesterday, but that they cordially supported the resolutions passed on that day, and desired to be considered as having severally voted therefor. The Chairman laid before the Conference the following letter from Mr. S. P. Day and others, requesting information of the proceedings of the Conference for publication through the press: -

To THE HONOURABLE SIR ETIENNE P. TACHE,

&c., &c., &c., Chairman of the Intercolonial Conference. SIR, - The undersigned, representatives of English and Canadian newspapers, find that it would be impossible for them satisfactorily to discharge their duties if an injunction of secrecy be imposed on the Conference and stringently carried into effect. They therefore beg leave to suggest whether, while the remarks of individual members of your body are kept secret, the propositions made and the treatment they meet with, might not advantageously be made public, and whether such a course would not best accord with the real interests committed to the Conference. Such a kind of compromise between absolute secrecy and unlimited publicity is usually, we believe, observed in cases where an European Congress holds the peace of the world and the fate of nations in its hands. And we have thought that the British American Conference might perhaps consider this precedent not inapplicable to the present case. Such a course would have the further advantage of preventing ill-founded and mischievous rumours regarding the proceedings from obtaining currency.

We have the honour to be, Sir, Your very obt. humble servants, S. PHILLIPS DAY, CHARLES LINDSEY, B. CHAMBERLIN. It was resolved, That the same be referred to the Secretaries of the Conference to prepare an answer declining the proposition made. * "Unanimously" is inserted in the Archives copy. tAll save Colonel Gray, of Prince Edward Island, absent through indisposition. [Pope]

62 - DOCUMENTS ON CONFEDERATION

The Conference then resumed the consideration of the motion: That in the Federation of the British North American Provinces, the system of government best adapted, under existing circumstances, to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Maritime Provinces, charged with the control of local matters in their respective sections, provision being made for the admission into the Union on equitable terms of the North-West Territory, British Columbia and Vancouver. And after debate, The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. The Honourable Mr. Shea rose and suggested that it would tend to the despatch of business before the Conference if the several resolutions intended to be moved were prepared in advance by a committee composed of the delegates of Canada, and It was unanimously resolved: — That the Conference should adjourn for such purpose. The Chairman, therefore, declared the Conference continued until to-morrow morning. THURSDAY, 13th OCTOBER, 1864.

The Chairman took the chair at eleven o'clock a.m., when the members were convened. It was moved by the Honourable Mr. Brown, seconded by the Honourable Mr. Henry: That the proposed Union shall at present embrace the following Provinces: Upper Canada, Lower Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island.

THE QUEBEC CONFERENCE, 1864 - 63

And after debate, — The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. Fisher, seconded by the Honourable Mr. Dickey: That the constitution of the General and Local Governments shall be framed upon the British model so far as is consistent with our colonial condition, and with a view to the perpetuation of our connection with the Mother Country. It was then moved in amendment by the Honourable Mr. Tupper, seconded by the Honourable Mr. Mitchell: That while it is the avowed desire of this Conference to perpetuate the connection with the parent state by every means in our power, it is not judicious to fetter our actions by the passage of a resolution of a simple declaratory character, and which may embarrass our action in the selection of the best means of providing for the general and local government of the country. It was then moved in amendment to the said proposed amendment by the Honourable Mr. Tilley, seconded by Mr. Archibald: That in framing a Constitution for the General Government, the Conference, with a view to the perpetuation of our connection with the Mother Country, and to the promotion of the best interests of the people of these Provinces, desire to follow the model of the British Constitution, so far as our circumstances will permit. And after debate, — The question of concurrence was put thereon, and the Conference divided; and the names of the Provinces were taken down as follows: CONTENTS.

Canada New Brunswick Newfoundland

NON-CONTENTS.

2 1 1 4

Nova Scotia 1 Prince Edward Island 1 — 2

64 - DOCUMENTS ON CONFEDERATION

The amendment to the amendment accordingly passed in the affirmative. It was then moved by the Honourable Mr. John A. Macdonald, seconded by Colonel the Honourable John Hamilton Gray, (of Prince Edward Island) : That there shall be a General Legislature for the Federated Provinces composed of a Legislative Council and Legislative Assembly. And after debate, The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. The following reply to the letter of Mr. S. P. Day and others was read and ordered to be sent: — CONFERENCE CHAMBER, PARLIAMENT HOUSE, OCTOBER 13, 1864. GENTLEMEN, -1 am desired to inform you that Sir Etienne P. Tache, Chairman of the Conference of Delegates from the several British North American Provinces, has laid before the Conference your letter of the 11th instant, in which you suggest whether, whilst the remarks of individual members of the Conference are kept secret, the propositions made and the treatment they meet with may not be advantageously made public, and whether such a course would not best accord with the real interests committed to the Conference. I am to say that, whilst the members of the Conference fully appreciate the motives by which you are actuated in your communication, and are equally sensible of the deep interest naturally felt by the people of the several British North American Provinces in the objects of the Conference, they cannot but feel that it is inexpedient, at the present stage of the proceedings, to furnish information which must, of necessity, be incomplete; and that no communication of their proceedings can properly be made until they are enabled definitely to report the issue of their deliberations to the Governments of the respective Provinces. I have the honour to be, gentlemen, Your very obedient servant, For the Secretaries of the Conference, H. BERNARD, Executive Secretary. It was moved by the Honourable Mr. John A. Macdonald, seconded by the Honourable Mr. Mowat: -

THE QUEBEC CONFERENCE, 1864 - 65

That for the purpose of forming the Legislative Council, the Federated Provinces shall be considered as consisting of three divisions: 1st, Upper Canada; 2nd, Lower Canada; and 3rd, the four Maritime Provinces, and each division shall be represented in the Legislative Council by an equal number of members. It was moved in amendment by the Honourable Mr. Tilley, seconded by the Honourable Mr. Dickey: That the Legislative Council in the Federal Legislature be composed as follows: Upper Canada 24 Lower Canada 24 Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island 32 80

And during debate, — The hour of four o'clock ensuing, the Chairman declared the Conference continued until to-morrow. FRIDAY, 14th OCTOBER, 1864.

The Chairman took the chair at eleven o'clock a.m., when the members were convened. * The Conference resumed consideration of Mr. Tilley's amendment to the motion of Mr. John A. Macdonald respecting the composition of the Legislative Council. And after debate thereon arising, the amendment was by permission of the Conference withdrawn. It was moved in amendment by the Honourable Mr. Tupper:That for the purpose of forming the Legislative Council the Federated Provinces shall be considered as consisting of three divisions: 1st, Upper Canada; 2nd, Lower Canada; 3rd, Nova Scotia, New Brunswick and Prince Edward Island, with equal representation in the Legislative Council, and the Island of Newfoundland, to which additional representatives shall be allotted. And during debate, The hour of four o'clock arriving, the Chairman declared the Conference continued until to-morrow. *A11 save Colonel Gray, of Prince Edward Island, absent through indisposition. [Pope]

66 - DOCUMENTS ON CONFEDERATION

SATURDAY, 15th OCTOBER, 1864.

The Chairman took the chair at eleven o'clock a.m., when the members were convened. It was moved by the Honourable Mr. John A. Macdonald: That on and after Monday next the Conference commence its sittings at ten o'clock a.m., and sit until two o'clock p.m., and that it re-assemble at 7.30 p.m., and sit until adjourned on motion. And the question of concurrence being put thereon, the same was resolved in the affirmative. The Conference then resumed consideration of the amendment of the Honourable Mr. Tupper to the motion of the Honourable Mr. John A. Macdonald respecting the composition of the Legislative Council. And after debate, It was moved in amendment to the said proposed amendment by the Honourable Mr. Fisher: - * That for the purpose of representation in the Legislative Council, the Confederation shall be divided into three divisions: — Upper Canada, Lower Canada, and the Maritime Provinces, including Newfoundland, and that the apportionment amongst them shall be as follows: — Upper Canada, 30; Lower Canada, 30; Nova Scotia, 10; New Brunswick, 10; Newfoundland, 5; Prince Edward Island, 5. And during debate, And at the hour of half-past two p.m., a motion for adjournment being carried, the Chairman declared the Conference continued until Monday, the 17th instant. MONDAY, 17th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened, t The resolution passed on the 12th instant was amended to read as follows: That in the Federation of the British American Provinces the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government,

THE QUEBEC CONFERENCE, 1864 - 67

charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections, provision being made for the admission into the Union on equitable terms of Newfoundland, the North-West Territory, British Columbia and Vancouver. The Conference resumed consideration of the amendment of the Honourable Mr. Fisher respecting the constitution of the Legislative Council. And after debate thereon arising, the amendment was, by permission of the Conference, withdrawn. The Conference resumed consideration of the amendment of the Honourable Mr. Tupper to the motion of the Honourable Mr. John A. Macdonald respecting the composition of the Legislative Council. And after debate, And the same being amended, the question of concurrence was put thereon, and it was resolved: — That for the purpose of forming the Legislative Council the Federated Provinces shall be considered as consisting of three divisions: - 1st, Upper Canada; 2nd, Lower Canada; 3rd, Nova Scotia, New Brunswick and Prince Edward Island, with equal representation in the Legislative Council. It was moved by the Honourable Mr. John A. Macdonald: — That Upper Canada be represented in the Legislative Council by 24 members, Lower Canada by 24 members, and the three Maritime Provinces by 24 members, of which Nova Scotia shall have 10, New Brunswick 10, and Prince Edward Island 4 members. And the^ question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: That the colony of Newfoundland, having sent a deputation to this Conference, be now invited to enter into the proposed Confederation, with a representation in the Legislative Council of four members. * After this date the names of the seconders are not given. [Pope] tAll save Messrs. McGee, Palmer and Henry. [Pope]

68

— DOCUMENTS ON CONFEDERATION

And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. And the foregoing resolution having been communicated to the Newfoundland delegates, the invitation was accepted, the right being reserved by them to press their claims for an increased representation in the Legislative Council. And the hour of two o'clock p.m. ensuing, the Chairman declared the Conference continued until half-past seven o'clock in the evening. And at half-past seven o'clock p.m. the Chairman took the chair, when the members were convened.* It was moved by the Honourable Mr. John A. Macdonald: — That the members of the Legislative Council shall be appointed by the Crown under the Great Seal of the General Government and shall hold office during life. And during debate, — And at the hour of twelve o'clock midnight,! a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow. TUESDAY, 18th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. The Conference resumed consideration of the motion before them respecting the mode of appointment of members of the Legislative Council. And after debate, The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was proposed by the Honourable Mr. John A. Macdonald: That the members of the Legislative Council shall be British subjects, by birth or naturalization, of the full age of thirty years, shall possess a real property qualification of four thousand dollars over and above all incumbrances, and be worth that amount over and above their debts and liabilities. And after debate, The question of concurrence being put thereon, the same was unanimously resolved in the affirmative. And the hour of two o'clock p.m. ensuing, the Chairman

THE QUEBEC CONFERENCE, 1864 - 69

declared the Conference continued until half-past seven o'clock in the evening. At half-past seven o'clock in the evening the Chairman took the chair, when the members were convened. It was moved by the Honourable Mr. Tupper: — That the members of the Legislative Council for the General Governments shall in the first instance be selected from the Legislative Councils of the various Provinces, with the exception of Prince Edward Island, so far as a sufficient number be found qualified and willing to serve. It was moved in amendment by the Honourable Mr. McCully: That it shall be competent for each Province to provide in this Conference its own method for selecting the members of the Legislative Council at its first formation. And after debate, The said amendment was by leave of the Conference withdrawn. It was moved in amendment by the Honourable Mr. Coles: That the first nomination for the upper branch of the united Legislature shall be open to all duly qualified persons in each Province or Colony. And at the hour of half-past eleven o'clock p.m., a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow. WEDNESDAY,

19th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. The Conference resumed consideration of the motion of the Honourable Mr. Tupper respecting the selection of members of the Legislative Council, and of the motion of the Honourable Mr. Coles in amendment thereto. And after debate, And the question of concurrence being put on the amendment of the Honourable Mr. Coles, the Conference divided, and the names of the Provinces were taken down as follows: — *A11 save Messrs. Campbell, McGee, Pope and Henry. [Pope] t"Noon" in text; "midnight" in errata.

70 - DOCUMENTS ON CONFEDERATION CONTENTS.

Prince Edward Island

1

NON-CONTENTS.

Canada Nova Scotia New Brunswick Newfoundland

2 1 1 1

So it passed in the negative. And the question of concurrence being put on the motion of the Honourable Mr. Tupper, the Conference divided, and the names of the Provinces were taken down as follows: CONTENTS.

Canada Nova Scotia New Brunswick Newfoundland

2 1 1 1

NON-CONTENTS.

Prince Edward Island

1

So it passed in the affirmative. It was moved by the Honourable Mr. Gait: That in the first instance, the members to be chosen for the Legislative Council of the United Provinces, excepting Prince Edward Island, shall be chosen by lot from the existing members of the Legislative Councils of the several Maritime Provinces, and of those sitting in Canada from Upper and Lower Canada respectively.

And after debate, And the question of concurrence being put thereon, the Conference divided, and the names of the Provinces were taken down as follows: — CONTENTS.

Canada

2

THE QUEBEC CONFERENCE, 1864

-71

NON-CONTENTS.

Nova Scotia New Brunswick Newfoundland

1 1 1 3

Prince Edward Island did not vote. So the motion passed in the negative. It was moved by the Honourable Mr. Shea: That such first selection shall be made by the Local Government of each Province, so far as a sufficient number be found as aforesaid; and in case such sufficient number cannot be found, then the Local Government shall name for appointment other duly qualified parties to make up the deficiency; provided that the Government of Canada shall select for both sections of Canada, and that the Government of Prince Edward Island shall name for appointment the whole number of the Legislative Councillors allotted to it. And after debate, The motion of the Honourable Mr. Shea was by leave of the Conference withdrawn. It was moved by Mr. Archibald: — That in the selection of members of the first Federal Legislative Council, each Province shall be governed by such rules now to be agreed upon as are considered by the Conference most suitable to the circumstances of the particular Provinces. It was moved in amendment by the Honourable Mr. McCully: That the Legislative Council shall, in the first, instance, be chosen in Canada by ballot, and in the other Provinces by the Executive Governments. And after debate, The said motion of Mr. Archibald and the proposed amendment of the Honourable Mr. McCully were by leave of the Conference withdrawn. It was moved by the Honourable Mr McCully: — That the members of the first Legislative Council in the Federal Legislature shall be appointed by the Crown at the

72 - DOCUMENTS ON CONFEDERATION

recommendation of the Federal Executive Government, upon the nomination of the respective Local Governments, and that in such nomination due regard be had to the claims of the members of the Legislative Council of the Opposition in each Province, so that all political parties be as nearly as possible fairly represented. And after debate, And the question of concurrence being put on the motion of the Honourable Mr. McCully, the same unanimously resolved in the affirmative. The Honourable Peter Mitchell, a delegate from New Brunswick, rose and stated his regret that private business imperatively required him to leave the Conference and to return to New Brunswick, and he requested leave of absence accordingly. It was unanimously resolved, — That leave of absence be granted to the Honourable Mr. Mitchell for the residue of the sittings of the Conference. And the hour of two o'clock ensuing, the Chairman declared the Conference continued until half-past seven o'clock in the evening. And at half-past seven o'clock the Chairman took the chair, when the members were convened. It was moved by the Honourable Mr. Brown: — That the basis of representation in the House of Commons shall be population, as determined by the official census every ten years; and that the number of members at first shall be 200 — distributed as follows: — Upper Canada Lower Canada Nova Scotia New Brunswick Newfoundland Prince Edward Island

89 65 19 15 7 5

That each section shall distribute its representatives in such electoral divisions as it deems best; That until the official census of 1881 has been made up, there shall be no change in the numbers of the representatives from the several sections;

THE QUEBEC CONFERENCE, 1864 — 73

That immediately after the completion of the census of 1881, and immediately after every decennial census thereafter, the representation in each section shall be re-adjusted on the basis of population; That for the purpose of such re-adjustments, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each such re-adjustment receive, for the ten years then next succeeding, the number of members to which it will be entitled on the same ratio of representation to population as Lower Canada will en\oy according to the census then just taken by having sixty-five members. That no reduction shall be made in the number of members returned by any section, unless its population shall have decreased relatively to the whole population of the whole federation to the extent of five per centum or over; That in computing at each decennial period the number of members to which each section is entitled, no fractional parts shall be considered, unless when exceeding one-half the number entitling to a member, in which case a member shall be given for each such fractional part; That the number of members may at any time be increased by the Federal Parliament — regard being had to the proportionate rights then existing. And after debate, And the question of concurrence being put on the motion of the Honourable Mr. Brown, the Conference divided, and the names of the Provinces were taken down as follows: CONTENTS.

Canada Nova Scotia New Brunswick Newfoundland

2 1 1 1 5

NON-CONTENTS.

Prince Edward Island

1

So it passed in the affirmative. And the hour of ten o'clock p.m. ensuing, and a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow.

74 - DOCUMENTS ON CONFEDERATION THURSDAY, 20th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. It was moved by the Honourable Mr. John A. Macdonald: That the Legislature of each Province shall divide such Province into the proper number of constituencies and define the boundaries of each of them. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: — That there shall be a session of the Legislative Council and Assembly once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the Legislative Council and Assembly in one session and the firstsitting of the Legislative Council and Assembly in the next session. And every Legislative Assembly shall continue for five years from the day of the return of the writs choosing the same, and no longer; subject nevertheless to be sooner prorogued or dissolved by the Governor. And after debate, — And the question of concurrence being put on the above motion, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: That until provision shall otherwise be made by the Legislature of the Federated Provinces, all the laws which, at the date of the proclamation constituting such Confederation, are in force in the Provinces respectively relating to the qualification and disqualification of any person to be elected or to sit or vote as a member of the Assembly in the said Provinces respectively, and relating to the qualification or disqualification of voters, and to the oaths to be taken by voters, and to returning officers and the powers and duties thereof, and the proceedings at elections, and the period during which such elections may be continued, and relating to the trial of controverted elections, and the proceedings incident thereto, and to the vacating of seats of members, and the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively be applied to election of members to serve in the Legislative Assembly of

THE QUEBEC CONFERENCE, 1864 - 75

the Federated Provinces, for places situate in those Provinces respectively for which such laws were passed. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: — That the Executive authority or Government shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well understood principles of the British Constitution by the Sovereign personally or by representative duly authorized. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: That the Sovereign or representative of the Sovereign shall be Commander-in-Chief of the Land and Naval Militia Forces. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by the Honourable Mr. Brown: That in the Local Government there shall be but one Legislative Chamber. And after debate, The said motion was by leave of the Conference withdrawn. And the hour of two o'clock p.m. arriving, the Chairman declared the Conference continued until half-past seven o'clock p.m. And at half-past seven o'clock p.m. the Chairman took the chair, when the members were convened. It was moved by the Honourable Mr. McCully: That with a view of reducing the expenses of the Local Governments, it shall be left to each Province to recommend the reconstruction of its local constitution in such a way as shall be most acceptable to its own Legislature; provided that in such reconstruction nothing be contained inconsistent with the constitution of the Federal Government. And the question of concurrence being put on the motion of the Honourable Mr. McCully, the same was unanimously resolved in the affirmative.

76 - DOCUMENTS ON CONFEDERATION

It was moved by the Honourable Mr. John A. Macdonald: That for each of the Provinces there shall be an executive officer, styled the Lieutenant-Governor, who shall be appointed by the Governor-General in Council under the Great Seal of the Federated Provinces during pleasure, such pleasure not to be exercised before the expiration of the first five years except for cause, such cause to be communicated in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of the General Legislature within the first week of the first session afterwards. And after debate, — And the question of concurrence being put on the motion of the Honourable Mr. Macdonald, the same was unanimously resolved in the affirmative. And at ten o'clock p.m., a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow. FRIDAY, 21st OCTOBER,

1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. It was moved by the Honourable Mr. John A. Macdonald: — That it shall be competent for the General Legislature to make laws for the peace, welfare and good government of the Federated Provinces (saving the sovereignty of England), and especially laws respecting: — 1. Trade and commerce. 2. The imposition or regulation of duties of customs on imports and exports. 3. The imposition or regulation of excise duties. 4. All or any other modes or systems of taxation. 5. Currency and coinage. 6. The borrowing of money on the public credit. 7. Banking and the issue of paper money. 8. The law relating to bills of exchange and promissory notes. 9. The rate of interest. 10. Legal tender. 11. Weights and measures.

THE QUEBEC CONFERENCE, 1864 - 77

12. Postal service. 13. Bankruptcy and insolvent laws operating as a discharge of the debtor. 14. Beacons and lighthouses. 15. Ocean navigation and shipping. 16. Sea fisheries. 17. Patents of invention and discovery. 18. Copy Rights. 19. Telegraphic communication and the incorporation of telegraph companies. 20. Naturalization. 21. Marriage and divorce. 22. The taking of the census. 23. Militia — Military and naval service and defence. 24. Immigration. 25. Agriculture. 26. The criminal law (except the constitution of Courts of Criminal Jurisdiction). 27. Roads, bridges, lines of steam or other ships, railways, canals and other works connecting any two or more of the Provinces together or extending beyond the limits of any one Province. 28. All such works as shall, although lying wholly within any one Province, be specially declared by the Acts authorizing them to be for the general advantage. 29. The establishment of a general Court of Appeal for the Federated Provinces. 30. Subsidies or grants in aid of the Local Governments. 31. The public debt and public property. 32. And generally respecting all matters of a general character, not specially and exclusively reserved for the Local Governments and Legislatures. And after debate, — It was moved in amendment by the Honourable Mr. McCully: That item number 25, "Agriculture" be struck out of the resolution before the Conference. And the Conference divided upon the amendment of the Honourable Mr. McCully, and the names of the Provinces were taken down as follows: -

78 — DOCUMENTS ON CONFEDERATION

CONTENTS. NON-CONTENTS.

None

Canada Nova Scotia New Brunswick Newfoundland Prince Edward Island

2 1 1 1 1

6 So it passed in the negative. It was moved by the Honourable Mr. Tilley to strike from item number 27 the words "Roads and Bridges." And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. And after further debate, And the adoption by the Honourable Mr. John A. Macdonald of certain amendments to his motion, the question of concurrence was put thereon, and the same was resolved in the affirmative as follows: That it shall be competent for the General Legislature to make laws for the peace, welfare and good government of the Federated Provinces (saving the sovereignty of England), and especially laws respecting: — '1. Trade and commerce. 2. The imposition or regulation of duties of Customs on imports and exports. 3. The imposition or regulation of excise duties. 4. All or any other modes or systems of taxation. 5. Currency and coinage. 6. The borrowing of money on the public credit. 7. Banking and the issue of paper money. 8. The law relating to bills of exchange and promissory notes. 9. Interest. 10. Legal tender. 11. Weights and measures. 12. Postal service. 13. Bankruptcy and insolvency. 14. Beacons, buoys and lighthouses. 15. Navigation and shipping. 16. Sea fisheries.

THE QUEBEC CONFERENCE, 1864

- 79

17. Patents of invention and discovery. 18. Copy Rights. 19. Telegraphic communication and the incorporation of telegraph companies. 20. Naturalization and aliens. 21. Marriage and divorce. 22. The census. 23. Militia — Military and naval service and defence. 24. Immigration. 25. Agriculture. 26. The Criminal Law (except the constitution of Courts of Criminal Jurisdiction). 27. Lines of steam-ships or other ships, railways and canals connecting any two or more of the Provinces together. 28. Lines of steam-ships between the Federated Provinces and other countries. And at the hour of half-past four o'clock P.M., a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow at twelve o'clock noon. SATURDAY, 22nd OCTOBER, 1864.

The Chairman took the chair at twelve o'clock, when the members were convened. It was moved by the Honourable Mr. Gait: 1. That the Confederation shall be vested at the time of the union with all cash, bankers' balances, and other cash securities of each Province. 2. That the Confederation shall be vested with the public works and property of each Province, to wit: — Canals; Public harbours; Lighthouses; Steamboats, dredges and public vessels; River and lake improvements; Railroads, mortgages, and other debts due by railroad companies; Military roads; Public buildings, custom houses and post offices, except such as may be set aside for the use of the Local Legislatures;

80 — DOCUMENTS ON CONFEDERATION

Property transferred by the Imperial Government and known as ordnance property; Armouries, drill sheds, military clothing and munitions of war; Lands set apart for public purposes. 3. The several Provinces shall remain each vested with all public property therein, except such as is hereinbefore vested in the Confederation, subject to the right of the Confederation to assume any lands or public property required for fortifications or the defence of the country. 4. The Confederation shall assume all the debts and liabilities of each Province. The debt of Canada, not specially assumed by Upper and Lower Canada respectively, shall not exceed at the time of the union $62,500,000. New Brunswick and Nova Scotia shall be at liberty to prosecute the works already authorized by their Legislatures within five years from this date; provided the total amount of their liabilities does not exceed for — Nova Scotia $8,000,000 New Brunswick 7,000,000 Newfoundland and Prince Edward Island, not having incurred debts equal to those of the other Provinces, shall be entitled to receive by half-yearly payments in advance from the Confederation the interest at five per cent, on the difference between the actual amount of their respective debts at the time of the union, and the average amount of indebtedness per head of the population of Canada, Nova Scotia and New Brunswick. 5. In consideration of the transfer to the General Legislature of the powers of taxation, a grant in aid of each Province shall be made, equal to an amount of 80 cents per head of the population, as established by the census of 1861; Newfoundland being estimated at 130,000 inhabitants. Such aid to be in full settlement of all future demands upon the General Legislature for local purposes, and to be payable half yearly in advance to each Province. 6. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the period of ten years from the time when the union takes effect, an additional allowance of $63,000 per annum shall be made to that Province.

THE QUEBEC CONFERENCE, 1864 - 81

7. In consideration of the surrender to the Confederation of all the territorial rights of Newfoundland, it is agreed that an annual payment shall be made to that Province of $150,000. . 8. All engagements that may be entered into by Canada with the Imperial Government for the defence of the country shall be assumed by the Confederation. And after debate, And at the hour of five o'clock p.m., and a motion for adjournment being carried, the Chairman declared the Conference continued until Monday morning at ten o'clock. MONDAY, 24th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. It was moved by the Honourable Mr. Mowat: — That it shall be competent for the Local Legislatures to make laws respecting — 1. Agriculture. 2. Education. 3. Emigration. 4. The sale and management of public lands, excepting lands held for general purposes by the General Government. 5. Property and civil rights, excepting those portions thereof assigned to the General Legislature. 6. Municipal institutions. 7. Inland fisheries. 8. The construction, maintenance and management of penitentiaries and of public and reformatory prisons. 9. The construction, maintenance and management of hospitals, charities and eleemosynary institutions. 10. All local works. 11. The administration of justice and the constitution, maintenance and organization of the courts, both of civil and criminal jurisdiction. 12. The establishment of local offices, and the appointment, payment and removal of local officers. 13. The power of direct taxation. 14. Borrowing money on the credit of the Province.. 15. Shop, saloon, tavern and auctioneer licenses. 16. Private and local matters.

82 — DOCUMENTS ON CONFEDERATION

And after debate, — And at the hour of 2 o'clock P.M. ensuing, the Chairman declared the Conference continued until half-past seven P.M. And at half-past seven o'clock P.M., the Chairman took the chair, when the members were convened. It was moved by the Honourable Mr. Coles in amendment to the motion of the Honourable Mr. Mowat: That the Local Legislatures shall have power to make all laws not given by this Conference to the General Legislature expressly. And the question of concurrence being put on the said amendment, the same was unanimously resolved in the negative. It was moved by Mr. Archibald in amendment to the motion of the Honourable Mr. Mowat: That it is inexpedient to name in the constitution the subjects to be entrusted to the Local Legislatures. And the question of concurrence being put thereon, the same was resolved in the negative. And the question of concurrence being put on so much of the motion of the Honourable Mr. Mowat as is embraced between the initial word "That," down to and including the word "agriculture," the same was resolved in the affirmative. And at the hour of eleven o'clock p.m., a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow. TUESDAY, 25th OCTOBER, 1864.

The Chairman took the chair at ten o'clock a.m., when the members were convened. The Conference resumed debate on the motion of the Honourable Mr. Mowat, which was discussed clause by clause. It was moved by the Honourable Mr. McGee that the following words be added to item 2, "Education": Saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their denominational schools at the time when the Constitutional Act goes into operation. Agreed to. It was moved by Colonel Gray (Prince Edward Island): -

THE QUEBEC CONFERENCE, 1864 - 83

That item number 7 be amended to read "Sea coast and inland fisheries." Agreed to. It was moved by Mr. Archibald that the following item be added to the motion of the Honourable Mr. Mowat: — "17. The incorporation of private or local companies, except such as relate to matters assigned to the Federal Legislature." Agreed to. And after further debate, And the adoption of certain verbal amendments, the question of concurrence being put on the motion of the Honourable Mr. Mowat (with the exception of item number 11, the consideration of which was postponed), the same was resolved in the affirmative as follows: — That it shall be competent for the Local Legislatures to make laws respecting: — Education, saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their denominational schools at the time when the Constitutional Act goes into operation. Immigration. The sale and management of public lands, excepting lands belonging to the General Government. Property and civil rights, excepting those portions thereof assigned to the General Legislature. Municipal institutions. Sea coast and inland fisheries. The establishment, maintenance and management of penitentiaries and of public and reformatory prisons. The construction, maintenance and management of hospitals, asylums, charities and eleemosynary institutions. Local works. The establishment and tenure of local offices, and the appointment and payment of local officers. Direct taxation. Borrowing money on the credit of the Province. Shop, saloon, tavern and auctioneer licenses. The incorporation of private or local companies, except such as relate to matters assigned to the Federal Legislature. And generally all matters of a private or local nature.

84 -

DOCUMENTS ON CONFEDERATION

It was moved by That the Local Legislature of each Province may afterwards, from time to time, alter the electoral districts of the Province for the purposes of representation in the House of Commons, and distribute the number of representatives to which the Province is entitled, in any manner such Legislature may think fit. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: That the power of respiting, reprieving, commuting and pardoning prisoners convicted of crimes, and of remitting of sentences in whole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant-Governor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Legislature. And the question of concurrence being put thereon, the same was resolved in the affirmative. And the hour of two o'clock p.m. ensuing, the Chairman declared the Conference continued until half-past seven o'clock in the evening. And at half-past seven o'clock p.m. the Chairman took the chair, when the members were convened. It was moved by — That the Local Legislature shall have power to provide for inflicting punishment by fine, penalties, imprisonment, or otherwise, for the breach of laws passed in relation to any subject within their jurisdiction. That in regard to all subjects over which jurisdiction belongs to both the General and Local Governments, the laws of the Federal Parliament shall control and supersede those made by the Local Legislature, and the latter shall be void so far as they are repugnant to or inconsistent with the former. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by That all lands, mines, minerals and royalties vested in Her

THE QUEBEC CONFERENCE, 1864 - 85

Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. All sums due from purchasers or lessees of such lands, mines or minerals at the time of the union, shall also belong to the Local Governments. And after debate, — It was resolved that further consideration of the same should be postponed. It was moved by the Honourable Mr. Mowat that: 1. It shall be competent for the General Legislature to pass laws respecting — 1. The Indians. 2. Ferries between any Province and a foreign country or between any two Provinces. 3. For the regulation and incorporation of fire and life insurance companies. 4. Respecting savings banks. 2. It shall also be competent for the General Legislature to pass — Inspection laws, and Laws relating to quarantine. 3. The General Government and Legislature shall have all powers necessary or proper for performing the obligations of the Province as part of the British Empire to foreign countries, arising under treaties between Great Britain and such countries. 4. All Courts, Judges and Officers of the several Provinces shall aid, assist and obey the General Government in the exercise of its rights and powers under this Act, and for such purposes shall be held to be Judges and Officers of the General Government. 5. The General Government may also, from time to time, establish additional Courts, and appoint other Judges and Officers, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws, rights and obligations of the General Government. 6. All bills for appropriating any part'of the public revenue, or for imposing any new tax or impost, shall originate in the

86 — DOCUMENTS ON CONFEDERATION

House of Commons or the Local Assembly, as the case may be. 7. The House of Commons or Legislative Assembly shall not originate or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost to any purpose, not first recommended to the House or Assembly by message of the Governor-General, during the session in which such vote, resolution, address or bill is passed. 8. Any bill of the General Legislature may be reserved in the usual manner for Her Majesty's assent, and any bill of the Local Governments may in like manner be reserved for the consideration of the General Government. 9. Any bill passed by the General Legislature shall be subject to disallowance by Her Majesty within two years, as in the case of bills passed by the said Provinces hitherto, and in like manner any bill passed by a Local Legislature shall be subject to disallowance by the General Government within one year after the passing thereof. And after debate, And the insertion of certain verbal amendments, the question of concurrence was put on the first seven items of the motion of the Honourable Mr. Mowat, and the same was resolved in the affirmative. And after further debate, — And the question of concurrence being put on the eighth and ninth items, the same was resolved in the affirmative. It was moved, by the Honourable Mr. Mowat* that: The North-West Territory, British Columbia and Vancouver shall be admitted into the Union on such terms and conditions as Parliament shall deem equitable, and as shall receive the assent of Her Majesty; and in the case of the Province of British Columbia or Vancouver, as shall be agreed to by the Legislature of such Province. And the question of concurrence being put thereon, it was resolved that further consideration of the same should be postponed. Attention was called to the minutes of the 13th October instant, by which it appeared that Nova Scotia and Prince Edward Island had voted against the motion: That in framing the Constitution for the General Government, the Conference, with a view to the perpetuation of our

THE QUEBEC CONFERENCE, 1864 - 87

connection with the Mother Country, and to the promotion of the best interests of the people of these Provinces, desire to follow the model of the British Constitution so far as our circumstances will permit. It was moved by — That with the view of explaining the vote of Nova Scotia and Prince Edward Island in the negative on that resolution, the amendment proposed on that occasion be entered on the minutes as being expressive of the views of Nova Scotia and Prince Edward Island on the subject, and which led to their vote in the negative on the main motion, and which amendment is as follows: That while it is the avowed desire of this Conference to perpetuate the connection with the parent state by every means in our power, it is not judicious to fetter our actions by the passage of a resolution of a simple declaratory character, and which may embarrass our action in the selection of the best means of providing for the general and local Government of the country. And the question of concurrence being put thereon, the same was resolved in the affirmative. And at the hour of twelve o'clock midnight, a motion for adjournment being carried, the Chairman declared the Conference continued until to-morrow morning at eleven o'clock. WEDNESDAY, 26th OCTOBER, 1864.

The Chairman took the chair at twelve o'clock noon, when the members were convened. * It was moved by the Honourable Mr. John A. Macdonald: That the Judges of the Courts of Record in each Province shall be appointed and paid by the General Government, and their salaries shall be fixed by the General Legislature. That the Judges of the Court of Admiralty now receiving salaries shall be paid by the General Government. That the Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable only on the address of both Houses of the General Legislature. *It is not quite certain from the papers that this resolution was moved by Mr. Mowat. [Pope]

88 - DOCUMENTS ON CONFEDERATION

And the question of concurrence being put on the motion of the Honourable Mr. Macdonald, the same was resolved in the affirmative. It was moved by — That the General Legislature shall have power to pass statutes for rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland, and for rendering uniform the procedure of all or any of the Courts in these Provinces; but not to go into operation in any Province until sanctioned by the Legislature thereof. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by — That subject to any future action of the respective Local Governments in respect thereof, the seat of the Local Government in Upper Canada shall be in Toronto; of Lower Canada, Quebec; and the seats of the Local Governments in the other Provinces shall be as at present. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mr. John A. Macdonald: That the seat of the Government of the Confederated Provinces shall be Ottawa, subject to the royal prerogative. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. It was moved by — That no lands or property belonging to the General or Local Governments shall be liable to taxation. And the question of concurrence being put thereon, the same was resolved in the affirmative. It was moved by the Honourable Mr. Gait: That in the General Legislature and in its proceedings, the English and French languages may be both especially employed. And also in the Local Legislature of Lower Canada and in the Federal and Local Courts of Lower Canada. That the Lieut enant-G over nor of each Province shall be paid by the General Legislature.

THE QUEBEC CONFERENCE, 1864 — 89

That in undertaking to pay the salaries of the LieutenantGovernors, the Conference does not desire to prejudice the claim of Prince Edward Island upon the Imperial Government for the amount now paid for the salary of the LieutenantGovernor thereof. And the question of concurrence being put thereon, the same was unanimously resolved in the affirmative. The Conference then discussed the financial resolutions moved by Mr. Gait on the 22nd instant. And after further debate, — And the adoption of certain amendments, the question of concurrence was put upon numbers four, five and six, and the same was resolved in the affirmative as follows: — The Conference shall assume all the debts and liabilities of each Province. The debt of Canada not specially assumed by Upper and Lower Canada respectively shall not exceed at the time of the Union $62,500,000 Nova Scotia shall enter into the Confederation with a debt not exceeding 8,000,000 A nd New Brunswick 7,000,000 But it is expressly provided that in case Nova Scotia or New Brunswick do not incur liabilities beyond those for which their Governments are now bound, and which shall make their respective debts at the date of the Union less than $8,000,000 and $7,000,000 respectively, they shall then be entitled to benefit by the interest at five per cent, on the amount not so incurred, in like manner as is hereinafter provided for Newfoundland and Prince Edward Island. The foregoing resolution being in no respect intended to limit the powers now given to the respective Governments of those Provinces by legislative authority, but to limit the extreme amount of charge to be brought by them against the Confederation; provided always, that the powers so conferred by the respective Legislatures must be exercised within five years from this date or will then lapse. Newfoundland and Prince Edward Island, not having incurred debts equal to those of the other Provinces, shall be entitled to receive by half-yearly payments in advance from the Confederation the interest at five per cent, on the difference between the actual amount of their respective debts at the

90 - DOCUMENTS ON CONFEDERATION

time of the Union, and the average amount of indebtedness per head of the population of Canada, Nova Scotia and New Brunswick. In consideration of the transfer to the General Legislature of the powers of taxation, a grant in aid of each Province shall be made, equal to an amount of eighty cents per head of the population as established by the census of 1861; Newfoundland being estimated at 130,000 inhabitants. Such aid to be in full settlement of all future demands upon the General Legislature for local purposes, and to be payable half-yearly in advance to each Province. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the period of ten years from the time when the Union takes effect, an additional allowance of $63,000 per annum shall be made to that Province, provided that so long as the liability of that Province remains under $7,000,000, a deduction equal to the interest on such deficiency shall be made from the $63,000. And item number seven having been amended to read as follows: That in consideration of the surrender to the Confederation by Newfoundland of all its rights in mines and minerals, and of all the ungranted and unoccupied lands of the Crown, it is agreed that the sum of $150,000 shall each year be paid to that Province by semi-annual payments; provided that the Colony shall retain the right of opening, constructing and controlling roads and bridges through any of the said lands, subject to any laws which the General Legislature may pass in respect of the same. And the question of concurrence being put thereon, the Conference divided, and the names of the Provinces were taken down as follows: CONTENTS.

Canada Nova Scotia New Brunswick Newfoundland

2 1 1 1

THE QUEBEC CONFERENCE, 1864 NON-CONTENTS.

Prince Edward Island

- 91

1

So it passed in the affirmative. And the question of concurrence being proposed on item number eight, the same was resolved in the affirmative as follows: 8. That all engagements that may be entered into with the Imperial Government for the defence of the country shall be assumed by 'the Confederation. The Chairman laid the following letter before the Conference: — To THE HONOURABLE SIR E. P. TACHE, &c., &c., &c., Chairman Intercolonial Conference. SIR, — The undersigned desire respectfully to learn whether the Conference will instruct its secretary to furnish them for publication with a synopsis of the scheme of Confederation which may result from its deliberations. The previous objection to furnish information which must have been necessarily incomplete does not appear to apply, after the general plan has been agreed upon, and the undersigned, on that account, feel justified in renewing their application for an official'statement of the proceedings in the Conference. They trust the Conference will not deem this renewed application importunate when the natural anxiety of the public to learn the result of its deliberations is considered, especially as an intelligent public opinion can only be formed upon a thoroughly reliable statement of the facts. And they have the honour to remain, Sir, Your very obedient humble servants,, CHARLES LINDSEY, fox Leader, B. CHAMBERLIN, for Montreal Gazette The following answer was read and ordered to be sent: CONFERENCE CHAMBER, Parliament House, Quebec, 26th Oct., 1864. GENTLEMEN, — I am desired by Sir Etienne Tache to acknowledge your note, requesting that you may be furnished, for

92 - DOCUMENTS ON CONFEDERATION

publication, with a synopsis of the scheme of Confederation which may result from the deliberations of the Conference. I am, in reply, to state that the members of the Conference are of opinion that the reasons given in my former communication as those which induced them to decline your request in respect to ensuring publicity of their proceedings are still applicable; and that they cannot yet feel themselves justified in giving authorized publication to the results of their deliberations. I have the honour to be, gentlemen, Your obedient servant, For the Secretaries of the Conference, H. BERNARD, Executive Secretary. CHARLES LINDSEY and B. CHAMBERLIN, Esquires. (The rest is wanting). THURSDAY P.M., 27th OCTOBER, 1864.

It was moved by And resolved: That all communications from the several Provinces on the subject of the Confederation be addressed to Sir E. P. Tache, the Premier of the Canadian Government, who shall be the medium of communication between them. It was moved by the Honourable Mr. Gait: That the communications with the North-Western Territory and the improvement required for the development of the trade of the Great West with the seaboard are regarded by this Conference as subjects of the highest importance to the Confederation and should be prosecuted at the earliest possible period, when the state of the federal finances will permit the Legislature to do so. And the question of concurrence being put thereon, the same was resolved in the affirmative.

(The rest is wanting). SATURDAY, 29th OCTOBER, 1864.

ST. LAWRENCE HALL, Montreal, 12 o'clock noon. It was moved by the Honourable Mr. Tupper: -

THE QUEBEC CONFERENCE, 1864 - 93

That, in the absence of Sir E. P. Tache, the Honourable Mr. Cartier do take the chair. Carried, and Mr. Cartier took the chair. The following heading of the report was carried: Report of resolutions adopted at a conference of delegates from the Provinces of Canada, Nova Scotia and New Brunswick and the Colonies of Newfoundland and Prince Edward Island, held at the City of Quebec, as the basis of a proposed confederation of those Provinces. (The rest is wanting).

32 Hewitt Bernard's Notes on the Quebec Conference, 11-25 October, 1864. (Pope, 53-88.) CONFERENCE CHAMBER, PARLIAMENT HOUSE, QUEBEC, OCTOBER HTH, 1864. The discussion was resumed on Mr. Palmer's motion of yesterday: That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province or Colony, by whatever number of delegates represented, shall have one vote, and that in voting Canada shall be considered as two Provinces. Mr. John A. Macdonald proposed that Upper and Lower Canada should be considered as two Provinces for voting purposes. Mr. Palmer concurred. Mr. Haviland suggested that it should be in writing. (It is understood that any question of order is to be settled by the poll of each). Mr. Fisher — In the event of differences arising between the delegates of any one Province, some public notice should be taken of it. Mr. Coles - I think that unnecessary, as occurring in a confidential conference. Mr. Palmer's motion unanimously agreed to. Mr. John A. Macdonald moved, seconded by Mr. Tilley, the adoption of the following rules regulating the proceedings of the Conference: -

:94 - DOCUMENTS ON CONFEDERATION

1. That free and individual discussion and suggestion be allowed. 2. That all motions and the discussions and votes thereon be in the first place as if in Committee of the Whole. 3. That after vote put, no discussion be allowed. 4. That each Province may retire for consultation after vote put. J. That after the scheme is settled in Committee of the Whole, all the resolutions be reconsidered as if with Speaker in the chair. 6. That just before the breaking up of the Conference, the Minutes be carefully gone over and settled, with the view of determining what is to be submitted to the Imperial and Provincial Governments, and what is to be published for general information. Mr. Chandler - I beg to suggest that in cases where the delegates of one Province disagree, the names of the dissentients should be inserted in the Minutes, and also whether the vote was unanimous or not. Mr. John A. Macdonald — I am willing provisionally to adopt the suggestion of Mr. Chandler, but I think the whole question should be carefully reconsidered at the eventual revise of the minutes. Resolutions unanimously agreed to. The discussion was resumed upon the motion of Mr. John A. Macdonald: That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces. The opening remarks of Mr. Macdonald in speaking to this resolution do not seem to have been recorded. Proceeding, he said:The various States of the adjoining Republic had always acted as separate sovereignties. The New England States, New York State and the Southern States had no sympathies in common. They were thirteen individual sovereignties, quite distinct the one from the other. The primary error at the formation of their constitution was that each state reserved to itself all sovereign rights, save the small portion delegated. We must reverse this process by strengthening the General Government and conferring

THE QUEBEC CONFERENCE, 1864 - 95

on the Provincial bodies only such powers as may be required for local purposes. All sectional prejudices and interests can be legislated for by local legislatures. Thus we shall have a strong and lasting government under which we can work out constitutional liberty as opposed to democracy, and be able to protect the minority by having a powerful central government. Great caution, however, is necessary. The people of every section must feel that they are protected, and by no overstraining of central authority should such guarantees be overridden. Our constitution must be based on an Act of the Imperial Parliament, and any question as to overriding sectional matters determined by "Is it legal or not?" The judicial tribunals of Great Britain would settle any such difficulties should they occur. Is this the time for union? Now is the time, or we may abandon the idea in despair. Canada has not (sic) adopted union as a solution of her political difficulties; but, failing any general union, she cannot remain as at present, and if we come to no decision here, we Canadians must address ourselves to the alternative and reconstruct our Government. Once driven to that, it will be too late for a general federation. We cannot, having brought our people to accept a Canadian federation, propose to them the question of a larger union. It is stated that in England federation will be considered as showing a desire for independence. I believe the people of England are strongly bent on keeping up her position as a mighty empire, which can only be done by helping her Colonies, Goldwin Smith, the Manchester school and the Times — the property of Robert Lowe, a recreant colonist — to the contrary notwithstanding. The colonial question has never been fairly represented to the people of England. The English newspapers were alive to the designs of Russia on Australia, a favoured colony of England, for which the Manchester school would fight. The British North American colonies are not so profitable as Australia from a money point of view; but, if organized as a confederacy, our increased importance would soon become manifest. Our present isolated and defenceless position is, no doubt, a source of embarrassment to England. If it were not for the weakness of Canada, Great Britain might have joined France in acknowledging the Southern Confederacy. We must, therefore, become important, not only to England, but in the eyes of foreign states, and especially of the United States, who have found it impossible to conquer four millions of Southern whites. Our united population would reach that number. For the sake of securing peace to ourselves and our

96 - DOCUMENTS ON CONFEDERATION

posterity we must make ourselves powerful. Our population is increasing in geometrical progression. The burdens of the United States and the re-action after the war will direct the emigrating population of Great Britain to British America and from the United States to a freer country - free from taxation and less likely to be convulsed by war. There must be a new state of things in the United States before matters settle into their normal condition. A question or objection sometimes raised to the proposed union is that of increased expense. This, I think, will be comparatively small, in fact scarcely appreciable. Take the expenses of the Governments as they exist to-day, five in number. You will find that they aggregate a very considerable amount. With one general Government the expense would be very much less. After the first two or three sessions the General Legislature, unembarrassed by local matters, will take very much less time. The expenses of the subordinate legislatures will be small. Each local government will be relieved of its provincial debts. I hope one of the first things under the new system will be the issue of a commission to enquire into the laws. We should have one statutory law throughout, except in Lower Canada, where the civil law prevails. The great security for peace is to convince the world of our strength by being united. To Nova Scotia and New Brunswick Canada holds out the Intercolonial road intimately bound up with the question of union. As Mr. Tilley says, it is "absolutely necessary." When the Intercolonial road was first proposed it was considered as a great commercial work. We had then no Grand Trunk Railway, at least but very slight communication with the seaboard. So long as there is no war Canada can communicate (with the Lower Provinces) through the States. Commercially the value of the Lower Provinces has decreased to Canada, but in military respects they are very essential. The Intercolonial road must be a political consequence of a political union. If it were thought by the Canadian Parliament that this union should not take place, it would be difficult to induce that body to support the plan of an Intercolonial road. I think it should be in any event, and would support and vote for it; but it would be a matter of great difficulty to carry. It is impossible to have a Zollverein. We must continue to have hostile tariffs unless we have a political union. A great evil in the United States is that the President is a despot for four years. He is never considered as being the father

THE QUEBEC CONFERENCE, 1864 - 97

of his people. It was otherwise with Washington, who did not escape slander. Every President is the leader of a party, and obliged to consider himself as bound to protect the rights of a majority. Under the British Constitution, with the people having always the power in their own hands and with the responsibility of a Ministry to Parliament, we are free from such despotism. These weaknesses in the United States Constitution have not only attracted our attention, but also that of Confederate States, who endeavour to avoid them by having lengthened terms for their President. With them great questions are not settled in committees as in the United States, but they allow Ministers to appear on the floor of the House to defend their measures. They have cut the wings of the President as leader of a party by providing that no Government employee shall be dismissed without cause — that is, that the right shall not be capriciously exercised. As regards the constitution of our Legislature. In order to have no local jealousies and all things conciliatory, there should be a different system in the two chambers. With the Queen as our Sovereign, we should have an Upper and a Lower House. In the former the principle of equality should obtain. In the Lower House the basis of representation should be population, not by universal suffrage, but according to the principles of the British Constitution. In the Upper House there should be equality in numbers. The population of Upper Canada is 1,400,000; Lower Canada, 1,200,000; Lower Provinces, 750,000. The rate of increase of population in Canada must be greater in future than in the Maritime Provinces. We considered at Charlottetown that Upper Canada should have twenty members, Lower Canada twenty, and the Maritime Provinces twenty. If not politically united they should still have the same aggregate representation. With respect to the mode of appointments to the Upper House, some of us are in favour of the elective principle. More are in favour of appointment by the Crown. I will keep my own mind open on that point as if it were a new question to me altogether. At present I am in favour of appointment by the Crown. While I do not admit that the elective principle has been a failure in Canada, I think we had better return to the original principle and in the words of Governor Simcoe endeavour to make ours "an image and transcript of the British Constitution." We have to consider what is desirable; and then what is practicable. We cannot ask each Legislature to relinquish its Upper House. It would be hazardous to the project of union.

98 - DOCUMENTS ON CONFEDERATION

My proposition to Canada is this. In our Legislative Council there are seventy-two members. In the event of its being decided that in the new body Upper Canada shall be represented by twenty members and Lower Canada by twenty members, let the members in each section meet and ballot or elect, as representative peers in Scotland (the latter is perhaps the better plan), the councillors to the new body, who should at once receive their appointment under the Great Seal, for life; those not elected, to be a portion of the Local Legislature. The latter would have their own social position and be active members of the body politic. A large qualification should be necessary for membership of the Upper House, in order to represent the principle of property. The rights of the minority must be protected, and the rich are always fewer in number than the poor. Each Province shall adjust its own constituencies. We should not embarrass ourselves with the qualification of the voter. Each Province should send its representatives on the present system of each, and the question of the qualification should be reserved for the consideration of the whole Government united. Mr. Brown - What as to raising the suffrage? Mr. John A. Macdonald - The system I propose is that which was in the Union Act of Upper and Lower Canada. The preliminary question for us to consider, is what powers should be reserved to the General Legislature and what given to the Local Legislatures. That must be considered before we enter upon the subject of the constitution. We should keep before us the principles of the British Constitution. It (our constitution) should be a mere skeleton and framework that would not bind us down. We have now all the elasticity which has kept England together. Motion unanimously agreed to. AFTERNOON SESSION.

Sir Etienne Tache stated that he was unavoidably obliged to leave the chair to meet His Excellency the Governor-General, and he requested Colonel Gray, of Prince Edward Island, to take the chair during his absence, which the latter accordingly did. Mr. Dickey - What authority from the Home Government have we to consider this subject? Mr. John A. Macdonald quoted despatch from the Duke of Newcastle to the Earl of Mulgrave, Lieutenant-Governor of Nova Scotia, dated 6th July, 1862.* Mr. Brown moved, seconded by Mr. Archibald: -

THE QUEBEC CONFERENCE, 1864 — 99

That in the Federation of the British North American Provinces, the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Maritime Provinces, charged with the control of local matters in their respective sections; provision being made for the admission into the Union on equitable terms of the North-West Territory, British Columbia and Vancouver. Mr. Fisher - I should have preferred a legislative union if it were feasible. Mr. Brown — It must be a federal and not a legislative union. That is the main object of my motion, together with the inclusion of the North-West Provinces. The latter opens up a wide question. The population of the Red River Settlement is now 12,000 and we must look forward to the day of settlement and occupation of that country. The inclusion of British Columbia and Vancouver Island is rather an extreme proposition, but it would be wrong to exclude them in the formation of the scheme. The Americans are encroaching. A large portion of the land at Saskatchewan might be formed into a Crown Colony or be in the Union. The people of Upper Canada in going into the Union would feel strongly that that country should be secure to us. To make communication less difficult there should be a winter route. Mr. Fisher — I think we should lay this matter before each Legislature, but not press it next session. Mr. McCully — Is it necessary that this question should be submitted to the people? In New Brunswick (?) t men of large minds approve of it and think it should be proceeded with at once. But there is another class between them and the mass of the people who hesitate and halt and doubt the propriety of taking a step like this. More intelligent people, like delegates, should take the matter into their own hands and not wait to educate their people up to it. Adjourned at four o'clock P.M. *See Doc. 19. [Pope] tThe correct name of "Nova Scotia" is substituted for "New Brunswick" in the Archives copy.

100 - DOCUMENTS ON CONFEDERATION WEDNESDAY, 12th OCTOBER, 1864.

The discussion on Mr. Brown's motion of yesterday was resumed. Mr. Palmer - I do not oppose the motion generally. But our discussion is in advance of the propositions contained therein. I call attention to the acquisition of the North-West. Our powers as delegates are strictly defined, and we should confine our deliberations to our own Provinces. Is it right or politic to embrace a consideration of the Hudson's Bay Territories, including Mr. Brown's reference to the American views as to acquiring possession of it. Should we introduce any allusion to it? Mr. Carter - I should have heartily concurred in the vote of yesterday had I been here, and regret my absence. As regards the motion before the chair, I like the grandeur and magnitude of the scheme. But I do not see that anyone is justified in speaking of taking in the Hudson's Bay Territories. Mr. Whelan - I was absent yesterday, but do not desire to withhold my adhesion from the great and glorious principle involved in the motion of yesterday. I do not fear a small colony like Prince Edward Island being involved. We are forming a constitution for a country larger than Europe in extent. There is an apprehension abroad in the Lower Provinces that Canada desires to swamp and extinguish their provincial character. Such ought not to be objected to. It is desirable that our mere provincial character should be lost and that we should form one great country. Mr. Brown's motion carried unanimously. The Honourable Mr. Shea rose and suggested that it would tend to the despatch of business before the Conference if the several resolutions intended to be moved were prepared in advance by a committee composed of the delegates of Canada. Mr. Shea's suggestion was agreed to, and the Conference accordingly adjourned for such purpose. WEDNESDAY, 19th OCTOBER, 1864.*

The Conference resumed consideration of the motion of the Hon. Mr. Tupper respecting the selection of members of the Legislative Council, and of the motion of the Hon. Mr. Coles in amendment thereto. (See p. 69.)t Mr. Fisher — Canada should not prescribe the mode of selection, but leave the matter to the Local Legislatures.

THE QUEBEC CONFERENCE, 1864 - 101

Mr. Tupper — This would be imposing an irritating subject on the Local Legislatures. The Legislatures will say this must be settled before the question of Confederation. Mr. Chandler concurred. Mr. McCully - One of the arguments that will be most useful to commend this project of Confederation to the people of the Lower Provinces is that it will not involve additional expenditure but decrease the expenses of the Local Governments. I agree with Mr. Tupper. Mr. Coles - I differ from him. We should not dictate the course to be taken. Leave it open to all duly qualified persons in the Province. Excepting Prince Edward Island will not satisfy me; it will place us in difficulty. Mr. Henry - If we are limited to choose from the present Legislative Councils in the Lower Provinces, we are violating sound principles. It will follow that we cannot have fresh men for ten or twelve years. Each Government should choose its own men in its own way. We should not limit ourselves. Mr. Tupper - Nova Scotia will be abundantly satisfied by choosing ten Legislative Councillors out of the present men. We can select representative lawyers, merchants, and professors of different creeds out of them. But this should be confined to first selection. Mr. Coles' amendment defeated, Prince Edward Island alone voting for it. Mr. Tupper's amendment carried, Prince Edward Island voting against it. Mr. Gait moved: That in the first instance the members to be chosen for the Legislative Council of the United Provinces, excepting Prince Edward Island, shall be chosen by lot from the existing members of the Legislative Councils of the several Maritime Provinces, and of those sitting in Canada, from Upper and Lower Canada respectively. And that as vacancies occur in the representation from any Province, they shall be filled by the persons whose names shall have been drawn next in priority to those first selected until the whole number shall be exhausted. *See below, p. 141, n. f. t These cross-references, and the subsequent ones in this document, are Pope's. They have been changed to suit this compilation.

102 — DOCUMENTS ON CONFEDERATION

Mr. Fisher — I object to the motion. I feel we have been overridden by Canada in this. It overrides the Assembly and makes the Legislative Council the greatest power. Why tie down other Provinces, if Prince Edward Island is excepted? Canada should give the Local Legislatures the power to choose. As it is, it will add greatly to the difficulties of New Brunswick. It makes the Legislative Councils the controlling power. Mr. Tupper — I rise to a question of order. No discussion is allowed after the vote is taken. The point alluded to has already been decided. (From what follows it appears that Mr. Brown here made some remarks adverse to the motion of Mr. Gait, which have not been recorded). Mr. Tupper - I agree with Mr. Brown that the Legislative Council should be chosen from all parties. This motion will prevent that. The Canadian delegates retired. On returning, Mr. Gait — I have decided to drop the last paragraph of my motion as follows: And that as vacancies occur in the representation from any Province, they shall be filled by the persons whose names shall have been drawn next in priority to those first selected until the whole number shall be exhausted. My motion will therefore read: — That in the first instance the members to be chosen for the Legislative Council of the United Provinces, excepting Prince Edward Island, shall be chosen by lot from the existing members of the Legislative Councils of the several Maritime Provinces, and of those sitting in Canada, from Upper and' Lower Canada respectively. Mr. Gait's motion lost. Contents - Canada, two. Non-contents - Nova Scotia, New Brunswick, Newfoundland, three. Prince Edward Island did not vote. The Hon. Mr. Shea moved: That such first-selection shall be made by the Local Government of each Province so far as a sufficient number be found as aforesaid, and in case such sufficient number cannot be found, then the Local Government shall name for appointment other duly qualified parties to make up the deficiency. Provided that the Government of Canada shall select for both

THE QUEBEC CONFERENCE, 1864 - 103

sections of Canada, and that the Government of Prince Edward Island shall name for appointment the whole number of the Legislative Councillors allotted to it. Mr. Brown - Although approved by the Canadian delegates by a majority vote, I think the motion very objectionable. It was carried by nine to three, but I cannot agree to it.* Mr. McCully - If a question of delicacy in a coalition government, how much more so must it be in the case of Governments not formed on the coalition principle. Some modification of the principle stated in the motion is necessary. Due regard should be had to the claims of the Opposition so that political parties may be equally represented in the Legislative Council. Mr. Tupper - Canada has a combination of parties. But in the Lower Provinces it is otherwise, and both parties are entitled to be fairly represented. If Nova Scotia is called on to appoint ten members it shall be done by fair representation of all parties, but that should be the result of conference, though not necessary to publish the fact. Col. Gray (New Brunswick) - A course to suit one Government will not suit another. Let Canada carry her own plan as she pleases, and let each of the other Provinces do the same. After the first batch is over we fall into the rule prescribed by the Federal constitution. I would leave the first selections to the Local Governments; it would be to their interests to get good men. Local partisanship will not come up in the Legislative Council of the Federal Government, and, therefore, the best men will be chosen. No broad principle can be laid down that is suitable to all. I would propose that mode of first choice shall be settled, and prescribed by the Local Legislatures. The interests of both sides will be regarded. The Canadian Government can thus carry their own plan through their Legislature. The motion of the Hon. Mr. Shea was by leave of the Conference withdrawn. *There is apparently some confusion in the notes at this place. These remarks of Mr. Brown may refer to Mr. Gait's motion, for the consideration of which the Canadian delegates withdrew. At the same time it is evident from his subsequent remarks, that he strongly opposed Mr. Shea's motion. What adds to the difficulty of interpretation of the record of this part of the debate is the fact that the motion of Mr. Shea is in the handwriting of Mr. John A. Macdonald, and may therefore, equally with that of Mr. Gait, represent the views of the majority of the Canadian delegates against which Mr. Brown protested. [Pope]

104 - DOCUMENTS ON CONFEDERATION

Mr. Archibald moved: — That in the selection of members of the first Federal Legislative Council, each Province shall be governed by such rules now to be agreed upon as are considered by the Conference most suitable to the circumstances of the particular Provinces. Mr. McCully - This is the same as my amendment of last night. The Conference exhibits evidence that on fundamental principles the Provinces are not prepared for Federation. My argument is that, if you leave the selection to the Local Legislatures, it will prove a bone of contention and jeopardize the Federation. The Legislatures are under no restraint as to the composition of the Legislative Council. The Executive would not be so. I beg to move in amendment to the motion of Mr. Archibald: — That the Legislative Council shall in the first instance be chosen in Canada by ballot, and in the other Provinces, by the Executive Governments. Mr. Brown - I appealed to the other Provinces to aid my views because Canada has decided by a majority, but contrary to the views of my party. We say we could not leave to the Executive the choice of Legislative Councillors. A conflict might arise in the Cabinet before the choice was made, and a party administration might be formed. Mr. John A. Macdonald — But that exists in Nova Scotia and New Brunswick at this time. Mr. Brown - But the plan could not be carried in Canada. Mr. John A. Macdonald - Arrangements can be made as to consultation between parties in case of a party Government. But we should not have a different system in the different Provinces. It is of great importance that all should follow the same mode. Mr. Tupper — An essential point is that the Executive Governments should appoint the first Legislative Council. The motion of Mr. Archibald and amendment of the Hon. Mr. McCully were withdrawn. Mr. McCully - Before the Legislative Council can be formed there must be an Executive. I am content to take that the Government of each Province shall appoint subject to the approval of the Executive Council of the whole Federal Government. I accordingly move: That the members of the first Legislative Council in the

THE QUEBEC CONFERENCE, 1864 - 105

Federal Legislature shall be appointed by the Crown at the recommendation of the Federal Executive Government upon the nomination of the respective Local Governments, and that in such nomination due regard be had to the claims of the members of the Legislative Council of the Opposition in each Province, so as that all political parties be as nearly as possible fairly represented. Mr. Tupper — How do you construct the Executive before the Legislative Council? Mr. John A. Macdonald - An Executive Council for the Federal Government must be the first thing. It will be in its nature provisional. After the elections the party not having support must go out. Mr. Tilley - I think this is an additional guarantee to the minority that party shall be represented. Anything to the contrary would be a direct breach of the will of the Conference. Mr. Coles - How is the minority to know of the proposed appointments? Mr. John A. Macdonald — The Federal Government will be bound to see that the parties are appointed under this understanding before their appointments are ratified. Mr. Brown — I think Mr. McCully's proposal is an amelioration of the evil under which we should labour if Mr. Shea's motion had carried. But I think it still objectionable. I press on the Conference that each Province should be allowed to take its own mode of selection. Mr. Archibald - It is desirable to have one plan for the whole. The Maritime Provinces will probably adopt the same system, and Canada should agree to one. Mr. Fisher - Canada has forced us into a false position by requiring the choice to be made from the existing Legislative Councillors. Mr. John A. Macdonald -1 must deny on the part of Canada any attempt to coerce other Governments. The other Provinces took the same view. Mr. McDougall -1 disagree with the shape which the question is in before the Conference. Two questions were submitted to Canada. Mr. Brown asks the other Provinces to assist the minority of the Canadian delegation. That I think wrong. The proper course for the minority of the Canadian Government will be to discuss the matter afterwards among themselves and endeavour to change their colleagues' opinions.

106 - DOCUMENTS ON CONFEDERATION

Mr. Brown — It was understood that we should vote by Provinces, but it was also understood that every individual member should speak against the decision of his own Province. Mr. McDougall — Is it the meaning of the resolution that the Federal Government can displace any member of the Legislative Council appointed in breach of agreement? Mr. John A. Macdonald — It is the understanding that the Federal Government shall be a Court of Equity to see that the understanding of fairness as to party is carried out. Mr. McCully's motion was unanimously agreed to. Mr. Brown moved a resolution defining the representation in the House of Commons. (See p. 72.) Mr. Gait — In reference to Mr. Brown's motion, I propose 225 members instead of 200. If we divide 225, according to population, I calculate it would give: — Upper Canada Lower Canada Nova Scotia New Brunswick Newfoundland Prince Edward Island

99 74 21 17 8 6 225

We should commence with the census of 1861, and re-adjust after each subsequent census. We have supposed that the population of Lower Canada, being tolerably equable in its character, would afford the best basis. But having respect to the rapid increase of Upper Canada, we think the Lower Provinces should not be reduced if they do not increase in the same ratio. Therefore, the Lower Provinces would have the same as they have now unless in the very improbable case of any one falling off by five per cent, or more - that is a decrease relatively to the whole Federation. Mr. Brown - We thought it best not to take the census of 1861, but the proportionate increase in five years thence and change in 1881, but this may not be intelligible. It may be better to take the census of 1861. In that case the figures in the motion will be as follows: — Upper Canada Lower Canada Nova Scotia

82 65 19

THE QUEBEC CONFERENCE, 1864 - 107

New Brunswick 15 Newfoundland 7 Prince Edward Island 5 193

Mr. Tupper - That is better, as the public in the other case have no data. Mr. Brown - In the apportionment, if a fractional part, we don't allow it; if over one-half, we allow one. Mr. Johnson - But if you have quadrennial Parliaments, you may by increase of population have to increase your members in the Assembly at an improper time. Mr. Tilley — ^nd to alter your electoral divisions. Mr. Brown - After the census of 1871, we shall adopt the same rule. The practical result will be that while Lower Canada certainly will not be less and the Lower Provinces may increase in population, they cannot decrease in the number of representatives. It keeps the House within a reasonable limit. It is now to start with one in 17,000. It will afterwards vary. There is just one difficulty. Messrs. Gait and Cartier think the number too small. They think the House should number 216. In that event, Mr. Gait proposes that Lower Canada shall get 73, and the rest in proportion, so as to get, on the basis of the census of 1861, 216 in the House. Mr. Coles — 1871 is too soon to alter. It should be in 1881. Mr. Gait — Upper Canada will not consent to that, and it must be so definitely understood. Mr. Tilley — We have fourteen counties, some with four representatives, others with two, and the City of St. John, two. Twenty-one, the number stated in the printed motion, would better answer us. I agree with Mr. Brown's proposition to begin with a goodly number, that it may not be disturbed for some time to come. Mr. McCully - I advocate the adoption of the measure as it stands. I do not think we should make any local distribution of members. Mr. Archibald - By accident the proposed arrangement will suit both Nova Scotia and New Brunswick. One member for each county, and one for each metropolis, will give the exact number provided in Mr. Brown's scale of 193. The several Provinces announced their consent and approval of the scheme of 193 members based on the census of 1861, as

108 - DOCUMENTS ON CONFEDERATION

precisely suiting the mode in which each could adapt the electoral divisions at present existing to such a state of things. Mr. Shea, however, argued that inasmuch as the Newfoundland census was taken in 1857, an allowance for the period intervening between that date and 1861 would entitle Newfoundland to another representative. It was conceded by all the Provinces that Newfoundland should have another representative, thus raising its number to eight, and the whole number to 194. Mr. Brown's motion carried, Prince Edward Island alone voting nay. Mr. Haviland — Prince Edward Island would rather be out of the Confederation than consent to this motion. We should have no status. Only five members out of 194 would give the Island no position. Mr. Tilley - That is rather a singular ground of objection, for they have objected to the basis of representation by population. Now it was fully understood at Charlottetown that those who came to the Conference expected representation by population. Some difficulty might have arisen on those points but not on this. Mr. Palmer -1 am not inimical to the grand scheme of Confederation. I believe it will be productive of great benefits. But I take exception to the principle adopted by this resolution. Representation by population is not applicable when a certain number of Provinces are throwing their resources into one Confederation, and giving up their own self-government and individuality. When a colony surrenders that right, she should have something commensurate in the Confederation. The debt of Prince Edward Island is nothing. Our taxation is vastly below that of the other Provinces. Our trade and revenue are rapidly increasing. Why give up so great certainties for an uncertain benefit where we have only a feeble voice? Looking first at the larger Provinces, Canada has secured to herself a greater number of representatives than she had before. It may be said that we may join with the other Maritime Provinces in any matters affecting our common interests, but even then our united strength would still be far below Canada's number of representatives. Not even two or three more members would induce me to give my assent to the scheme. I never understood that any proposition at Charlottetown was to be binding as to representation by population. It was there made by those from Canada and I did not think it necessary to remark on it, as it was a mere suggestion then thrown out by Canada for consideration.

THE QUEBEC CONFERENCE, 1864 - 109

Mr. Shea — The speech just made should have been delivered before we came to 1;his Conference. What has brought us here? What brought abotlt the Conference except the difficulties in Canada over the question of representation by population? We came here from Newfoundland with that understanding. Canada could not give way in such a matter. Prince Edward Island is in a better position than Newfoundland as regards the Legislative Council, as they have an equal number of representatives therein. Mr. Coles - Newfoundland is the cause of our getting a less representation in the Legislative Council than we should otherwise have had. I understood that this matter was to be settled on the basis of representation by population. I stated lately that I thought our Prince Edward Island Government should not have sent us here unless to carry out these views stated by the Canadian Government. The Attorney-General of Prince Edward Island (Mr. Palmer) now states that the Government cannot accede to it. I think that we came here prepared for representation by population, and I regret that the Attorney-General of Prince Edward Island had not previously stated that he could not accede to the principle and withdrawn from the Conference. Mr. Haviland — I am not a member of the Prince Edward Island Government. I express only my individual opinion. Mr. Coles — Then the Government should have instructed their delegates properly. Colonel Gray (Prince Edward Island) — My colleagues and myself feel in a humiliating position. We feel that a slur has been cast by Mr. Coles on the Government which I have the honour to lead. I came to the Conference understanding fully the question. I have never had any conversation with the Attorney-General on the subject. My idea was as clear as the sun at noonday that we were to treat on the basis of representation by population. The Attorney-General heard as much as I did at Charlottetown. Certainly none of us should have been here unless the members of our delegation had been agreed on the point. All that I could get for Prince Edward Island I would, but I fancied we were fully agreed on these points at Charlottetown, and that our discussion was to be about details. Mr. Gait - It would be a matter for the greatest regret that any difficulty should arise over this matter. We request the Prince Edward Island delegates to reconsider their decision. It would be a matter of reproach to us that the smallest colony should leave us.

110 - DOCUMENTS ON CONFEDERATION

Mr. Whelan — I should feel it my duty to-night to vote against the resolution, but we had better re-consider the matter. Mr. Haviland and I came here perfectly untrammelled and without any instructions from the Government of Prince Edward Island. We understood that all proceedings were to be de novo and apart from anything which had taken place at Charlottetown. I thought that Prince Edward Island had not been fairly treated as to representation in the Legislative Council, but I gave way on that occasion. I do not think, however, I could say that I was satisfied with the representation of five in the Federal House of Commons. We are in an isolated position. Our resources are large, and our people would not be content to give up their present benefits for the representation of five members. It may be said that the Confederation will go on without Prince Edward Island, and that we shall eventually be forced in. Better, however, that, than that we should willingly go into the Confederation with that representation. But if the Government who form the delegation will take the responsibility on them, I may support them. Adjourned at ten o'clock P.M. THURSDAY, 20th OCTOBER, 1864.

Mr. Brown — I desire to ask if the Prince Edward Island delegates will state what their views are on the resolution of last evening. Mr. Palmer — On making my observations last night I was under the impression with respect to any vote given that the party voting was bound to maintain it. Dr. Tupper had said whoever voted for a proposition could not afterwards oppose it in his Local Legislature, and such appeared to be the general opinion by tacit consent. I could not consent that Prince Edward Island, free of debt comparatively, should come into Federation with the other Provinces indebted largely, especially as nothing had been said or settled as to the relative shares of the burdens to be borne by each. I am told, however, by my colleagues from Prince Edward Island, that the financial questions will follow the present discussion, and that the matter of representation must depend on the financial resolutions. That may alter our position. Mr. Coles — Every question must stand on its own footing. Why mix up financial matters with representation? Colonel Gray (Prince Edward Island) - I am instructed by

THE QUEBEC CONFERENCE, 1864 - 111

my co-delegates to say that the provision of five members is unsatisfactory. Prince Edward Island is divided longitudinally into three counties, each returning ten members. But they a're always opposed to change of representation. We cannot divide the three counties into the five members. Mr. Brown — Every Province must revise its own electoral divisions to suit the number of its representation. Mr. Coles — Mr. Gait had proposed six members for Prince Edward Island. I approved that rather than Mr. Brown's motion, because it allows us to give to our three counties two members each. Mr. Pope — I was absent last night. I was under the impression that it had been clearly laid down at Charlottetown that representation by population was to form the basis of the Lower House. I could not, therefore, have argued for a greater number than our population entitled us to get. I agree in all that has been said by Colonel Gray and Mr. Coles. But the circumstances of Prince Edward Island are such that I hope the Conference will agree to give us such a number as we can divide amongst our three constituencies. Nature, as well as the original settlement of the Island, has made three counties, and it would give rise to much difficulty if we had to adjust five members to the three counties. I cannot ask it as a matter of right, but one of expediency, as one without which it is impossible for us to carry the measure in Prince Edward Island. I, therefore, ask for six members. Mr. Haviland — I fully agree with Mr. Pope. It would be an insuperable difficulty to us if we had not six members. Mr. Brown - To give Prince Edward Island five members the total properly should be 205. It is obvious we cannot depart from representation by population. The only thing to do would be to take Prince Edward Island as the basis which would give a House of 230, altogether too large. Give one member to each county and let the whole Island elect the other two, and keep the number five intact; or let the whole Island elect five. We should have to add thirty-eight members to the House in order to give Prince Edward Island six, as the basis of representation by population. Mr. A. A. Macdonald - We are not bound by the principle of representation by population laid down at Charlottetown. Our constituents will say and will speak of the increased representation of Canada, and decreased representation of the Lower Provinces.

112 — DOCUMENTS ON CONFEDERATION

Mr. Gait — There is no use in asking the Conference to depart from the principle laid down. We could not justify it. If the principle is good it is the same for all, and we could not defend the action of giving 13,000 in Prince Edward Island a member where it requires 17,000 in any other Province for that purpose. It would be indefensible. The difficulty is of a purely local nature. It is impossible for the Conference to depart from the rule of population being the basis of representation. Mr. McCully - There is another reason. As to the constitution of the Upper House, we looked on that as flexible. If we made the concession perhaps Prince Edward Island might not come in; and, besides, the North-West might require, for some local reason, an increased representation irrespective of population. The rule of representation by population must be rigid and unyielding. Mr. Dickey - Give one member to each county in Prince Edward Island, one to Charlottetown, and one elected by the whole Island. Members elected for the Federal Legislature would not be elected for local purposes, but are representatives of the whole Island. It is a question for Canada. We (Nova Scotia) would concede the six members though it would place us in difficulty. Mr. Haviland — There is no solution in the above proposition. Mr. Pope - Religious feeling in Prince Edward Island runs very high. The Protestants outnumber the Roman Catholics and in consequence the fifth member as proposed by Mr. Dickey would not represent the Roman Catholics. Mr}. Fisher — I came here convinced that representation by population was settled as the basis upon which the Provinces were to be asked to confederate. Mr. Coles - Whatever may be the result of this matter, Prince Edward Island should submit. The question has been settled. Let us go on with the business, and let Prince Edward Island settle for themselves when the question comes before them. Mr. John A. Macdonald moved: That there shall be a session of the Legislative Council and Assembly once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the Legislative Council and Assembly in one session and the first sitting of the Legislative Council and Assembly in the next session. And every Legislative Assembly shall continue for five years from the day of the return of the writs

THE QUEBEC CONFERENCE, 1864 - 113

choosing the same and no longer, subject nevertheless to be sooner prorogued or dissolved by the Governor. He said: There have been only four parliaments out of eighteen in England which have exceeded five years. The term Parliament is correct, because Parliament is dissolved, but elections take place for Commoners only. I prefer the term "House of Commons," but they do not like it to be used elsewhere than in England as they have prescriptive rights. I desire a clause to the effect that all rights of the Lords or Commons in their legislative capacity shall be provided to the Federal Parliament. It would be necessary to say legislative capacity, as the House of Lords has a judicial capacity. Carried. Mr. John A. Macdonald moved: That the Executive authority or Government shall be vested in the Sovereignty of the United Kingdom of Great Britain and Ireland, .and be administered according to the well understood principles of the British Constitution by the Sovereign personally or by representative duly authorized. Mr Tupper — Is it meant to leave it to the Queen or to make any suggestion as to the appointment of a Viceroy? Mr. John A. Macdonald — I think it advisable not to make any suggestion. At least it should not be a constitutional suggestion. Hereafter the Parliament of the Federation may represent a desire for one of the Royal Family as Viceroy. Mr. McCully - I assume that we should continue to be governed by a Governor-General. Mr. Macdonald's motion carried. Mr. Brown - As to Local Governments, we desire in Upper Canada that they should not be expensive, and should not take up political matters. We ought not to have two electoral bodies. Only one body, members to be elected once in every three years. Should have whole legislative power - subject to LieutenantGovernor. I would have Lieutenant-Governor appointed by General Government. It would thus bring these bodies into harmony with the General Government. In Upper Canada executive officers would be Attorney-General, Treasurer, Secretary, Commissioner of Crown Lands, and Commissioner of Public Works. These would form the Council of the LieutenantGovernor. I would give Lieutenant-Governor veto without advice, but under certain vote he should be obliged to assent. During recess Lieutenant-Governor could have power to suspend

114 - DOCUMENTS ON CONFEDERATION

executive officers. They might be elected for three years or otherwise. You might safely allow County Councils to appoint other officers than those they now do. One Legislative Chamber for three years, no power of dissolution, elected on one day in each third year. Lieutenant-Governor appointed by Federal Government. Departmental officers to be elected during pleasure, or for three years. To be allowed to speak but not to vote. Mr. Cartier — I entirely differ with Mr. Brown. It introduces in our local bodies republican institutions. Mr. Brown moved: — That in the Local Government there shall be but one Legislative Chamber. Sir E. Tache — This motion is made merely to elicit opinion of conference. Mr. Tilley — New Brunswick differs with Mr. Brown. They propose to keep the existing things as they are, so far as consistent with expense. They propose Lieutenant-Governor, five departmental officers, with seats in House. Mr. Dickey - Before details, settle principles. Will conference take present Local Governments as models? Mr. Fisher — I am opposed to Mr. Brown's views. I approve of the present system of Local Legislatures. I agree with Mr. Brown that the Lieutenant-Governor should be appointed by the Federal Government. Mr. Carter - In 1842, we had one Chamber in Newfoundland, partly appointed by Crown and partly by people. It worked well. An object to reduce expense. Mr. Henry — I think uniformity is very desirable. But you should first consider what is to be left to the Local Legislatures before you proceed to discuss their constitutions. Mr. McGee — No. Institute your body, then assign its powers. Mr. Chandler —We are here to form a constitution for Federal Government. Let the Provinces otherwise remain as they are, so far as possible. Mr. Tupper - I agree with general principles laid down by Mr. Brown that the Governments should be as simple and inexpensive as possible. We should diminish the powers of the Local Governments, but we must not shock too largely the prejudices of the people in that respect. Mr. McCully - We must have miniature responsible Governments. Adjourned at two o'clock p.m.

THE QUEBEC CONFERENCE, 1864

-

115

EVENING SESSION.

Mr. Archibald proposed a resolution to the effect that Lieutenant-Governors should be appointed by the Federal Government for five years; each Legislature to continue until altered. He said: If the Imperial Act authorizes this, you have then the several governments shorn, however, of such powers as are taken from them by the central authority. Mr. Chandler — I think we should form only a federal constitution, and we should pass no resolutions or act relative to the Local Governments. Let them retain what they have, and have power to manage their own local concerns. The Imperial Government will never consent to put in an Imperial Act of Parliament that the Crown shall appoint Lieutenant-Governors on the recommendation of the Federal Government. It is perfectly understood that as in case of Legislative Councillors the Crown take the recommendation of the Government and appoint a suitable person. Mr. McCully - I would make it absolute in the Federal Government to appoint Lieutenant-Governors. Mr. Chandler -1 think the Imperial Government would never acquiesce in that. Mr. McDougall - From the peculiar position of Canada we must get permission to change. Mr. Dickey - I agree with Mr. Chandler that the Crown should appoint Lieutenant-Governors directly. Mr. Brown — One material point is that the choice of the Federal Legislative Councillors will extinguish or largely diminish the Local Legislative Councils. If you have a Local Legislative Council you then embarrass yourselves by reconstructing that body. Mr. McDougall says he is willing to take a Governor and two Chambers as a Local Government and reduce them afterwards. Consider how insignificant are the matters agreed at Charlottetown, to be left to the Local Governments. As to private and local bills, that might be done under the General Incorporation Act. Mr. John A. Macdonald - The Imperial Act must repeal the several Acts affecting the constitution of the various Colonies. The most artistic way to do this would be to wipe them out and re-enact. The mode adopted in Ireland was by resolutions setting forth "it is fit that such should be done," which were afterwards turned into enactments. I have little doubt that when the system is complete a delegate will have to be sent to the Imperial

116 — DOCUMENTS ON CONFEDERATION

Government from each Province, charged with the interests of the Province and to express them to the Imperial Government and their views. We should have uniformity as much as possible, but that is only a secondary matter as compared with the passage of the measure. Mr. McCully - Let Upper Canada try a single Chamber, and if it succeeds the other Provinces can afterwards adopt it. Mr. McCully's motion carried. Mr. Dickey — Ought not something to be laid down as to the constitution of the Federal Executive Government? On the principle now adopted by Upper and Lower Canada, ought not there to be some mode of choosing advisers from the agricultural interests of Upper Canada, the mixed agricultural and maritime interests of Lower Canada, and the great maritime interests of the Lower Provinces? Mr. John A. Macdonald — We cannot limit or define the powers of the Crown in such respect. See our Union Act. There is nothing in it about Responsible Government. It is a system which we have adopted. There is not even any resolution on our j3wn journals as to the number of the Executive. The Sovereign may have such number as she pleases. In Canada it was found convenient that both sections of the Province should be represented in the Cabinet, and in time it grew practically into an equal division. The same principle must obtain as to the body of advisers of the Governor-General of the Federation. That must be a provisional cabinet, and it probably will be very few and merely for necessary purposes. The Federal Parliament being elected, the person charged with the formation of the Ministry will probably increase the number. We must leave such arrangements as to equality in the Cabinet to change or necessity. Mr. Chandler concurred. Mr. McCully - But the royal instructions limit the number to nine. It should be an unlimited number, and that point seems generally conceded here. Mr. Henry - We feel that the first Government at least, should contain a due number from the Lower Provinces. We of the Lower Provinces feel that we may be out-voted by Upper and Lower Canada; but we knew that before we came here, and are willing to run the risk of it. Mr. John A. Macdonald — I think there may be an expression of opinion as suggested by Mr. Dickey. In the formation of the first Executive Council I think the Governor-General should

THE QUEBEC CONFERENCE, 1864 - 117

send for one man through whom the writs for election should be issued, and choose his Council afterwards. Mr. John A. Macdonald moved: That for each of the Provinces there shall be an Executive Officer, styled the Lieutenant-Governor, • who shall be appointed by the Governor-General in Council, under the Great Seal of the Federated Provinces, during pleasure; such pleasure not to be exercised before the expiration of the first five years, except for cause; such cause to be communicated in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of the General Legislature, within the first week of the first session afterwards. He said: The office must necessarily be during pleasure. The person may break down, misbehave, etc. The term of Governors and Lieutenant-Governors is usually six years; but I have fixed it at five years, that being the duration of our Parliaments. The Lieutenant-Governor will be a very high officer. He should be independent of the Federal Government, except as to removal for cause, and it is necessary that he should not be removable by any new political party. It would destroy his independence. He should only be removable upon an address from the Legislature. Mr. Macdonald's motion carried. Mr. John A. Macdonald proceeded to read his several proposed resolutions as to the powers of the Federal and Local Governments. Mr. McCully - Suppose a Local Legislature should pass a law on a subject in respect of which they have no authority. In New Zealand no laws of Local Legislatures are of effect until approved by the Governor-General. Mr. John A. Macdonald - If it be clearly an excess in the opinion of the Governor-General and his law officers, it will be disallowed by the Queen. Adjourned at 10 o'clock p.m. FRIDAY, 21st OCTOBER, 1864. Mr. John A. Macdonald moved resolution defining the powers of the General Legislature (see p. 76). Mr. Gait -1 propose that we take up the subjects seriatim. (2) As to duties of Customs on Imports and Exports. New Brunswick has a duty on timber. As proceeds of lands will

118 - DOCUMENTS ON CONFEDERATION

belong to the Local Government, it will be necessary to consider this point as regards New Brunswick. An export duty on timber must be on timber of public and private lands, and none could therefore be imported at Quebec; and a question may arise as to the export of coal from Nova Scotia. These questions, however, affect territorial revenues. Mr. Tilley - The export duty was imposed in New Brunswick on timber because the stumpage dues took so much to collect. Private land owners did not object to it, as few export timber from private lands. Mr. McCully -1 understood that mines and minerals were to be under Local Legislatures. Therefore as to coal in Nova Scotia, the General Government should not be at liberty to put an export duty on coal. Mr: Tupper - Nova Scotia will rely on the Local Government for its royalty on coal, to meet its expenses. If the General Government have the right to impose a duty on coal, it will add to the revenue of the General Government, to the prejudice of the Local Government. Mr. Gait - You are assuming that the General Government will impose a duty on coal, whereas the fact is that the General Government should be in a position to protect the Federation by avoiding a policy injurious to Federation. Mr. Henry - It is not an export duty on coal in Nova Scotia. It is a royalty, as it is paid by consumers in the Province. (Further consideration of number two reserved). (3) Excise Duties. (4) Taxation. Mr. Tupper proposed to restrict the latter to general taxation. Mr. John A. Macdonald objected - You could not then tax shares, because it would be a general tax, or impose harbour dues for the same reason on any particular harbour. (7) Banking. Mr. Gait - Existing charters of banks will be reserved. In Canada they all expire in 1870, when the subject may be reconsidered. (15) Ocean Navigation and Shipping. Colonel Gray (New Brunswick) - I would suggest some insertion providing for safety of passengers, and provisions respecting proper machinery and inspection, etc.

THE QUEBEC CONFERENCE, 1864 - 119

(25) Agriculture. Mr. McCully - It is said this is concurrent. But I think such an arrangement will be found to be unworkable. It will lead to a conflict between the two jurisdictions. I think Upper and Lower Canada would prefer it being for Local Governments. Mr. Palmer -1 think it should be local. But I apprehend that would not prevent the General Government from taking subjects of agriculture under their care in respect to grants of money locally. Mr. Brown - I do not think you can make it local and yet expect that the General Government can give moneys to the Local Governments. But if you put it under the General Government you may have the advantage of one Bureau of Agriculture, a Model Farm, etc. But I am willing that it should be local, only in that event not to look for money from the General Government. Mr. Coles - I think it should be retained for the General Government. There should be a Minister of Agriculture in the Federal Government. Mr. Tupper — I approve of some things being of a concurrent character. We should confine the jurisdiction neither to one nor the other exclusively. The same remark applies to Immigration, which is intimately connected with the Crown Lands, and these are under the Local Government. Mr. McGee - The General Government may draw attention to this country for settlement. The only permanent attraction we can offer is cheap land, free institutions, etc. I propose that the Local Legislatures should be bound to let immigrants have lands as hitherto. Immigrants should feel that they came to British America as a whole, and that they are free to choose lands where they like. Mr. Dickey - The Local Governments have as great an interest as the Federal Government in promoting immigration. Mr. Henry — The General Government ought to have the control of agriculture. If conflict likely to arise, I would rather withdraw it from the Local Legislature; but I do not fear any clashing between the two powers. We ought to keep up a Bureau of Agriculture in our Confederation. Mr. Mowat — The items of Agriculture and Immigration should be vested in both Federal and Local Governments. Danger often arises where there is exclusive jurisdiction, and not so often in cases of concurrent jurisdiction. In municipal

120 - DOCUMENTS ON CONFEDERATION

matters the county and township council often have concurrent jurisdiction. Mr. McCully -1 take another view. The concurrent jurisdiction is the ground of the difficulties in the United States. Mr. Mowat - That is because there is a doubt whether there is a concurrent jurisdiction or not. Mr. McCully - I beg to move that item number 25, "Agriculture," be struck out of the resolution before the Conference. Lost on a division, all the Provinces voting nay. (26) Criminal Law. Mr. John A. Macdonald — We should discuss the appointment of the judiciary, and as to local and supreme judiciary. In whom should the appointment be vested? Mr. Tupper - It is of especial value to have a common system of jurisprudence. That is impossible on account of Lower Canada. But as near as possible it should be attempted. Mr. John A. Macdonald — I am glad to hear that Mr. Tupper and Mr. McCully's views accord with mine. We may have one statutory law, one system of courts, one judiciary, and eventually one bar. Mr. Mowat — I quite concur in the advantages of one uniform system. It would weld us into a nation. We must, however, provide that the Judges should be appointed and paid by the General Government. But if Lower Canada is excepted, she will still have a voice in deciding for the other Provinces. (27) Roads and Bridges. Mr. Tilley - I move to strike out from item 27 of Mr. Macdonald's motion the words "Roads and Bridges." Agreed to . After further slight amendments, Mr. Macdonald's motion carried. Adjourned at half-past four p.m. SATURDAY, 22nd OCTOBER, 1864.

Mr. Gait moved a series of financial resolutions. (See pp. 79,80,81.) He said: It is very desirable that no question should arise on account of which any Province could complain of injustice. Any Province being less indebted than another, whether through good fortune or good management, should benefit by it. Future

THE QUEBEC CONFERENCE, 1864 - 1 2 1

liabilities of Confederation must be presumed to be for the benefit of all. We must start, therefore, on a fair basis. It is therefore proposed that certain principles should be laid down. The admission of the principle embodied in number one involves the concession of number two, and then you must proceed to draw the line prescribed by number three. All works of an intercolonial character, and which have created debt to be borne by Confederation, and not being in private corporations or towns, should be vested in the Confederation, i.e. (as is suggested by Attorney-General Macdonald), harbours. As to railroads. In Canada we are not proprietors of any railroads, but have lent large sums to them. Buildings for accommodation of Local Legislatures as distinguished from residences of Lieutenant-Governors should be left to the Local Government. The first three resolutions cover all the property to be taken by the General Government, and the subsequent resolutions show what changes shall be adopted by the Confederation. I propose five per cent, as the rate of interest. It is impossible for us at this-moment to determine the debts and liabilities of the several Provinces. This can only be ascertained when the functions of the Local Legislatures cease in that respect. At that time we can ascertain the amount and debit each Province. The debt of Canada is different from that of the other Provinces, as it enters as two Provinces. A previous subdivision must be made between Upper and Lower Canada. This subdivision must be done by the Canadian Legislature. In the case of New Brunswick we find an actual debt existing and liabilities which between this time and the passing of the Act of Union may become liabilities of the Confederation. Further liabilities might be incurred, and it is therefore essential that a rule should be laid down and that if, supporting the principle of equality, any one Province goes into such expense it must be on its own account. There should be an officer, not a political officer, to audit the affairs of the Provinces. The honourable gentleman then went on to explain the apportionment of the debt, but his remarks are so imperfectly reported as scarcely to be intelligible. Mr. Tilley — This scheme gives Newfoundland and Prince Edward Island everything. Takes over railways which cost us a very large sum of money and gives us nothing in return. The Grand Trunk stock is of no value, yet we find it put down as an asset; and as to Canal tolls, the policy of the Canadian

122 - DOCUMENTS ON CONFEDERATION

Government is not to look to them. You have fixed the population of New Brunswick as inferior to that of Nova Scotia, which is the case, but it ought not to be immovable but to vary in its increase. The increase of the population will lessen the per capita tax. Colonel Gray (New Brunswick) — Our railway is productive and yields three per cent. It is only the difference between that and five per cent, which should be charged. Mr. Tupper — It is wrong to assume assets to be of equal value when they are not so. The remainder of the debate is not reported. Adjourned at five o'clock p.m. MONDAY, 24th OCTOBER, 1864.

Mr. Mowat moved a series of resolutions defining the powers of the Local Legislatures. Mr. Chandler - I object to the proposed system. You are adopting a Legislative Union instead of a Federal. The Local Legislatures should not have their powers specified, but should have all the powers not reserved to the Federal Government, and only the powers to be given to the Federal Government should be specified. You are now proceeding to destroy the constitutions of the Local Governments, and to give them less powers than they have had allowed them from England, and it will make them merely large municipal corporations. This is a vital question, which decides the question between a Federal and Legislative Union, and it will be fatal to the success of Confederation in the Lower Provinces. Mr. Tupper — I have heard Mr. Chandler's argument with surprise. Powers - undefined - must rest somewhere. Those who were at Charlottetown will remember that it was fully specified there that all the powers not given to Local should be reserved to the Federal Government. This was stated as being a prominent feature of the Canadian scheme; and it was said then that it was desirable to have a plan contrary to that adopted by the United States. It was a fundamental principle laid down by Canada, and the basis of our deliberations. Mr. Chandler says that it gives a Legislative instead of a Federal Union. I think that a benefit. Is the Federal Government to be one of mere delegates? We have provided for a legislative representation and for the representation of every section of all the Provinces. Such a costly Government ought to be charged with the fullest powers. It will

THE QUEBEC CONFERENCE, 1864 - 123

be easier for every one of the remotest settlers in Nova Scotia and New Brunswick to reach the Federal Legislature than the present Local Legislatures. If it were not for the peculiar condition of Lower Canada, and that the Lower Provinces have not municipal systems such as Upper Canada, I should go in for a Legislative Union instead of a Federal. We propose to preserve the Local Governments in the Lower Provinces because we have not municipal institutions. If Conference limit the powers of the General Legislature, I feel that the whole platform is swept away from us. Mr. Coles -1 did not understand that this was laid down as a basis at Charlottetown. I thought there the only thing specified was representation by population in the Lower House. I agree with Mr. Chandler's view. Mr. Haviland - I disagree with Messrs. Chandler and Coles. I understand the basis of our scheme, so as to avoid difficulties of the United States, is to give limited powers to Local Legislatures. Colonel Gray (N.B.) - Mr. Coles' memory is short. (Quotes from Mr. Macdonald's speech at Charlottetown and from Mr. Brown's, that Federal Government was to have general powers and limited as to local). Whatever conclusion we may now arrive at, such was the basis of the Canadian scheme. Mr. Chandler - My argument is not met as to merits, but as to what was laid down at Charlottetown. We all agree that Local Government should have local powers, we differ as to whether such powers should be defined. Mr. Tupper — Under Mr. Chandler's view, the GovernorGeneral would be less than the Lieutenant-Governor and the Federal Government less than the Local. Mr. Dickey — I propose a Supreme Court of Appeal to decide any conflict between general and state rights. I am rather inclined to agree with Mr. Chandler. Immense interests omitted in Mr. Mowat's motion. Mr. Brown -This matter received close attention of Canadian Government. I should agree with Mr. Chandler were it not that we have done all we can to settle the matter with sufficient powers to Local Legislatures. I would let the courts of each Province decide what is Local and what General Government jurisdiction, with appeal to the Appeal or Superior Court. Mr. McCully -1 refer to New Zealand Act, which is evidently framed to meet difficulty. It strangely defines what the Local government shall not do. In 53rd clause, General Assembly to

124 - DOCUMENTS ON CONFEDERATION

make laws, etc., for government of New Zealand, and shall control and supersede those of Local Governments repugnant thereto. Mr. Brown will land us in position of United States by referring matter of conflict of jurisdiction to courts. You thus set them over the General Legislature. Mr. John A. Macdonald - New Zealand constitution was a Legislative Union, ours Federal. Emigrants went out under different guarantees. Local charters jarred. In order to guard these, they gave the powers stated to Local Legislatures, but the General Government had power to sweep these away. That is just what we do not want. Lower Canada and the Lower Provinces would not have such a thing. There is no analogy between New Zealand and ourselves in such respects. Our courts now can decide where there is any conflict between the Imperial and Canadian statutes. I think the whole affair would fail, and the system be a failure, if we adopted Mr. Chandler's views. It would be adopting the worst features of the United States. We should concentrate the power in the Federal Government, and not adopt the decentralization of the United States. Mr. Chandler would give sovereign power to the Local Legislatures, just where the United States failed. Canada would be infinitely stronger as she is than under such a system as proposed by Mr. Chandler. It is said that the tariff is one of the causes of difficulty in the United States. So it would be with us. Looking at the agricultural interests of Upper Canada, manufacturing of Lower Canada, and maritime interests of Lower Provinces, in respect to a tariff, a Federal Government would be a mediator. No general feeling of patriotism exists in the United States. In occasions of difficulty each man sticks to his individual State. Mr. Stephens, the present Vice-President, was a strong Union man, yet, when the time came, he went with his State. Similarly we should stick to our Province and not be British Americans. It would be introducing a source of radical weakness. It would ruin us in the eyes of the civilized world. All writers point out the errors of the United States. All the failings prognosticated by De Tocqueville are shown to be fulfilled. Mr. Johnson - Enumerate for Local Governments their powers, and give all the rest to General Government, but do not enumerate both. Mr. Palmer - Easier to define what are general than what are local subjects, but we cannot define both. We cannot meet every possible case or emergency. Mr. Henry - We should not define powers of General

THE QUEBEC CONFERENCE, 1864 -125

Legislature. I would ask Lower Canada not to fight for a shadow. Give a clause to give general powers (except such as given to Local Legislatures) to Federal Legislature. Anything beyond that is hampering the case with difficulties. If we are to have Confederation let us have one on the principles suggested by Attorney-General Macdonald. In the United States there is no power to settle the constitutionality of an Act. Hereafter we shall be bound by an Imperial Act, and our judges will have to say what is constitutional under it as regards general or local legislation. Mr. Dickey - Why should not Imperial statutes give the powers they did to New Zealand General Government? Mr. Chandler - My plan is not precisely the same as in the United States, because the Government does not in the United States appoint the Lieutenant-Governors and the Legislative Councillors. If my plan is not adopted, I should have elective Legislative Councillors. Colonel Gray, N. B. - The power flows from Imperial Government. We propose to substitute the Federal Government for the Imperial Government. But the Federal Government is itself subordinate to the Imperial Government. And as to the policy of the thing, I think it best to define the powers of the Local Governments, as the public will then see what matters they have reserved for their consideration, with which matters they will be familiar, and so the humbler classes and the less educated will comprehend that their interests are protected. TUESDAY, 25th OCTOBER, 1864.*

Mr. Mowat moved (a series of resolutions respecting the powers of the General Legislature, see pp. 85, 86.) Mr. Fisher — I object to inspection laws being included in the list. Many laws as to inspection of fish, flour, etc., are local, and steamboats may be so also. Mr. Tupper - I would approve of the General Legislature having the regulation of inspection of steamboats. It was agreed to strike out of item number one of the resolution moved by the Hon. Mr. Mowat the words, "3. For the regulation and incorporation of Fire and Life Insurance Companies." And from item number two the words, "Inspection laws and laws relating to." And the question of concurrence being put on the eighth item, *See below, p. 151, n. t-

126 - DOCUMENTS ON CONFEDERATION

Mr. Johnson — I object to this clause. It is too great a restriction. Mr. Chandler concurred in Mr. Johnson's objection. Colonel Gray, N.B. - I fully agree with the observations of Messrs. Johnson and Chandler. Mr. McCully -1 think the clause as drawn is desirable. Mr. Chandler-But your Courts will decide whether the Local Legislatures exceed their powers, and why require a second veto. Eighth and ninth resolutions agreed to.

33 A. A. Macdonald's Notes on the Quebec Conference, 10-29 October, 1864. (P.A.C., as edited by A. G. Doughty in C.H.R., I, March, 1920, 26-47.)

Our knowledge of the proceedings at the Conference on the confederation of the British North American provinces, held at Quebec in October, 1864, is far from satisfactory. The sittings were held behind closed doors, and little except the official Report of Resolutions adopted was made public at the time. Sir Joseph Pope found among the papers of Sir John Macdonald a mass of documents relating to the Conference, including printed draft Minutes of Proceedings, up to October 20; the original rough minutes in the handwriting of the Executive Secretary, Lieut.-Col. Hewitt Bernard; Col. Bernard's notes of speeches and other proceedings; the original texts of motions and amendments; and many other memoranda. From these he published, in his Confederation Documents, the "Minutes of Proceedings" and the "Discussions," which together form our chief source of information as to what happened in the Conference. They are, however, obviously incomplete. The Minutes are quite meagre, and, towards the end of the Conference, are in places entirely wanting. The "Discussions," based on the long-hand notes of Col. Bernard, are necessarily fragmentary. Any further evidence is, therefore, of peculiar importance. The following document is an account of the proceedings by the Hon. A. A. Macdonald, one of the delegates from Prince Edward Island, drawn up from his own notes taken at the Conference. A. G. DOUGHTY

THE QUEBEC CONFERENCE, 1864 - 127

[Transcript] From notes taken at the Quebec Conference held at Quebec on October 10, 1864. (By A. A. Macdonald). On the assemblage of the delegates from all Provinces at the Parliament Building in Quebec there were present besides the ministers of the two Upper Provinces seven delegates from New Brunswick five from Nova Scotia seven from Prince Edward Island and two from Newfoundland. It was moved by Colonel Gray, who had been Chairman of the Conference at Charlottetown and seconded by Mr. Tilley that Sir E. P. Tache should be Chairman and carried unanimously. Hon. Dr. Tupper then moved that Hon. Wm. Pope, delegate from P.E.I., be appointed secretary which was agreed to. After some discussion as to mode of procedure it was decided that besides the secretary for the whole convention an additional secretary should be appointed for each Province. A certified list of the delegates representing each province was handed in and tabled.* Sir E. P. Tacbe, Chairman then addressed the delegates and welcomed them to Quebec.t He said that the object of the Conference was to do away with some of the internal hindrances to trade, and to unite the Provinces for mutual defence. Without unity of action and comity of sentiment a great Country could not expect to exist. The majority of the people believe if their rights and privileges are left to the local Legislatures they will be safe in the liberties guaranteed to them and ratified by solemn treaties even if we do not come to an understanding on the subject of confederation. He hoped that this meeting of the leading statesmen of the British Provinces who are here assem*The following is a list of the delegates: CANADA.-Sir E. P. Tache, John A. Macdonald, G. E. Cartier, George Brown, Oliver Mowat, Alexander T. Gait, W. McDougall, T. D'Arcy McGee, Alex. Campbell, J. C. Chapais, H. L. Langevin, J. Cockburn. NOVA SCOTIA. - Charles Tupper, William A. Henry, Jonathan McCully, Robert B. Dickey, Adams G. Archibald. NEW BRUNSWICK. - Samuel L. Tilley, W. H. Sleeves, J. M. Johnson, P. Mitchell, E. B. Chandler, John H. Gray, Charles Fisher. NEWFOUNDLAND. - F. B. T. Carter, Ambrose Shea. PRINCE EDWARD ISLAND.-J. H. Gray, E. Palmer, W. H. Pope, A. A. Macdonald, G. Coles, T. H. Haviland, E. Whelan. [Doughty] t No thing of the speeches and discussion of the first day is found in Bernard's notes. [Doughty]

128 - DOCUMENTS ON CONFEDERATION

bled may be productive of an amount of good that will be beneficial in the highest degree "to all the Provinces." A lengthy discussion followed as to the means of voting on such questions as were to be considered. Were the delegates to vote individually, or should the votes be given by Provinces! Should each Province have the same status whether large or small in deciding a question respecting which there were different views. Were the members of the Conference to first express their opinions in the general meeting! Were the senior members to explain what had been already done! The discussion of these preliminaries having taken up some time, it was finally agreed that each Province should have one vote. That free discussion should be allowed. That the delegates from each Province might retire to discuss among themselves any question before voting, etc., etc. It was also decided that the Conference should meet at 11 o'clock a.m. daily and sit continuously until 4 p.m. (fifteen minutes being allowed for a light lunch in the room adjoining.) Hon. G. E. Cartier then gave an exposition of the first delegation to Charlottetown and what followed until the Conference had reassembled now at Quebec. He said: We thought if the Legislatures of the different Provinces were brought together they would legislate more for the general advantage. The United Provinces have about 4Vz millions of inhabitants we have therefore the personal element which is essential. Then it is evident that no nation can attain great power without the Maritime element. We must have Commercial intercourse with Europe during more than six months of the year. You who live down by the sea have seaports open all the year round and it is better that you should have the benefit of our trade than that a foreign power should have it. We thought that a Federation scheme was the best because these provinces are peopled by different nations and by peoples of different religions. There is the question of a Tariff for the United Provinces. The regulation of postal communication and rates of postage, national works which might be brought before the general government without detriment and without offending any party or interest. We have now Customs and Tariffs in the different Provinces all now differing from each other each Province looking out only for its own interest. As to defence we all know the position England has assumed towards us. Separated as we are we can not defend ourselves. Cobden and Bright say what is the use of sending an army to defend Prince Edward Island. It would be a great ques-

THE QUEBEC CONFERENCE, 1864 - 129

tion if England would send an army or bring the power of Britain to defend any province from invasion. When we bring the Country all together all our means would be united to repel an enemy. We would also have the seamen and we would have about 60,000 of them on the St. Lawrence. The position that England has taken now shows that we must be under one system of Government. Our financial interests also demand that we should be united. We all desire that these provinces should be as great as possible. There is always something better to be done something greater to be attained. I would never advocate this Union if I thought we would not thereby perpetrate* the power of Queen Victoria in this Province. Colonel Gray, P.E.I., said: When I spoke of establishing a nationality I only referred to what has been the dream of my life to be one day a citizen of a great nation extending from the Great West to the Atlantic seaboard. He sincerely hoped that the delegates from all the provinces would unite to accomplish this great work. Prince Edward Island was but a small province but it could be to the other Provinces all that the little state of Rhode Island was to the great American Union, etc. Hon. M. Carter, Newfoundland. Spoke in favour of the general principle of Federation and its bearing on Newfoundland which was a Commercial Colony possessed of immense wealth in its Fisheries. Many people had made fortunes there and retired to Britain to spend them. He looked to Federation as opening up a wide field for enterprise in this Continent and it might be the means of inducing such persons to live here instead of retiring to the old country to spend their fortunes. The debt of the Colony was only £200,000, while the exports are in excess of the imports. The Provincial debentures bearing 5 per cent command a premium. We can supply your navy with seamen for we have a hardy race inured to the dangers of the deep and ready to defend the country when they are required to do so. Our province is larger than either England, Ireland or Scotland and comprises 40,000 square miles. While I am a member of the administration my co-delegate is a member of the opposition in that Colony but our interests are alike in desiring to do all we can to benefit the Province we come from. Hon. Mr. Shea, Newfoundland, agreed with Mr. Carter as to *Szc. Doubtless a typist's error. Read "perpetuate." [Doughty]

130 — DOCUMENTS ON CONFEDERATION

the favourable consideration which should be given to the proposed measure. We have the strongest feelings in favour of Confederation and as Newfoundland stands as the key to the Atlantic it is the interest of Canada that we should not be taken hold of by any foreign power. We stand at the entrance of the Gulf of St. Lawrence and the power which holds the Colony would control the trade of the Gulf by both entrances. Our fisheries employ 30,000 men and a hardy and industrious class of men unsurpassed for daring and energy by any other seamen in the world. We have 350 vessels engaged in the seal fishery alone with 14,000 men. Our imports are about six millions and our exports exceed our imports by nearly a million dollars annually. Our Revenue per head is larger than that of any of the other provinces. Our debt does not amount to more than $900,000. We can raise all the money we want @ 4Vi per cent. Our financial position is better I believe than that of the States of the American Union. A very small portion of our imports come from Canada while a very considerable portion come from the United States. Our people have no facilities for trade with Canada, they had to go to the United States. It took a month for a reply to be received to a letter addressed to Canada and the postage was double what it was between Canada and Britain. We looked to Confederation to remedy this state of affairs. We have what Canada requires and we want the class of goods that Canada can supply. We must have steam packets plying regularly between Canada and the Colony and then trade would soon follow that channel. Hon. Mr. Gait referred to the observations of previous speakers at some length and the benefits which would be conferred upon all the provinces by a uniformity of tariffs, postage, banking, currency, etc., and gave a number of statistics bearing on the subject. The Intercolonial Railway would be the great highway between the Canadas and the Maritime Provinces, if the Union could be accomplished and the road completed. It would be the bond of Union between the East and the West.. . . The debt of Canada was somewhat less per head than that of New Brunswick. In Newfoundland and Prince Edward Island the case is different. It is not so much what the debt of a colony is as what the expenditure is per head of the population. Provision must be made for the Local Governments. All the revenue from Customs and Excise would go to the general government. The expenses of the Local Government would be lessened

THE QUEBEC CONFERENCE, 1864 - 131

by the works they have now to provide for being lessened. In Canada it was thought the General Government could contribute towards the wants of the local Governments. The debts and taxation of the Provinces offered no material objection in our view. Many of us are of opinion that direct taxation is what is best but we must not insist on our individual opinions. Mr. Mitchell. I believe it is desirable as means of perpetuating British rule in these Colonies. We want a general system of currency and Post Office arrangements. We want restrictions of trade removed and that we may be united and act with one mind for the defence of our rights. I hope that no peddling policy will be adopted. Hon. Mr. Coles. We must not expect that Prince Edward Island will come into a confederation to be taxed three dollars per head instead of one dollar as at present. Nova Scotia, New Brunswick and Newfoundland have the Crown lands and other Revenues which we do not possess in our province. If Prince Edward Island was to give up her excise and customs she would have no revenues left with which to carry on the business of the province. Hon. Mr. Haviland. We are here to throw away our party views and to look on the questions before us in a broader spirit. As a British American I will go heart and soul for a Federal union of all the Colonies. Hon. Mr. Pope. When the proper time arrives to do so I will show how Prince Edward Island will be effected [sic] by withdrawing her general revenues. Hon. Mr. McCully spoke at some length but chiefly as to opinions on Legislative Union which he stated were prevalent in his Province. Hon. Dr. Tupper thought we should have a fuller exposition from the Canadian Ministry of what was intended at the present time. If it can be shown that the difficulties can be removed I shall be pleased, as it will elevate our Status, improve our social position and enable us to occupy a higher place in the national family.... Hon. John A. McDonald. We all meet here for the purpose of discussing the general principles of a Federal Constitution, leaving it thus open to all parties to express their views freely. Unless the details can be made satisfactory the whole thing must break down.

132

— DOCUMENTS ON CONFEDERATION

Hon. Mr. Dickie. The question must depend on what the details are to be and it should be more discussed before we give our vote one way or the other. Hon. Mr. Brown thought it inexpedient to have a general debate on one resolution and then afterwards the same to be again gone over. Hon. Dr. Tupper stated the purport of the former Conference at which owing to the statements of gentlemen from Canada it was decided not to report finally until it was known what has been done at the present Conference. . . . After some further discussion it was decided to adjourn until tomorrow at 11 a.m. QUEBEC, OCTOBER 11, 1864. (TUESDAY) Conference opened at 11 a.m. It was resolved after debate that Mr. H. Barnard should be appointed Executive Secretary to the Conference to keep a record of the official decisions of the Conference. It was also decided after debate that each Province by whatever number of delegates it was represented should have one vote in deciding all questions except those of order. Free discussion to be allowed. Conference to be in committee of the whole. No discussion allowed after vote taken. Each Province delegation may retire for consultation. Afterwards all resolutions to be with speaker in chair. At close of Conference decision as to publication. Conference then resumed the consideration of motion in favour of Federal Union as per Resolution* and Hon. John A. McDonald said:t As we can't have the same scale of duty throughout the various provinces, we must continue with hostile tariffs unless we have the Union which is the only alternative. How is this to be done? Now as to the Constitution of the Legislatures we should have two Chambers, an upper and a lower house. In the upper house equality in numbers should be the basis. In the lower house population should be the basis. Upper Canada had at last census 1,400,000, now it has 1,600,000. Lower Canada had then more than 1,000,000, now 1,200,000. Nova Scotia say 350,000. New Brunswick 260,000. Newfoundland 125,000. Prince Edward Island 85,000.

THE QUEBEC CONFERENCE, 1864 - 133

Upper Canada would be taken as one division say with 60 members. Lower Canada 60 members and Acadia and Maritime 20 each. — The mode of appointment to the Upper HouseMany are in favour of Election and many are in favour of appointment by the crown. My own opinion will be made up on having arguments on both sides of the question as my mind is open on the subject. I may say however that I am favourable to appointments by the Crown. I am after experience in both systems in favour of returning to the old system of nomination by the Crown. It is asking too much to require the members of the upper house of each province to extinguish themselves. We have 72 members in the Upper House, 48 elected and balance nominated by the Crown. If a ballot were taken for 20 in the old house to represent ^the new house it might answer, or the new house might be elected from the old Upper house. There should be a large property qualification for the Upper house which is then the representative of property. It should be an independent body as far as property goes. First election to be made by the present constituency and afterwards qualification of Electors to be fixed by the general parliament. We must have a strong Central Government with all authority except what is given to the local governments in each Province and avoid the errors of the American Constitution. Hon. Mr. Dickie enquired what authority we have from the British Government to agitate this question. May we not have those advantages we look for without legislative and administrative arrangements . . . referred to flour trade . . . Taxation in Canada is here on the roads and bridges and also for education. There is also Municipal taxation besides the general tax; therefore such a measure must increase taxation very materially in the Maritime Provinces and if Municipal taxes are not included in the Canadian statement it must make taxes more than they really appear to be. *This Resolution, introduced by John A. Macdonald and S. L. Tilley on October 10, was "That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces." [Doughty] tBy comparison with the text in Pope's Confederation Documents it will be seen that the present writer has omitted all the earlier portion of John A. Macdonald's speech. [Doughty]

134 - DOCUMENTS ON CONFEDERATION

(Note) Despatch of 6th July 1862 was read in reply to Mr. Dickie's question. Hon. Mr. Gait replied at some length: There is no doubt but what the free trade between the Provinces might be extended, even as we are, but it could not be done so effectually. I think it necessary to give certain amounts from the general revenue to local wants. Hon. Mr. McCully addressed the conference in a long speech but his remarks very general. Hon. Mr. Brown said he differed in many details which he would discuss in other resolutions when they came up. The first resolution was then unanimously agreed to. The second resolution in favour of Federation of the Provinces with general Government and local Governments for each of Canada's and for the Maritime Provinces in local matters, with provision of admission of N.W.T., B.C. and Vancouver* then submitted by Hon. Mr. Brown who said that the British Government have offered the North West Country to Canada already and that we should open up roads into that Country, etc., etc., etc. WEDNESDAY, OCTOBER 12, 1864. Hon. Mr. Archibald approved of the general principles of allowing the increase of territory as contemplated in the resolution. . . . A good deal of general discussion followed when four o'clock having arrived the Conference adjourned until 11 a.m. to-morrow. Conference assembled at 11 A.M. A number of communications addressed to the Conference by various societies and individuals inviting the Conference to visit public institutions, etc., and also from the press for reports of the proceedings were read and the minutes of previous meetings were agreed to. A discussion relative to inviting the Western Territory and British Columbia to unite with the Conference then ensued, and thereupon and owing to other circumstances connected with the delegation, the Canadians adjourned to hold an Executive Council meeting.! The delegates from the Maritime Provinces remained and discussed a resolution submitted by Hon. George Brown, that the Lower Provinces be admitted as one, and Upper and Lower Canada as one each. I

THE QUEBEC CONFERENCE, 1864 - 135

After considerable debate all the delegates from the Lower Province^ disagreed to this resolution. Conference adjourned till 11 A.M. to-morrow. QUEBEC, THURSDAY, OCTOBER 13, 1864.§ Conference met pursuant to adjournment. Minutes of previous meeting adopted. Hon. Mr. Brown agreed to withdraw his resolutions of the previous day. Hon. John A. Macdonald then read several resolutions which the Canadians had prepared to submit as to the Constitution of the Legislature, viz., That the Legislative Council consist of 72 members, 24 from Upper Canada, 24 from Lower Canada and 24 from Lower Provinces, to be chosen from the present Councils and appointed by the Crown under great seal of Executive Government and to be for life. Executive Government to be responsible. Local Governments to consist of two branches. The Lieutenant Governor to be appointed under great seal of General Government. Mr. Macdonald explained these resolutions in his address to the Conference, and then Hon. Mr. Fisher moved that the General and Local Governments shall be formed on the model of the British Constitution as far as possible. A long discussion then ensued as to the pro*The following is the wording of this Resolution as given in the Minutes: "That in the Federation of the British North American Provinces the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Maritime Provinces, charged with the control of local matters in their respective sections, provision being made for the admission into the Union on equitable terms of the North-West Territory, British Columbia and Vancouver." [Doughty] tThe delegates from Canada were appointed a committee to prepare resolutions to be submitted to the Conference. [Doughty] iThere is no reference to this matter in this day's Minutes or Discussions as published by Pope. [Doughty] § Bernard's notes of the sittings from October 13 to October 18 inclusive, if prepared, are now missing. The present document, therefore, becomes of primary importance for these days. [Doughty]

136 - DOCUMENTS ON CONFEDERATION

priety of passing such a resolution which, after several amendments were proposed, resulted in the adoption of the amendment of Mr. Tilley that the word "Local" be struck out of Mr. Fisher's resolution which was then agreed to as amended. Hon. John A. Macdonald moved that there be a general Government consisting of a Legislative Council and a House of Assembly. 2nd. That the Council consist of 72 members, 24 for each of the Canada's and 24 for the Lower Provinces. A lengthy discussion followed this point and Mr. Tilley moved that the Canada's have 24 each and the Lower Provinces 32 members or a House of 8O members, and in his remarks stated that these would be appointed, 12 to Nova Scotia, 10 to New Brunswick, 6 to Newfoundland and four to Prince Edward Island. Many of the delegates spoke on this subject and the hour of 4 O'clock ensuing the Conference was adjourned until 11 A.M. tomorrow. FRIDAY, OCTOBER 14, 1864. Conference met at 11 A.M. and resumed the consideration of the motion respecting Legislative Council. The members from the Lower Provinces strongly urged their contention for a larger relative representation which the Canadians opposed. Many of the members of the Conference took part in the discussion of this question and many amendments were offered. The Maritime delegates contended that population should not decide the numbers in the Federal Legislative Council. Each Province had its own Constitution under which the smaller Provinces had the same powers as the larger ones and could thus with reason claim the right to a fuller quota in the Council than proposed by the Canadians. The only safeguard the small Provinces would possess was in the Council. If numbers in the other House were based on population they should not also decide the representation which the weaker Provinces were to receive in the Upper Chamber, etc., etc. At 4 O'clock Conference adjourned till 11 A.M. tomorrow. SATURDAY, OCTOBER 15, 1864. Conference resumed. It was resolved that on and after Monday the 21st inst., Conference meet @ 10 A.M. and sit till 8 P.M. Meet again at 7.30 P.M. and sit as late as desirable. The further consideration of representation in the Legislative

THE QUEBEC CONFERENCE, 1864 - 137

Council was resumed and the general subject of Federation was discussed in connection with this resolution. The delegates from Prince Edward Island were not satisfied with the number of representatives proposed for their Province. Hon. Mr. Langerin* claimed that Quebec should have an equal number with Upper Canada but did not appear to urge a smaller number than Mr. Tilley proposed for the Lower Provinces. (Note). I think that Hon. Mr. Brown contended for a larger number for Ontario than for Quebec. Nearly all of the delegates expressed their views at some length but no other notes were taken by the writer of their speeches on this day, as he was engaged in compiling statistics of P.E.I, in Dollars and Cents, and met at 2.3.0 P.M. the Conference adjourned until 10 O'Clock A.M. on Monday. MONDAY, OCTOBER 17, 1864. Conference met at 10 A.M. The resolution submitted by Mr. Brown on Tuesday last was taken up setting forth that the system of Government should be Federal with Local Governments in each Province and provision for admission of the North West Territories, Newfoundland, British Columbia and Vancouver, and further debate following the resolution was adopted and entered on the record.t *Sic. Read "Langevin." [Doughty] t According to the Minutes this resolution (see note p. 135, n. J) had been passed on October 12. It is now reconsidered and amended so that the latter portion reads: "and Local Governments for each of the Canadas and for the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections, provision being made for the admission into the Union on equitable terms of Newfoundland, the North-West Territory, British Columbia and Vancouver." The change in status of Newfoundland is interesting, but neither Bernard nor Macdonald throws light on it. The Newfoundland delegates had hitherto been participants in the discussion and voting, apparently on equal terms, but, according to the Minutes, at this sitting a resolution was carried: "That the Colony of Newfoundland, having sent a deputation to this Conference, be now invited to enter into the proposed Confederation, with a representation in the Legislative Council of four members." This resolution was, we are told, communicated to the Newfoundland delegates, and the invitation accepted by them, the right being reserved to press their claims for a larger representation in the Legislative Council. [Doughty]

138 - DOCUMENTS ON CONFEDERATION

The adjourned debate on the constitution of the Federal Legislative Council was then resumed. Hon. A. A. Macdonald said: That he considered each Province should have equal representation in the Federal Upper house and instanced the different States of the Union which however diversified in area were each represented by two Senators in the General Government. It was he thought understood at first that while the Lower house should have its number of members based on population, the Upper house should be more representative of the smaller Provinces as it was to be the guardian of their rights and privileges. Each Province now possesses a constitution of its own similar in the case of the smallest to that in the largest Province and equal rights and privileges were accorded to all alike. It was therefore a good reason why the smaller Provinces should claim better representation in the Legislative Council than the resolution provided. The Canadians make no allowance for our present condition. We are not specially desirous of changing it. What are the inducements for us to give up our Constitution! What is Canada conceding to the Lower Provinces! Canada proposes a certain number of Councillors to suit the ideas of its own people and will not admit of any deviation from that proposal. Each Province has now a fixed number of Provincial Legislative Councillors and in a general Council half the number would be a fair representation for each Province. The two Canadas have 72 Legislative Councillors. The Maritime Provinces with Newfoundland have the same number. I suggest that we take the numbers in the present Councils as our basis and allow each Province half that number in the Federal Legislative Council. This proposal was not entertained and farther debate ensued. It was advocated by some delegates to allow the Crown to add to the number of Legislative Councillors at any future time as they might deem necessary, but this was objected to by the Prince Edward Islanders and some others as it would destroy the equilibrium established between the Provinces and would be difficult to work out satisfactorily. The resolution that for the purpose of forming a Legislative Council the Federated Provinces shall be considered as consisting of three divisions, 1st Upper Canada, 2nd Lower Canada, and 3rd Nova Scotia, New Brunswick and Prince Edward Island as the third division with equal representation from each divi-

THE QUEBEC CONFERENCE, 1864 - 1 3 9

sion, was then submitted to vote, and carried; Prince Edward Island delegates dissentient. The resolution fixing the number of Legislative Councillors at 24 for each division was then submitted to vote. The Hon. Dr. Tupper proposed 24 for each of the Canadas, 10 for Nova Scotia, 9 for New Brunswick, and 5 each for Prince Edward Island and Newfoundland. This after debate was withdrawn. Hon. Mr. Coles proposed 20 each for the two Canadas, & each for Nova Scotia and New Brunswick, and 4 each for Prince Edward Island and Newfoundland. This after debate was also withdrawn. Hon. A. A. MacDonald proposed that half the present number in each Province constitute the number in the Federal Legislative Council. This resolution was also withdrawn. The question on the main motion was then put and Prince Edward Island having retired and consulted decided against it by a majority. The Chairman for P.E.I, announced that decision, and all other Provinces having voted for the resolution it was declared carried.* It being now 2 o'clock Conference adjourned until 7:30 p.m. At 7:30 Conference again met and a resolution was moved "that the members of the Legislative Council shall be appointed by the Crown under the great seal of the General Government and hold office for life." Hon. John A. Macdonald, George Brown, Dr. Tupper and others spoke on this resolution but I have no notes of their addresses. Hon. Mr. Coles moved, seconded by Hon. A. A. MacDonald "That at the first and all subsequent Elections of members to serve in the Upper House they shall be chosen by a majority of both branches of the Provincial Legislative from such qualified persons as are thirty years of age or upwards. One half of such Council to go out every four years after the first Election, to be decided by lot in first session."t Mr. Coles spoke in advocacy of his resolution. *Much of this matter is not found in the Minutes, and it is there stated that the resolution fixing the number of Legislative Councillors was carried unanimously. [Doughty] tThis interesting motion is not entered in the Minutes as published. [Doughty]

140 - DOCUMENTS ON CONFEDERATION

Hon. A. A. MacDonald in seconding it considered that in this way only would the popular opinion of the Province be expressed whereas in appointments made by the Crown such would not be the case and the nominee of the Crown might be the most unpopular person in the Province. At 12 midnight Conference adjourned till 10 a.m. TUESDAY, OCTOBER 18, Conference met at 10 o'clock a.m. and resumed the adjourned debate, etc. "That the members of the Legislative Council shall be appointed by the Crown under the great seal of the General Government and hold office for life." The Prince Edward Island delegates withdrew and consulted as to their action. The question was asked: Shall appointment be open to all persons? and on a vote being taken, 5 voted nay, 1 voted yea. It was then asked: Shall appointments be made from present Councillors as far as qualified? Ans. No, by majority, only one voting yea. On returning to the Conference Chamber the question was put on the main motion and it was carried unanimously by Provinces (although individual members in all Provinces did not agree). The qualifications necessary for eligibility to serve as Legislative Councillors was then considered, and it was proposed to select them by lot from the present Legislative Councils except in Prince Edward Island, this proposition was defeated. It was then proposed to select the Legislative Councillors with due regard to local parties, — to be appointed by the General Executive Government on recommendation of the local Executive from present Legislative except as regards Prince Edward Island, this was also lost. It was proposed that the first selection be made from duly qualified members of the Legislative Council in Canada but in the other provinces to be opened to all who possess the requisite qualifications whether now members of the Legislative Council or not, this was withdrawn. It was then proposed to select Legislative Council with due regard to local parties, appointments to be made by the Federal Executive on recommendation of the Local Executive from present Legislative Councils.* At 11.30 the motion for adjournment was carried. The Conference met at 10 a.m. WEDNESDAY OCT. 19,t and

THE QUEBEC CONFERENCE, 1864 - 141

consideration of the adjourned debate resumed on resolution. That the members of the Legislative Council for the General Government shall in the first instance be selected from the Legislative Councils of the various provinces with the exception of Prince Edward Island, so far as qualified, and debate ensuing the Prince Edward Island delegation retired to consult and on a vote of that province being taken a majority was against the resolution, which was adopted by the vote by provinces in the General Conference. The resolution that the first Council in the Federal Legislative [sic] shall be appointed by the Crown on the recommendation of the Local Governments with due regard to claims of the opposition was then proposed and after long debate it was adopted. Hon. Peter Mitchell being called away on his private business got leave of absence for the remainder of the Conference. Conference adjourned at 2 p.m. until 7 p.m. Conference resumed at 7:30 p.m. Resolution that the basis of representation in the House of Commons shall be population and 194 members viz., Upper Canada, 82, Lower Canada 65, Nova Scotia 19, New Brunswick 15, Newfoundland 8, Prince Edward Island 5, was then put. Debate thereon continued until 10 o'clock when the motion for adjournment was carried for 10 o'clock tomorrow, t THURSDAY, OCTOBER 20, Conference met at 10 a.m. Several resolutions respecting sessions of Legislatures and the powers thereof were submitted. Also Resolution respecting mode of appointment of Lieutenant Governors and the duration of their holding office led to lengthy debate before they were finally adopted by the Conference. *It would seem from the Minutes and Col. Bernard's notes that Mr. Macdonald has included in this day's business some matter that did not formally come before the Conference until the following day. [Doughty] tBernard's notes for this day are quite extensive. [Doughty] $ According to Bernard, a long discussion arose on this and the following day from Prince Edward Island's objection to the small representation allotted to her in the House of Commons. Unfortunately Macdonald, although a delegate from the island, says nothing on the subject. [Doughty]

142 - DOCUMENTS ON CONFEDERATION

(Note) Major Barnard the Executive Secretary of the Conference has given a fuller and better report of this days debates than could be made out from my notes, so I have taken his report for the 20th. THURSDAY, OCTOBER 20TH. Extracts from the minutes of Major Hewitt Barnard from Appendix VI Page 351 -Vol. 1 -Pope's Sir John MacDonald.* Mr. Brown: As to local governments, we desire in Upper Canada that they should not be expensive, and should not take up political matters. We ought not to have two electoral bodies. Only one body, members to be elected once in every three years. Should have whole legislative power — subject to Lieutenant Governor. I would have Lieutenant Governor appointed by General Government. It would thus bring these bodies into harmony with the General Government. In Upper Canada executive officers would be Attorney General, Treasurer, Secretary, Commissioner Crown Lands, and Commissioner Public Works. These would form the Council of the Lieutenant Governor. I would give Lieutenant Governor veto without advice, but under certain vote he should be obliged to assent. During recess Lieutenant Governor could have power to suspend executive officers. They might be elected for three years or otherwise. You might safely allow County Councils to appoint other officers than those they now do. One Legislative Chamber for three years, no power dissolution, elected on one day in each third year. Lieutenant Governor appointed by Federal Government. Departmental officers to be elected during pleasure, or for three years. To be allowed to speak but not vote. Mr. Cartier: I entirely differ with Mr. Brown. It introduces in our local bodies republican institutions. Mr. Brown moved: "That in the local Government there shall be but one Legislative Chamber. Sir E. Tache: This motion is made merely to elicit opinion of Conference. Mr. Tilley: New Brunswick differs from Mr. Brown. They propose to keep the existing things as they are, as far as consistent with expense. They propose Lieutenant Governor, five departmental officers, with seat in House.

THE QUEBEC CONFERENCE, 1864 - 143

Mr. Dickey: Before details, settle principles. Will Conference take present local Governments as models? Mr. Fisher: I am opposed to Mr. Brown's view. I approve of the present system of Local Legislatures. I agree with Mr. Brown that the Lieutenant Governor should be appointed by the Federal Government. Mr. Carter: In 1842 we had one chamber in Newfoundland partly appointed by Crown and partly by people. It worked well. An object to reduce expense. Mr. Henry: I think uniformity is very desirable, but you should first consider what is to be left to the Local Legislatures before you proceed to discuss their constitutions. Mr. McGee: No. Institute your body and then assign its powers. Mr. Chandler: We are here to form a constitution for Federal Government. Let the provinces otherwise remain as they are, so far as possible. Dr. Tupper: I agree with general principles laid down by Mr. Brown that the Governments should be as simple and inexpensive as possible. We should diminish the powers of the Local Governments, but we must not shock too largely the prejudices of the people in that respect. Mr. McCully: We must have miniature responsible governments. Adjourned at 2 o'clock until Friday, 21st, 10 a.m.t FRIDAY, OCTOBER 21, 1864, 10 A.M. A. A. Macdonald's notes resumed. Financial resolutions from No. 1 to No. 9 on the minutes were discussed by the leading members of the Conference which continued in session without adjournment until 5 o'clock P.M., *In this Appendix to the first volume of his Memoirs of Sir John Macdonald Sir Joseph Pope published some extracts from Col. Bernard's notes, the whole of which were subsequently published in his Confederation Documents. [Doughty] f This is not correct. There was an evening session on October 20. [Doughty]

144 - DOCUMENTS ON CONFEDERATION

when the Chamber being required for other purposes the Conference adjourned. A number of resolutions besides those above mentioned were discussed and several changes made in the original drafts of some of them. There was a very general debate in which the leaders chiefly took part. Many questions and explanations were required by the other members, and all relating to finance were replied to by Hon. Mr. Gait who has all information on that point in his head and does not often require to refer to the printed statistics, but I have no other notes of the day's debate, as I was engaged in making up a number of statistical tables with Hon. Mr. Pope. Conference adjourned until 10 A.M.* Conference reassembled on 22nd October at noon and Hon. Mr. Gait said: It is desirable that all Provinces should enter the Federation with the same liabilities, and secondly that all should be admitted on just principles so that no claim can hereafter be advanced on account of claims now existing. He then read the resolutions respecting financial arrangements with the Provinces and stated the reasons at length of such an arrangement. He stated that $80,000,000 was the present gross debt of all the Provinces, $25 per head is the aggregate of the debt as nearly as possible. The debt of Canada on the 1st of January last was $65,000,000 = Miscellaneous $64,000, Common School debentures $1,181,000, Indian fund $1,600,000, Capitalization payable to seigniorial tenures $2,900,000, Municipal $600,000, Jesuits, etc. in all $4,000,000, Total $75,578,000 is the debt of Canada. Credits on Sinking fund $4,883,000, Common School fund $1,200,000, Cash $2,848,000. Net Liabilities $68,445,953 on 1st January last. Three fourths of this debt has been incurred for public improvements tending to conduct trade from the great West in this direction, 1st by Canals, 2ndly by Railways. We have expended $24,908,000 for Canals, $29,302,000 for Railways, about $15,000,000 in the Grand Trunk line is deferred until it realizes a certain rate of interest. Great Western Railway $2,500,000, a preference claim of $1,000,000 comes in before us, but it is now paying interest on the Railway debt, Northern Railway $2,300,000, Municipal Loan funds about $9,000,000. The liabilities of Nova Scotia about The liabilities of New Brunswick The liabilities of Newfoundland

$5,000,000 5,700,000 1,000,000

THE QUEBEC CONFERENCE, 1864 - 145

The liabilities of Prince Ed. Island The liabilities of Canada Making a total indebtedness of

250,000 68,445,950 $80,395,950

$25'per head will represent $62,500,000 for Canada while the debt is $69,000,000. In New Brunswick it will about represent the same proportion; in Nova Scotia also. In Newfoundland the debt is about $8 per head, they will be charged with interest on that and will receive credit for $25 per head. The debt of Prince Edward Island is $3 per head, consequently it will benefit by $22 per head as a subsidy. It is plain the Local Governments cannot exist without a subvention from the General Government, or resorting to direct taxation, a subvention is the best means. The General Government must desire to make the charges for local Governments as light as possible while the Local Governments would have an opposite interest. I trust whatever the amount of the subvention may be that it will not be changed hereafter. It should be definitely settled now and not doubled when the population of any Province doubles. Hon. Mr. Tilley stated the objections he held against Mr. Gait's scheme. The Federal Government would take all the public property and proposed nothing in return for this. Our Railway now pays one and a half per cent on the cost of the road or $60,000 over working expenses, wear and tear. Mr. Gait proposes to take this from us and allow us nothing in return. A large part of Canada's debt arises from interest on its railway debts. I should like to kno\y what the value of your Railway debt would be after paying preference bonds? The Great Western Railway is the only one I look upon as a valuable asset, as it pays the Interest or part of it on its indebtedness. Suppose we construct the line between Nova Scotia and New Brunswick a part of the Intercolonial, will the receipts from it go into the general Revenue and are we to have no benefit from them? Hon. Mr. Gait: I admit that the question of what future liabilities you incur is one of great importance that we should *No reference to the discussion of financial matters on this day is made either in the Minutes or in Bernard's notes of the discussions. The subject of consideration was the powers of the General Legislature. [Doughty]

146 - DOCUMENTS ON CONFEDERATION

consider. The whole of the public works are given to the Confederation, etc., etc., etc. Hon. Messrs Tilley & Brown, Tilley & Gait discussed this question at length... . Hon. Dr. Tupper said that $20,000,000 of Canada's debt in the Grand Trunk line is not represented by any assets paid into the public Treasury, while Nova Scotia's Railways could be sold tomorrow for fifty per cent of cost, etc., etc. Dr. Tupper continued his criticism of the financial aspects of the Lower Provinces and the position they would find themselves in if such proposals were adopted. He spoke at considerable length but the writer had no opportunity to note his remarks, as the other Island delegates had requested him to get up certain statistics respecting their Province, and to convert the Island Currency as given in the official returns, which gave only the Island Currency, into Dollars and Cents, Canadian Currency.* The debate on the foregoing questions was continued by Messrs. Gait, Tilley, Archibald, Tupper, McCully, Coles, Chandler, Steeves, Dickey, Henry and nearly all the members of the Conference took part in it. The debate continued until 10 o'clock when the Conference adjourned until Monday, the 24th at 10 A.M., when being met a lengthy discussion followed chiefly on the financial resolutions, for report of some of the speeches I again refer to Major Barnard's report as given in Appendix vi page 352, Pope's Sir John Macdonald, a copy hereto annexed. MONDAY, OCTOBER 24TH. Extract from minutes of Major Hewitt Barnard from Appendix vi page 351, Vol. 1 - Pope's Sir John Macdonald. Mr. Mowatt moved (a resolution defining the powers of the Local Legislature!). Mr. Chandler: I object to the proposed system. You are adopting a Legislative Union instead of a Federal. The Local Legislatures should not have their powers specified, but should have all the powers not reserved to the Federal Government, and only the powers to be given to the Federal Government should be specified. You are now proceeding to destroy the Constitutions of the Local Governments, and to give them less powers than they have allowedi them from England, and it will

THE QUEBEC CONFERENCE, 1864 — 147

make them merely large Municipal Corporations. This is a vital question, which 'decides the question between a Federal and Legislative Union, and it will be fatal to the success of Confederation in the Lower Provinces. Dr. Tupper: I have heard Mr. Chandler's argument with surprise. Powers undefined must rest somewhere. Those who were at Charlottetown will remember that it was fully specified there that all the powers not given to Local should be reserved to the Federal Government. This was stated as being a prominent feature of the Canadian scheme, and it was said then that it was desirable to have a plan contrary to that adopted by the United States. It was a fundamental principle laid down by Canada and the basis of our deliberations. Mr. Chandler says that it gives a Legislative instead of a Federal Union. I think that a benefit. Is the Federal Government to be one of mere delegates? We have provided for a legislative representation and for the representation of every section of all the Provinces. Such a costly Government ought to be charged with the fullest powers. It will be easier for every one of the remotest settlers in Nova Scotia and New Brunswick to reach the Federal Legislature than the Present Local Legislatures. If it were not for the peculiar condition of Lower Canada and that the Lower Provinces have not municipal systems such as Upper Canada, I should go in for a Legislative Union instead of a Federal. We propose to preserve the Local Governments in the Lower Provinces because we have not Municipal Institutions. If Conference limit the powers of the General Legislature, I feel that the whole platform is swept away from us. Mr. Coles: I did not understand this was laid down as a basis at Charlottetown. I thought there the only thing specified was representation by population in Lower House. I agree with Mr, Chandler's views. Mr. Haviland: I disagree with Messrs. Chandler and Coles, I understood the basis of our scheme, so as to avoid difficulties of United States, is to give limited powers to local Legislatures. Colonel Gray, N.B.: Mr. Cole's memory is hurt§ (Quotes *We have here, however, a much better report of this important discussion than that published from Bernard's notes. [Doughty] tRead "Legislatures." [Doughty] $Read "have had allowed." [Doughty] §Read "short." [Doughty]

148 - DOCUMENTS ON CONFEDERATION

from Mr. McDonald's speech at Charlottetown and from Mr. Brown's that Federal Government was to have general powers and limited as to local). Whatever conclusion we may now arrive at, such was the basis of the Canadian scheme. Mr. Chandler: My argument is not met as to merits, but as to what was laid down at Charlottetown. We all agreed that local Government should have local powers, we differ as to whether such powers should be defined. Dr. Tupper: Under Mr. Chandler's view the Governor General would be less than the Lieutenant Governor, and the Federal Government less than the local. Mr. Dickey: I propose a Supreme Court of Appeal to decide any conflict between general and state rights. I am rather inclined to agree with Mr. Chandler. Immense interests omitted in Mr. Mowat's motion. Mr. Brown: This matter received close attention of Canadian Government. I should agree with Mr. Chandler were it not that we have done all we can to settle the matter with sufficient powers to local Legislatures. I would let the Courts of each Province decide what is local, and what general Government jurisdiction, with appeal to the Appeal or Superior Court. Mr. McCully: I refer to New Zealand Act, which is evidently framed to meet difficulty. It strongly* defines what the local Governments shall not do. In 53rd clause General Assembly to make laws, etc., for government of New Zealand, and shall control and supersede those of local Governments repugnant thereto. Mr. Brown will land us in position of United States by referring matter of conflict of jurisdiction to Courts. You thus set them over the General Legislature. Mr. Attorney General MacDonald: New Zealand constitution was a legislative Union, ours federal. Emigrants went out under different guarantees. Local charters jarred. In order to guard these they gave the powers stated to local Legislatures, but the General Government had power to sweep these away. That is just what we do not want. Lower Canada and the Lower Provinces would not have such a thing. There is no analogy between New Zealand and ourselves in such respects. Our Courts now can decide where there is any conflict between the Imperial and Canadian Statutes. I think the whole affair

THE QUEBEC CONFERENCE, 1864 - 149

would fail, and the system be a failure, if we adopted Mr, Chandler's views. It would be adopting the worst features of the United States. We should concentrate the power in the Federal Government, and not adopt the decentralization of the United States. Mr. Chandler would give sovereign power to the local Legislatures, just where the United States failed. Canada would be infinitely stronger as she is than under such a system as proposed by Mr. Chandler. It is said the tariff is one of the causes of difficulty in the United States. So it would be with us. Looking at agricultural interests of Upper Canada, manufacturing of Lower Canada, and maritime interests of lower Provinces, in respect to a Tariff, a federal Government would be a mediator. No general feeling of patriotism exists in the United States. In occasions of difficulty each man sticks to his individual State. Mr. Stephens, the present Vice President, a strong Union man, yet, when the time came, he went with his State. Similarly we should each stick to our Province and not be British Americans, It would be introducing a source of radical weakness. It would ruin us in the eyes of the civilized world. All writers point out errors of United States. All the failings prognosticated by De Tocqueville are shown to be fulfilled. Mr. Johnson: Enumerate for local Governments their powers, and give all the rest to general Government but do not enumerate both. Mr. Palmer: Easier to define what are general, than what are local subjects, but we cannot define both. We cannot meet every possible case or emergency. Mr. Henry: We should not define powers of general Legislature. I would ask Lower Canada not to fight for a shadow. Give a clause to give general powers (except such as given to local Legislatures) to federal Legislature. Anything beyond that is hampering the case with difficulties. If we are to have Confederation let us have one on the principles suggested by Attorney General MacDonald. In United States there is no power to settle constitutionality of an Act. Hereafter we shall be bound by an Imperial Act, and our judges will have to say what is constitutional under it as regards general or local Legislation. Mr. Dickey: Why did Imperial statutes give the powers they did to New Zealand General Government? *Real "strangely." [Doughty]

150 - DOCUMENTS ON CONFEDERATION

Mr. Chandler: My plan is not precisely the same as United States, because Government does not in United States appoint the Lieutenant Governors and the Legislative Councillors. If my plan is not adopted, I should have elective Legislative Councillors. Colonel Gray, N.B.: The power flows from Imperial Government. We propose to substitute the Federal Government for the Imperial Government but the Federal Government is itself subordinate to the Imperial Government. And as to the policy of the thing, I think it best to define the powers of the local Governments, as .the public will then see what matters they have reserved for their consideration, with which matters they will be familiar, and so the humbler classes and the less educated will comprehend that their interests are protected. (End of Major Barnard's notes.) TUESDAY, OCTOBER 25, 1864. The financial arrangements still formed the chief subject of discussion. Several sets of resolutions on other subjects were submitted and agreed to chiefly those referring to the jurisdiction of the local and general legislatures, the judiciary, etc. On consideration of the subject of Education it was moved by Hon. Darcy [sic] McGee and seconded by Hon. A. A. McDonald. "That it be resolved that all rights and privileges which any denomination now possesses in respect to denominational schools or in educational matters shall be preserved to them by the constitution and shall not be abridged by Legislation." (Note) This may not be the literal wording of the resolution, but such is its import. My note on it being an imperfect draft.* This resolution was unanimously adopted. Conference adjourned until 10 a.m. on Wednesday, t WEDNESDAY, OCT. 26, 1864. Conference met at 10 a.m. Hon. Mr. Pope submitted a statement of the position in which Prince Edward Island would stand in the financial arrangement proposed if it entered Confederation on those terms, and nearly every member of the Island delegation spoke on this question showing that it was impossible for the Government to be carried on there with such limited income.

THE QUEBEC CONFERENCE, 1864 - 151

Hon. Mr. Coles moved seconded by Hon. A. A. MacDonald, Whereas the question of Land tenures in Prince Edward Island is the cause of great discontent and the source of much agitation, and in order to settle the same it is necessary that the lands held by Absentee proprietors should be purchased at a reasonable rate by Government and resold to the tenants and whereas Prince Edward Island has no Crown lands, mines or minerals from which money can be realized to purchase the said proprietary lands and it is requisite for the prosperity of the Island that the said land question should be settled. Resolved therefore that a sum equal to the interest of the amount necessary to purchase the said lands be paid annually to Prince Edward Island in consideration of this question. Hon. Mr. Coles spoke in support of his resolution as to the present state of the land question and what the local Government had done in its efforts to have the land tenures settled. He referred to the general benefits such a measure would have and its effect upon the views of the people on the subject of Confederation. Hon. A. A. MacDonald said that the only advantage he could see that would accrue to the people of his Province under the proposed Confederation would be to have the lands purchased by the Government. This the local Government might accomplish through time without entering into Confederation but it must take many years to do it. Even if the lands were to be purchased by the general Government and handed over to the local Government to be disposed of to the tenants the funds arising from the sale would not constitute a permanent source of revenue. They would be all disposed of in a few years and the money would be expended for local improvements owing to the necessities of the Province while we would be taxed as much per head as we now pay and have besides to pay our proportion of the Federal taxation the same as all the other Provinces. Our local and Federal taxation would be more than we * According to the Minutes, the amendment consisted in adding to the clause which assigned education to the control of the local legislatures the words: "Saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their denominational schools at the time when the Constitutional Act goes into operation." [Doughty] tBernard's nojes end with this day's discussion. [Doughty]

152 — DOCUMENTS ON CONFEDERATION

could bear. We would have to pay our portion of the railway debt without a railroad throughout our Province. It is a matter of indifference to our people whether the Intercolonial Railroad is built at all or not. Being an insular Province and entirely cut off from the mainland by the Ice for nearly half the year we need fear no foreign invasion and being but a small Province offer no inducements to a foreign invader to make war on us while so many richer Provinces offer more prizes and lie between us and any possible foe. We are loyal subjects of our gracious Queen and she would not see us cut off from protection while we put forth our own efforts to protect our shores. It would require more liberal financial terms than any yet proposed to induce our people to support a Federal Union if they were to form a portion of it. (He referred to the increased Tariff as compared with present local). Hon. Mr. Gait said that the duties of Canada will be materially lessened under any circumstances and will be readjusted with reference to the position of all the Provinces and their duties after Confederation. Conference adjourned at midnight after a number of resolutions had been passed. THURSDAY, OCT. 27, 1864, Conference met at 10 a.m. A number of resolutions which had been under consideration at previous sessions were adopted this morning and the whole read over. Most of the delegates left early. I was the only Islander at the Conference during these formal proceedings. It was decided to have the resolutions of the Conference printed and submitted to the delegates at Montreal to be authenticated by their signatures and the Conference then adjourned to meet at Montreal tomorrow. A brief session was held at the St. Louis Hotel* on October 29th but the printed report of the Conference resolutions was not ready and an adjournment was agreed upon till arrival at Ottawa, t

THE QUEBEC CONFERENCE, 1864 - 153

34 The Quebec Resolutions, October, 1864. (Pope, 38-52.)

Below are the resolutions as finally adopted by the Conference.! It will be seen that the Minutes record the adoption of all save numbers 10, 13, 15, 16, 34, 35, 54, 55, 56, 57, 58, 59, 68, 70, 71 and 72. They further show that of these No. 10 was moved on the 25th October by Mr. Mowat, and Nos. 54, 55 and 59 on the 22nd October by Mr. Gait. The original papers also disclose that Nos. 13 and 15 were moved by Mr. McCully, No. 68 by Mr. Tupper and No. 70 by Mr. John A. Macdonald. Respecting Nos. 16, 34, 35, 56, 57, 58, 71 and 72, there is nothing to indicate on which of the three last sittings of the Conference or by whom they were introduced.

*The Minutes read "St. Lawrence Hall, Montreal." [Doughty] tThere is no reference in the Minutes to this adjournment to Ottawa. [Doughty] ^Between the closing of the Quebec Conference in October, 1864, and the meeting of the Canadian Legislature in January, 1865, certain alterations were made by mutual consent of the delegates in the 24th, 29th and 43rd resolutions, as follows: The 24th resolution was changed to read: 24. The Local Legislature of each Province may, from time to time, alter the electoral districts for the purposes of representation in such Local Legislature, and distribute the representatives to which the Province is entitled in such Local Legislature in any manner such Legislature may see fit. Sub-section 3 of section 29 was changed to read: 3. The imposition or regulation of duties of customs on imports and exports, except on exports of timber, logs, masts, spars, deals and sawn lumber from New Brunswick, and of coal and other minerals from Nova Scotia. Sub-section 1 of section 43 was changed to read: 1. Direct taxation, and in New Brunswick the imposition of duties on the export of timber, logs, masts, spars, deals and sawn lumber; and in Nova Scotia on coals and other minerals. For the correspondence arising out of these changes, see Doc. 49. [Pope]

154 - DOCUMENTS ON CONFEDERATION

REPORT Of Resolutions adopted at a Conference of Delegates from the Provinces of Canada, Nova Scotia and New Brunswick, and the Colonies of Newfoundland and Prince Edward Island, held at the City of Quebec, 10th October, 1864, as the Basis of a proposed Confederation of those Provinces and Colonies. l.The best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such Union can be effected on principles just to the several Provinces. 2. In the Federation of the British North American Provinces the System of Government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, - would be a general Government charged with matters of common interest to the whole Country, and Local Governments for each of the Canadas and for the Provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections. — Provision being made for the admission into the Union on equitable terms of Newfoundland, the North-West Territory, British Columbia and Vancouver. 3. In framing a Constitution for the General Government, the Conference, with a view to the perpetuation of our connection with the Mother Country, and to the promotion of the best interests of the people of these Provinces, desire to follow the model of the British Constitution, so far as our circumstances will permit. 4. The Executive Authority or Government shall be vested in the Sovereign of the United Kingdo'm of Great Britain and Ireland, and be administered according to the well understood principles of the British Constitution by the Sovereign personally or by the Representative of the Sovereign duly authorized. 5. The Sovereign or Representative of the Sovereign shall be Commander-in-Chief of the Land and Naval Militia Forces. 6. There shall be a General Legislature or Parliament for the Federated Provinces, composed of a Legislative Council and a House of Commons. 7. For the purpose of forming the Legislative Council, the Federated Provinces shall be considered as consisting of three divisions: - 1st, Upper Canada; 2nd, Lower Canada; 3rd, Nova

THE QUEBEC CONFERENCE, 1864 - 155

Scotia, New Brunswick and Princq Edward Island, each division with an equal representation in the Legislative Council. 8. Upper Canada shall be represented in the Legislative Council by 24 Members, Lower Canada by 24 Members, and the three Maritime Provinces by 24 Members, of which Nova Scotia shall have Ten, New Brunswick, Ten, and Prince Edward Island, Four Members. 9. The Colony of Newfoundland shall be entitled to enter the proposed Union, with a representation in the Legislative Council of four Members. 10. The North-West Territory, British Columbia and Vancouver shall be admitted into the Union on such terms and con-^ ditions as the Parliament of the Federated Provinces shall deem equitable, and as shall receive the assent of Her Majesty; and in the case of the Province of British Columbia or Vancouver, as shall be agreed to by the Legislature of such Province. 11. The Members of the Legislative Council shall be appointed by the Crown under the Great Seal of the General Government and shall hold Office during Life; if any Legislative Councillor shall, for two consecutive sessions of Parliament, fail to give his attendance in the said Council, his seat shall thereby become vacant. 12. The Members of the Legislative Council shall be British Subjects by Birth or Naturalization, of the full age of Thirty Years, shall possess a continuous real property qualification of four thousand dollars over and above all incurnbrances, and shall be and continue worth that sum over and above their debts and liabilities, but in the case of Newfoundland and Prince Edward Island, the property may be either real or personal. 13. If any question shall arise as to the qualification of a Legislative Councillor, the same shall be determined by the Council. 14. The first selection of the Members of the Legislative Council shall be made, except as regards Prince Edward Island, from the Legislative Councils of the various Provinces, so far as a sufficient number be found qualified and willing to serve; such Members shall be appointed by the Crown at the recommendation of the General Executive Government, upon the nomination of the respective Local Governments, and in such nomination due regard shall be had to the claims of the Members of the Legislative Council of the Opposition in each Province, sothat all political parties may as nearly as possible be fairly represented.

156 — DOCUMENTS ON CONFEDERATION

15. The Speaker of the Legislative Council (unless otherwise provided by Parliament) shall be appointed by the Crown from among the members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes. 16. Each of the twenty-four Legislative Councillors representing Lower Canada in the Legislative Council of the General Legislature, shall be appointed to represent one of the twentyfour Electoral Divisions mentioned in Schedule A of Chapter first of the Consolidated Statutes of Canada, and such Councillor shall reside, or possess his qualification in the Division he is appointed to represent. 17. The basis of Representation in the House of Commons shall be Population, as determined by the Official Census every ten years; and the number of Members at first shall be 194, distributed as follows: Upper Canada Lower Canada Nova Scotia New Brunswick Newfoundland and Prince Edward Island

82 65 19 15 8 5

18. Until the Official Census of 1871 has been made up there shall be no change in the number of Representatives from the several sections. 19. Immediately after the completion of the Census of 1871 and immediately after every Decennial Census thereafter, the Representation from each section in the House of Commons shall be re-adjusted on the basis of Population. 20. For the purpose of such re-adjustments, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each re-adjustment receive, for the ten years then next succeeding, the number of members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy according to the Census last taken by having sixty-five members. 21. No reduction shall be made in the number of Members returned by any section, unless its population shall have decreased relatively to the population of the whole Union, to the extent of five per centum. 22. In computing at each decennial period, the number of Members to which each section is entitled, no fractional parts

THE QUEBEC CONFERENCE, 1864 - 157

shall be considered, unless when exceeding one half the number entitling to a Member, in which case a member shall be given for each such fractional part. 23. The Legislature of each Province shall divide such Province into the proper number of constituencies, and define the boundaries of each of them. 24.*The Local Legislature of each Province may from time to time alter the Electoral Districts for the purposes of Representation in the House of Commons, and distribute the representatives to which the Province is entitled in any manner such Legislature may think fit. 25. The number of Members may at any time be increased by the General Parliament, — regard being had to the proportionate rights then existing. 26. Until provisions are made by the General Parliament, all the Laws which, at the date of the Proclamation constituting the Union, are in force in the Provinces respectively, relating to the qualification and disqualification of any person to be elected or to sit or vote as a member of the Assembly in the said Provinces respectively — and relating to the qualification or disqualification of voters, and to the oaths to be taken by voters, and to Returning Officers and their powers and duties, — and relating to the proceedings at Elections, — and to the period during which such Elections may be continued, and relating to the Trial of Controverted Elections, and the proceedings incident thereto, and relating to the vacating of seats of Members and to the issuing and execution of new Writs in case of any seat being vacated otherwise than by a dissolution, - shall respectively apply to elections of Members to serve in the House of Commons, for places situate in those Provinces respectively. 27. Every House of Commons shall continue for five years from the day of the return of the writs choosing the same, and no longer, subject, nevertheless, to be sooner prorogued or dissolved by the Governor. 28. There shall be a Session of the General Parliament once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the General Parliament in one Session and the first sitting thereof in the next session. 29. The General Parliament shall have power to make Laws for the peace, welfare and good Government of the Federated *See Doc. 49.

158 ~ DOCUMENTS ON CONFEDERATION

Provinces (saving the Sovereignty of England), and especially Laws respecting the following subjects: — 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The imposition or regulation of Duties of Customs on Imports and Exports, except on Exports of Timber, Logs, Masts, Spars, Deals and Sawn Lumber, and of Coal and other Minerals. 4. The imposition or regulation of Excise Duties. 5. The raising of money by all or any other modes or systems of Taxation. 6. The Borrowing of Money on the Public Credit. 7. Postal Service. 8. Lines of Steam or other Ships, Railways, Canals and other works, connecting any two or more of the Provinces together or extending beyond the limits of any Province. 9. Lines of Steamships between the Federated Provinces and other Countries. 10. Telegraphic Communication and the incorporation of Telegraph Companies. 11. All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorizing them to be for the general advantage. 12. The Census. 13. Militia — Military and Naval Service and Defence. 14. Beacons, Buoys and Lighthouses. 15. Navigation and Shipping. 16. Quarantine. 17. Sea Coast and Inland Fisheries. 18. Ferries between any Province and a Foreign Country, or between any two Provinces. 19. Currency and Coinage. 20. Banking, Incorporation of Banks, and the issue of paper money. 21. Savings Banks. 22. Weights and Measures. 23. Bills of Exchange and Promissory Notes. 24. Interest. 25. Legal Tender. 26. Bankruptcy and Insolvency. 27. Patents of Invention and Discovery.

THE QUEBEC CONFERENCE, 1864 - 159

28. Copy Rights. 29. Indians and Lands reserved for the Indians. 30. Naturalization and Aliens. 31. Marriage and Divorce. 32. The Criminal Law, excepting the Constitution of Courts of Criminal Jurisdiction, but including the procedure in Criminal matters. 33. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof. 34. The Establishment of a General Court of Appeal for the Federated Provinces. 35. Immigration. 36. Agriculture. 37. And Generally respecting all matters of a general character, not specially and exclusively reserved for the Local Governments and Legislatures. 30. The General Government and Parliament shall have all powers necessary or proper for performing the obligations of the Federated Provinces, as part of the British Empire, to Foreign Countries, arising under Treaties between Great Britain and such Countries. 31. The General Parliament may also, from time to time, establish additional Courts, and the General Government may appoint Judges and Officers thereof, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of Parliament. 32. All Courts, Judges and Officers of the several Provinces shall aid, assist and obey the General Government in the exercise of its rights and powers, and for such purposes shall be held to be Courts, Judges and Officers of the General Government. 33. The General Government shall appoint and pay the Judges of the Superior Courts in each Province, and of the County Courts in Upper Canada, and Parliament shall fix their salaries. 34. Until the Consolidation of the Laws of Upper Canada^ New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island, the Judges of these Provinces appointed by the

160 - DOCUMENTS ON CONFEDERATION

General Government, shall be selected from their respective Bars. 35. The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada. 36. The Judges of the Court of Admiralty now receiving salaries shall be paid by the General Government. 37. The Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable only on the Address of both Houses of Parliament. LOCAL GOVERNMENT. 38. For each of the Provinces there shall be an Executive Officer, styled the Lieutenant-Governor, who shall be appointed by the Governor-General in Council, under the Great Seal of the Federated Provinces, during pleasure: such pleasure not to be exercised before the expiration of the first five years, except for cause: such cause to be communicated in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first Session afterwards. 39. The Lieutenant-Governor of each Province shall be paid by the General Government. 40. In undertaking to pay the salaries of the LieutenantGovernors, the Conference does not desire to prejudice the claim of Prince Edward Island upon the Imperial Government for the amount now paid for the salary of the LieutenantGovernor thereof. 41. The Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of such Province shall provide. 42. The Local Legislatures shall have power to alter or amend their constitution from time to time. 43. The Local Legislatures shall have power to make Laws respecting the following subjects: 1. Direct Taxation and the imposition of Duties on the Export of Timber, Logs, Masts, Spars, Deals and Sawn Lumber, and of Coals and other Minerals. 2. Borrowing Money on the credit of the Province. 3. The establishment and tenure of local Offices, and the appointment and payment of local Officers. 4. Agriculture. 5. Immigration.

THE QUEBEC CONFERENCE, 1864 - 161

6. Education; saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their Denominational Schools, at the time when the Union goes into operation. 7. The sale and management of Public Lands, excepting Lands belonging to the General Government. 8. Sea coast and Inland Fisheries. 9. The establishment, maintenance and management of Penitentiaries, and of Public and Reformatory Prisons. 10. The establishment, maintenance and management of Hospitals, Asylums, Charities and Eleemosynary Institutions. 11. Municipal Institutions. 12. Shop, Saloon, Tavern, Auctioneer and other licenses, 13. Local Works. 14. The Incorporation of private or local Companies, except such as relate to matters assigned to the General Parliament. 15. Property and civil rights, excepting those portions thereof assigned to the General Parliament. 16. Inflicting punishment by fine, penalties, imprisonment or otherwise for the breach of laws passed in relation to any subject within their jurisdiction. 17. The Administration of Justice, including the Constitution, maintenance and organization of the Coults, both of Civil and Criminal Jurisdiction, and including also the Procedure in Civil Matters. 18. And generally all matters of a private or local nature, not assigned to the General Parliament. 44. The power of respiting, reprieving and pardoning Prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant-Governor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament. MISCELLANEOUS. 45. In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the laws of the General Parliament shall control and supersede those made by

162 - DOCUMENTS ON CONFEDERATION

the Local Legislature, and the latter shall be void so far as they are repugnant to or inconsistent with the former. 46. Both the English and French languages may be employed in the General Parliament and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada. 47. No lands or property belonging to the General or Local Governments shall be liable to taxation. 48. All Bills for appropriating any part of the Public Revenue, or for imposing any new Tax or Impost, shall originate in the House of Commons or House of Assembly, as the case may be. 49. The House of Commons or House of Assembly shall not originate or pass any Vote, Resolution, Address or Bill for the appropriation of any part of the Public Revenue, or of any Tax or Impost to any purpose, not first recommended by Message of the Governor-General, or the Lieutenant-Governor, as the case may be, during the Session in which such Vote, Resolution, Address or Bill is passed. 50. Any Bill of the General Parliament may be reserved in the usual manner for Her Majesty's Assent, and any Bill of the Local Legislatures may in like manner be reserved for the consideration of the Governor-General. 51. Any Bill passed by the General Parliament shall be subject to disallowance by Her Majesty within two years, as in the case of Bills passed by the Legislatures of the said Provinces hitherto, and in like manner any Bill passed by a Local Legislature shall be subject to disallowance by the Governor-General within one year after the passing thereof. 52. The Seat of Government of the Federated Provinces shall be Ottawa, subject to the Royal Prerogative. 53. Subject to any future action of the respective Local Governments, the Seat of the Local Government in Upper Canada shall be Toronto; of Lower Canada, Quebec; and the Seats of the Local Governments in the other Provinces shall be as at present.

PROPERTY AND LIABILITIES. 54. All Stocks, Cash, Bankers' Balances and Securities for money belonging to each Province, at the time of the Union, except as hereinafter mentioned, shall belong to the General Government. 55. The following Public Works and Property of each Province shall belong to the General Government, to wit: -

THE QUEBEC CONFERENCE, 1864 - 163

1. Canals; 2. Public Harbours; 3. Light Houses and Piers; 4. Steamboats, Dredges and Public Vessels; 5. River and Lake Improvements; 6. Railway and Railway Stocks, Mortgages and other Debts due by Railway Companies; 7. Military Roads; 8. Custom Houses, Post Offices and other Public Buildings, except such as may be set aside by the General Government for the use of the Local Legislatures and Governments; 9. Property transferred by the Imperial Government and known as Ordnance Property; 10. Armouries, Drill Sheds, Military Clothing and Munitions of War; and 11. Lands set apart for Public Purposes. 56. All lands, mines, minerals and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. 57. All sums due from purchasers or lessees of such lands, mines or minerals at the time of the Union, shall also belong to the Local Governments. 58. All assets connected with such portions of the public debt of any Province as are assumed by the Lpcal Governments, shall also belong to those Governments respectively. 59. The several Provinces shall retain all other Public Property therein, subject to the right of the General Government to assume any Lands or Public Property required for Fortifications or the Defence of the Country. 60. The General Government shall assume all the Debts and Liabilities of each Province. 61. The Debt of Canada not specially assumed by Upper and Lower Canada respectively, shall not exceed at the time of. the Union $62,500,000 Nova Scotia shall enter the Union with a debt not exceeding 8,000,000 And New Brunswick, with a debt not exceeding 7,000,000

164 - DOCUMENTS ON CONFEDERATION

62. In case Nova Scotia or New Brunswick do not incur liabilities beyond those for which their Governments are now bound and which shall make their debts at the date of Union less than $8,000,000 and $7,000,000 respectively, they shall be entitled to interest at 5 per cent on the amount not so incurred, in like manner as is hereinafter provided for Newfoundland and Prince Edward Island: the foregoing resolution being in no respect intended to limit the powers given to the respective Governments of those Provinces by Legislative authority, but only to limit the maximum amount of charge to be assumed by the General Government; provided always that the powers so conferred by the respective Legislatures shall be exercised within five years from this date or the same shall then lapse. 63. Newfoundland and Prince Edward Island, not having incurred Debts equal to those of the other Provinces, shall be entitled to receive by half-yearly payments in advance from the General Government the Interest at five per cent, on the difference between the actual amount of their respective Debts at the time of the Union, and the average amount of indebtedness per head of the Population of Canada, Nova Scotia and New Brunswick. 64. In consideration of the transfer to the General Parliament of the powers of Taxation, an annual grant in aid of each Province shall be made, equal to 80 cents per head of the Population as established by the Census of 1861, the population of Newfoundland being estimated at 130,000. Such aid shall be in full settlement of all future demands upon the General Government for local purposes, and shall be paid half-yearly in advance to each Province. 65. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the period of ten years from the time when the Union takes effect, an additional allowance of $63,000 per annum shall be made to that Province. But that so long as the liability of that Province remains under $7,000,000, a deduction equal to the interest on such deficiency shall be made from the $63,000. 66. In consideration of the surrender to the General Government by Newfoundland of all its rights in Mines and Minerals, and of all the ungranted and unoccupied Lands of the Crown, it is agreed that the sum of $150,000 shall each year be paid to that Province by semi-annual payments; provided that that Colony shall retain the right of opening, constructing and controlling Roads and Bridges through any of the said Lands,

THE QUEBEC CONFERENCE, 1864 - 165

subject to any Laws which the General Parliament may pass in respect of the same. 67. All engagements that may, before the Union, be entered into with the Imperial Government for the Defence of the Country shall be assumed by the General Government. 68. The General Government shall secure, without delay, the completion of the Intercolonial Railway from Riviere-du-Loup through New Brunswick to Truro, in Nova Scotia. 69. The communications with the North-Western Territory, and the improvements required for the development of the Trade of the Great West with the Seaboard, are regarded by this Conference as subjects of the highest importance to the Federated Provinces, and shall be prosecuted at the earliest possible period that the state of the Finances will permit. 70. The Sanction of the Imperial and Local Parliaments shall be sought for the Union of the Provinces, on the principles adopted by the Conference. 71. That Her Majesty the Queen be solicited to determine the rank and name of the Federated Provinces. 72. The proceedings of the Conference shall be authenticated by the signatures of the Delegates, and submitted by each Delegation to its own Government, and the Chairman is authorized to submit a copy to the Governor-General for transmission to the Secretary of State for the Colonies.

166 — DOCUMENTS ON CONFEDERATION

Section F:

The Reaction to the Quebec Resolutions, October, 18 64-September, 1865 35 Edward Car dwell to Lieut.-Cover nor Gordon, 14 October, 1864.* (P.R.O. 30/48/6/39.)

The bold, ambitious, leaders of public opinion in Canada are more likely to wish for a complete fusion, which would extend their powers, — than are the ministers and parliament-men of New Brunswick whose occupation would in that case be ended. Meanwhile we all agree in favouring a complete fusion, not a federation.

36 Lieut.-Governor Gordon to Edward Cardwell, 7 November, 1864. (P.R.O. 30/48/6/39.)

I was delighted to see that you favour "fusion not federation" but federation will nevertheless I fear gain the day. I have just received the detailed scheme of the delegates but I do not send it to you as you will no doubt receive it from Quebec.

37 Gov.-General Monck to Edward Cardwell, 7 November, 1864. (P.R.0.30/6/167.)

The plan has been adopted by the Conferencet you will observe is the Union of all the Provinces on the Monarchical principle, under one Governor, to be appointed by the Crown, with Ministers responsible, as in England, to a Parliament consisting of two Houses, one to be nominated by the Crown, and the other elected by the people. To this Central Government and Legislature will be committed all the general business of the United Provinces, and its authority on all such subjects will be supreme, subject of course to the rights of the Crown and of the Imperial Parliament.

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 - 1 6 7

For the purposes of local administration it is proposed to have in each Province an Executive officer, to be appointed by the Governor, and removable by him for cause to be assigned, assisted by a Legislative Body, the constitution of which it is proposed to leave to the decision of the present Local Legislatures, subject to the approbation of the Imperial Government and Parliament. To these local bodies are to be entrusted the execution of certain specified duties of a local character, and they are to have no rights or authority beyond what is expressly delegated to them by the Act of Union. To the General Government it is proposed to reserve the right of disallowing Acts passed by the Local Legislatures. I think this will be found a fair general outline of the constitutional portion of the proposed Union, and I trust it will be found of such a nature as to merit the general approbation of Her Majesty's Government. 38 Edward Cardwell to Lieut.-Governor Gordon, 12 November, 1864. (P.R.O. 30/48/6/39.)

But Monck's Letters assure me that I need not expect a Federation to be proposed to me. His official report is about to be forwarded: t and I am not fully informed what it will contain. But Monck entirely agrees with you as to the importance of Union, distinguished from Federation, and is very sanguine as to the result of the Conference. Of course it signifies very little what name is employed. What we wish is a central and strong Government, as distinguished from a number of small states united by a feeble bond. 39 Lieut.-Governor Gordon to Edward Cardwell, undated. (P.R.O. 30/48/6/39.)

You may take my word for this: - that it is a federation, not only in name but in fact, whatever Monck may be led to say to the contrary. *See Docs. 26 and 29. f See Doc. 34. $See Docs. 37 and 40.

168 - DOCUMENTS ON CONFEDERATION

No doubt you are well supplied with Canadian newspapers, and will see that, beyond a little decorous bunkum, the Union side of the question is almost lost sight of: - it is as a measure of discussion, — as a means of severing the upper and the lower provinces, — that it is recommended in Canada; it is as opening a new field of public plunder that politicians urge it here. As yet it has made no way in this province. The educated and reflecting see that it will render a closer union at a subsequent day impossible; whilst people at large object, from the general dread which prevails as to the character of the residuary local government which will be created by it. Nevertheless I am inclined to think it will be carried, for those who desire it are more in earnest than those who oppose it, and have means of influence at their command which here seldom fail of effect. The process of buying up the newspapers is now going on. Some have bought very cheap! 40 Edward Cardwell to Gov.-General Monck, 3 December, 1864. (P.R.O. 30/6/167.)

Her Majesty's Government have received with the most cordial satisfaction your Lordship's Despatch of the 7th ultimo,* transmitting for their consideration the Resolutions t adopted by the Representatives of the several Provinces of British North America, who were assembled at Quebec. With the sanction of the Crown — and upon the invitation of the Governor General — men of every Province, chosen by the respective Lieutenant-Governors without distinction of party, assembled to consider questions of the utmost interest to every subject of the Queen, of whatever race or faith, resident in those Provinces; and have arrived at a conclusion destined to exercise a most important influence upon the future welfare of the whole community. Animated by the warmest sentiments of loyalty and devotion to their Sovereign, - earnestly desirous to secure for their posterity throughout all future time the advantages which they enjoy as subjects of the British Crown, - steadfastly attached to the institutions under which they live, - they have conducted their deliberations with patient sagacity, and have arrived at unanimous conclusions on questions involving many difficulties, and calculated under less favourable auspices to have given rise to many differences of opinion.

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 - 169

Such an event is in the highest degree honourable to those who have taken part in these deliberations. It must inspire confidence in the men by whose judgment and temper this result has been attained: - and will ever remain on record as an evidence of the salutary influence exercised by the institutions under which these qualities have been so signally developed. Her Majesty's Government have given to your Despatch and to the Resolutions of the Conference their most deliberate consideration. They have regarded them as a whole, and as having been designed by those who have framed them to establish as complete and perfect an union of the whole into one Government, as the circumstances of the case and a due consideration of existing interests would admit. They accept them, therefore, as being, in the deliberate judgment of those best qualified to decide upon the subject, the best framework of a measure to be passed by the Imperial Parliament for attaining that most desirable result. The point of principal importance to the practical wellworking of the scheme, is the accurate determination of the limits between the authority of the Central and that of the Local Legislatures in their relation to each other. It has not been possible to exclude from the Resolutions some provisions which appear to be less consistent than might, perhaps, have been desired with the simplicity and unity of the system. But upon the whole it appears to Her Majesty's Government that precautions have been taken, which are obviously intended to secure to the Central Government the means of effective action throughout the several Provinces; and to guard against those evils which must inevitably arise, if any doubt were permitted to exist as to the respective limits of Central and Local authority. They are glad to observe that, although large powers of legislation are intended to be vested in local bodies, yet the principle of Central Control has been steadily kept in view. The importance of this principle cannot be overrated. Its maintenance is essential to the practical efficiency of the system, - and to its harmonious operation, both in the general administration, and in the Governments of the several Provinces. A very important part of this subject is the expense which may attend the working of the Central and Local Governments. Her Majesty's Government cannot but express the earnest hope that the arrangements which may be *See Doc. 37. tSee Doc. 34.

170 - DOCUMENTS ON CONFEDERATION

adopted in this respect may not be of such a nature as to increase — at least to any considerable degree — the whole expenditure, or to make any material addition to the taxation, and thereby retard the internal industry, or tend to impose new burdens on the commerce of the country. Her Majesty's Government are anxious to lose no time in conveying to you their general approval of the proceedings of the Conference. There are, however, two provisions of great importance which seem to require revision. The first of these is the provision contained in the 44th Resolution with respect to the exercise of the Prerogative of pardon. It appears to Her Majesty's Government that this duty belongs to the representative of the Sovereign, — and could not with propriety be devolved upon the Lieutenant-Governors, who will, under the present scheme, be appointed not directly by the Crown, but by the Central Government of the United Provinces. The second point which Her Majesty's Government desire should be reconsidered is the Constitution of the Legislative Council. They appreciate the considerations which have influenced the Conference in determining the mode in which this body, so important to the Legislature, should be composed. But it appears to them to require fuller consideration whether if the Members be appointed for life, and their number be fixed, there will be any sufficient means of restoring harmony between the Legislative Council and the Popular Assembly, if it shall ever unfortunately happen that a decided difference of opinion shall arise between them. These two points, relating to the Prerogative of the Crown and to the Constitution of the Upper Chamber, have appeared to require distinct and separate notice. Questions of minor consequence and matters of detailed arrangement may properly be reserved for a future time, when the Provisions of the Bill, intended to be submitted to the Imperial Parliament, come under consideration. Her Majesty's Government anticipate no serious difficulty in this part of the case, — since the Resolutions will generally be found sufficiently explicit to guide those who will be intrusted with the preparation of the Bill. It appears to them, therefore, that you should now take immediate measures in concert with the Lieutenant-Governors of the several Provinces, for submitting to their respective Legislatures this project of the Conference; — and if, as I hope, you are able to report that these Legislatures sanction and adopt the scheme, Her Majesty's Government will render you all the assistance in their power for

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 — 171

carrying it into effect. It will probably be found to be the most convenient course, that in concert with the Lieutenant-Governors, you should select a deputation of the persons best qualified, to proceed to this country; - that they may be present during the preparation of the Bill, and give to Her Majesty's Government the benefit of their counsel upon any questions which may arise during the passage of the measure through the two Houses of Parliament. 41 Lieut.-Governor Gordon to Edward Cardwell, 5 December, 1864. (P.R.O. 30/48/6/39.)

You know Monck far better than I do, and even if you did not it is not my province to describe him to you. How, however, he could have written that you need not expect a Federation to be proposed to you passeth all mans understanding, — at least it passeth mine. You will see that the small amount of its interference with local independence is urged as its recommendation both in Lower Canada, and here! The only Constitution changes proposed here, if the Federation be adopted, are the diminution of the Executive Council to seven members, instead of nine, and the diminution of the Legislative Council to fifteen. But within their own sphere this government is to be wholly free from control, for the Veto of the Governor General will of course be sparingly used if used at all. I went over the Acts passed at the last session here, with Tilley, and we found that, were the new system at work, only five of them would have been held to deal with matters committed to the central government; — the remaining fifty-four would still have been under the cognizance of the local legislature. In the New Zealand constitution 1;he local assemblies are subject to be overruled by that at Auckland and herein is the main, as it appears to me fatal, difference between that scheme and the one now recommended for adoption.

172 - DOCUMENTS ON CONFEDERATION

42 Edward Cardwell to Lieut.-Governor Gordon, 10 December, 1864. (P.R.O. 30/48/6/39.) I send you today the answer of the Cabinet* to Monck's Resolutions. You will see how warmly the subject is regarded here. It is the earnest desire of the Government that the plan may succeed: and I think public opinion is undivided about i t . . . the practical question for us is not one of detailed improvement: but whether, taken as a whole, the scheme is to be supported or not: and it is on this question that the answer of the Cabinet is so warm and decided.

43 Lieut.-Governor Gordon to Edward Cardwell, 2 January, 1865. (P.R.O. 30/48/6/39.1 . . . I should do wrong were I to refrain from expressing to you my fear that Her Majesty's Government will find that no effective amount of central control would in fact be established by the proposed measure of Colonial Federation, or is indeed contemplated by its authors, more than one of whom have distinctly repudiated any such, assumption. Nor ought I to conceal from you my deliberate conviction that the new constitution, if adopted in its present shape will inflict grave, if not irreparable, injury on the social and political well being of the different Provinces of British North America. 44 Speech by the Prime Minister of New Brunswick, S. L. Tilley (enclosed in Lieut.-Covernor Gordon to Cardwell, 2 January,

1865).

(P.R.O. 30/48/6/39.)

We have been told that the Conference proposes to bestow on the Federal Legislature and Executive the main powers of Government, -to constitute them in fact the real Government of the Federated Provinces. - Gentlemen this is not so, - This may be the desire - it may be the dream - of some members of the Conference but it is not this spirit that its resolutions breathes. Gentlemen I for one utterly repudiate such an idea. — I for one would earnestly oppose such a platform. But let us look at the facts. What do we retain under the proposed constitution? -

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 .- 173

what do we gain? — and what do we give up? We retain as now a Lieutenant Governor, the representative of the Crown, but who will be, - as now he is not, - appointed from ourselves. We retain our responsible Executive Council, administering within the province all the functions of Government - we retain our Legislative Council and our House of Assembly, to which, as now, and not to the Parliament at Ottawa, the Executive Government of the Province will be responsible. We retain the absolute control of all ungranted lands - we retain the exclusive property of mines and minerals — we construct and manage at our pleasure all our public works — our railroads, docks, hospitals, gaols, roads, bridges, and such like; - we retain our laws intact, — and every officer in the province (except postmen) — every constable, every magistrate, every sheriff, will be appointed by the Executive Council as is now the case. Nay even the Legislative Councillors of the Federated Parliament are to be named on the recommendation of the Local Executive and it was understood that the Judges were to be appointed in a similar manner. This is not surrendering, gentlemen, to a central body the right of self government which we enjoy and which we are so proud to possess. 45 Edward Cardwell to Lieut.-Governor Gordon, 1 January, 1865. (P.R.O. 30/48/6/39.)

The Act is to be the act of the Imperial Parliament: and whatever may be necessary to give unity and efficiency to the scheme contained in the Resolutions it may be possible to supply. I cannot agree with you in thinking that the reflecting people who wish for a closer Union will wish this occasion to be permitted to pass by unimproved. When is the Imperial Parliament likely to have a better opportunity of enacting that closer union than now? . . . If all goes as smoothly towards the success of the scheme as we in this country desire, it will be very important that all the defects should be present to our minds, and the more so, as you say, what is natural and reasonable to suppose, that the Delegates do not expect us to swallow it whole, and that the amendments which we may suggest will be favourably accepted by the Colonists. *See Doc. 40.

174 - DOCUMENTS ON CONFEDERATION

46 Lieut.-Governor Gordon to Edward Cardwell, 30 January, 1865. (P.R.O. 30/48/6/39.)

You say you "cannot agree with me in thinking that reflecting people who wish for a closer union will wish this occasion to be permitted to pass by." Whether they are right or wrong is another matter, but the question is one of fact, and I have no hesitation in saying that nine tenths, at least, of those whose opinion is worth having are opposed to the scheme. They think that though a few general subjects are relegated to the centre, there is no central control, and that in all that constitutes ordinary government, in all that affects their every day life, they will be at the mercy of an executive which the withdrawal of its few best men will render even more ignorant, more corrupt, and more inefficient, than that with which they are now blessed. But as these people — ie the leading merchants of St. John, — the leading members of the learned professions, and the gentlemen of property settled in the country do not govern the elections, this feeling will not I think imperil the success of the scheme.

47 Lieut.-Governor Gordon to Edward Cardwell, 8 February, 1865. (P.R.O. 30/48/6/39.)

Meanwhile, Mr. Tilley has been telling the people at St. Johns that under the new constitution each province will retain "all that in his most enthusiastic eloquence O'Connell ever asked or desired for Ireland"*: — which does not make the task of those who wish to prove the union a real one, lighter. I try however to preach in that sense.

48 Edward Cardwell to Lieut.-Covernor Gordon, 4 March, 1865, (P.R.O. 30/48/6/39.) It was not necessary to print for the Cabinet any recommendations of the Scheme, — for no one here hesitated about approving it. Everybody here will be much disappointed, if it fails.

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 - 175

49 Lieut.-Governor Gordon to Gov.-General Monck, April, 1865, (Pope, Appendix HI, 297-300.) Upon the 12th November last your Lordship did me the honour to address to me a Despatch enclosing a Copy of the Resolutions agreed to by the Delegates appointed to consider the question of a Federation of the British North American Provinces. To the copy so transmitted the following certificate was attached: — "I certify that the above is a true copy of the original report of the Resolutions adopted in Conference." E. P. TACHE, Chairman." In this copy the 24th Resolution stands as follows: — "24. - The Local Legislature of each Province may from time to time alter the Electoral Districts for the purpose of Representation in the House of Commons, and distribute the Representatives to which the Province is entitled in any manner such Legislature may see fit." In the copy of the Resolution presented to me on their return by the Delegates from this Province the same words are found. In the papers laid before both Houses of Parliament by command of Her Majesty on the subject of the proposed Federal Union, a Despatch addressed by your Lordship to the Secretary of State for the Colonies on the 7th November, will be found (at page 4) transmitting to Mr. Car dwell a copy of the Resolutions, in which also the 24th Resolution is couched in the same words^ and the accuracy of which copy is also certified by Sir E. P. Tache. My attention has, however, been called to the fact that in the papers laid before the Canadian Parliament and transmitted to me by Your Lordship on the 30th January last, although the same Despatch from Your Lordship to the Secretary of State is printed at Page 3, the enclosure reads somewhat differently - the 24th Resolution standing as follows: "24. - The Local Legislature of each Province may from time to time alter the Electoral Districts for the purpose of Representation in such Local Legislature and distribute the Representatives to which the Province is entitled in such Local Legislature in any manner such Legislature may see fit." This alteration is not altogether unimportant. In the one copy, *See Doc. 44.

176. - DOCUMENTS ON CONFEDERATION

the Resolution refers to the House of Commons of the Federal Legislature, in the other, to the Local Legislature alone. I am requested by my advisers to ask Your Lordship to have the goodness to explain the cause of this discrepancy and to inform me, after directing a reference to the original document, which is, I presume, preserved at Quebec, which version was in fact that signed by the Delegates. From the circumstance that in the papers laid before the English Parliament the same words occur as in the copy forwarded to me by Your Lordship on the 12th of November, it would appear that the Copy certified by Sir E. Tache, is correct and that the inaccuracy has arisen in copying the documents to be laid before the Canadian Parliament. I am further requested to state that the Delegates from this Province have never authorized any alteration in the Resolution as signed by them, and that indeed their assent to any such alteration has never yet been sought.

Provincial Secretary's Office, 4th May, 1865. The undersigned has had the honour to receive a letter from Your Excellency's Secretary covering a copy of a Despatch from the Lieutenant Governor of New Brunswick, asking for certain information in reference to the proceedings of the Quebec Conference, and he now begs to submit for Your Excellency's information the following report: — The 24th Resolution of the Quebec Conference as it stands in the original report by certain Members of the Conference (and which report is now in the possession of the undersigned) is in the words and figures following: — The Local Legislature of each Province may from time to time alter the Electoral Districts for the purpose of Representation in the House of Commons, and distribute the Representatives to which the Province is entitled in any manner such Legislature may think fit. In the papers submitted to the Canadian Parliament the 24th Resolution was made to read as follows: — The Local Legislature of each Province may, from time to time, alter the Electoral Districts for the purposes of Representation in such Local Legislature, and distribute the Repre-

REACTION TO QUEBEC RESOLUTIONS, 1864-1865 -111

sentatives to which the Province is entitled in such Local Legislature, in any manner such Legislature may see fit. The above change was made because it was found that the Resolution as expressed in the original report, did not convey the true meaning of the Conference. As Your Excellency is aware, the proceedings of the Conference towards the close of its deliberations were very much hurried, and it was subsequently discovered that several errors had occurred in revising and re-arranging its numerous resolutions which were adopted in the first instance without that exactness of expression and logical sequence so necessary in an instrument intended to present a complete scheme. Some of these errors were discovered and corrected at Montreal, by the unanimous consent of the Delegates present at a meeting held in that City for the purpose. There was no doubt in the minds of the Canadian Delegates (when their attention was called to the point) that the gentlemen who undertook the duty of reducing into form the Minutes and Resolutions of the Conference, had misapprehended the meaning of the Conference in reference to the subject embraced in the 24th Resolution. It could never have been intended to destroy the independence of every Member of the General Parliament by giving power to the Local Legislature of his Province to "alter" and thus practically to abolish his Constituency whenever by speech or vote he might happen to displease a majority of that Legislature. The power to divide each Province into the proper number of Electoral Districts in the first instance (as provided by the 23rd Resolution) was given to the Local Legislatures ex necessitate, but the power to alter or re-adjust the Constituencies after Parliament is constituted belongs naturally, logically, and according to every constitutional precedent, to that Parliament, and not to an inferior Body. The undersigned is informed that on discovering the error in the 24th Resolution and also important errors in the 29th and 43rd Resolutions, in reference to Export duties on Timber and Coals, communication was had with the leading Members of the Governments of the several Maritime Provinces. The undersigned is also informed that answers were received from those gentlemen expressing their concurrence in the suggestions of the Canadian delegates as to the fact of error in both cases and as to the mode by which it was proposed to correct them. The undersigned regrets that he is unable to give to your

178 - DOCUMENTS ON CONFEDERATION

Excellency fuller and more precise information in consequence of the absence from the country of those Members of the Government who conducted the correspondence referred to. Respectfully submitted: W. MCDOUGALL, Secretary His Excellency The Governor-General.

50 Lieut.-Covernor Gordon to Edward Cardwell, 5 June, 1865.* (P.R.O. 30/48/6/39.) . . . the whole Roman Catholic body, are decidedly hostile, not necessarily to union, but to the provisions of the Quebec scheme.

51 Edward Cardwell to Lieut.-Governor Gordon, 15 September, 1865. (P.R.O. 30/48/6/39.) . . . I am desirous of repeating to you, before you write to New Brunswick, the caution I gave you yesterday, that the Queen's Government is pledged to promote Confederation, as laid before them in the Quebec Scheme: that any amendment of that scheme, however desirable in itself, must be weighed with a view to its effect upon the success of the whole measure: and that while it may be open to New Brunswick as well as to Canada to suggest any such Amendments, it is not for me, or even for you as The Queen's Representative, to say or suggest anything which might be used against the scheme. You will, I am sure, see how hazardous it will be for you to touch upon the question of amendments at present in writing to your Ministers, who are as yet declared opponents of Union in every form. I advise you therefore to avoid doing so.

PREPARATION FOR LONDON CONFERENCE, 1866

-

179

Section G:

Preparation for the London Conference, July-December, 1866 52 Edward Cardwell to Lord Carnarvon, 6 July, 1866.t (P.R.O. 30/6/136.),

. . . it may be convenient to you to know that Mr. Riley was long ago instructed to prepare the outline of a Bill, founded on the Quebec Resolutions. 53 Edward Cardwell to Lord Carnarvon, 19 July, 1866. (P.R.O. 30/6/136; also in P.R.O. 30/48/6/40.)

Lord Russell is most anxious that the Confederation Scheme should be ratified this year by Parliament. I need scarcely say that I am equally so: and I did not intend to convey the impression that any of our late colleagues differed from us in any degree. I think they would take the subject into consideration with the same desire to arrive at a satisfactory result as if they were still themselves responsible. But of course it would be a strong demand to make on Parliament that so mighty a matter should be left in a great degree to the decision of the Executive Government, and we wished to enquire how far it would be proposed that this should be done. What is much more important, however, is that the Delegates should be parties to this proposal. This I am glad to see you understand the necessity of: — and all I can say is that you may command me, if you think I could assist you in bringing the subject again under the consideration of Lord Russell and the other members of the late government, in such a detailed form as to obtain a positive assurance of support. *See Docs. 71 and 80 for the Roman Catholic reaction in Nova Scotia. tRussell had resigned on the 26th of June, being succeeded by Derby, who appointed Carnarvon Secretary of State for the Colonies. The latter took over from Cardwell on the 6th of July.

180 - DOCUMENTS ON CONFEDERATION

54 Edward Cardwell to Lord Carnarvon, 20 July, 1866. (P.R.O. 30/6/136; also in P.R.O. 30/48/6/40.) In my view there are two questions viz*. 1. Whether we could propose to Parliament a Bill, which, even with the support of the members of the late Government, as well as the present, Parliament would adopt? 2. Whether (and this is of cardinal importance) the Bill would be acceptable to the Provinces? Now the Canadian Parliament has, I think you will find, proceeded upon the understanding that the Quebec Resolutions constitute the scheme: while the two Lower Provinces have proceeded on the understanding that there will be a closer Union than the Quebec Resolutions would create. In my despatch of 3 December 1864* I left an opening for some arrangement to be made, when the delegates should arrive in London, which would obviate any imperfections in the Quebec Resolutions, and the result of that arrangement was to be included in the Bill. I wish to call your attention to these points, lest you should be involved hereafter in disagreeable questions, - if the ultimate scheme should fail to satisfy all parties, and charges of broken faith should in consequence be alleged against the Imperial Government.

55 Lord Carnarvon to Edward Cardwell, 20 July, 1866. (P.R.O. 30/6/136; also in P.R.O. 30/48/6/40.). I enclose you a draft of the heads of a billt for securing the Confederation of the N.A. provinces which I have laid before the Cabinet and which we are prepared to introduce provided that the N.A. Delegates reach the country in sufficient time to allow of the passing of the measure and that they cordially accept the proposed mode of proceeding. Lastly, as I have before said, the passing and consequently the introduction of the bill must be dependent upon whether or no I may count upon the full support of yourself and your late colleagues. Under ordinary circumstances it would be I know unusual to look for such an assistance, but you are as fully aware as I am of the great importance in an imperial point of view of securing the Confederation of these Provinces and of the great risk of failure if the question is postponed to next September - and after the communications that have passed between us I hope I am

PREPARATION FOR LONDON CONFERENCE, 1866 -

181

not wrong in taking this further step towards the object which I believe we both have in view. - If with the acquiescence of the Delegates I could see my way to any reduction of the general powers granted in section . . . [section VI, page 4t] -to the Local Legislatures I should be glad to do so with the view of adding strength to the central Government but this must depend upon them. The bill as it stands is founded on those parts of the Quebec Resolutions on which so far as I know, no material difference of opinion has existed. If there is any particular point to which you object and which is not vital to the scheme I shall, I need hardly say, be perfectly ready to reconsider with a wish if possible of bringing our views into harmony and under the belief that the settlement of the great question is and is regarded by you to be a matter which must be dealt with by any Government and is beyond the province of fair party contention. The draft is of course for the confidential consideration of your late colleagues as [well as for] yourself. 56 Heads of a Bill for Union of the British North American Colonies; and for the Government of the United Province, unsigned, undated. (P.R.O. 30/6/166.)

Whereas in the month of October 1864 persons nominated by the respective Lieutenant-Governors of Nova Scotia, New Brunswick, and Prince Edward Island, and by the Governor of Newfoundland, met in Conference at Quebec, with the Members of the Executive Council of Canada, to consider the question of a Union of those Colonies, and to prepare a scheme to be submitted for the approval of Her Majesty the Queen: And whereas divers Resolutions were adopted at the said Conference, and the same have been laid before both Houses of Parliament by command of Her Majesty: And whereas the Houses of the respective Legislatures of the said Colonies have presented Addresses to Her Majesty in favour of the proposed Union: *See Doc. 40. tSee Doc. 56. $The numbers within the square brackets were inserted in P.R.O. 30/48/6/40.

182 - DOCUMENTS ON CONFEDERATION

And whereas it is expedient that Her Majesty be empowered to declare the Union of the said Colonies,.or some of them, and that provision be.made for the establishment, in the event of Union, of a Legislature and Executive Government, having powers over the United Province: And whereas the arrangements consequent on the Union will necessarily be numerous and important, and it is expedient that opportunity be afforded for the mature consideration thereof, in communication with persons authorized to represent the opinions of the Legislatures and Executive Governments of the said Colonies, and for the framing of provisions for effectuating the Union, to be submitted to Her Majesty in Council for approval and confirmation: Be it therefore enacted, etc., as follows: No. 5 [under "II. - Legislation."]: In the Legislative Council Upper and Lower Canada shall be equally represented, and Nova Scotia and New Brunswick shall each have such number of Representatives as is provided by Order in Council under this Act not exceeding together the number of the Representatives of Upper and Lower Canada severally. No. 6 [also under "II -Legislation."]: In the House of Commons the several Provinces shall be represented in proportion to their respective population (as determined from time to time by the official census). No. 7 [also under "II. - Legislation"]: The distribution of Representatives of the several Provinces in the House of Commons shall be readjusted according to population, at intervals of not less than nine years, according to the following rules: (1) The number of Representatives assigned to Lower Canada shall always remain fixed at the number that is assigned to Lower Canada in the first instance by Order in Council under this Act. (2) To each Province other than Lower Canada there shall be on each readjustment be assigned such a number of Representatives as will bear (as nearly as conveniently may be) the same proportion to the then population of the Province as the fixed number of the Representatives of Lower Canada bears to the population of Lower Canada. No. 8 [also under "II. - Legislation"]. Subject to the provisions of this Act, it shall be lawful for Her Majesty, her heirs and successors, with the advice and consent of the two Houses

PREPARATION FOR LONDON CONFERENCE, 1866

-

183

of Parliament of the United Province, to make laws for the peace, order, and good government of the United Province and of the several Provinces. No. 9 [also under "II. - Legislation."]: All Bills for appropriating any part of the Public Revenue, or for imposing any new tax or impost shall originate in the House of Commons. No." 13 [under "III. - Judicature."]: The Judges of the Superior Courts in each of the several Provinces shall be appointed by the Governor-General in Council. The Parliament of the United Province shall fix and provide their salaries. They shall hold their offices during good behaviour, but shall be removable on the Address of both Houses of Parliament. No. 19 [under "VI. — Provincial Government arid Legislation"] : In and for each of the several Provinces, the LieutenantGovernor, with the advice and consent of the Provincial Council, may make Ordinances in relation to matters of provincial interest, coming within classes of subjects to be specified in this behalf by Order in Council. Except as specified in Order in Council under this Act, Provincial Ordinances shall have the force of laws as long and as far only as they are not repugnant to any Act of Parliament of the United Province. No. 20 [under "VII. — Arrangements consequent on Union"]: For better effectuating the Union, one of Her Majesty's Principal Secretaries of State . . . shall frame provisions (not being repugnant to this Act) relative to the following matters: — . . . (v.) With respect to Provincial Government and Legislation: — The mode of appointment of the Lieutenant-Governor, and the tenure of his office; the constitution of the Provincial Legislature; the alteration thereof from time to time; the classes of subjects respecting which the authority of the Provincial Legislature shall be exclusive of or concurrent with that of the Parliament of the United Province; and the duties of Provincial Courts, Judges, and Officers, in relation to the Executive Government of the United Province. (vi.) With respect to the proceedings of Provincial Legislatures: —

184 - DOCUMENTS ON CONFEDERATION

The restrictions on powers of appropriation and taxation and on money votes; and the disallowance of Provincial Ordinances by the Governor-General in Council. 57 Gov.-General Monck to Lord Carnarvon, 21 July, 1866. (P.R.0.30/6/151.)

With respect to the measure for the Union of the Provinces I confess when I heard of the change of government in England I immediately abandoned all idea of getting the Union Act through Parliament this year. The reasons which in my opinion rendered it desirable to pass the Bill at once remain unchanged but the course of events has created difficulties in the way which to my thinking more than counterbalance these reasons. The condition of the affair at present is this. The Canadian Legislature last year adopted a definite plan of Union known as the Quebec Scheme. This year The Nova Scotia and New Brunswick Legislatures both adopted resolutions in favour of Union but without indicating any specific plan for its accomplishment. Empowering however the Lieutenant Governors to appoint delegates to proceed to England armed with full authority to arrange with H.M. Government and the representatives of the other Provinces the terms of union. Now it is plain that in order to harmonize and reduce to order the different views which may be entertained by all these different parties a good deal of discussion and debate must take place and on your Lordship will devolve the duty, after hearing all of them, of deciding what shall be the form of Union and the details of the plan. I trust you will not misunderstand me when I say that I think it would not be fair either to yourself or to the important interests involved in the discussion if you should be asked to undertake such a duty immediately on your accession to office when many other things are necessarily pressing on your attention, and when the time which can be allotted to the subject is so limited. There is also to be considered the very important subject of the Colonies of Prince Edwards [sic] Island and Newfoundland which have not as yet adhered to the plan of Union. Mr. Cardwell told me, so long ago as the 23rd June that he

PREPARATION FOR LONDON CONFERENCE, 1866

-

185

considered legislation this year impossible, and on this information, I had abandoned the idea of going home immediately myself or sending the Canadian portion of the delegation. My advice would be that your Lordship should instruct the delegates from all the Provinces to repair to London about the month of November so as to afford ample time for the preparation of the Bill for the meeting of Parliament in the spring. I may add that I think there are strong reasons for not allowing any long period to elapse between the time when the measure shall have been finally agreed upon and its introduction to the Imperial Parliament. Whatever is decided on in England will be accepted here but I think it is better that the plan should not be submitted for Provincial criticism in the first instance.

58 Observations and Notes on the Quebec Resolutions, unsigned, 24 July, 1866* (P.R.O. 30/6/166.)

The resolutions, known as the Quebec Resolutions,t were adopted at a Conference held at Quebec in October, 1864, in which (on the invitation of the Governor-General of Canada,t and with the approval of the Secretary of State§). Representatives of Nova Scotia, New Brunswick, Prince Edward Island, and Newfoundland, took part, along with the Ministers of Canada. Her Majesty's Government approved generally of the Resolutions. II The following paper contains the Resolutions, with notes showing the principal objections and comments made on them. The present state of the matter is this: — Canada. - In February and March 1865, both Houses addressed the Queen for an Imperial Act based on the Quebec Resolutions. Nova Scotia. - In April 1866, both Houses passed a Resolution for the appointment, by the Lieutenant-Governor, of *This document is a consolidation of two slightly differing sets of notes in P.R.O. 30/6/166. tSee Doc. 34. JSee Doc. 24. §See Doc. 30. || See Doc. 40.

186 - DOCUMENTS ON CONFEDERATION

Delegates to arrange with the Imperial Government a scheme of Union which would effectually insure just provision for the rights and interests of Nova Scotia. New Brunswick. - In April 1866, the Legislative Council addressed the Queen for an Imperial Act based on the Quebec Resolutions. In June 1866 new elections for the House of Assembly were held, and the Unionists elected were 33 to 8. The Legislature was summoned to meet for dispatch of business on 21 June, 1866. Prince Edward Island. - Twice (in 1865 and 1866) both Houses rejected the Quebec Resolutions. Newfoundland. - In March 1866, the Legislative Council addressed the Governor to the effect that while the policy of Union was sound, important modifications of the Quebec Resolutions were indispensable, and assurances should be given which they did not contain. In March 1866, in the House of Assembly, a motion was made against Union, and particularly against the Quebec Resolutions; on which an amendment was moved and carried that the House did not deem it expedient to enter on a discussion of the subject with a view to any decision. It is understood that the question is reserved for consideration in the session of 1867. 24 July, 1866. ~Re the title of the Report, which . proposed the formation of a "Confederation"^ Lord Monck observes that the term "Confederation" is misapplied, and gives a false notion of the sort of union desired and possible. Sir R. Macdonnell [sic] thinks it an objection that the scheme breaks up the successful union of the Canadas. Mr. Cardwell expresses the hope that the working of the Central and Local Governments may not lead to increased expense and additional taxation. ~Re sections 3, 4, 11, and 14, which dealt with appointments to the Legislative Council.^ Lord Monck objects to the Legislative Council being composed of members appointed for life, with their number fixed. He suggests that the members should be appointed Dy the Crown,

PREPARATION FOR LONDON CONFERENCE, 1866 -

187

but only for a limited time, say eight years, and that one-eighth should go out of office each year, and be capable of re-appointment. Mr. Cardwell disapproves of the arrangement embodied in the Resolutions. Lord Monck intimates, in reply, that the Resolutions are subject to modification on discussion in the Houses of the respective Legislatures of the Provinces. Sir R. Macdonnell and Mr. Gordon object to the mode of selection of Legislative Councillors in the first instance. They seem to apprehend dishonesty and unfairness (in a political sense) in the appointments. ~Re section 20, which assigned 65 seats in the House of Commons to Lower Canada.^ Lord Monck observes that this plan is very ingenious, and in his opinion unobjectionable. The relative proportion of members will be always maintained, while the growth of population in Lower Canada will prevent an inconvenient increase in the general numbers of the House. ~Re section 24, which dealt with the power of the provincial legislatures to alter electoral districts.^ In the Papers submitted to the Canadian Parliament this Resolution was altered* so as to apply exclusively to representation in the Assemblies of the several Provinces, on the ground that, as expressed in the original Report, it did not convey the true meaning of the Conference. It could never have been intended (it is said) to destroy the independence of every member of the General Parliament by giving power to the Local Legislature to alter, and thus practically to abolish, his constituency whenever by speech or vote he might happen to displease a majority of the Legislature. Mr. Gordon considers the change would be a very decided improvement, as tending to raise the power of the Central Legislature, and diminish that of the Local Assemblies.

~Re section 28, which dealt with the number of Parliamentary sessions.^ Mr. Gordon thinks it unnecessary to provide for annual sessions, as "supplies must be voted annually. *See Doc. 49.

188

— DOCUMENTS ON CONFEDERATION

>^Re section 29(33), which dealt with the making of uniform laws concerning property and civil rights. ~ Mr. Gordon objects to the making Acts of the Central Parliament, in reference to codification, of no force in any Province till approved by the Legislature thereof. -^Re section 38, which dealt with the office of Lieutenant-Governor.^ Lord Monck thinks there should not be a separate LieutenantGovernor for Upper Canada, but the Governor-General should also be the local Administrator, with his seat at Ottawa. Sir R. Macdonnell and Mr. Gordon object to the continuance of Lieutenant-Governors. The former regards the proposal as a bribe, or as affording means to bribe. ~Re section 41, which enabled the provincial legislatures to decide the constitution of the local governments and legislatures.^ Sir R. Macdonnell does not think it well that the existing Legislature of each Province should determine its future constitution: it will not abolish itself. ~Re section 42, which assigned a power of amendment to the provincial legislatures.^ Mr. Gordon objects to giving the Provincial Legislatures power to alter their constitution from time to time. ~Re section 43, which dealt with the powers of the provincial legislatures.^ Sir R. Macdonnell and Mr. Gordon think the machinery of the Local Legislatures is too cumbrous, and that they are left too independent. ~Re section 43 (6), which dealt with education.~ Mr. Gordon thinks Education should not be a matter for Provincial legislation; at any rate the Local Legislatures should not be allowed to deal with the funds of the Universities. ~Re section 43 (17), which dealt with the administration of justice.^ Lord Monck thinks the constitution of Courts of Criminal Jurisdiction should rest with the Central Government.

PREPARATION FOR LONDON CONFERENCE, 1866 - 189

~Re section 44, which dealt with the power of pardon. ~ Mr. Gordon objects to the vesting of the power of pardon in the Local Governments. Mr. Cardwell disapproves of the Resolution. Lord Monck observes, in reply, that the matter must be determined by the Queen. The Resolution was merely a suggestion to meet the local difficulty arising from imperfect communication in winter. ~Re section 56, which dealt with mineral resources.^ Mr. Gordon thinks minerals should not be under the management of the Local Governments. ~Re section 68, which dealt with the railways.^ In Nova Scotia and New Brunswick, it is sought to obtain security for the prompt completion of the Railway, and the question has been raised whether provisions for this purpose should not be inserted in the Imperial Act of Union or in a separate Imperial Act; see Mr. Gordon's No. 23 of 1865. Mr. Cardwell answered that Her Majesty's Government had approved the proceedings of the Conference, not excluding the 68th Resolution, and had engaged, if the Provincial Legislatures sanctioned the scheme, to submit to the Imperial Parliament the measures which might be necessary for carrying that scheme into effect. But what steps should be taken in pursuance of this engagement could not be stated positively till it was known what course had been taken by the Provincial Legislatures, and till Her Majesty's Government had received the communications which they hoped to receive from persons deputed by the Governor-General to give to Her Majesty's Government the benefit of their counsel on the various measures necessary Jfor carrying the Resolutions into effect.

59 Draft of a Bill to Provide for a Union of the Provinces of British North America, and for the Government of the United Province, unsigned, undated. (P.R.O. 30/6/166.) WHEREAS a Union of the Provinces of British North America, if effected on principles just to the several Provinces, would

190 - DOCUMENTS ON CONFEDERATION

be attended with great benefit to the Provinces, and be conducive to the interests of the United Kingdom: And whereas in Canada, Nova Scotia, and New Brunswick, opinions in favour of such a Union have been expressed by the Houses of the respective Legislatures of those Provinces, by Addresses to Her Majesty the Queen, or otherwise: And whereas it is expedient that Her Majesty be empowered to declare the Union of the Provinces, or some of them, accordingly, after an opportunity has been afforded for mature consideration of the terms of Union, and of the arrangements consequent thereon, in communication with several persons as may be authorized to represent the opinions of the Legislative and Executive Authorities of the several Provinces concerned, and that such provisions as are found requisite for effectuating the Union be embodied in an Order of Her Majesty in Council, to have the force of law by virtue of this Act: Be it therefore enacted, etc. No. 3: Subject to the provisions of this Act, it shall be lawful for Her Majesty, her heirs and successors, with the advice and consent of the two Houses of Parliament of the United Province, to make Laws for the peace, order, and good government of the United Province, and of the several Provinces comprised therein. No. 9: In and for each of the several Provinces comprised in the United Province, the Lieutenant-Governor, with the advice and consent of the Provincial Council, may make Ordinances relative to the affairs of the Province, but, except as specified in any Order in Council under this Act, such Provincial Ordinances shall have the force of law as long and as far only as they are not repugnant to any Act of Parliament of the United Province. No. 14: Nothing in this Act or in any Order in Council under it shall take away or abridge the power of Her Majesty, her heirs or successors, with the advice and consent of the Houses of Parliament of the United Province, to repeal or alter any of the provisions of any such Order in Council.

PREPARATION FOR LONDON CONFERENCE, 1866 - 191

60 Lord Carnarvon to Gov.-General Monck, 26 July, 1866. (P.R.O. 30/6/151.)

I do not wish to appear too much to press them [i.e. the delegates to the London Conference] myself lest they should cool in their anxiety on the subject: but nothing can obviously be decided until after conference with them. 61 Charles Tup per to Lord Carnarvon, 28 July, 1866. (P.R.O. 30/6/157.)

At a convention held at Quebec in Oct. 1864 a plan for the Union of the B.N.A. Provinces since known as the Quebec Scheme was agreed upon by the delegates representing Canada, Nova Scotia, New Brunswick and Newfoundland and P.E. Island. This project as you are well aware was cordially approved by the British Government and obtained the sanction of the Legislature of Canada where an address to the crown was passed in the session of 1865 asking Her Majesty to obtain an act of the Imperial Parliament to give it effect. In New Brunswick an appeal to the people resulted in the defeat of Mr. Tilley's Government and the return of a large majority of the Assembly in opposition to the Union of the Provinces. In Nova Scotia it was found that a majority of the Assembly could not be induced to sanction the scheme and an issue upon the question was avoided during the session of 1865. The Imperial Government have continuously exhibited the greatest anxiety that this hostility to the measure should be overcome and a majority in the Legislature be induced to sanction the Union of the Provinces, and especially in Nova Scotia and New Brunswick those only being essential to the Confederation. Under these circumstances the Government of N.S. warmly aided by Messrs. Archibald and McCully the leaders of the opposition succeeded during the past session in carrying a resolution proposed by the Governor General of Canada authorizing the appointment of delegates by the Lieut. Governor to arrange with the Imperial Government in conjunction with the delegates appointed by the other Provinces a plan of Confederation. A general election held recently in New Brunswick resulted in the passage of a similar resolution by a large majority and it was arranged with Lord Monck and the Canadian Government that the delegates from Nova Scotia

192 - DOCUMENTS ON CONFEDERATION

and New Brunswick (who have been ready since the 4th of July) should leave Halifax on the 19th July and that the Canadian delegates and the Governor General should follow on the 21st from Quebec for the purpose of obtaining an act of the Imperial Parliament consummating the Union during the present session. In Nova Scotia Mr. Howe has organized an active and formidable opposition to the Union of the Lower Provinces with Canada and although Messrs. Archibald and McCully who have been the leaders of that opposition to the present government have cooperated with us most earnestly and are sustained by the uncommitted group of that party, yet the great body of the opposition will unite with Mr. Howe to defeat confederation and obtain power. On the other hand the Government have rendered themselves and many of their supporters extremely unpopular by carrying a measure providing for the support of education by direct taxation. Many of the Bankers and most wealthy merchants who formerly sustained us under the impression that confederation will injure their position have transferred their support to Mr. Howe. The financial position of Nova Scotia is in the most flourishing condition and the opponents of confederation excite the masses of the people by the assertion that their taxes will be increased to sustain the extravagance of a Canadian Government and to defend the long line of exposed Canadian frontier while the best interests of the Maratime [sic] Provinces will be sacrificed by a Government in whose Legislature their influence will be overborne by numbers. Just at the time when the friends of confederation were endeavouring to meet these arguments Mr. Gait has proposed a Bill largely increasing the expenditure and the people of Nova Scotia are deeply annoyed at finding that the fisheries of the Maratime Provinces have been sacrificed by the adoption of the Canadian policy to issue fishing licences to foreigners. Able agitators thus effectively armed with the means of inflaming the popular mind against Canada are obtaining numerously signed petitions to the Imperial Parliament against confederation and there can be no doubt that an appeal to the people would result in the reversal of the resolution of the Legislature in favor of the Union and the defeat of the measure for many years. Indeed so strong is the feeling excited against Canada on the question by the fisheries that I have reason to fear that any delay in consummating the Union may involve the members of the Legislature by whose votes a majority was obtained to sanction the Union memorializing Her Majesty in opposition to any

PREPARATION FOR LONDON CONFERENCE, 1866 -

193

action being taken thereon until it has been submitted to the people.

62 Lord Carnarvon to Gov.-General Monck, 10,August, 1866. (P.R.O. 30/6/151.) I should then propose to all the Delegates to confer amongst themselves and to narrow their points of difference, if any, to the smallest compass, so as to leave as little as possible for my decision and arbitration.

63 Resolutions of the Canadian Legislature, 11 August, 1966. (Pope, 89-93.) RESOLUTIONS Adopted by the Canadian Legislature on the 11th August, 1866, providing for the Local Governments and Legislatures of Lower and Upper Canada respectively, when the Union of the Provinces of British North America is effected. RESOLVED: 1. That by the 38th paragraph of the resolution of this House, passed on the third day of February, 1865, for presenting an humble address to Her Majesty, praying that she may be graciously pleased to cause a measure to be submitted to the Imperial Parliament, for the purpose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, in one Government, with provisions based on the resolutions which were adopted at a Conference of Delegates from the said Colonies, held at the City of Quebec, on the 10th of October, 1864, it is provided that "for each of the Provinces there shall be an Executive Officer, styled the Lieutenant Governor, who shall be appointed by the Governor General in Council, under the Great Seal of the Federated Provinces, during pleasure; such pleasure not to be exercised before the expiration of the first five years, except for cause; such cause to be communicated in writing to the Lieutenant Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first session afterwards;" and that "the Local Government and Legislature of each Province shall

194 - DOCUMENTS ON CONFEDERATION

be constructed in such manner as the existing Legislature of each such Province shall provide:" and it is further now resolved, that ia the opinion of this House the appointment of the first Lieutenant Governor shall be provisional, and that he should hold office strictly during pleasure. 2. That under and subject to the Constitution of the Federated Provinces, the executive authority of the Lieutenant Governor of Lower Canada and Upper Canada respectively shall be administered by each of such officers according to the well understood principles of the British Constitution. 3. The Great Seal of each Province of Lower Canada and Upper Canada shall be the same or of the same design, in each of the said Provinces, as that used in the said Provinces respectively at the time of the existing Union, until altered by the Local Government. 4. That there shall be a Local Legislature for Lower Canada, composed of two Chambers, to be called the Legislative Council and the Legislative Assembly of Lower Canada. 5. That there shall be a Local Legislature for Upper Canada, which shall consist of one Chamber, to be called the Legislative Assembly of Upper Canada. 6. That the Legislative Council of Lower Canada shall be composed of twenty-four members, to be appointed by the Crown, under the Great Seal of the Local Government, who shall hold office during life; but if any Legislative Councillor shall, for two consecutive Sessions of Parliament, fail to give his attendance in the said Council his seat shall thereby become vacant. 7. That the Members of the Legislative Council of Lower Canada shall be British subjects by birth or naturalization, of the full age of thirty years, shall possess a continuous real property qualification, in Lower Canada, of four thousand dollars over and above all incumbrances, and shall continue worth that sum over and above their debts and liabilities. 8. That if any question shall arise as to the qualification of a Legislative Councillor in Lower Canada, the same shall be determined by the Council. 9. That the Speaker of the Legislative Council of Lower Canada (unless otherwise provided by the Local Parliament) shall be appointed by the Crown, from among the Members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes.

PREPARATION FOR LONDON CONFERENCE, 1866

-195

10. That each of the twenty-four Legislative Councillors of Lower Canada shall be appointed to represent one of the twenty-four Electoral Divisions thereof, mentioned in Schedule A of the first chapter of the Consolidated Statutes of Canada, and such Councillor shall reside or possess his qualification in the Division he is appointed to represent. 11. That the Legislative Assembly of Lower Canada shall be composed of the sixty-five Members to be elected to represent the sixty-five Electoral Divisions into which Lower Canada is now divided, under Chapter 2 of the Consolidated Statutes of Canada, Chapter 75 of the Consolidated Statutes for Lower Canada, and the Act 23 Victoria, Chapter 1, or of any other Act, amending the same, in force at the time when the Local Government shall be constituted, as well for representation in the Local Legislature thereof, as in the House of Commons of the Federated Provinces; Provided that it shall not be lawful to present to the Lieutenant Governor for assent any Bill of the Legislative Council and Assembly of Lower Canada, by which the limits of the electoral divisions mentioned in the schedule hereto annexed, marked A, may be altered, unless the second and third readings of such Bill in the Legislative Assembly shall have been passed with the concurrence of the majority of the members for the time being of the said Legislative Assembly, representing the electoral divisions mentioned in said Schedule marked A, and the assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor that such Bill has been so passed. 12. That the Legislative Assembly of Upper Canada shall be composed of eighty-two Members, to be elected to represent the eighty-two constituencies in Upper Canada, such constituencies being identical, whether for representation in the Local Legislative Assembly or for representation in the House of Commons of the Federated Provinces, and which constituencies shall consist of the divisions and be bounded as is provided in the schedule hereunto annexed, marked B. 13. That until other provisions are made by the Local Legislature of Lower and Upper Canada respectively, changing the same in either of the said Provinces, all the laws which at the date of the Proclamation, constituting the separate Provinces of Lower Canada and of Upper Canada, shall be in force in each of the said Provinces respectively, relating to the qualification and disqualification of any person to be elected or to sit or vote

196 — DOCUMENTS ON CONFEDERATION

as a Member of the Assembly of the Province of Canada, and relating to the qualification and disqualification of voters, and to the oaths to be taken by voters, and to Returning Officers and their powers and duties, and relating to the proceedings at elections and to the period during which such elections may be continued, and relating to the trial of controverted elections and the proceedings incident thereto, and relating to the vacating of the seats of members and to the isuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the said the Legislative Assembly of Lower Canada and in the said the Legislative Assembly of Upper Canada. 14. That the Legislative Assembly of Lower Canada and the Legislative Assembly of Upper Canada respectively, shall continue for four years from the day of the return of the writs for choosing the same and no longer, subject nevertheless to either the said the Legislative Assembly of Lower Canada, or the said the Legislative Assembly of Upper Canada, being sooner prorogued or dissolved by the Lieutenant-Governor of either of the said Provinces respectively. 15. That there shall be a session of the Legislature of each of the said Provinces once at least every year, so that a period of twelve months shall not intervene between the last sitting of the Local Legislature in one session, and the first sitting thereof in the next session. 16. That it is expedient that any Act of the Imperial Parliament which may be passed for the Union of the Colonies of British North America, should contain a provision that the division and adjustment of the debts, credits, liabilities, properties and assets of the Provinces of Upper and Lower Canada, should be referred to the arbitrament of three arbitrators, one to be chosen by the Local Government of Upper Canada, the other by the Local Government of Lower Canada, and the third by the General Government; it being further provided that the selection of the arbitrators shall not take place until after the General Parliament for Britsh North America and Local Legislatures for Upper and Lower Canada have been elected - and that the third arbitrator shall not be a resident in either Upper or Lower Canada.

PREPARATION FOR LONDON CONFERENCE, 1866

— 197

SCHEDULE A. Same as the second Schedule of the B. N. A. Act. RESOLUTION ADOPTED ON THE TENTH OF AUGUST, 1866. Resolved, "That it is expedient that at the first Election for the District of Algoma, both for the General and Local Legislatures, all persons otherwise qualified except in respect to real property, who are householders, shall have the right to vote at the said Election." SCHEDULE B. Same as the first Schedule of the B. N. A. Act down to and inclusive of the 82nd clause.

64 Lord Derby to Lord Carnarvon, 5 September, 1866. (P.R.O. 30/6/138.) I do not agree with Lord Monck as to the modus operandi as to Confederation.* It will not do to take the Delegates by surprise. Lord Monck seems to look to Canada only, and to forget that we are not going to override the Local Legislatures, but to induce them to consent: for which object it is essential that we should deal openly with them.

65 Lord Carnarvon to Lord Derby, 11 October, 1866. (P.R.O. 30/6/138.) There are no doubt some plausible arguments, as in Howe's pamphlett against Confederation - but I am convinced from what I hear and read daily, that that measure has become a necessity to the N.A. provinces, and will be an unquestionable advantage to us. I believe it to be a question of confederation amongst themselves, or of absorption by the U.S. *See Doc. 57. tJoseph Howe, Confederation Considered in Relation to the Interests of the Empire (London, 1866).

198

— DOCUMENTS ON CONFEDERATION

66 Gov.-General Monck to Lord Carnarvon, 29 November, 1866.* (Pope, Appendix VI, 308-11.) I have the honour to transmit herewith to Your Lordship an address to Her Majesty the Queen from the Provincial Association of Protestant Teachers of Lower Canada, and to request that it may be laid at the foot of the Throne. TO THE QUEEN'S MOST EXCELLENT MAJESTY, The Petition of the Provincial Association of Protestant Teachers of Lower Canada, Humbly sheweth: That, notwithstanding the legislative union of Upper and Lower Canada, there exists in each portion of the united provinces a distinct educational system. That, under the educational law of Lower Canada, and in consequence of the denominational character of the schools of the Roman Catholic majority, your Majesty's subjects professing the Protestant faith are subjected to serious disadvantages: first, in being deprived of the benefits of a general system of education similar to that enjoyed by their fellow subjects in Upper Canada; secondly, in their liability to be taxed for the support of Roman Catholic schools; and thirdly, in the difficulties which they experience in establishing non-denominational or separate schools and seminaries of higher education for themselves. That, though the injury thus inflicted on education has been the subject of frequent complaints on the part of the Protestant population, and, as your petitioners believe, has tended to discourage the settlement of Protestants in this Province, and has caused many families to leave this country for others in which they might avoid such inconveniences, no remedy has hitherto been granted by the Legislature. That, in prospect of the Confederation of the Provinces, under the constitution adopted at the Quebec Conference, by which it was proposed that education should be under the control of the local legislatures, the Protestants of Lower Canada became alarmed lest they should continue to labour under these disadvantages: and, to allay the feeling thus generally existing, solemn pledges were made by members of the Government, that the grievances complained of should be redressed by Parliamentary action before Confederation.

PREPARATION FOR LONDON CONFERENCE, 1866 - 199

That, though a bill for this purpose was introduced by Government in the last session of the legislature, it was almost immediately withdrawn; and unless provisions to this end can be introduced into the Imperial Act of Confederation, your memorialists fear that their educational rights will be left to the control of the, majority in the local legislatures without any guarantee whatever. That, while your petitioners would prefer a general and non-denominational system of education, they believe that so long as the present system of separate schools shall continue in Lower Canada, they may justly claim the following privileges as constitutional rights which should in no way depend on the vote of the local legislature. 1. That all direct taxes for the support of schools, paid by Protestants, unless otherwise designated by themselves, should be applied to Protestant, or non-denominational education; and that all public money given for the same purpose should be divided between Protestants and Roman Catholics in proportion to population. 2. That suitable and adequate provision should be made for the protection of the educational interests of Protestants, in the management of educational funds, the establishment and proper classification of schools and institutions of superior education, and generally in the administration of educational affairs. Wherefore, your memorialists humbly pray your Most Gracious Majesty to take their case as above stated into your favourable consideration, with a view to the introduction of proper and just safeguards into the Imperial Act of Confederation, should such Act be passed. And your petitioners will ever pray. (Signed by the President of the Association and others.) Montreal, Nov. 23rd, 1866. To the Honourable G. E. Cartier, Attorney-General, &c., &c.: Sir, - I am directed by the Executive Committee of the Provincial Association of Protestant Teachers of Lower Canada to transmit to you a copy of the enclosed memorial. The Committee, believing that the objects sought by the petition will commend themselves to your approval, and being *See Doc. 70.

200 - DOCUMENTS ON CONFEDERATION

assured that they are regarded as of the most vital importance by the Protestant population of Lower Canada, beg leave, respectfully, to solicit your support and countenance to the prayer of the petitioners. I have the honour to be, Your most obedient servant, P. J. DAREY, M.A., Secretary of the Provincial Teachers' Association. 67 John A. Macdonald to Lord Carnarvon, 4 December, 1866. (Pope, Appendix VI, 305.)

I have the honour to inform you that the Delegates from the Provinces of Canada, Nova Scotia, and New Brunswick, met this morning, and formed themselves into a Conference for the purpose of arranging the terms of Union of those Provinces. The Gentlemen forming the Conference are as follows: — CANADA. The Hon. John A. Macdonald, Attorney General U. C., and Minister of Militia of Canada. The Hon. G. E. Cartier, Attorney General of Lower Canada. The Hon. A. T. Gait. The Hon. W. McDougall, Provincial Secretary. The Hon. W. P. Howland, Minister of Finance. The Hon. H. L. Langevin, Postmaster General. NOVA SCOTIA. The Hon. Charles Tupper, Provincial Secretary. The Hon. W. A. Henry, Attorney General. The Hon. J. W. Ritchie, Solicitor General. The Hon. J. McCully. The Hon. A. G. Archibald. NEW BRUNSWICK. The Hon. P. Mitchell, President of Council.

The Hon. R. D. Wilmot.

The Hon. S. L. Tilley, Provincial Secretary. The Hon. Charles Fisher, Attorney General. The Hon. J. M. Johnson. I have the honour further to inform Your Lordship that I was then appointed Chairman, and Lieut.-Col. H. Bernard, Secretary of the Conference.

THE LONDON CONFERENCE, 1866 - 201

Section H:

The London Conference, December, 1866. 68 Hewitt Bernard's Minutes of the London Conference, 4-24 December, 1866. (Pope, 94-97.) London, Tuesday, 4th December, 1866. The following gentlemen assembled at the Conference Chamber in the Westminster Palace Hotel, London, on Tuesday, the 4th day of December, 1866, at the hour of twelve o'clock noon: CANADA. The Honourable John A. Macdonald. G. E. Cartier. A. T. Gait. W. McDougall. W. P. Howland. H. L. Langevin. NOVA SCOTIA. The Honourable Charles Tupper. William A. Henry. J. W. Ritchie. Jonathan McCully. A. G. Archibald. NEW BRUNSWICK.

The Honourable S. L. Tilley. J. M. Johnson. P. Mitchell. Charles Fisher. R. D. Wilmot.

It was proposed by the Honourable Mr. Tupper, and seconded by the Honourable Mr. Tilley, And resolved, That the Honourable John A. Macdonald be Chairman of the Conference.

202 - DOCUMENTS ON CONFEDERATION

It was proposed by the Honourable Mr. McCully, and .seconded by the Honourable Mr. Fisher, And resolved, — That Lieutenant-Colonel Hewitt Bernard be appointed Secretary of the Conference. It was resolved, — That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province by whatever number of delegates represented, shall have one vote, and that in voting, Canada be considered as two Provinces. The Conference then entered upon the consideration of the Resolutions of the Conference held at Quebec in the year 1864. And at a quarter past 5 o'clock p.m., a motion for adjournment being carried, the Chairman declared the Conference continued until 11 o'clock a.m. to-morrow. WEDNESDAY, 5TH DECEMBER, 1866.

The Conference met at 11 o'clock a.m., all the members being present. The Honourable Mr. Tupper laid before the Conference a Resolution of the House of Assembly of Nova Scotia of 17th April, 1866, as follows: WHEREAS, in the opinion of this House, it is desirable that a Confederation of the British North American Provinces should take place; RESOLVED THEREFORE, That His Excellency the Lieutenant-G over nor be authorized to appoint delegates to arrange with the Imperial Government a scheme of union which will effectually ensure just provision for the rights and interests of this Province; each Province to fiave an equal voice in such delegation, Upper and Lower Canada being for this purpose considered as separate Provinces. The Honourable Mr. Tilley laid before the Conference a Resolution of the House of Assembly of New Brunswick of 30th June, 1866, as follows: — "RESOLVED, That an humble address be presented to His Excellency the Lieutenant-Governor, praying that His Excellency will be pleased to appoint Delegates, to unite

THE LONDON CONFERENCE, 1866 - 203

with Delegates from the other Provinces in arranging with the Imperial Government for the Union of British North America, upon such terms as will secure the just rights and interests of New Brunswick, accompanied with provision for the immediate construction of the Inter-Colonial Railway, each Province to have an &qual voice in such Delegation, Upper and Lower Canada to be considered as separate Provinces" The Conference then proceeded with the consideration of the Quebec Resolutions. And at a quarter to five o'clock, p.m., the Chairman declared the Conference continued until eleven o'clock a.m. tomorrow. THURSDAY, 6TH DECEMBER, 1866.

The Conference met at 11 o'clock, a.m., and proceeded with the consideration of the Quebec Resolutions. It was resolved, That the Honourable Messrs. Gait, Rowland, Henry and Tilley be appointed a Committee to consider the 54th of the Quebec Resolutions, and matters of Finance generally, and to report thereon. And at half-past four o'clock p.m.', the chairman declared the Conference continued until eleven o'clock a.m., to-morrow. FRIDAY, 7TH DECEMBER, 1866.

The Conference met at eleven o'clock, a.m., and having further taken into consideration the Quebec Resolutions, adjourned at the hour of two o'clock p.m., until Tuesday next, the llth instant, at 11 o'clock a.m. TUESDAY, 11TH DECEMBER, 1866.

The Conference continued until to-morrow at one o'clock p.m. WEDNESDAY, 12TH DECEMBER, 1866.

The Conference continued until to-morrow at eleven o'clock a.m. THURSDAY, 13TH DECEMBER, 1866.

The Conference met at eleven o'clock, a.m. and at the hour of half-past two o'clock p.m. adjourned until to-morrow at eleven o'clock, a.m.

204

— DOCUMENTS ON CONFEDERATION

FRIDAY, 14TH DECEMBER, 1866.

The Conference met at the hour of eleven o'clock. The following letter from the Right Honourable C. B. Adderley was read: Downing Street, 13th December, 1866. Sir, -1 am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 4th of this month, reporting that the Delegates from Canada, Nova Scotia and New Brunswick had formed themselves into a Conference for the purpose of arranging the terms of the Confederation of those Provinces. I am, Sir, Your obedient servant, C. B. ADDERLEY. The Honourable John A. Macdonald, etc., etc. The Conference then continued the consideration of the Quebec Resolutions, and at the hour of three o'clock p.m. adjourned until Monday next, the 17th instant, at 12 o'clock noon. MONDAY, 17TH DECEMBER, 1866.

The Conference met at eleven o'clock a.m. and continued the consideration of the Quebec Resolutions, and at five o'clock, adjourned until to-morrow at eleven o'clock a.m. TUESDAY, 18TH DECEMBER, 1866.

The Conference met at eleven o'clock a.m., and continued the consideration of the Quebec Resolutions, and at five o'clock p.m. adjourned until to-morrow at eleven o'clock a.m. WEDNESDAY, 19TH DECEMBER, 1866.

The Conference met at the hour of eleven o'clock a.m., and having proceeded with the consideration of the Quebec Resolutions adjourned at five-thirty p.m. until to-morrow at eleven o'clock a.m. THURSDAY, 20TH DECEMBER, 1866.

The Conference met at the hour of eleven o'clock a.m., and having proceeded with the consideration of the Quebec Resolutions adjourned at four p.m. until to-morrow at noon.

THE LONDON CONFERENCE, 1866 - 205 MONDAY, 24TH DECEMBER, 1866.

The Conference met at eleven o'clock a.m. and passed the Resolutions following. - *

69 Hewitt Bernard's Notes on the London Conference, 4-14 December, 1866. (Pope, 111-22.) TUESDAY, 4TH DECEMBER, 1866.

At a meeting of the delegates held this day, - Present: Messrs. John A. Macdonald, Cartier, Gait, McDougall, Howland, Tupper, Henry, Ritchie, Archibald, McCully, Tilley, Mitchell, Fisher, Wilmot and Johnson. The New Brunswick delegates stated that their authority to act was contingent upon their securing the construction of the Intercolonial Railway, and requested the opinion of their co-delegates. All agreed that the road was desirable and that permission or security for its construction by Imperial action should be asked. After a brief discussion as to the form which this aid should take, Mr. Tupper stated the action had in relation to Prince Edward Island, t It was agreed that on all questions Canada should have two votes, Nova Scotia and New Brunswick, one each. The first 29 of the resolutions of the Quebec Conference were then considered. Adjourned. WEDNESDAY, 5TH DECEMBER, 1866.

Present, - All the delegates. Mr. McCully suggested that an intimation of the meeting of the delegates be given to the Colonial Secretary. Agreed to.t The Quebec Resolutions, beginning with No. 30, were then considered, and the following action had thereon: No. 30. Mr. McDougall suggested whether it would be advisable to give power to the General Government to act with foreign Governments. Stand over. (Consular powers). *See Doc. 74. tSee Doc. 90. [Pope] $See Doc. 67. [Pope]

206 - DOCUMENTS ON CONFEDERATION

No. 31. Stand over. No. 32. Passed. No. 33. It is suggested that County Courts be established and appointed in all the Provinces. No. 34. Passed. No. 35. Passed. No. 36. Powers b&fixed. Imperial Parliament. Passed. No. 37. Passed. No. 38. Stand over. (Case of illness). No. 39. In case of death or absence of Lieutenant-Governor, who to be Administrator? No. 40. Out. No. 41. Passed. No. 42. Passed. No. 43. (1) Stand over. (2) Passed. (3) Passed. (4) Passed. (5) Passed. (6) Passed with Mr. Gait's amendment.* (7) Considered. (8) Stand. (9) Passed. (Penitentiary). (10) Passed (except Marine Hospitals). (11) Passed. (12) Passed. (13) Passed. (14) Passed. (15) Passed. (16) Passed. (17) Passed. (18) Stand. Adjourned. THURSDAY, 6TH DECEMBER, 1866.

The consideration of the Resolutions of the Quebec Conference was proceeded with. No. 44. Stand over. Pardoning power to be amended. No. 45. Passed. No. 46. Passed. No. 47. Passed. No. 48. Passed. No. 49. Passed.

THE LONDON CONFERENCE, 1866 — 207

No. 50. Passed. No. 51. Passed. No. 52. Passed. No. 53. Passed. No. 54. Passed. Proviso to be put in to omit appropriations of the current year. No. 55. (1) Passed. (2) Passed. (3) Passed. (4) Passed. (5) Passed. (6) Passed. (7) Passed. (8) and (11) To be further considered in relation to appropriation of public buildings and lands for local or general purposes. (9) Passed. (10) Passed. No. 56. Stand. No. 57. Stand. No. 58. Stand. No. 59. Stand. No. 60. Passed. No. 61. Stand. No. 62. Stand. No. 63. Out. No. 64. Stand. Mr. Tilley suggested that the eighty cents be continued as a regular increase until population goes up to half a million. *Mr. Gait moved: -That the following words be added to and form part of the 6th sub-section of the 43rd clause: "And in any Province where a system of Separate or Dissentient schools by law obtains, or where the Local Legislature may hereafter adopt a system of Separate or Dissentient schools, an appeal shall lie to the Governor in Council of the General Government from the acts and decisions of the local authorities which may affect the rights or privileges of the Protestant or Catholic minority in the matter of education. And the General Parliament shall have power in the last resort to legislate on the subject." The above amendment is in the handwriting of Mr. Gait. In the left hand corner is the following memorandum in the handwriting of the Chairman (Mr. John A. Macdonald): Nova Scotia - Yes. New Brunswick - Yes. Canada — Yes. [Pope]

208 - DOCUMENTS ON CONFEDERATION

No. 65. Stand. No. 66. Out. No. 67. Stand. No. 68. Passed. No. 69. Passed. No. 70. Passed. No. 71. Stand. No. 72. Out. THURSDAY, 13TH DECEMBER, 1866.

The Resolutions of the Quebec Conference, beginning with number one, were considered. No. 1. Word "Federal" objected to by Mr. Henry. To be considered. No. 2. The term "Federation" to be "Confederation"; "would be" to be "is." The words "Prince Edward Island" to be dropped the first place they occur. No. 3. Agreed to previously. No. 4. Agreed to previously. No. 5. Reserved as to Representative of the Sovereign. Mr. McDougall—Why assert that the Sovereign is Commanderin-Chief when it is part of the constitution of England? Mr. Macdonald — I am not prepared to admit that. The Sovereign is not absolutely the Commander-in-Chief of the militia of England except by proclamation. Mr. McDougall — I am prepared to go the same lengths as is constitutional in England. Mr. Macdonald — Read it in connection with the third resolution. Mr. Tupper - Then constitutional advice will be necessary. Mr. Macdonald - Any powers given by statute to the Sovereign must be exercised constitutionally. Mr. McCully - If any doubt remain on the point, it would require delegation from the Queen in her Commission to the Governor-General.

It was agreed to strike out the words "or Representative of the Sovereign."

No. 6. Mr. Tupper proposed "Confederation" in lieu of "Federated Provinces." He said the term "Local Legislature" and "Federal Parliament" are used advisedly. The distinction breaks off here. Mr. Archibald proposed that "Legislature" be designated "Parliament."

THE LONDON CONFERENCE, 1866 - 209

Mr. Macdonald proposed that the words "the Sovereign" be inserted immediately after the words "composed of." Agreed to. No. 7. Mr. Macdonald proposed that the word "Confederation" be substituted for "Federated Provinces," and that the words "Prince Edward Island" be omitted. Agreed to. No. 8. Mr. Tupper - I propose the third division shall stand giving Nova Scotia and New Brunswick the full number, to fall back to the number prescribed as vacancies occur. This is the plan of Messrs. Cartier and Langevin and is reasonable. Omit word "three," give Nova Scotia and New Brunswick twelve each, and add a separate clause like number nine to meet the case of Prince Edward Island. Mr. Mitchell — Any representation of Prince Edward Island should be taken out of the whole without specifying the number here for them. Mr. Macdonald - I think we should adhere to the number of four for Prince Edward Island. Mr. Tupper — I agree with Mr. Mitchell. Mr. Tilley - It is for the General Government to settle with Prince Edward Island. Mr. Ritchie — Canada may bring in Prince Edward Island, and in so doing sacrifice the Lower Provinces. Therefore define the number at once. Mr. Fisher — It would be a great evil to leave the matter open. Prescribe the number now to prevent heartburnings in the future. Prince Edward Island may have two, four or six. Ten each for Nova Scotia and New Brunswick is sufficient. Do not change that number. Mr. Henry — The entrance of Prince Edward Island would be specially the object of the Lower Provinces. It is safe therefore to run the risk that Canada will not act adversely to the Lower Provinces. It is not the interest of Canada to use power improperly. Mr. Johnson - You will create a difficulty between Nova Scotia and New Brunswick. The former may want a preponderance. Mr. Tupper -1 move that: In case Prince Edward Island is admitted into the union its representation in the Legislative Council shall be four, to be appointed from Nova Scotia and New Brunswick as vacancies occur. Mr. Mitchell - That does not meet my objection. I think four

210 -

DOCUMENTS ON CONFEDERATION

was originally too large a representation for Prince Edward Island. Discretion should be allowed. Mr. Wilmot — The number was fixed upon at the Quebec Conference and agreed to by the delegates from Prince Edward Island. It should not now be altered. Mr. Ritchie — I suggest provision that in no case should Nova Scotia or New Brunswick have fewer than ten. Mr. Gait - That comes to the same thing. Mr. Macdonald — It will give confidence to Prince Edward Island to leave it as it is. But you may limit the time. The Confederation Parliament alone can admit Prince Edward Island, and it will be against the interest of the Lower Provinces to cut themselves down to eight each in order to admit of Prince Edward Island having four. Mr. Cartier referred to the Charlottetown Conference. There it was understood the Lower Provinces were to be accounted as one, but not Newfoundland. They came to Quebec only. Mr. Tupper moved: — That the Members of the Legislative Council for the Confederation shall in the first instance be appointed upon the nomination of the Executive Government of Canada, Nova Scotia, and New Brunswick respectively, and the number allotted to each Province shall be nominated from the Legislative Councils of the different Provinces, due regard being had to the fair representation of both political parties; but in case any member of the Local Council so nominated shall decline to accept, it shall be competent for the Executive Government in any Province to nominate in his place a person who is not a member of the Local Council. Mr. Archibald moved: That the Province of Prince Edward Island when admitted into the Confederation shall be entitled to a representation of four Members in the Legislative Council. But in such case the numbers allotted to New Brunswick and Nova Scotia shall be diminished to ten each, such diminution to take place in each Province as vacancies occur. Mr. Henry - What we should do is that which will bind some one. . Mr. Gait — Unless specifically provided for, there would be no power to reduce Nova Scotia and New Brunswick afterwards. Resolution as amended carried.

THE LONDON CONFERENCE, 1866 - 211

Mr. Henry - Do not say "when," put "if." Mr. Fisher - All these questions must come up again in the Bill. Mr. Gait - To the Legislative Council all the Provinces look for protection under the Federal principle. Therefore, we should in this respect define now the extent to which we should settle the constitution of the Upper House. Mr. Johnson - The Colonial Office took objection to a fixed number. They deprecated a cast iron rule. Mr. Tupper - True, Mr. Cardwell so said, but I think it desirable to fix it. In the Maritime Provinces we felt that the great preponderance of Canada could only be guarded against by equal representation in the Legislative Council. If an increase could be made by the Crown it might disturb the relative proportions. It may limit the Crown to define the number, but it can't be helped. Mr. Rowland - I did not consider the mode of appointments so much as the number and duration. Mr. Henry - I oppose the limitation of number. We want a complete work. Do you wish to stereotype an Upper Branch, irresponsible both to the Crown and the people? a third body interposed unaccountable to the other two. The Crown unable to add to their number. The people unable to remove them. Suppose a general election results in the election of a large majority in the Lower House favourable to a measure, but the Legislative Council prevent it from becoming law. The Crown should possess some power of enlargement. Mr. Tupper — I agree with Mr. Henry; but he does not reflect that this is not a Legislative Union, and we had sectional and local differences. Lower Canada and the Lower Provinces require some guarantee. No addition would be required except in case of a dead-lock, when the Government of the day would appoint men pledged beforehand. Mr. Fisher - The prerogative of the Crown has been only occasionally used, and always for good. This new-fangled thing now introduced, 72 oligarchs, will introduce trouble. I advocate the principle of the power of the Crown to appoint -additional members in case of emergency. Mr. Tilley - I agree with Dr. Tupper. Our protection is as now settled. The objection was that Upper Canada would swamp the Lower Provinces. What is the Crown? The Government of the day. Mr. Rowland - I admit that if the Government is to be

212 - DOCUMENTS ON CONFEDERATION

cqnstituted on the Federal principle, the number should be fixed and to represent localities. I am in favour of the Federal principle, and I think that if you have a Federal Parliament you must not give power to the Crown to increase the number of the Legislative Council. Thirty-seven members of that House may say at any time what the Government shall not do, and be accountable to no one. My remedy would be to limit the period of service and vest the appointment in the Local Legislatures. It would then be a true Federal Parliament. Now it is an anomaly. It won't work and cannot be fcontinued. You cannot give the Crown an unlimited power to appoint. Mr. Archibald — This lies at the root of our whole scheme the spirit of which is that each Province shall be sectionally represented in the Legislative Council. The Upper House may disagree with the House of Commons. Its value will be that of occasional obstruction. Mr. McCully - There are difficulties on both sides. Is there no escape from them? I feel that we are now touching the very life of the whole scheme. If we err, the whole scheme will come down some time. My views, as we stand to-day, are: - Here we are three Provinces. Dead-lock arises. Necessity for creation of three or four additional members of Upper House imperative. Why not trust the Executive Government to appoint one from Upper Canada, one from Lower Canada, and one from the Maritime Provinces? Mr. Macdonald — We are all agreed that each of the divisions should be equally represented, and should not be varied. If any addition is made it must be in equal proportions from each division. That is a limit to the prerogative. Mr. Wilmot-I agree with Messrs. Tilley and Tupper as to the necessity of keeping sectional representatives, but I disapprove of cast-iron rules. Prefer mode of increasing number relatively. Instead of the Crown appointing, I would prefer choice by joint ballot of Local Legislatures. Mr. Langevin — If you give power to swamp the Legislative Council then you destroy its utility. Lower Canada insists that each of its present divisions shall have a representative in the Council, that is the existing divisions. If you give power to the Central Government to increase the number you change the proportions. This has been settled to the satisfaction of Roman Catholics and Protestants, British and French. No. 9. Agreed to. Adjourned.

THE LONDON CONFERENCE, 1866

- 213

FRIDAY, 14TH DECEMBER, 1866.

The consideration of the Resolutions of the Quebec Conference was proceeded with. No. 10. Agreed to, omitting words "Vancouver Island." No. 11. Stands. No. 12. Mr. Macdonald - At the Quebec Conference we were all in favour of a higher qualification, but it was reduced to suit Prince Edward Island and Newfoundland. (It was agreed to strike out part referring to Prince Edward Island and Newfoundland). Mr. Tupper - I move that the word "real" be struck out. I should be willing to strike out the property qualification altogether. If the office were elective, it might be different. If a qualification be thought necessary, then $4,000 is too insignificant for the Parliament of the Confederation. Suppose a man with $50,000 worth of shipping. Should he be ineligible because he had not land worth $4,000? Mr. Fisher - I differ from Mr. Tupper. I would vote for a higher qualification. If a man has $50,000 let him buy land and pay taxes on it. Mr. Tupper—In Nova Scotia we have no property qualification for the Legislative Assembly. Mr. Fisher — We have in New Brunswick. Mr. Wilmot -1 think $4,000 too small. Mr. McDougall - I desire to raise the question whether matters settled at the Quebec Conference can be changed. Canadian delegates are in a different position to those from the Lower Provinces. As to any subject which has not been agitated in the Lower Provinces, do we not lose time by arguing them as they should not be altered? Is Conference as a whole at liberty to vary these resolutions? Mr. Mitchell — I would have taken the same ground. As regards New Brunswick, I look on our position here as not to open and discuss old resolutions, but as to certain and specific objections to that scheme. That is my individual view. Having gone twice to the people on the Quebec scheme, I can say that there are two leading features objectionable to New Brunswick: (1) Representation in the Legislative Council. (2) Financial arrangements. They also demand more definite mention of the Intercolonial road.

214 - DOCUMENTS ON CONFEDERATION

Mr. McCully - We have adopted the Quebec scheme as the backbone, but I think we are here to bring our judgment and maturer reflections to bear upon it. We are tied down to nothing, but should not depart unnecessarily from the Quebec scheme. I will act with the majority of the Conference, although contrary to my own opinion. Mr. Macdonald - The Maritime delegates are differently situated from us. Our Legislature passed an address to the Queen praying for an Act of Union, on the basis of the Quebec resolutions. We replied to enquiries in our last Session of Parliament that we did not feel at liberty ourselves to vary those resolutions. It is quite understood in Canada, though never reduced to writing, that if any serious objection should be made by the Maritime Provinces, we should be prepared to listen and consider. Mr. Fisher -1 have heard forty objections in New Brunswick to the scheme, but shall act on my own judgment. But this matter will be settled on the basis of the Quebec scheme. Mr. Ritchie—TL entirely concur in the views of Mr. Macdonald. But we of the Maritime Provinces may bring forward matters for discussion. In the Legislature of Nova Scotia it was understood that all matters should be entirely open. Mr. Johnson — The Quebec scheme should be the basis, but we may agree upon some alterations, and these may necessitate other changes. Mr. McDougall -1 have felt my hands tied and Mr. Howland also. Mr. Gait - I look on myself as bound by the Quebec scheme as asserted on two occasions in Canada. The real points upon which we might vary them are those which were notoriously objected to in the Maritime Provinces. But in a matter of detail I think we should not depart from Quebec. I was in favour of a larger qualification than $4,000, but would not now vary it. Mr. Howland - We place ourselves iii a false position in every departure from the Quebec scheme. But in advocating an alteration on the question objected to by the Colonial Office (limit of prerogative) I thought we had full power. Mr. Macdonald - The Conference can now quite understand our position, and we may now go on. We are quite free to discuss points as if they were open, although we may be bound to adhere to the Quebec scheme. Mr. McCully - I think it might be well to have had a higher qualification, but not to change now.

THE LONDON CONFERENCE, 1866 — 215

Mr. Archibald-I move continuance of property qualification in the Province for which the member is chosen. Agreed to.* No. 13. Agreed to . No. 14. Stands. No. 15. Agreed to. No. 16. Agreed to. No. 17. 194 reduced to 181. Prince Edward Island and Newfoundland struck out. No. 18. Agreed to. "The first general election after" to be inserted after "until." No. 19. Stands. No. 20. Agreed to . No. 21. Stands. No. 22. Agreed to. No. 23. To be modified. No. 24. Struck out. See 41. No. 25. Stands over. No. 26. Agreed to. No. 27. Agreed to. No. 28. Agreed to. No. 29. Stands for consideration. 70 Lord Carnarvon to Gov-General Monck, 17 December, 1866. (Pope, Appendix VI, 309.)

I have the honour to acknowledge the receipt of Your Lordship's despatch, No. 203, dated the 29th November lastt enclosing an address to Her Majesty from the Provincial Association of Protestant Teachers of Lower Canada, complaining of certain alleged grievances in the educational system at present in force in Lower Canada, and praying that provisions may be introduced into the proposed Imperial Act of Confederation calculated to protect the educational interests of the Protestant inhabitants of Lower Canada. The question of education is one of the important subjects which may be expected to be discussed by the North American Delegates when in conference in this country, and the present * Apparently this concludes the work of the day. What follows indicates the procedure with respect to the remaining clauses, though the dates on which they were severally dealt with in Conference are wanting. [Pope] f See Doc. 66.

216 - DOCUMENTS ON CONFEDERATION

memorial, which has been duly laid at the foot of the Throne, shall then receive full consideration. I have to request you to communicate to the Memorialists the substance of this despatch. 71 Archbishop T. L. Connolly* to Lord Carnarvon, 24 December,

1866.t

(P.R.O. 30/6/137.)

My whole time and attention were devoted to the difficult task of influencing them [i.e. the delegates to the London Conference] in all that concerned the welfare of our 200,000 Catholics in Upper Canada and 300,000 Catholics in the Maritime Provinces. My success (as I long foresaw) though very considerable is yet far from being all I had a right to expect. 72 John A. Macdonald to Lord Carnarvon, 25 December, 1866. (Pope, Appendix VI, 306.)

I am happy to inform you that the Delegates who have sat steadily from the 4th to the 24th inst., have arrived at a satisfactory conclusion, and have adopted by the unanimous vote of the Provinces, a series of resolutions which I shall transmit to-morrow morning to Your Lordship at the Colonial Office. The Delegates desire me to convey to you their opinion that it is expedient to avoid any publicity being given to the resolutions until the Bill is finally settled and ready to be laid before Parliament. They think that their early publication would answer no good purpose, and might tend to premature discussion on imperfect information of the subject both in this country and America.

73 John A. Macdonald to Lord Carnarvon, 26 December, 1866. (Pope, Appendix VI, 306.) I have the honour to transmit to you by desire of the Conference of Delegates from Canada, Nova Scotia and New Brunswick, a series of resolutions, t They submit these resolutions

THE LONDON CONFERENCE, 1866 - 217

for the favourable consideration of Her Majesty's Government with a view to the early introduction of a Bill into the Imperial Parliament based upon them. The Delegates purpose to re-assemble here on Friday, the 28th inst., and shall be glad to wait on Your Lordship at your convenience for the purpose of arranging the course of action. 74 The London Resolutions, December, 1866. (Pope, 98-110.) 1. The best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such Union can be effected on principles just to the several Provinces. 2. In the Confederation of the British North American Provinces, the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces, and secure efficiency, harmony, and permanency in the working of the Union, is a General Government charged with matters of common interest to the whole country, and Local Governments for each of the Canadas, and for the Provinces of Nova Scotia and New Brunswick, charged with the control of local matters in their respective sections, provision being made for the admission into the Confederation, on equitable terms, of Newfoundland, Prince Edward Island, the North West Territory, and British Columbia. 3. In framing a Constitution for the General Government, the Conference, with a view to the perpetuation of the connection with the mother country, and the promotion of the best interests of the people of these Provinces, desire to follow the model of the British Constitution, so far as circumstances will permit. 4. The Executive Authority or Government shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well-understood principles of the British Constitution, by the Sovereign personally, or by the representative of the Sovereign duly authorized. 5. The Sovereign shall be Commander-in-Chief of the Land and Naval Militia Forces. 6. There shall be a General Legislature or Parliament for * Roman Catholic Archbishop of Halifax, f See Docs. 50 and 80. $See Doc. 74.

218 - DOCUMENTS ON CONFEDERATION

the Confederation, composed of the Sovereign, a Legislative Council, and a House of Commons. 7. For the purpose of forming the Legislative Council, the Confederation shall be considered as consisting of three divisions: — First - Upper Canada, Second - Lower Canada, and Third — Nova Scotia and New Brunswick. Each division with an equal representation in the Legislative Council. 8. Upper Canada shall be represented in the Legislative Council by twenty-four Members, Lower Canada by twenty-four Members, and the Maritime Provinces by twenty-four Members, of which Nova Scotia shall have twelve and New Brunswick twelve Members. 9. The Colony of Prince Edward Island, when admitted into the Confederation, shall be entitled to a representation of four Members in the Legislative Council. But in such case the Members allotted to Nova Scotia and New Brunswick shall be diminished to ten each, such diminution to take place in each Province as vacancies occur. 10. The Colony of Newfoundland, when admitted into the Confederation, shall be entitled to a representation in the Legislative Council of four Members. 11. The North West Territory and British Columbia shall be admitted into the Union on such terms and conditions as the Parliament of the Confederation shall deem equitable, and as shall receive the. assent of the Sovereign, and in case of the Province of British Columbia, as shall be agreed to by the Legislature of such Province. 12. The Members of the Legislative Council shall be appointed by the Crown under the Great Seal of the General Government, from among residents of the Province for which they are severally appointed, and shall hold office during life. If any Legislative Councillor shall for two consecutive Sessions of Parliament fail to give his attendance in the said Council, his seat shall thereby become vacant. 13. The Members of the Legislative Council shall be British subjects by birth or naturalization, of the full age of thirty years, shall each possess in the Province for which they are appointed, a continuous real property qualification of four thousand dollars over and above all incumbrances, and shall be and continue worth that sum over and above their debts and liabilities, and

THE LONDON CONFERENCE, 1866 - 219

shall possess a continuous residence in the Province for which they are appointed, except in the case of persons holding official positions which require their attendance at the seat of Government pending their tenure of office. 14. If any question shall arise as to the qualification of a Legislative Councillor, the same shall be determined by the Legislative Council. 15. The Members of the Legislative Council for the Confederation, shall, in the first instance, be appointed upon the nomination of the Executive Governments of Canada, Nova Scotia, and New Brunswick, respectively, and the number allotted to each Province shall be nominated from the Legislative Councils of the different Provinces, due regard being had to the fair representation of both political parties, but in case any Member of the Local Council so nominated shall decline to accept, it shall be competent for the Executive Committee in any Province to nominate in his place a person who is not a Member of the Local Council. 16. The Speaker of the Legislative Council (unless otherwise provided by Parliament) shall be appointed by the Crown from among the Members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes. 17. Each of the twenty-four Legislative Councillors representing Lower Canada in the Legislative Council of the General Legislature, shall be appointed to represent one of the twentyfour electoral divisions mentioned in schedule A of chapter first of the Consolidated Statutes of Canada, and such Councillor shall reside or possess his qualification in the division he is appointed to represent. 18. The basis of representation in the House of Commons shall be population, as determined by the official census every ten years, and the number of Members at first shall be one hundred and eighty-one, distributed as follows: Upper Canada Eighty-two. Lower Canada Sixty-five. Nova Scotia Nineteen. New Brunswick Fifteen. 19. Until the first General Election after the official census of One thousand eight hundred and seventy-one has been made up, there shall be no change in the number of representatives from the several sections.

220 - DOCUMENTS ON CONFEDERATION

20. Immediately after the completion of the census of One thousand eight hundred and seventy-one, and immediately after every decennial census thereafter, the representation from each Province in the House of Commons shall be readjusted on the basis of population, such readjustment to take effect upon the termination of the then existing Parliament. 21. For the purpose of such readjustments, Lower Canada shall always be assigned sixty-five Members, and each of the other Provinces shall, at each re-adjustment, receive for the ten years then next succeeding, the number of Members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy, according to the census then last taken by having sixty-five Members. 22. No reduction shall be made in the number of Members returned by any Province, unless its population shall have decreased relatively to the population of the whole Union to the extent of five per centum. 23. In computing at each decennial period the number of Members to which each Province is entitled, no fractional parts shall be considered, unless when exceeding one-half the number entitling to a Member, in which case a Member shall be given for each such fractional part. 24. The number of Members may at any time be increased by the General Parliament, regard being had to the proportionate rights then existing. 25. Until provisions are made by the General Parliament, all the laws which at the date of the Proclamation constituting the Union are in force in the Provinces respectively relating to the qualification and disqualification of any person to be elected, or to sit or vote as a Member of the Assembly in the said Provinces respectively, and relating to the qualification or disqualification of voters, and to the oaths to be taken by voters, and to Returning Officers, and their powers and duties, and relating to the proceedings at elections, and to the period during which such elections may be continued, and relating to the trial of controverted elections, and the proceedings incident thereto, and relating to the vacating of seats of Members, and to the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the House of Commons of places situate in those Provinces respectively. 26. Every House of Commons shall continue for five years from the day of the return of writs choosing the same, and no

THE LONDON CONFERENCE, 1866 - 221

longer; subject, nevertheless, to be sooner prorogued or dissolved by the Governor-General. 27. There shall be a Session of the General Parliament once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the General Parliament in one Session and the first sitting thereof in the next Session. 28. The General Parliament shall have power to make laws for the peace, welfare, and good government of the Confederation (saving the Sovereignty of England), and especially laws respecting the following subjects: 1. The public debt and property. 2. The regulation of trade and commerce. 3. The raising of money by all or any mode or system of taxation. 4. The borrowing of money on the public credit. 5. Postal service. 6. Lines of steam or other ships, railways, canals, and other works connecting any two or more of the Provinces together, or extending beyond the limits of any Province. 7. Lines of steamships between the Confederated Provinces and other countries. 8. Telegraphic communication and the incorporation of Telegraphic Companies. 9. All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorizing them to be for the general advantage. 10. The census and statistics. 11. Militia, military and naval service, and defence. 12. Beacons, buoys, light-houses, and Sable Island. 13. Navigation and shipping. 14. Quarantine. 15. Sea coast and inland fisheries. 16. Ferries between any Province and a foreign country, or between any two Provinces. 17. Currency and coinage. 18. Banking: Incorporation of Banks, and the issue of paper money. 19. Savings Banks. 20. Weights and measures. 21. Bills of exchange and promissory notes. 22. Interest. 23. Legal tender.

222 - DOCUMENTS ON CONFEDERATION

24. Bankruptcy and Insolvency. 25. Patents of Invention and Discovery. 26. Copyrights. 27. Indians, and land reserved for the Indians. 28. Naturalization and Aliens. 29. Marriage and Divorce. 30. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the procedure in criminal matters. 31. The establishment, maintenance, and management of Penitentiaries. 32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof, and the poweripf repealing, amending, or altering such Laws, shall henceforward remain with the General Parliament only. 33. The establishment of a General Court of Appeal for the Confederation. 34. Immigration. 35. Agriculture. 36. And generally respecting all matters of a general character, not specially and exclusively reserved for the Local Legislatures. 29. The General Government and Parliament shall have all powers necessary or proper for performing the obligations of the Confederation as part of the British Empire to Foreign Countries, arising under Treaties between Great Britain and such Countries. ' 30. The powers and privileges of the House of Commons of the United Kingdom of Great Britain and Ireland shall be held to appertain to the House of Commons of the Confederation, .and the powers and privileges appertaining to the House of Lords in its legislative capacity, shall be held to appertain to the Legislative Council. 31. The General Parliament may from time to time establish additional Courts, and the General Government may appoint Judges and Officers thereof, when the same shall appear necessary, or for the public advantage, in order to the due execution of the Laws of such Parliament.

THE LONDON CONFERENCE, 1866 — 223

32. All Courts, Judges, and Officers of the several Provinces shall aid, assist, and obey the General Government in the exercise of its rights and powers, and for such purposes shall be held to be Courts, Judges and Officers of the General Government. 33. The General Government shall appoint and pay the salaries of the Judges of the Superior and District and County Courts in each Province, and Parliament shall fix their salaries. 34. Until the consolidation of the Laws of Upper Canada, Nova Scotia and New Brunswick, the Judges of these Provinces, appointed by the General Government, shall be selected from their respective Bars. 35. The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada. 36. The Judges of the Court of Admiralty shall be paid by the General Government. 37. The Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable on the address of both Houses of Parliament. 38. For each of the Provinces there shall be an Executive Officer styled the Governor, who shall be appointed by the Governor General in Council, under the Great Seal of the Confederation during pleasure; such pleasure not to be exercised before the expiration of the first five years, except for cause, such cause to be communicated in writing to the Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first Session afterwards; but the appointment of the first Governors shall be provisional, and they shall hold office strictly during pleasure. 39. The Government of each Province shall be paid by the General Government. 40. The Local Government and Legislature of each Province shall be constructed in such manner as the Legislature of each such Province shall provide. 41. The Local Legislatures shall have power to make laws respecting the following subjects: -

1. The altering or amending their Constitution from time to time.

2. Direct taxation, and, in the case of New Brunswick, the right of levying timber dues by the mode and to the extent now established by law, provided such timber be not the produce of the other Provinces. 3. Borrowing money on the credit of the Province.

224

— DOCUMENTS ON CONFEDERATION

4. The establishment and tenure of Local offices, and the appointment and payment of Local officers. 5. Agriculture. 6. Immigration. 7. Education; saving the rights and privileges which the Protestant or Catholic minority in any Province may have by law as to denominational schools at the time when the Union goes into operation. And in any Province where a system of separate or dissentient schools by law obtains, or where the Local Legislature may hereafter adopt a system of separate or dissentient schools, an appeal shall lie to the Governor General in Council of the General Government, from the acts and decisions of the Local Authorities which may affect the rights or privileges of the Protestant or Catholic minority in the matter of education; and the General Parliament shall have power in the last resort to legislate on the subject. 8. The sale and management of public lands, excepting lands belonging to the General Government. 9. The establishment, maintenance, and management of public and reformatory prisons. it). The establishment, maintenance, and management of Hospitals, Asylums, Charities and Eleemosynary Institutions, except Marine Hospitals. 11. Municipal Institutions. 12. Shop, Saloon, Tavern, Auctioneer, and other licenses for Local Revenue. 13. Local works. 14. The Incorporation of Private or Local Companies, except such as relate to matters assigned to the General Parliament. 15. Property and civil rights (including the solemnization of marriage) excepting portions thereof assigned to the General Parliament. 16. Inflicting punishment by fine, penalties, imprisonment or otherwise, for the breach of laws passed in relation to any subject within their jurisdiction. 17. The administration of Justice, including the constitution, maintenance, and organization of the Courts, both of Civil and Criminal jurisdiction, including also the procedure in civil matters. 18. And generally all matters of a Private or Local Nature not assigned to the General Parliament.

THE LONDON CONFERENCE, 1866 .- 225

42. All the powers, privileges and duties conferred and imposed upon Catholic separate schools and School Trustees in Upper Canada, shall be extended to the Protestant and Catholic Dissentient Schools in Lower Canada. 43. The power of respiting, reprieving, and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part which belongs of right to the Crown, shall, except in capital cases, be administered by the Governor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament. 44. In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the Laws of the General Parliament shall control and supersede those made by the Local Legislature, and the latter shall be void so far as they are repugnant to, or inconsistent with the former. 45. Both the English and French languages may be employed in the General Parliament, and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts, and in the Courts of Lower Canada. 46. No lands or property belonging to the General or Local Governments shall be liable to taxation. 47. All Bills for appropriating any part of the public revenue, or for imposing any tax or impost, shall originate in the House of Commons, or House of Assembly, as the case may be. 48. The House of Commons or House of Assembly, shall not originate or pass any vote, Resolution, Address or Bill, for the appropriation of any part of the Public Revenue, or of any tax or impost to any purpose, not first recommended by message of the Governor-General, or the Governor as the case may be during the Session in which such Vote, Resolution, Address, or Bill is passed. 49. Any Bill of the General Parliament may be reserved in the usual manner for Her Majesty's assent, and any bill of the Local Legislatures may, in like manner, be reserved for the consideration of the Governor General. 50. Any Bill passed by the General Parliament shall be subject to disallowance by Her Majesty within two years, as in the case of Bills passed by the Legislatures of the~said Provinces hitherto, and in like manner any Bill passed by a Local Legislature shall be subject to disallowance by the Governor General within one year after the passing thereof.

226 - DOCUMENTS ON CONFEDERATION

51. The seat of Government of the Confederation shall be Ottawa, subject to the Royal Prerogative. 52. Subject to any future action of the respective Local Governments, the seat of the Local Governments in Upper Canada shall be Toronto; of Lower Canada, Quebec; and the seats of the Local Governments in the other Provinces shall be as at present. 53. All stocks, cash, bankers' balances, and securities for money belonging to each Province at the time of the Union, except as hereinafter mentioned, shall belong to the General Government. 54. The following Public Works and Property of each Province shall belong to the General Government, to wit: — 1. Canals. 2. Public harbours. 3. Light-houses and piers, and Sable Island. 4. Steamboats, dredges, and public vessels. 5. Rivers and lake improvements. 6. Railways and railway stocks, mortgages, and other debts due by railway companies. 7. Military roads. 8. Custom-houses, post offices, and all other public buildings, except such as may be set aside by the General Government for the use of the Local Legislatures and Governments. 9. Property transferred by the Imperial Government, and known as Ordnance property. 10. Armouries, drill sheds, military clothing, and munitions of war, and lands set apart for general public purposes. 55. All lands, mines, minerals, and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, and New Brunswick, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. 56. All sums due from purchasers or lessees of such lands, mines, or minerals, at the time of the Union, shall also belong to the Local Government. 57. All assets connected with such portions of the Public Debt of any Province as are assumed by the Local Governments, shall also belong to those Governments respectively. 58. The several Provinces shall retain all other public property

THE LONDON CONFERENCE, 1866 - 227

therein subject to the right of the General Government to assume any lands or public property required for fortifications or the defence of the country. 59. The General Government shall assume the debts and liabilities of each province. 60. The debt of Canada not specially assumed by Upper and Lower Canada respectively, shall not exceed at the time of the Union sixty-two million five hundred thousand dollars; Nova Scotia shall enter the Union with a debt not exceeding eight million dollars, and New Brunswick with a debt not exceeding seven million dollars. But this stipulation is in no respect intended to limit the powers given to the respective Governments of those Provinces by Legislative authority, but only to determine the maximum amount of charge to be assumed by the General Government. 61. In case Nova Scotia or New Brunswick should not have contracted debts at the date of Union equal to the amount with which they are respectively entitled to enter the Confederation they shall receive by half-yearly payments in advance from the General Government, the interest at five per cent, on the difference between the actual amount of their respective debts and such stipulated amounts. 62. In consideration of the transfer to the General Parliament of the powers of taxation, the following sums shall be paid by the General Government to each Province for the support of their Local Governments and Legislatures: Upper Canada $80,000 Lower Canada 70,000 Nova Scotia 60,000 New Brunswick 50,000 $260,000 and an annual grant in aid of each Province £hall be made, equal to eighty cents per head of the population, as established by the Census of One thousand eight hundred and sixty-one, and in the case of Nova Scotia and New Brunswick, by each subsequent decennial Census until the population of each of those Provinces shall amount to four hundred thousand souls, at which rate it shall thereafter remain. Such aid shall be in full settlement of all future demands upon the General Government for local purposes, and shall be paid half-yearly in advance to each Province; but the General Government shall deduct from such subsidy all

228 - DOCUMENTS ON CONFEDERATION

sums paid as interest on the Public Debt of any Province in excess of the amount provided under the sixtieth resolution. 63. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the period of ten years from the time when the Union takes effect, an additional allowance of sixty-three thousand dollars per annum shall be made to that Province. But that so long as the liability of that Province remains under seven millions of dollars, a deduction equal to the interest on such deficiency shall be made from the sixty-three thousand dollars. 64. All engagements that may, before the Union, be entered into with the Imperial Government for the defence of the country shall be assumed by the General Government. 65. The construction of the Intercolonial Railway being essential to the consolidation of the Union of British North America, and to the assent of the Maritime Provinces thereto, it is agreed that provision be made for its immediate construction by the General Government, and that the Imperial guarantee for three millions of pounds sterling pledged for this work be applied thereto, so soon as the necessary authority has been obtained from the Imperial Parliament. 66. The communications with the North Western Territory, and the improvements required for the development of the trade of the Great West with the Sea-board, are regarded by this Conference as subjects of the highest importance to the Confederation, and shall be prosecuted at the earliest possible period that the state of the Finances will permit. 67. The sanction of the Imperial Parliament shall be sought for the Union of the Provinces on the principle adopted by this Conference. 68. That Her Majesty the Queen be solicited to determine the rank and name of the Confederation. 69. That a copy of these Resolutions signed by the Chairman and Secretary of the Conference be transmitted to the Right Honourable the Secretary of State for the Colonies.

The Conference adjourned at six o'clock p.m. until Friday, the 28th December, at 12 o'clock noon.

THE LONDON CONFERENCE, 1866 - 229

75

Frederic Rogers* to John A. Macdonald, 28 December, 1866. (Pope, Appendix Vly 307.) I am directed by the Earl of Carnarvon to acknowledge the receipt of your letter of the 26th instant,t forwarding resolutions in which the Delegates from Canada, Nova Scotia and New Brunswick have embodied the principles on which they desire that a Bill may be introduced into Parliament for the Union of those Provinces. Lord Carnarvon will at once give his careful attention to these resolutions, and as soon as His Lordship shall have had time to give them the consideration which they require, he will not delay to fix a day and hour when he may have the pleasure of conferring with you and the other gentlemen who are acting with you on the subject.

76 Lord Carnarvon to John A. Macdonald, 28 December, 1866. (Pope, Appendix VI, 307.) I received this morning your official letter and the resolutions of the Delegates.* I found it difficult to consider them in their present form and have sent them to London to-day to be put into type; but I will on their return to me lose no time in giving them my best attention. I will communicate with you, as soon as I have sufficiently mastered the changes introduced, to fix a meeting with yourself and the Delegates. I quite agree in the expediency of considering the resolutions private for the present.

*Permanent Under-Secretary of State for the Colonies, 1860-1871. tSeeDoc. 73. JSee Docs. 73 and 74.

230 - DOCUMENTS ON CONFEDERATION

Section I:

The Framing of the British North America Act, January-March, 1867. 77 Gov.-General Monck to Lord Carnarvon, 13 January, 1867. (P.R.O. 30/6/151.) Mr. Macdonald apprehends a good deal of difficulty with Mess. Cartier and Langevin on the proposed change as to Property and Civil rights and suggests that your Lordship and I should see them apart from the general discussion.

78 Rough Draft of the London Conference for British North America Bill, undated.* (Pope, 123-40.) Be it enacted by The Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled, and by the authority of the same, as follows: 1. It shall be lawful for Her Majesty, with the advice of her Privy Council, to declare, or to authorize the Governor-General to declare by proclamation, that the Provinces of Canada, Nova Scotia, and New Brunswick, upon, from, and after a certain day in such proclamation to be appointed, which day shall be within calendar months next after the passing of this Act, shall, for the purposes hereof, form and be one Province or Confederation, under the name of and thenceforth the said several Provinces shall constitute and be one Province or Confederation, under the name aforesaid, upon, from, and after the day so appointed, as aforesaid. GENERAL GOVERNMENT 2. The Executive Authority or Government, so far as may be necessary for the purposes of this Act, shall be and continue to

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-231

be vested in the Queen of the United Kingdom of Great Britain and Ireland, to be administered either personally or by representatives upon the principles of the British Constitution. 3. The Queen shall be Commander-in-Chief of the land and naval militia forces. 4. There shall be within the said Confederation a Parliament composed of the Queen, Legislative Council, and a House of Commons. LEGISLATIVE COUNCIL 5. There shall be 72 Members in the Legislative Council, and for the purpose of constituting such Legislative Council, the Confederation shall be deemed to consist of three divisions, each to have an equal representation, that is to say: first, the Province of Upper Canada, 24; second, Lower Canada, 24; third, Nova Scotia and New Brunswick, 24; being 12 to each. 6. After the admission of Prince Edward Island into the Confederation, the representation of Nova Scotia and New Brunswick in the Legislative Council shall be reduced to ten each, such reduction only to take place on the occurrence of vacancies by death or otherwise. 7. The colonies of Newfoundland and Prince Edward Island, the North Western Territory and British Columbia, shall be admitted into the Confederation on such terms and conditions as the Parliament shall deem equitable, and as shall receive the assent of Her Majesty, and in the case of Newfoundland, Prince Edward Island, and British Columbia as shall be agreed upon by their respective Legislatures, but Newfoundland and Prince Edward Island, when admitted, shall each be entitled to a * There was apparently at least one more rough draft between this one and the "Initial" Draft of 23 January (Doc. 79). On 18 January, Sir Frederick Rogers, Under-Secretary of State for the Colonies, made the following comment to Lord Carnarvon on the principles underlying the proposed distribution of legislative power in these intervening drafts: " . . . I divide subjects of legislation (other than those of a simply general character) into two classes. 1. Those in which Local interests require protection against an adverse [?] majority. . . . 2. Matters where there is little or no reason for supposing that the General Legislature will be unfair to any particular locality, but which, from their nature are in the main proper subjects for local legislation. . . . You on the contrary are supposed to wish, or to have wished, to divide them into two classes. 1. Subjects for exclusive local legislation. . . . 2. Subjects for concurrent local legislation." (P.R.O. 30/6/154.)

232 - DOCUMENTS ON CONFEDERATION

representation in the Legislative Council of four Members. 8. The Members of the Legislative Council shall be appointed by Her Majesty under the Great Seal of the Confederation, and hold their seats for life, subject to the provisions hereinafter contained for vacating the same. Every person so appointed shall be a British subject of the age of thirty years or upwards, and shall at the time of such appointment reside in the Province for which he is appointed, and shall be seised in fee to his own use of real estate therein of the value of $4,000 over and above all incumbrances, and shall be worth that sum over and above all his debts and liabilities. Provided, in the case of Lower Canada, every person appointed shall be a resident of the said Province, and shall reside or possess his qualification in the Electoral District he is appointed to represent, as is mentioned in Schedule A, Chapter 1, of the Consolidated Statutes of Canada. 9. Nothing hereinafter contained as to the residence of Legislative Councillors shall apply to any person holding an official position which requires his attendance at the seat of Government during the term of his office. 10. If any Legislative Councillor shall, for two successive Sessions of Parliament, fail to give his attendance in the Legislative Council without the permission of the Governor-General, or shall take any oath, or make any declaration or acknowledgment of allegiance, obedience, or adherence to any Foreign Prince or Power, or shall do or concur in or adopt any act whereby he may become a subject or citizen of any Foreign State or Power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any Foreign State or Power, or shall cease to reside in the Province for which he is appointed, or, in the case of Lower Canada, in the Electoral District, as herein provided, subject to the exception as to Officers of the Government hereinbefore provided, or shall cease to hold the property qualification hereinbefore mentioned, or shall become bankrupt, or take the benefit of any law relating to Insolvent Debtors, or shall become a public defaulter, or be attainted of felony, or of any infamous crime, his seat in the Legislative Council shall thereby become vacant. 11. Every Member of the Legislative Council before he shall sit or vote therein, shall take the oath of allegiance to Her Majesty before the Governor-General, or some person or persons authorized by him to administer such oath, and shall also make and subscribe a declaration in writing under his hand, and deliver the same to the Clerk of the Council, which declaration

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-233

shall be as follows: "I, A B, do declare and testify that I am by law duly qualified to be appointed a Member of the Legislative Council of Canada, and that I am duly seised of an estate in fee simple to my own use, in lands or tenements, in (here set forth the place where such lands are situate, and a particular description thereof) of the value of $4,000 over and above all incumbrances affecting the same, and that I am worth that sum over and above all my debts and liabilities, and that I have not collusively or colourably obtained a title to or become possessed thereof, or of any part thereof, for the purpose of enabling me to become a member of the said Legislative Council." And every Member who shall sit or vote in the Council before making and filing such declaration as aforesaid, shall be liable for every day he shall so sit to pay the sum of $500, to be recovered by any person who shall sue for the same, and whoever shall wilfully, falsely, and corruptly make any such declaration or affirmation, shall be guilty of perjury, and suffer the pains and penalties therefor. 12. If any question shall arise as to the right of any person to hold his seat in the Legislative Council, it shall be heard and determined by the Legislative Council. But it shall be lawful either for the person respecting whose seat such question shall have arisen, or for Her Majesty's Attorney-General, or other principal Law Officer of the said Confederation, to appeal from the determination of the said Council in such case to Her Majesty, and that the judgment of Her Majesty, with the advice of Her Privy Council thereon shall be final and conclusive in the premises. 13. Any Member of the Legislative Council may, by writing under his hand addressed to the Governor-General, resign his seat in the said Legislative Council, and upon such resignation the seat of such Legislative Councillor shall become vacant. 14. The Governor General, unless otherwise provided by Parliament, shall appoint during pleasure one if the Members of the Legislative Council to be Speaker thereof. 15. The presence of at least Members of the Legislative Council, exclusive of the Speaker, shall be necessary to constitute a meeting for the exercise of its powers, and all questions which shall arise therein shall be decided by a majority of voices of the Members present, other than the Speaker; but when the voices are equal, the Speaker shall have the casting vote. 16. The Legislative Council; or the Members thereof, shall be entitled and exercise as a Branch of the Legislature within the

234 ~ DOCUMENTS ON CONFEDERATION

Confederation all the powers and privileges, and be subject to all the responsibilities and duties which the House of Lords in England, or the Members thereof enjoy, or are subject to, except as herein provided, and also as to what appertains to the judicial functions of the House of Lords. 17. The Governor-General shall in the first instance appoint the Members of the Legislative Council upon the nomination of the Executive Governments of Canada, Nova Scotia and New Brunswick, respectively, to be selected from the Legislative Council of each Province; but if any member of such Legislative Council so nominated shall not accept such nomination, the Executive Government in any Province may nominate in his place a person who is not a member of such Legislative Council. HOUSE OF COMMONS 18. The House of Commons shall be constituted upon the basis of representation by population, and shall consist of 181 Members, distributed as follows: —To Upper Canada, 82; Lower Canada, 65; Nova Scotia, 19; and to New Brunswick, 15; and after the decennial census of 1871, and every decennial census thereafter, upon the termination by a dissolution or otherwise of the Parliament then existing, the representation from each Province shall be readjusted, and for that purpose Lower Canada shall always be assigned 65 Members, and to each of the other Provinces at each readjustment shall be assigned the number of Members to which it will be entitled in the same ratio of representation to population as Lower Canada will have. 19. In the computation at each decennial period of the number of Members to which each Province is entitled, no fractional part shall be considered, except in cases when any such fractional part shall exceed one-half of the number which would entitle a Province to a Member on the basis of population, in which case a Member shall be assigned for each such fractional part; and no reduction shall be made in the number of Members to be returned by any Province unless its population shall have decreased relatively to the population of the whole Union, to the extent of five per centum. 20. The Parliament may at any time increase the number of Members in the House of Commons, but such increase shall be in the proportion to which each Province would be entitled under this Act. 21. Until provision is made by Parliament, all the laws which

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

235

at the time this Act comes into operation are in force in the Provinces, respectively relating to the qualification and disqualification of persons elected or entitled to sit and vote as Members of the Assembly of the said Provinces respectively, or relating to the qualification or disqualification of Electors, or to the oaths to be taken by Electors, or to returning officers, their powers and duties, or to the proceedings at elections, or to the manner and time of holding and conducting such elections, except as to Electoral Districts, or to the trial of Controverted Elections; and all proceedings incidental thereto, or relating to the vacating the seat of Members, or to the execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the House of Commons for those Provinces respectively. 22. The Governor-General shall within after this Act comes into operation, cause writs to be issued in such form as he may prescribe for the election of Members of the House of Commons, and within after the return thereof, summon Parliament for the despatch of business, and in case any vacancy should occur in the House of Commons before provision is made by Parliament, such vacancy may be filled, and writs therefor may be issued in like manner. 23. No Member of the House of Commons shall be permitted to sit or vote therein until he shall have taken the oath of allegiance to Her Majesty before the Governor-General, or other person or persons authorised by him to administer such oath. 24. The House of Commons shall, upon their first assembling after every general election, proceed forthwith to elect one of their Members to be Speaker, and in the case of his death, resignation or removal by a vote, shall forthwith proceed to elect another of such Members to be such Speaker, and the Speaker so elected shall preside in the said House of Commons. 25. Upon any general election the House of Commons shall be competent to proceed to the despatch of business at the time appointed by the Governor-General, provided that no more than five of the writs of election shall not have been returned, or that in any of the Electoral Districts the electors shall have failed to elect a Member to serve in the said House of Commons. 26. The presence of at least Members of the House of Commons, exclusive of the Speaker, shall be necessary to constitute a meeting for the exercise of its powers, and all questions which shall arise in such House of Commons, shall be decided by a majority of voices of such Members as shall be

236 - DOCUMENTS ON CONFEDERATION

present other than the Speaker, and whenever the voices shall be equal the Speaker shall have the casting voice. 27. The House of Commons, and the Members thereof, subject to the provision of this Act, shall enjoy all the powers, privileges and functions, and be subject to all the duties and responsibilities within the Confederation, as the British House of Commons and the Members thereof. 28. No person, being a Member of the Legislative Council, shall be capable of being elected, or of sitting, or voting as a Member of the House of Commons. PARLIAMENT 29. Every Parliament shall continue for five years from the day of the return of the writs under which the Members of the House of Commons shall be elected, and no longer, but subject to be sooner prorogued or dissolved by the Governor-General, and a Session of the Parliament shall be holden at least once in every year, so that a period of twelve calendar months shall not intervene between any two Sessions. 30. The Governor-General may fix such place or places within the Confederation, and such time for holding the first and every other Session of Parliament as he may deem advisable, and from time to time change or vary the same. 31. Whenever any Bill which has been passed by the Legislative Council and House of Commons shall be presented for the assent of Her Majesty to the Governor-General, he shall declare according to his discretion, but subject, nevertheless, to the provisions of this Act, and to such instructions as may from time to time be given in that behalf by Her Majesty, that he assents to such Bill in Her Majesty's name, or that he withholds such assent, or that he reserves the Bill for the signification of Her Majesty's pleasure. 32. No Bill which shall be reserved for the signification of Her Majesty's pleasure shall have any force or authority until the Governor-General shall signify, either by speech or message to the Legislative Council and House of Commons of the Confederation, or by proclamation, that such Bill has been laid before Her Majesty in Council, and that Her Majesty has been pleased to assent to the same, and an entry shall be made in the journals of the Legislative Council and House of Commons respectively of every such message or speech, and a duplicate thereof, duly attested, shall be delivered to the proper officer, to

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 237

be kept among the records of the Confederation, and no Bill which shall be so reserved as aforesaid shall have any force or authority unless Her Majesty's assent shall have been so signified as aforesaid within the space of two years from the day on which such Bill shall have been presented to the GovernorGeneral as aforesaid. 33. Whenever any Bill which shall have been presented for the assent of Her Majesty to the Governor-General shall have been assented to by him, he shall by the first convenient opportunity transmit an authentic copy thereof to one of Her Majesty's principal Secretaries of State. And Her Majesty may, within two years after such Bill shall have been so received by such Secretary of State, by Order in Council, declare the disallowance of such Bill, and such disallowance, together with a certificate under the hand and seal of such Secretary of State, certifying the day on which such Bill was disallowed as aforesaid, being signified by the Governor-General to the Legislative Council and House of Commons by speech or message or by proclamation, shall make void and annul the same from and after the day of such signification. 34. The Governor-General may disallow any Bill passed by the Local Legislature within one year after the passing thereof, and upon the proclamation thereof by the Governor it shall become null and void; and no Bill which shall be reserved by the Governor for the consideration of the Governor-General shall have any force or authority until the Governor-General shall signify his assent thereto and proclamation thereof made within the Province by the Governor of the Province for which such Bill has been passed. APPOINTMENT OF GOVERNORS, ETC. 35. The Governor-General may appoint Governors for the respective Provinces, Judges and other officers authorised by Parliament, and also the Judges of the Superior and District and County Courts in each Province. But the Judges of Lower Canada shall be selected from the bar of that Province, and until the consolidation of the laws of the other Provinces the Judges of these Provinces shall be selected from their respective benches or bars. POWERS OF PARLIAMENT 36. The Parliament shall have power to make laws respecting the following subjects: —

238

— DOCUMENTS ON CONFEDERATION

1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The raising of money by all or any mode or system of Taxation. 4. The borrowing of money on the public credit. 5. Postal Service. 6. Lines of Steam or other Ships, Railways, Canals, and other works connecting any two or more of the Provinces together, or extending beyond the limits of any Province. 7. Lines of Steamships between the Confederated Provinces and other countries. 8. Telegraphic Communication and the incorporation of Telegraph Companies. 9. All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorising them to be for the general advantage. 10. The Census and Statistics. 11. Militia — Military and Naval Service and Defence. 12. Beacons, Buoys, Light Houses, and Sable Island. 13. Navigation and Shipping. 14. Quarantine. 15. Sea Coast and Inland Fisheries. 16. Ferries between any Province and a Foreign Country, or between any two Provinces. 17. Currency and Coinage. 18. Banking — Incorporation of Banks and the issue of paper money. 19. Savings Banks. 20. Weights and Measures. 21. Bills of Exchange and Promissory Notes. 22. Interest. 23. Legal Tender. 24. Bankruptcy and Insolvency. 25. Patents of Invention and Discovery. 26. Copy Rights. 27. Indians and Lands reserved for the Indians. 28. Naturalization and Aliens. 29. Marriage and Divorce. 30. The Criminal Law, excepting the Constitution of Courts of Criminal Jurisdiction but including the procedure in Criminal matters. 31. The establishment, maintenance, and management of Penitentiaries.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

239

32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only. 33. Immigration. 34. Agriculture. 35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts when necessary. 36. To fix and provide for the salaries and allowances of the Governors of the several Provinces, and of the Judges and all other Officers of the Confederation, and of the Judges of the Superior, and District, and County Courts, and of the Admiralty Courts, in cases where the Judges thereof are paid by salaries. 37. And also for the peace, welfare and good government of the Confederation respecting all matters of a general character, not specially and exclusively herein reserved for the Legislatures; and such laws shall control and supersede any laws in any wise repugnant thereto or inconsistent therewith which may have been made prior thereto; and any law made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and subjects in which concurrent jurisdiction is hereby given to the Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by the Parliament, be null and void. 37. The Government of the Confederation and the Parliament shall have and exercise all powers necessary or proper for the performance of the obligations of the Confederation as part of the British Empire to Foreign Countries arising under treaties between Great Britain and such countries. LOCAL GOVERNMENTS 38. For each of the Provinces there shall be an Executive Officer styled the Governor, who shall be appointed by the Governor-General under the Great Seal of the Confederation,

240 - DOCUMENTS ON CONFEDERATION

to hold office during pleasure, such pleasure, however, not to be exercised before the expiration of five years from the date of his appointment, except for cause to be communicated in writing to the Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament within the first week of the first Session thereafter. 39. The Governor, subject to the provisions of this Act and any Act of Parliament, and of such instructions as he may from time to time receive from the Governor-General, shall administer the Government of the Province for which he is appointed upon the principles of the British Constitution. He shall have power from time to time to prorogue or dissolve the Legislature; he may reserve any Bill passed by the Legislature for the consideration of the Governor-General, and may from time to time, except in capital cases, reprieve or pardon prisoners convicted of crimes, and commute and remit such sentences in whole or in part, which belong of right to the Crown. 40. The Governor-General shall from time to time make provision for the administration of the Government of any Province, during the temporary absence or other inability to discharge the duties of his office of the Governor thereof from any cause. 41. The Local Government and Legislature of each Province shall be constructed subject to the provisions of this Act in such manner as the Legislature shall from time to time provide. 42. The Legislature shall have exclusive power to make laws respecting the following subjects, with the exception of Agriculture and Immigration, in regard to which Parliament shall have concurrent jurisdiction: — 1. The altering and amending their constitution from time to time. 2. Direct Taxation, and reserving to New Brunswick the right to collect the lumber dues provided in Chapter 15, Title III. of the Revised Statutes of that Province, and any amendment thereof, made before or after this Act comes into operation, which does not increase the amount, but excepting therefrom the lumber of any other Province. 3. Borrowing money on the credit of the Province. 4. The establishment and tenure of Local Offices, and the appointment and payment of Local Officers. 5. Agriculture. 6. Immigration. 7. Education - saving the rights and privileges which the

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 241

Protestant or Roman Catholic minority in any Province at the time when this Act came into operation. And in any Province where a system of separate or dissentient schools by law obtains, or where the Legislature may thereafter adopt a system of separate or dissentient schools, an appeal shall lie to the Governor-General from the acts and decisions of the Local Authorities which affect the rights and privileges of the Protestant or Roman Catholic minority in the matter of education, and the Parliament shall have power, in the last resort, to legislate on the subject. 8. The sale and management of Public Lands, except Lands owned by the General Government. 9. The establishment, maintenance, and management of Public and Reformatory Prisons. 10. The establishment, maintenance, and management of Hospitals, Asylums, Charities, and Eleemosynary Institutions, except Marine Hospitals. 11. Municipal Institutions. 12. Shop, Saloon, Tavern, Auctioneer and other Licenses for Local Revenue. 13. Local Works. 14. The incorporation of private or local companies, except such as relate to matters assigned to the General Parliament. 15. Property and civil rights, including the solemnisation of marriage, excepting those portions thereof assigned to the General Parliament. 16. The infliction of punishment by fine, penalties, imprisonment, or otherwise for the breach of laws passed in relation to any subject within their jurisdiction. 17. The administration of justice, including the constitution, maintenance, and organisation of the Courts - both of Civil and Criminal Jurisdiction, and including also the procedure in Civil Matters. 18. And generally all matters of a private or Jocal nature, not assigned to the Parliament. 43. All the powers, privileges, and duties conferred and imposed upon Roman Catholic separate schools, and school trustees in Upper Canada, shall be extended to the Protestant and Roman Catholic schools in Lower Canada.

242 - DOCUMENTS ON CONFEDERATION

MISCELLANEOUS 44. The English and French languages may both be employed in Parliament, and in its proceedings, and in the Legislature and Courts of Lower Canada, and also in the Courts of the Confederation which may be established under this Act. 45. For the purposes of this Act, Courts, Judges, and Officers of the several Provinces shall be Courts, Judges and Officers of the Confederation. 46. The Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable on the address of both Houses of Parliament, but not on the address of the Houses of any of the Legislatures. 47. No lands or property of the Confederation or Local Government shall be liable to taxation. 48. All Bills for appropriating any part of the Public Revenue, or for imposing any tax or imposts shall originate in the House of Commons or the House of Assembly, as the case may be. 49. The House of Commons or House of Assembly shall not originate or pass any vote, resolution, address, or bill, for the appropriation of any part of the public revenue or of any tax or impost, to any purpose not previously recommended by message of the Governor-General, or the Governor, as the case may be, during the Session in which such vote, resolution, address, or bill is moved. 50. The seat of Government of the Confederation shall be Ottawa, subject to the Royal prerogative. 51. Subject to any future action of the respective Local Governments, the seat of the Local Government in Upper Canada shall be Toronto, in Lower Canada, in Quebec; and the seat of the Local Government in the other Provinces shall be as at present. 52. All stocks, cash, bankers' balances and securities for money belonging to each Province at the time this Act comes into operation, except as hereinafter mentioned, shall become the property and assets of the Confederation. 53. The following works and property of each Province shall become the property of the Confederation: 1. Canals. 2. Public Harbours. 3. Lighthouses, Piers and Sable Island. 4. Steamboats, Dredges and Public Vessels. 5. River and Lake Improvements.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 — 243

6. Railways and Railway Stocks, Mortgages and other debts due by Railway Companies. 7. Military roads. 8. Custom Houses, Post Offices, and all other public buildings, except such as may be set aside by the Government of the Confederation for the use of the Local Governments and Legislatures. 9. Property transferred by the Imperial Government, and known as Ordnance Property. 10. Armouries, Drill Sheds, Military Clothing and munitions of war, and land set apart for general public purposes. 54. All lands, mines, minerals and royalties vested in Her Majesty in the several Provinces for the use of the Province, or owned by any such Province, and all sums due therefor at the time this Act comes into operation, shall be and continue to be the property of the Province in which the same are or were situate respectively, subject to any trust or other interest that may exist in respect to any such lands, and subject to the rights of the Government of this Confederation to assume, upon equitable terms, any land or public property required for fortifications or the defence of the country, all public property therein. 55. All assets connected with such portions of the Public Debt of any Province as are assumed by the Local Government, shall continue to be the property of those Governments respectively, not exceeding the amount of such assumptions. 56. When this Act comes into operation, all the debts, liabilities, agreements, and obligations of each Province shall become the debts, liabilities, agreements, and obligations of the Confederation, except as hereinafter provided. 57. For the purposes of the Confederation the debt not specially assumed by each Province respectively, shall, for Canada, not exceed the sum of $62,500,000; Nova Scotia, $8,000,000; and New Brunswick, $7,000,000. 58. If any of the Provinces, at the time this Act comes into operation, shall not have contracted debts equal to the amount hereinbefore mentioned, such Province shall receive, by halfyearly payments in advance from the Government of the Confederation, interest at the rate of five per centum on the difference between the actual amount of their respective debts, and such stipulated amount until such debts shall have been so contracted to such respective amounts; but nothing herein contained shall be construed to prevent any Province from

244 - DOCUMENTS ON CONFEDERATION

increasing the debt chargeable upon the Confederation at any time until it reaches such amount. 59. In consideration of the transfer of the powers of taxation to the Parliament, the Government of the Confederation shall annually pay to each Province, for local purposes, the following sums: Upper Canada $80,000 Lower Canada $70,000 Nova Scotia $60,000 New Brunswick $50,000 and also a sum equal to eighty cents per head of the population as ascertained by the census of the year 1861: and in the case of Nova Scotia and New Brunswick, at the Same rate per head as ascertained by each subsequent decennial census, until the population of each of these Provinces shall amount to four hundred thousand. Such aid shall be paid half-yearly in advance, by warrant of the Governor-General on the Treasury of the Confederation, in favour of the officer appointed in each Province to receive the same, deducting from any such subsidy all sums paid as interest on the Public Debt of any Province in excess of the amount hereinbefore stipulated, and also in like manner anually pay to the Province of New Brunswick the sum of $63,000 for the period of ten years. But so long as the liability of that Province remains under $7,000,000 a deduction shall be made therefrom equal to the interest on such deficiency. 60. All engagements of any of the Provinces made with the Imperial Government for the defence of the country shall be fulfilled by the Government of the Confederation. 61. Quakers and Moravians may affirm in any case where an oath is required. 62. All persons, bodies politic or corporate, acting under any law in force at the time this Act comes into operation, shall continue until others are appointed under the authority of this Act, and all proceedings taken shall continue when not inconsistent with the provisions of this Act, and all penalties and forfeitures may be recovered in the same manner as if this Act had not been passed; and any act done, or any right of action which existed, or had accrued or was accruing when .this Act came into operation, shall not be affected thereby, and any offence committed or penalty or forfeiture incurred, or any proceeding thereon or in relation thereto, shall not be affected by the passing of this Act, and judgment may in all cases be

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 245

pronounced thereafter, and all appointments made, and bonds and securities given by any person or persons, under the authority of any law in force at the time this Act comes into operation, shall not be affected thereby. 63. When this Act comes into operation, and until provision is made therefor by Parliament, all the officers of the several Provinces having duties to discharge connected with the several subjects with which Parliament is empowered to deal, shall thenceforth be and become officers of the Confederation and continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as are provided by the Acts under the authority of which they have been respectively appointed, or they shall have respectively acted, and all Judges and other officers in the several Provinces shall continue to discharge the duties of their respective offices in the same manner in all respects, and subject to the same liabilities, responsibilities, and penalties as if this Act had not been passed, and all laws in force in the several Provinces at the time this Act comes into operation not inconsistent herewith, shall continue to be in force and authority within each Province until they are altered, amended, or repealed under the authority of this Act. 64. The first appointments of the Governors of the several Provinces shall be provisional, and they shall hold office during pleasure. The Governor-General of Canada and also the respective Governors or other officers administering the Governments of the Provinces of Nova Scotia and New Brunswick respectively, in office at the time the Act comes into operation, shall be the Governors of Upper and Lower Canada and of Nova Scotia and New Brunswick respectively, and shall continue to exercise the functions and discharge the duties of their respective offices subject to the provisions of this Act until a Governor shall be appointed for each Province, and shall receive the same pay and allowances as they shall be then severally receiving; and the Government of Canada shall exercise the functions of the Governments of Upper and Lower Canada respectively, and the Governments of Nova Scotia and New Brunswick shall continue to exercise the functions of the Governments of those Provinces respectively until Local Governments are formed under the provisions of this Act. The Legislature of New Brunswick shall continue for the period for which it was elected, unless sooner dissolved, and the Constitution of the said Province, and of Nova Scotia, shall

246 - DOCUMENTS ON CONFEDERATION

continue as now established, subject to the provisions of this Act until altered or amended under the authority of this Act. 65. Until otherwise provided, the Province of Nova Scotia, for the purposes of the election of Members to serve in Parliament, is hereby divided into eighteen electoral districts, of which the county of Halifax, including the City of Halifax, shall be one, and shall be entitled to elect two Members, and each of the other seventeen counties into which the Province is divided, is hereby constituted an electoral district, and shall be entitled to elect one Member. 66. Unless otherwise provided by the Legislature, for the purpose of the first election of Members to serve in the first Parliament, each of the counties into which the Province of New Brunswick is divided, and the City of Saint John, shall constitute an electoral district, and be respectively entitled to elect a Member. INTERPRETATION 67. In the construction of this Act the following rules shall be observed with respect to the following terms, unless otherwise expressly provided for, or such construction would be inconsistent with the manifest intention of the Act, or repugnant to the context - that is to say: Her Majesty or the Queen shall include Her Heirs and Successors. Governor-General shall include the Chief Executive Officer or other Administrator of the Government for the time being appointed by Her Majesty, by whatever name designated, and when any act is herein required to be done by the GovernorGeneral, it shall be meant and intended that such act shall be done by and with the advice and consent of the Executive Council of the Confederation. Legislature shall mean the Local Legislature of any Province before or after this Act comes into operation. Governor shall include Administrator of the Government of any Province for the time being, and whenever any act is herein required to be done by the Governor, it shall be meant and intended that such act shall be done by and with the advice and consent of the Executive Council of the Province. Parliament shall mean the Parliament of the Confederation. Person may include any body corporate, company or society not corporate.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 247

Every word importing the singular number may extend to several persons or things as well as to one person or thing; and importing the plural number to one person or thing, as well as to several persons or things; and importing the masculine gender, to females as well as males. REPEALING 68. and all other Acts and parts of Acts inconsistent herewith or repugnant hereto shall be and are hereby repealed when this Act comes into operation.

79 Initial* Draft of the British North America Bill, 23 January, 1867. (Pope, 141-57.)

Confidential.

Revise, 23 Jan. 1867. British North America. DRAFT OF A

BILL FOR

The Union of the British North American Colonies, and for Government of the United Colony. [Qu. whether to say the Eastern B.N. A. Colonies,,] ^HEREAS the Union of the British North American Colonies for Purposes of Government and Legislation would be attended with great Benefits to the Colonies and be conducive to the Interests of the United Kingdom: Be it therefore enacted by the Queen's most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: * Pope's nomenclature is confusing here: although he labels this draft the "first draft," he notes on the third draft that the "1st draft" was dated the 30th of January (see below, p. 265, n. *). In order to avoid this ambiguity, the word "initial" has been substituted for "first" in the case of the draft dated 23 January.

248 - DOCUMENTS ON CONFEDERATION

PRELIMINARY « Short Title » 1. This Act may be cited as the British North America Act, 1867. [Here would follow: 1. Any Interpretation Clause that may be necessary. 2. Clause repealing Imperial and Colonial Acts, if necessary.] UNION « Declaration of Union » 2. It shall be lawful for Her Majesty, at any Time not later than , by Letters Patent under the Great Seal of the United Kingdom, to declare the Union of the Colonies of Canada, Nova Scotia, and New Brunswick into One Colony, with such name as Her Majesty thinks fit. « Proclamation in Canada » 3. The Governor-General of British North America shall, within after Receipt by him of the Letters Patent declaring the Union, proclaim the same by Publication thereof in the Government Gazette of Canada, and thereupon the Union shall have full Effect, and the said Three Colonies shall thenceforth form and be One Colony. [Qu. as to Mode of Proclamation.] PROVINCES OF UNITED COLONY « Division into Four Provinces » 4. The United Colony shall be composed of Four Provinces, namely, - Upper Canada, Lower Canada, Nova Scotia, and New Brunswick, - each thereof having the same Limits as it has immediately before the Union.

GOVERNOR GENERAL « Governor General of United Colony » 5. There shall be one Governor-General for the United Colony, appointed from Time to Time by Her Majesty, Her Heirs and Successors, by Letters Patent under the Great Seal of the United Kingdom.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

249

« Executive Council » 6. The Governor-General of the United Colony may, by Instrument under the Great Seal of the United Colony, constitute an Executive Council, and from Time to Time appoint and remove Members thereof. [The Resolutions say nothing of an Executive Council] « Command-in-Chief of Armed Forces » 7. The Command-in-chief of all Armed Forces raised in the United Colony, or in any Province, for Service by Land or by Water, shall be vested in Her Majesty, Her Heirs and Successors. GENERAL LEGISLATURE « Houses of Parliament of United Colony » 8. There shall be for the United Colony Two Houses of Parliament styled the Legislative Council and the House of Commons. LEGISLATIVE COUNCIL « Constitution of Legislative Council » 9. In the Legislative Council the Four Provinces shall be represented as follows, namely, - there shall be for Upper Canada Twenty-four Members, for Lower Canada Twenty-four Members, for Nova Scotia Twelve Members, and for New Brunswick Twelve Members. « First Legislative Council named in Schedule » 10. The First Members of the Legislative Council shall be the Persons named in the Schedule to this Act who shall be deemed respectively to represent the Province in connexion with which they are named; and the Representatives of Lower Canada shall be deemed also respectively to represent the Division in connexion with which they are named. « Resignation of Seat » 11. A Member of the Legislative Council may, by Writing under his Hand delivered to the Governor-General, resign his Seat. « Tenure of Seats of First Members » 12. All the First Members of the Legislative Council shall, subject to the Provisions of this Act, hold their Seats for Ten Years from the Union.

250 - DOCUMENTS ON CONFEDERATION

« Rotation of Members » 13. From ^nd after the end of Ten Years from the Union Members of the Legislative Council shall retire from it according to the following rotation: (1) At the End of each Year from the Commencement of the Rotation Three of the Representatives of Upper Canada and Three of the Representatives of Lower Canada shall retire: (2) At the end of the First, the Third, the Fifth, and the Seventh Year from the Commencement of the Rotation Two of the Representatives of Nova Scotia and one of the Representatives of New Brunswick, and at the End of the Second, the Fourth, the Sixth, and the Eighth Year from the Commencement of the Rotation One of the Representatives of Nova Scotia and Two of the Representatives of New Brunswick shall retire: (3) For the first Seven Years from the Commencement of the Rotation the Representatives to retire shall be determined by Lot: [Qu. How Lots to be drawn; by Speaker of Legislative Council?} (4) From and after the Expiration of Eight Years from the Commencement of the Rotation, the Representatives to retire shall be such as have for the Time being longest held their Seats. « Capacity for Re-appointment » 14. A Member of the Legislative Council retiring by Rotation shall be capable of Re-appointment. « Disqualification of first and subsequent Members » 15. The Seat of a Member of the Legislative Council, either named in the Schedule to this Act or appointed under this Act, shall become vacant in any of the following Cases: (1) If for Two consecutive Sessions of Parliament he fails to give his attendance in the Legislative Council without Leave of Absence granted by Her Majesty or the Governor-General, and signified by the GovernorGeneral to the Legislative Council: (2) If he takes an Oath or makes a Declaration or Acknowledgment of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

251

whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power: (3) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter: (4) If he is attainted of Treason or convicted of Felony or of any infamous Crime: (5) If he ceases to be qualified in respect of Property or of Residence; provided, that a Member shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of Government while holding an Office requiring his Presence there. « Qualification of subsequent Members » 16. When a Vacancy happens in the Legislative Council by Retirement by Rotation, Resignation, Death, or otherwise, the Governor-General of the United Colony shall, by Instrument under the Great Seal of the United Colony, appoint to fill the Vacancy a fit Person qualified as follows, namely, (1) Being a British Subject by Birth or by Naturalization: (2) Being of the Age of Thirty Years or upwards: (3) Possessing Real Property in the Province of which he is appointed a Representative, of the clear value of Four thousand Dollars or upwards, above all incumbrances: (4) Being resident in that Province: (5) In the case of Lower Canada either possessing his Property Qualification in the Division of which he is appointed Representative or being resident therein. « Duration of appointment on casual Vacancy » 17. Except in case of Retirement by Rotation a Person appointed to fill a Vacancy in the Legislative Council shall hold the seat as long only as the Person vacating the same would have been entitled to hold it. « Casual Vacancies before Union » 18. If before the Union any Person named in the Schedule to this Act declares, by Writing under his hand delivered to the Governor-General of British North America, his refusal to act as a Member of*the Legislative Council, or dies, or ceases to be qualified in respect of Property or of Residence, the Governor-

252 - DOCUMENTS ON CONFEDERATION

General, by Instrument under the Great Seal of Canada, shall appoint to be a Member of the Legislative Council in his Stead a fit Person who would be qualified to be so appointed after the Union, and if Her Majesty thinks fit to confirm such Instrument by Warrant under Her Royal Sign Manual, the Person so appointed shall thereby become a Member of the Legislative Council, and shall be in the same Position with respect of Tenure of Office and otherwise, as if he had been named in the Schedule to this Act. « Questions as to Vacancies » 19. If any Question arises respecting a Vacancy in the Legislative Council, the same shall be referred by the GovernorGeneral to the Legislative Council, and shall be heard and determined by them. « Speaker of Legislative Council » 20. Subject to the Provisions of any Act of the Parliament of the United Colony, the Governor-General of the United Colony may from Time to Time, by Instrument under the Great Seal of the United Colony, appoint a Member of the Legislative Council to be Speaker thereof, and may remove him and appoint another Member in his Stead. « Quorum of Legislative Council » 21. Subject to the Provisions of any Act of the Parliament of the United Colony, the Presence of a least Fifteen Members of the Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the Exercise of its Powers. « Voting in Legislative Council » 22. Questions arising in the Legislative Council shall be decided by a Majority of Voices, and when the Voices are equal, but not otherwise, the Speaker shall have a Vote. HOUSE OF COMMONS « Constitution of House of Commons » 23. In the House of Commons the Four Provinces shall, subject to the Provisions of this Act, be represented as follows, namely, there shall be for Upper Canada Eighty-two Members, for Lower Canada Sixty-five Members, for Nova Scotia Nineteen Members, and for New Brunswick Fifteen Members. [The Regulation of Constituencies is to be provided for; there is no Provision on the Subject in the Amended

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-253

Resolutions. Nos. 23,24 of the Quebec Resolutions related to the subject, but they would not have operated until after the Union. Provisions will also be required as to Quorum, Election of Speaker, and his Vote. Qu. Oath of Allegiance to be taken by every Member of either House.} « Continuance of existing Election Laws » 24. Subject to the Provisions of any Act of the Parliament of the United Colony, all Laws in force in the several Provinces at the Union relative to the following Matters or any of them, namely, - the Qualifications and Disqualifications of Persons to be elected or to sit or vote as Members of the Assembly or Lower House in the respective Provinces, the Voters at Elections of such Members, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which Elections may be continued, [the Trial of Controverted Elections, and Proceedings incident thereto, the vacating of Seats of Members, and the issuing and Execution of new Writs in case of Seats vacated otherwise than by Dissolution,] - shall respectively apply to Elections of Members to serve in the House of Commons of the United Colony for Places situate in the respective Provinces. [This follows No. 25 of the Amended Resolutions, and Sect. 27 of the Canada Union Act of 1840; but qu. as to the Propriety of the words in Brackets.] « Decennial Re-adjustment of Representation » 25. On the Completion of the Official Census of the Population of the United Colony in the Year One thousand eight hundred and seventy-one, and of each subsequent decennial Census, the Representation of the Four Provinces shall be re-adjusted by such Authority, in such Manner, and from such Time, as any Act of the Parliament of the United Colony from Time to Time directs, according to the following Rules: [Qu. the Re-adjustment to be made by an independent Authority, as some of the Judges, to be specified in the Imperial Act.1 (1) Lower Canada shall have the fixed Number of Sixtyfive Representatives: (2) There shall be assigned to each of the other Provinces such a Number of Representatives as will bear the

254 - DOCUMENTS ON CONFEDERATION

same Proportion to the Number of its Population (ascertained at such Census) as the Number Sixtyfive bears to the Number of the Population of Lower Canada (so ascertained): (3) In the Computation of the Number of Representatives for a Province a fractional Part less than One Half of the whole Number requisite for entitling the Province to a Representative shall be disregarded; but a fractional Part exceeding One Half of that Number shall be equivalent to the whole Number: (4) On any such Re-adjustment the Number of Representatives of a Province shall not be reduced unless the Proportion which the Number /of the Population of the Province bore to the Number of the aggregate Population of the United Colony at the then last preceding Re-adjustment of the Number of Representatives of the Province is ascertained at the then last Census to be diminished by One Twentieth Part or upwards. « Increase of Number of House of Commons » 26. The Number of Members of the House of Commons may be from Time to Time increased by Act of the Parliament of the United Colony, provided the proportionate Representation of the several Provinces prescribed by this Act is not thereby disturbed. « Duration of House of Commons » 27. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor-General), and no longer. MONEY « Appropriation and Tax Bills » 28. Bills for appropriating any Part of the Public Revenue of the United Colony, or for imposing any Tax or Impost, shall originate in the House of Commons. « Recommendation of Money Votes » 29. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part of the Public Revenue, or of any Tax

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

— 255

or Impost, to any purpose that has not been first recommended to that House by Message of the Governor-General in the Session in which such Vote, Resolution, Address, or Bill is proposed to be adopted or passed. ROYAL ASSENT, &C. « Royal Assent to Bills, &c. » 30. Where a Bill passed by the Houses 'of Parliament of the United Colony is presented to the Governor-General of the United Colony for Her Majesty's Assent, he shall declare according to his Discretion, but subject to the Provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in Her Majesty's Name, or that he withholds Her Majesty's Assent, or that he reserves the Bill for the Signification of Her Majesty's Pleasure. « Disallowance by Order in Council of Act assented to by Governor » 31. Where the Governor-General assents to a Bill in Her Majesty's Name, he shall by the First convenient Opportunity send an authentic Copy of the Act to One of Her Majesty's Principal Secretaries of State, and if Her Majesty in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor-General, by Speech or Message to the Houses of Parliament of the United Colony or by Proclamation, shall annul the Act from and after the Day of such Signification. « Signification of Pleasure on Bill reserved » 32. A Bill reserved for the Signification of Her Majesty's Pleasure shall not have any Force unless and until within Two Years from the Day on which it was presented to the GovernorGeneral for Her Majesty's Assent, the Governor-General signifies, by Speech or Message to each of the Houses of Parliament of the United Colony or by Proclamation, that it has received the Assent of Her Majesty in Council. An entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a Duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the Records of the United Colony.

256 - DOCUMENTS ON CONFEDERATION

ANNUAL SESSION « Yearly Session of Parliament » 33. There shall be a Session of the Parliament of the United Colony once at least in every Year, so that a Period of Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and the first Sitting thereof in the next Session. SUPERINTENDENTS OF PROVINCES « Superintendents of Provinces » 34. For each Province there shall be an Officer, styled the Superintendent, appointed by the Governor-General in Council, by an Instrument under the Great Seal of the United Colony. « Tenure of Office of Superintendent » 35. A Superintendent shall hold Office during the Pleasure of the Governor-General in Council, but any Superintendent appointed after the Commencement of the first Session of the Parliament of the United Colony after the Union shall not be removable within Five Years from his Appointment, except for Cause assigned, which shall be communicated to him in Writing within after the Order for his Removal is made, and shall be communicated by Message to each of the Houses of Parliament of the United Colony within One Week thereafter if the Parliament is then sitting, and if not then within One Week after the Commencement of the next Sitting of the Parliament. « Salaries of Superintendents » 36. The Salaries of the Superintendents shall be fixed and provided by Act of Parliament of the United Colony. [The first Superintendents will have no Salaries fixed till such an Act is passed. Here will follow Constitutions of Provincial Assemblies; see Note at End of Draft.}

DISTRIBUTION OF LEGISLATIVE POWERS « Subjects of exclusive Provincial Legislation » 37. In each Province the Superintendent may, by and with the Advice and Consent of the Provincial Assembly, make Ordinances in relation to Matters coming within the Classes of Subjects next hereinafter enumerated, which Ordinances exclusively (subject to the Provisions of this Act) shall in relation

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

257

to those Matters have the Force of Law in and for the Province, that is to say, (1) The Amendment from Time to Time of the Constitution of the House or Houses of the Provincial Assembly: (2) Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes, including in the case of New Brunswick the levying, by the Mode and to the Extent (if any) established by Law at the Union, Dues on Timber, not being the Produce of any of the Provinces other than New Brunswick: (3) The borrowing of Money on the sole Credit of the Province for Provincial Purposes: (4) The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers: (5) The Management and Sale of the Public Lands belonging to the Province: (6) The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province: (7) The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province (other than Marine Hospitals): (8) Municipal Institutions in the Province: (9) Shop, Saloon, Tavern, Auctioneer and other Licenses ^in order to the raising of a Revenue for Provincial Purposes: (10) Local Works and Undertakings other than such as are of the following Classes: (a) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province: (b) Lines of Steam Ships between the Province and any British or Foreign Country: (c) Ferries between the Province and any other or others of the Provinces or between the Province and any British or Foreign Country: (d) Such Works as, although situate within the

258 - DOCUMENTS ON CONFEDERATION

Province, are before or after their Execution declared by Act of the Parliament of the United Colony to be for the general Advantage of the United Colony or for the Advantage of Two or more of the Provinces: (11) The Incorporation of Companies with exclusively Provincial Objects: (12) The Solemnization of Marriage in the Province: (13) Property and Civil Rights in the Province: (14) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts: (15) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Provincial Ordinance made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section: (16) Such other Classes of Subjects (if any) as are from Time to Time added to the Enumeration in this Section by any Act of the Parliament of the United Colony. « Legislative Authority of Parliament of United Colony » 38. It shall be lawful for Her Majesty, Her Heirs and Successors, by and with the Advice and Consent of the Houses of Parliament of the United Colony, to make laws for the Peace, Order, and good Government of the United Colony and of the several Provinces, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to Provincial Legislation; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, 1. The Public Debt and Property. 2. The Regulation of Trade and Commerce. 3. The raising of Money by any Mode or System of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

259

7. Militia, Military and Naval Service, and Defence. 8. Beacons, Buoys, Lighthouses, and Sable Island. 9. Navigation and Shipping. 10. Quarantine. 11. Sea Coast and Inland Fisheries. 12. Currency and Coinage. 13. Banking, Incorporation of Banks, and the Issue of Paper Money. 14. Savings Banks. 15. Weights and Measures. 16. Bills of Exchange and Promissory Notes. 17. Interest. 18. Legal Tender. 19. Bankruptcy and Insolvency. 20. Patents of Invention and Discovery. 21. Copyrights. 22. Indians, and Lands reserved for the Indians. 23. Naturalization and Aliens. 24. Marriage and Divorce. 25. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 26. The Establishment, Maintenance, and Management of Penitentiaries. 27. Such Classes of Subjects as are by this Act expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to Provincial Legislation. And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Subject of Property and Civil Rights comprised in the enumeration of the Classes of Subject! by this Act assigned exclusively to Provincial Legislation. « Legislation respecting Education » 39. In each Province the Superintendent may, by and with the Advice and Consent of the Provincial Assembly, make Ordinances in relation to Education in the Province, subject and according to the following Provisions: (1) Nothing in any such Ordinance shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: (2) All the Powers, Privileges, and Duties for the Time

260

— DOCUMENTS ON CONFEDERATION

being by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of Her Majesty's Roman Catholic Subjects shall from Time to Time be extended to the Schools of Her Majesty's Protestant and Roman Catholic Dissentient Subjects in Lower Canada: (3) Where in any Province a System of Separate or Dissentient Schools for the Time being exists by Law, an Appeal shall lie to the Governor-General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of any Class of Persons in relation to Education: (4) In case any such Provincial Ordinance as from Time to Time seems to the Governor-General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor-General in Council on any Appeal under this section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far as the Circumstances of each Case require, the Power of the Parliament of the United Colony to make Laws in relation to Education shall, notwithstanding anything in this Act, be unrestricted. « Legislation for Uniformity of Laws in Three Provinces » 40. Notwithstanding anything in this Act, any Act of the Parliament of the United Colony may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Upper Canada, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and thenceforth the power of the Parliament of the United Colony to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of the United Colony making Provision for such Uniformity shall not have effect in any Province unless and until it is approved and adopted by the House or Houses of the Provincial Assembly thereof by Address to the Governor-General of the United Colony. « General Court of Appeal » 41. Any Act of the Parliament of the United Colony may, notwithstanding anything in this Act, from Time to Time provide

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 -

261

for the Constitution, Maintenance, and Organization of a General Court of Appeal for the United Colony. « Concurrent Powers of Legislation as to Agriculture and Immigration » 42. Notwithstanding anything in this Act, any Act of the Parliament of the United Colony may from Time to Time make Provision in relation to Agriculture in all or any of the Provinces, or in relation to Immigration into all or any of the Provinces, and in each Province Provincial Ordinances may make provision in relation to Agriculture in the Province or Immigration into the Province; but any such Provincial Ordinance shall have the Force of Law in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of the United Colony. LANGUAGE « Use of English and French languages.** 43. Either the English or the French Language may be used by any person in the Debates of the Houses of Parliament of the United Colony, and of the Houses of the Provincial Assembly of Lower Canada, and either or both of those Languages may be used in the respective Records and Journals of those Houses, and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of the United Colony, and in or from all or any of the Provincial Courts of Lower Canada. [Qu. whether, as to Courts of the United Colony, this should not be confined to such of those Courts as sit in Lower Canada.} NEWFOUNDLAND AND PRINCE EDWARD ISLAND « Admission of other Colonies » 44. It shall be lawful for Her Majesty in Council, on Addresses from the Houses of the Parliament of the United Colony, and from the Houses of the Legislature of the Colony of Newfoundland or of the Colony of Prince Edward Island, to admit the Colony of Newfoundland or the Colony of Prince Edward Island (as the case may be), into the Union on the Terms and Conditions in the Addresses expressed; and the Provisions of any Order in Council in that Behalf shall have Effect as if they had been enacted in this Act.

262 - DOCUMENTS ON CONFEDERATION

THE SCHEDULE First Members of the Legislative Council of United Colony. 1. Upper Canada. 2. Lower Canada. [Specifying the Twenty-four Divisions.] 3. Nova Scotia. 4. New Brunswick. [No. 30 of the Amended Resolutions (Powers and Privileges of the Houses) may be provided for by Colonial Legislation. Nos. 31-7 (Courts, Judges, etc.) might be left for Colonial Legislation, unless there is some special Reason for having them inserted in the Imperial Act. No. 40 and Parts of Nos. 47-50 relate to the Constitution and Proceedings of the Provincial Governments and Legislatures. It is understood that Draft Clauses on these Subjects are being prepared by the Delegates of the several Colonies, which when completed can be considered in Consultation with them. Nos. 53-63 (Property and Liabilities) are reserved for further Consideration. No. 65 (Intercolonial Railway) must be dealt with separately. All the other Resolutions seem disposed of in this Draft Bill as far as Legislation is requisite. Are such Provisions considered desirable as ss. 47, 48, of the Canada Union Act of 1840, relating to Continuance of Courts, Commissions, etc., and to Temporary Acts?] 80 Archbishop Connolly to Lord Carnarvon, 30 January, 1867.* (P.R.0.30/6/137.)

. . . we only ask the British Government to give power to the Central Legislature to deal with the whole question of minorities on one uniform principle which will do away with discontent for ever. The more power that Central Legislature has the better for the Confederacy itself and for the Mother Country and for all concerned.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 — 263

81 Memorandum Concerning Proposed Alterations in Clauses 9-14 of the Draft Bill, unsigned, 30 January, 1867.t (P.R.O. 30/6/163.)

The Delegates now have proposed: (1) That the tenure of office for the Council should be for Life. (2) That to preserve Sectional interests each of the three Sections vizt. Upper Canada, Lower Canada and the Maritime Provinces should be equally represented. (3) That one rejection by the Upper Chamber of a Money Bill, or a third rejection of any other Bill passed by the Commons would justify the Governor, with the advice of his Council, in adding to the Upper House such a number of Members to to taken equally from the Three Sections as would ensure the carrying of the measure - Provided always that at its Third Reading in the Commons two out of the three Sections had pronounced in its favor. The majority in each Section to be absolute and not merely of those voting. 82 Resolution of the North American Delegates with regard to the Elasticity of the Senate, 1 February, 1867. (P.R.O. 30/6/169.)

Resolved, That on the application of the Federal Government Her Majesty in Council may from time to time sanction an appointment of additional Senators, so as that the whole number shall in no case exceed 78, the proportions allotted to the separate sections being strictly preserved. In case of vacancies after any increase about 72 no appointment shall be made without the sanction of the British Government till the whole number is reduced below 72.

*SeeDocs. 50 and 71. tThese alterations were proposed by Macdonald in /. A. Macdonald to Lord Carnarvon, 30 January, 1867 (P.R.O. 30/6/149): see Pope, ed., Memoirs of Sir John A. Macdonald, Appendix XV, pp. 727-28. They were opposed by Adderley, the Under-Secretary of State, in C. B. Adderley to Lord Carnarvon, 29 January, 1867 (P.R.O. 30/6/134).

264 - DOCUMENTS ON CONFEDERATION

83 Memorandum for Consideration of the Cabinet by Lord Carnarvon, 2 February, 1867. (P.R.O. 30/6/169.) I communicated to the Delegates the alteration in the constitution of the Senate which the Cabinet desired to see made. They have accepted the principle and have embodied their conclusion in the accompanying paper — with this modification 1. that the appointments shall be with the Crown. 2. that the number added shall not exceed six. The intervention of the Crown is to my mind a doubtful proposal: but it is designed to be a check upon popular feeling and the action of the local Government and I do not see that we can take exception to it.

84 Third Draft of the British North America Bill, 2 February, 1867. (Pope, 158-76.) (Confidential.)

THIRD DRAFT* (OF CONFERENCE). Dated 2nd February, 1867. WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire to form a Federal Union under the British Crown, for the purposes of Government and Legislation, based upon tHe principles of the British Constitution. Be it therefore Enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, as follows: 1. This Act may be cited as "The British North American Act, 1867." 2. The words "the Queen," shall mean Her Majesty, Her Heirs, and Successors, Sovereigns of the United Kingdom of Great Britain and Ireland. The words "from and after the Union," shall mean from and after the day on which the proclamation, declaring the Union of the Provinces, shall take effect. The word "Parliament" shall mean the Legislature or Parliament of the United Provinces.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

265

The word "Legislature" shall mean the Local Legislature or Parliament of the several Provinces. The word "Union," shall mean the Union of the Provinces of Canada, Nova Scotia, and New Brunswick. The words "Governor General in Council," shall mean the Governor or person administrating for the time being the Government of Canada, acting by and with the advice of the Privy Council thereof. The words "Lieutenant-Governor in Council," shall mean the Lieutenant-Governor or person administering for the time being the Government of either of the Provinces of Ontario, Quebec, Nova Scotia, or New Brunswick, acting by and with the advice of the Executive Council thereof. 3. From and after the Union, all Acts and parts of Acts, passed by the Parliament of Great Britain, the Parliament of the United Kingdom of Great Britain and Ireland, the Legislature of Upper Canada, the Legislature of Lower Canada, the Legislature of Canada, the Legislature of Nova Scotia, or the Legislature of New Brunswick, which are repugnant to or inconsistent with the provisions of this Act shall be and the same are hereby repealed: Provided always that the repeal of the said several Acts of Parliament and parts of Acts of Parliament shall not be held to revive or give any force or effect to any enactment which has, by the said Acts, or any of them, been repealed or determined. 4. It shall be lawful for the Queen with the advice of her Privy Council, to declare by proclamation that the said Provinces of Canada, Nova Scotia and New Brunswick upon, from, and after a certain day in such proclamation to be appointed, which day shall be within calendar months next after the passing of this Act, shall form and be one united dominion, under the name of the Kingdom of Canada, and thenceforth the said Provinces shall constitute and be One Kingdom under the Name aforesaid, upon, from, and after the day so appointed as aforesaid. 5. From and after the Union, Upper Canada and Lower Canada shall be severed, and each shall form a separate Province. 6. From and after the said Union, Upper Canada shall be *The drafts marked respectively: "1st draft, 30th January, 1867," and "2nd draft, 31st January, 1867," are incomplete, but so far as they go contain nothing not included in this draft. [Pope] See above, p. 247, n. *.

266

— DOCUMENTS ON CONFEDERATION

named and known as the Province of Ontario, and Lower Canada shall be named and known as the Province of Quebec. THE EXECUTIVE POWER. 7. The Executive Government and authority is and shall be vested in the Queen. 8. The Queen has and shall have the Command-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces whatsoever. 8. [sic.] The Governor-General may, by instrument under the Great Seal of Canada, constitute an Executive Council, which shall be called the Privy Council of Canada, and he may from time to time appoint and remove Members thereof. 9. All powers, authorities and functions which by any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or by any Act of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick respectively, are vested in, or are authorised or required to be exercised by the respective Governors or Lieutenant-Governors of the said Provinces, with the advice, or with the advice and consent, of the Executive Council of such Provinces respectively, or in conjunction with such Executive Council, or with any number of the Members thereof, or by the said Governors or Lieutenant-Governors individually and alone, shall, in so far as the same are not repugnant to or inconsistent with the provisions of this Act, be vested in and may be exercised by the Governor-General of the Kingdom of Canada, with the advice, or with the advice and consent of, or in conjunction, as the case may require, with the Privy Council, or any Members thereof, as may be appointed by the Queen for the affairs of the Kingdom of Canada, or by the GovernorGeneral of the Kingdom of Canada individually and alone, where the advice, consent, or concurrence of the Privy Council is not required.

THE LEGISLATIVE POWER. 10. From and after the Union, there shall be within and for the Kingdom of Canada, one General Parliament, which shall be composed of the Queen, an Upper Chamber to be called the Senate, and a House of Commons.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

267

SENATE. 11. For the purpose of forming the Senate the Kingdom of Canada shall be considered as consisting of three Divisions: (1) Ontario. (2) Quebec. (3) The Maritime Provinces of Nova Scotia and New Brunswick; And each Division shall have an equal representation in the Senate. 12. Ontario shall be represented in the Senate by twenty-four Members, Quebec by twenty-four Members, and the Maritime Provinces by twenty-four Members, of which Nova Scotia shall have twelve Members, and New Brunswick twelve Members. 13. For the purpose of composing the Senate, it shall be lawful for the Governor-General, before the time to be appointed for the first meeting of the Parliament of Canada, by an instrument or instruments under the Great Seal of Canada, to summon to the Senate such persons as Her Majesty may think fit, subject to the provisions of this Act; and it shall also be lawful for the Governor-General in like manner to summon to the Senate such other person or persons as Her Majesty shall think fit, subject to the provisions of this Act, and every person who shall be so summoned shall thereby become a Member of the Senate. QUALIFICATION FOR SENATE. 14. The Senators shall each be of the full age of thirty years^ shall each be a natural born subject of the Queen, or her subject naturalized by Act of the Parliament of the United Kingdom of Great Britain and Ireland, or by an Act of any or either or one of the Legislatures of the Provinces of Canada, Upper Canada, Lower Canada, Nova Scotia, or New Brunswick, or by an Act of the Parliament of Canada hereby created, and shall each be legally or equitably seised or entitled as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised and possessed for his own use and benefit of land or tenements held in fief, franc-alleu or roture, in the Province for which he shall be appointed, of the value of four thousand dollars over and above all debts, charges, dues, and incumbrances thereon, and shall each be and continue to be worth the sum last aforesaid over and above his debts and liabilities; and shall each also possess a continuous residence in the Province for which he is appointed, except during the time that

268 - DOCUMENTS ON CONFEDERATION

he shall hold an office under the Government, the duties of which will require his continuous attendance at the seat of Government of Canada. 15. In the case o£ Quebec, each of the twenty-four Senators representing such Province shall be appointed to represent one of the twenty-four Electoral Divisions mentioned in Schedule A of Chapter First of the Consolidated Statutes of Canada, and such Senator shall reside or possess his qualification in the Electoral Division he is appointed to represent. 16. If any Money Bill passed by the House of Commons is rejected by the Senate for any one Session, or if any other Bill passed by the House of Commons is rejected by the Senate on three consecutive occasions, and if in such case or cases the Governor-General shall ascertain that such Bill or Bills has or have been carried by the majority of voices from two out of the three divisions of the Kingdom, then and in such case it shall be lawful for Her Majesty to create additional Members of the Senate, preserving the rule of equality between the three Divisions of Upper Canada, Lower Canada, and the Maritime Provinces. 17. In case of such increase on such vote beyond the normal number of seventy-two Members of the Senate, no additions shall thereafter be made until each section shall be represented by twenty-four Members and no more. 18. Whenever after the first appointment a vacancy in the Senate shall take place, it shall be lawful for the GovernorGeneral, in the Queen's Name, by an instrument under the Great Seal of Canada, to summon to the said Senate a person duly qualified according to the provisions of this Act to fill such vacancy. 19. Every Senator shall hold his seat in the Senate for the term of his life, subject to the provisions of this Act. 20. If any Senator shall, for two successive Sessions of Parliament, fail to give his attendance in the Senate, or if he shall take any oath or make any declaration or acknowledgment of allegiance, obedience, or otherwise, to any foreign Prince or Power, or shall do, concur in, or adopt any act whereby he may become a subject or a citizen of any foreign state or power, or whereby he may become entitled to the rights, privileges, or immunities of a subject or citizen of any foreign State or Power, or shall cease to have any of the qualifications required by this Act, or shall become bankrupt or take the benefit of any Act relating to insolvent debtors, or become a defaulter, or be attainted of

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

269

treason, or be convicted of felony or of any infamous crime, his seat in the Senate shall thereby become vacant. 21. Every Senator shall, before taking his seat, take the oath of Allegiance to The Queen before The Governor-General or some person or persons authorised by him to make a declaration in Schedule A mentioned. 22. Any person who at the time of the Union is a Member of the Legislative Council of Canada, or of Nova Scotia, or of New Brunswick, and who may accept the office of Senator, shall, by his acceptance, be held to have vacated his seat in such Legislative Council. 23. Any Senator may, by writing under his hand, addressed to the Governor-General, resign his seat in the Senate, and thereupon such seat shall become vacant. 24. If any question respecting a vacancy in the Senate shall arise, the same shall be heard and determined by the Senate. 25. The Governor-General shall have power by an instrument under the Great Seal of the Kingdom, to appoint one Member of the Senate to be Speaker thereof, and to remove him and appoint another in his stead. 26. Subject to alteration by the Parliament of Canada, the presence of at least fifteen Members of the Senate, including the Speaker, shall be necessary to constitute a Meeting for the exercise of its powers. 27. The Speaker shall vote as other Members, and in case of an equality of votes, it shall be held that the decision is in the negative. HOUSE OF COMMONS. 28. For the purpose of constituting the House of Commons of the Kingdom of Canada, it shall be lawful for the Governor within months after the Union, and thereafter from time to time, as occasion shall require, in Her Majesty's name and by an instrument or instruments under the Great Seal of Canada to summon and call together a House of Commons in and for Canada. 29. The House of Commons shall consist of one hundred and eighty-one members, of whom eighty-two members shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia and New Brunswick. 30. Constituencies of Ontario. 31. Constituencies of Quebec.

270 - DOCUMENTS ON CONFEDERATION

32. Constituencies of Nova Scotia. 33. Constituencies of New Brunswick. ^Clauses 34-36, inclusive, correspond to Clauses 25-27, inclusive, of the Initial Draft — except that now the "Readjustment" referred to in Clause 25(4) of the latter "shall not take effect until after the termination of the then existing Parliament" (see above, pp. 253-254).^ 37. For the purpose of such Re-adjustments, Quebec shall always be assigned sixty-five Members, and each of the other Provinces shall, at each Re-adjustment, receive for the ten years then next succeeding, the number of Members to which it will be entitled on the same ration of representation to population as Quebec will enjoy, according to the census then last taken by having sixty-five Members. 38. No reduction shall be made in the number of Members returned, by any Province, unless its population shall have decreased relatively to the population of the whole of Canada, to the extent of five per centum. 39. In computing at each decennial period the number of Members to which each Province is entitled, no fractional parts shall be considered, unless when exceeding one-half the number entitling to a Member, in which case a Member shall be given for each such fractional part. 40. The number of Members may at any time be increased, regard being had to the proportionate rights then existing. 41. Until provisions are made by the Parliament of Canada, all the laws which at the date of the Proclamation constituting the Union are in force in the Provinces respectively relating to the qualification and disqualification of any person to be elected, or to sit or vote as a Member of the House of Assembly in the respective Provinces, and relating.to the qualifications or disqualification of voters, and to the oaths to be taken by voters, and to Returning Officers, and their powers and duties, and relating to the proceedings at elections, and to the period during which such elections may be continued, and relating to the trial of controverted elections, and the proceedings incident thereto, and relating to the vacating of seats of Members, and to the execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to Elections of Members to serve in the House of Commons of Canada. 42. The Senate and House of Commons of Canada, shall be

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

271

called together for the first time, at some period not later than calendar months from and after the Union. 43. The House of Commons shall, upon its first assembling, after every general election, proceed forthwith to elect one of its number to be Speaker, and in case of his death, resignation, or removal by a vote of the Commons, the said House of Commons shall forthwith proceed to elect another of their Members to be Speaker: and the Speaker so elected shall preside at all Meetings of the Commons. 44. The presence of at least Twenty Members of the House of Commons, including the Speaker, shall be necessary to constitute a Meeting of the House of Commons for the exercise of its powers, and all questions which shall arise in the Commons shall be decided by the majority of voices of such Members as shall be present, other than the Speaker; and when the voices shall be equal, the Speaker shall have the casting vote. 45. No Senator shall be capable of being elected, or of sitting or voting as a Member of the House of Commons. MONEY. ^Clauses 46-51, inclusive, correspondent to Clauses 28-33, inclusive, of the Initial Draft (see above, pp. 254-256).'-' POWERS OF PARLIAMENT. ~The introductory remarks of Clause 52, as well as Heads 1-5, inclusive, 10-15, inclusive, and 17-31, inclusive, correspond to the introductory remarks and Heads 1-26, inclusive, of Clause 38 of the Initial Draft (see above, pp. 258-259).~ 6. Lines of Steam or other Ships, Railways, Canals, and other works connecting any two or more of the Provinces together, or extending beyond the limits of any Province. 7. Lines of Steamships between Canada and other countries. 8. Telegraphic Communications and the incorporation of Telegraphic Companies. 9. All such works as shall, although lying wholly within any Province, be specially declared by the Acts authorising them to be for the general advantage.

272 - DOCUMENTS ON CONFEDERATION

16. Ferries between any province and a Foreign Country, or between any two Provinces. 32. Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, and New Brunswick, and rendering uniform the procedure of all or any of the Courts in these Provinces; but any Statute for this purpose shall have no force or authority in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, altering, or repealing such laws shall thenceforward be vested in the Parliament only. 33. Immigration. 34. Agriculture. 35. To establish a General Court of Appeal, and in order to the due execution of the Laws of Parliament additional Courts, when necessary. 36. To fix and provide for the salaries and allowances of the Governors of the several Provinces, and of the Judges and all other officers of the Union and of the Superior, District, County and Recorder's Courts, and of the Admiralty Courts, in cases where the Judges thereof are paid by salaries. 37. And also for the peace, welfare and good government of the Union respecting all matters of a general character, not specially and exclusively herein reserved for the Legislatures, and such laws shall control and supersede any laws in any wise repugnant thereto or inconsistent therewith which may have been made prior thereto; and any law made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and subjects in which concurrent jurisdiction is hereby given to the Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by the Parliament, be null and void. 53. The Senate, or the Members thereof, and the House of Commons, or the Members thereof, are respectively to be entitled to, and shall and may exercise, as branches of the Parliament of the Kingdom of Canada, all the powers and privileges, and be subject to all the responsibilities and duties which the House of Lords or the House of Commons of the United King-

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

273

dom of Great Britain and Ireland, or the Members thereof enjoy (as the case may be), or are subject to, except as herein provided, and except also as to the Judicial functions of the House of Lords. 54. The first Elections for Members of the House of Commons of Canada, and for Members of the Legislative Assemblies respectively of Ontario, Quebec, Nova Scotia, and New.Brunswick, shall be held upon the same day, and be taken by the same Returning Officer. REVENUES, CIVIL LIST, &C. 55. From and after the Union, all Duties and Revenues over which the respective Legislatures of the said Provinces before and at the time of the passing of this Act had, and have power of Appropriation, except such portions thereof as are by this Act reserved to the Local Governments, or raised by them in accordance with the Special powers conferred upon them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the Public Service of Canada, in the manner, and subject to the charges hereinafter mentioned. 56. The said Consolidated Revenue Fund of Canada shall be permanently charged with all the costs, charges and expenses incident to the collection, management, and receipt thereof, such costs, charges and expenses being subject, nevertheless tp be reviewed and audited in such manner as shall be directed by any Act of the Parliament thereof. 57. Out of the Consolidated Revenue Fund of Canada, there shall be payable every year to Her Majesty, her heirs and successors, the sum of for defraying the expenses of the several services and purposes named in the Schedule marked A to this Act annexed; and during the life of The Queen, and for five years after the demise of The Queen, there shall be payable to the Queen, out of the said Consolidated Revenue Fund, a further sum of for defraying the expense of the several services and purposes named in the Schedule marked C to this Act annexed; the said sums of to be issued by the in discharge of such warrant or warrants as shall be from time to time directed to him under the Hand and Seal of the Governor-General; and the said shall acount to the Queen for the same through the Lord High Treasurer or Lords Commissioners, of

274 - DOCUMENTS ON CONFEDERATION

The Queen's Treasury, in such manner and form as The Queen shall be graciously pleased to direct. 58. Until altered by any Act of the Parliament of Canada, the salary of the Governor-General shall be that set against his office in the said Schedule B; and accounts in detail of the expenditure of the said sum of hereinbefore granted, and of every part thereof shall be laid before the Senate and House of Commons of Canada, within thirty days next after the beginning of the Session after such expenditure shall have been made. 59. During the time for which the said sum of is payable, the same shall be accepted and taken by the Queen, by way of Civil List, instead of all territorial and other revenues now at the disposal of the Crown, arising in Canada, and threefifths of the net produce of the said territorial and other revenues now at the disposal of the Crown within Canada shall be paid over to the account of the said Consolidated Revenue Fund; and also during the life of The Queen, and for five years after the demise of The Queen, the remaining two-fifths of the net produce of the said territorial and other revenues now at the disposal of the Crown within Canada, shall be also paid over in like manner to the account of the said Consolidated Revenue Fund. 60. The consolidation of the duties and revenues of the said Province shall not be taken to affect the payment out of the said Consolidated Revenue Fund of any sum or sums heretofore charged upon the rates and duties already raised, levied and collected, or to be raised, levied and collected, to and for the use of Canada, for such time as shall have been appointed by the several Acts of the Legislatures of the Provinces of Canada, Nova Scotia, and New Brunswick, by which such charges were severally authorised. 61. That the expenses of the collection, management, and receipt of the said Consolidated Revenue Fund shall form the first charge thereon; and that the annual interest of the public debt of the Provinces of New Brunswick or either of them at the time of the Union, shall form the second charge thereon; and the said sum of shall form the third charge thereon; and the other charges upon the rates and duties levied within Canada, hereinbefore reserved, shall form the sixth charge thereon, so long as such charges shall continue to be payable. 62. Subject to the several payments hereby charged on the

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 275

said Consolidated Revenue Fund, the same shall be appropriated by the Parliament of Canada for the public service, in such manner as they shall think proper. LOCAL CONSTITUTIONS. 63. For each Province of Upper Canada, Lower Canada, Nova Scotia and New Brunswick, there shall be an officer, styled the Lieutenant-Governor, to be appointed by the GovernorGeneral in Council, under the great seal of Canada. 64. A Lieutenant-Governor shall hold office during the pleasure of the Governor-General in Council, but any LieutenantGovernor appointed after the commencement of the first Session of the Parliament of Canada, shall not be removable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to each of the Houses of Parliament within one week thereafter, if the Parliament is then sitting, and if not, then within one week after the commencement of the next sitting of the Parliament. 65. The salaries of Lieutenant-Governors shall be fixed and provided by an Act of the Parliament of Canada. 66. In each Province, the Lieutenant-Governor may, by and with the advice and consent of the Legislature, make laws in relation to matters coming within the classes of subjects next hereinafter enumerated: — . (1) The amendment from time to time of their Constitutions except as relates to the office of LieutenantGovernor: ~Heads 2-9, inclusive, 11-12, inclusive, and 14-15, inclusive, of Clause 66 correspond to Heads 1-9, inclusive, 11-12, inclusive, and 14-15, inclusive, of Clause 37 of the Initial Draft (see above, pp. 257-258).~ (10) All works and undertakings: (13) Property and Civil Rights. 67. In each Province the Lieutenant-Governor may, by and

276 - DOCUMENTS ON CONFEDERATION

with the consent of the Legislative Assembly, make laws in relation to Education in the Province, subject and according to the following provisions: — ^Heads 1-3, inclusive, of Clause 67 correspond to Heads 1-3, inclusive, of Clause 39 of the Initial Draft (see above, pp. 259-260) .~ (4) In case any such Provincial Law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the GovernorGeneral in Council on any appeal under this section is not duly executed by the proper Provincial Authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada shall have power to make remedial Laws for the due execution of the provisions of this section and of any such decision of the Governor-General in Council. 68. From and after the Union, such portions of the duties and revenues, over which the respective Legislatures of the said Provinces, before the time of the proving of this Act, had powers of appropriation, which are by this Act reserved to the Local Governments or Legislatures; and all duties and revenues by them hereafter raised in accordance with the special powers conferred upon them by this Act, shall form in each Province one Consolidated Revenue Fund to be appropriated for the public service of the said Province. NOVA SCOTIA. 69. There shall be two chambers as at present styled respectively, the Legislative Council and the House of Assembly. 70. The Legislative Council shall consist of 71. The Legislative Assembly shall consist of NEW BRUNSWICK 72. There shall be two chambers as at present styled respectively, the Legislative Council and the House of Assembly. 73. The Legislative Council shall consist of 74. The Legislative Assembly shall consist of LEGISLATURE OF ONTARIO. 75. There shall be one Chamber, to be styled

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

— 277

QUEBEC. 76. There shall be two chambers as at present styled respectively, the Legislative Council and the House of Assembly. 77. The Legislative Council shall consist of 78. The Legislative Assembly shall consist of MISCELLANEOUS. 79. Any Act of the Parliament of Canada may, notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance, and organisation of a General Court of Appeal, and of such Courts as may be deemed necessary by the Parliament of Canada. 80. Notwithstanding anything in this Act, any Act of the Parliament of Canada may from time to time make provision in relation to: — (1) Agriculture in all or any of the Provinces. (2) Immigration into all or any of the Provinces. (3) All works and undertakings. And in each Province provincial laws may make provision in relation to: (1) Agriculture in the Provinces. (2) Immigration into the Provinces. (3) All works and undertakings in the Province: But any such Provincial Law shall have the force of law in and for the Province as long and so far only as it is not repugnant to any Act of the Parliament of Canada. ~ Clause 81 correspond to Clause 43 of the Initial Draft (see above, p. 261).'—' 82. It shall be lawful for the Queen at any time hereafter to admit into the Union all or any of the Colonies of Newfoundland, Prince Edward Island, or the North-Western Territory or British Columbia, on such terms and conditions as the Parliar ment of Canada shall deem equitable, and as shall receive the assent of Her Majesty; and in the case of Newfoundland, Prince Edward Island and British Columbia as shall be agreed upon by their respective Legislatures; and in the event of the admission of Newfoundland and Prince Edward Island, or either of them,

278 - DOCUMENTS ON CONFEDERATION

each shall be entitled to a representation in the Senate of Canada of four Members, but after the admission of Prince Edward Island into the Confederation, the representation of Nova Scotia and New Brunswick in the Senate of Canada shall upon any reduction by death or otherwise to the number of Ten Members from each or either of those Provinces not be replaced beyond that number, except as hereinbefore provided; and it shall be lawful for The Queen at any time hereafter to declare by proclamation, that any or either of the Colonies of Newfoundland, Prince Edward Island, the North-Western Territory or British Columbia, upon, from, and after a certain day in such proclamation to be appointed shall so form a portion of the Kingdom of Canada, and henceforth such Colony as the case may be, shall be and become a portion of the Kingdom, upon, from, and after the day so appointed as aforesaid, and upon such terms and conditions as may be therein expressed. INTERCOLONIAL RAILWAY. 83. And whereas the construction of a railway from the river St. Lawrence to the city of Halifax, in the Province of Nova Scotia, is necessary; And whereas it has been agreed between the Provinces that such railway shall be constructed with all convenient speed. Be it enacted, that the General Government shall within months after the Union commence such railway, and within months thereafter complete the same.

85 Fourth Draft of the British North America Bill, undated. (Pope, 177-211.) (Confidential) FOURTH DRAFT (OF CONFERENCE). A

BILL To provide for the Union and Government of British North America. -'The Preamble and Clause 1 correspond to the Preamble and Clause 1 of the Third Draft (see'above, p. 264).~

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 -

279

INTERPRETATION. 2. In the construction of this Act the following rules shall be observed with respect to the following terms, unless otherwise expressly provided for, or such construction would be inconsistent with the manifest intention of the Act, or repugnant to the context - that is to say: The words "The Queen," shall mean Her Majesty, her Heirs, and Successors, Sovereigns of the United Kingdom of Great Britain and Ireland. The words "frpm and after the Union," shall mean from and after the day on which the proclamation, declaring the Union of the Provinces, shall take effect. The word "Parliament" shall mean the Legislature or Parliament of the Kingdom of Canada. The word "Legislature" shall mean the Local Legislature of any of the Provinces of the Union. The word "Union," shall mean the Union of the Provinces of Canada, Nova Scotia, and New Brunswick. The words "Governor-General," shall mean the Chief Executive Officer or Administrator for the time being of the Government appointed by the Queen, by whatever name designated. The words "Governor-General in Council," shall mean the Chief Executive Officer or Administrator, Governor or person administering for the time being the Government of Canada, acting by and with the advice of the Privy Council thereof. The words "Lieutenant-Governor," shall mean the Chief Executive Officer or Administrator for the time being of the Government of any Province in the Union. The words "Lieutenant-Governor in Council," shall mean the Lieutenant-Governor or Administrator for the time being of the Government of either of the Provinces of Ontario, Quebec, Nova Scotia, or New Brunswick, acting by and with the advice of the Executive Council thereof. The word "Kingdom" shall mean and comprehend the United Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick. The words "Privy Council" shall mean such persons as may from time to time be appointed, by the Governor-General, and sworn to aid and advise in the Government of the Kingdom. The word "Canada" (when not applied to the Province of Canada) shall mean the Kingdom of Canada hereby constituted. The words "Upper Canada" shall mean all that part of the

280 - DOCUMENTS ON CONFEDERATION

Province of Canada which formerly constituted the Province of Upper Canada. The words "Lower Canada" shall mean all that part of the Province of Canada which formerly constituted the Province of Lower Canada. The word "Ontario" shall mean the Province of Ontario hereby constituted, and the said Province shall be held to have the same boundaries as that part of the late Province of Canada known as Upper Canada prior to and at the time of the passing of this Act. The word "Quebec" shall mean the Province of Quebec hereby constituted, and the said Province shall be held to have the same boundaries as that part of the late Province of Canada known as Lower Canada prior to and at the time of the passing of this Act. The words "Nova Scotia" shall mean the Province of Nova Scotia, and the said Province shall be held to have the same boundaries as existing prior to and at the time of the passing of this Act. The words "New Brunswick" shall mean the Province of New Brunswick, and the said Province shall be held to have the same boundaries as existing prior to and at the time of the passing of this Act. The word "month" shall mean a calendar month. Words importing the singular number or the masculine gender only, shall include more persons, parties, or things of the same kind than one, and females as well as males, and the converse. The word "oath" shall be construed as meaning a solemn affirmation whenever the context applies to any person and case by whom and in which a solemn affirmation may be made instead of an oath; and in every case where an oath or affirmation is directed to be made before any person or officer, such person or officer shall have full power and authority to administer the same and to certify its having been made; and the wilful making of any false statement in any such oath or affirmation shall be wilful and corrupt perjury; and the wilful making of any false statement in any declaration required or authorized by any such act as aforesaid, shall be a misdemeanour punishable as wilful and corrupt perjury.

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 281

REPEALING CLAUSE. 3. From and after the Union, all Acts and parts of Acts passed by the Parliament of Great Britain, the Parliament of the United Kingdom of Great Britain and Ireland, the Legislature of Upper Canada, the Legislature of Lower Canada, the Legislature of Canada, the Legislature of Nova Scotia, or the Legislature of New Brunswick, which are repugnant to or inconsistent with the provisions of this Act shall be and the same are hereby repealed: Provided always that the repeal of the said several Acts of Parliament and parts of Acts of Parliament shall not be held to revive or give any force or effect to any enactment which has, by the said Acts or any of them, been repealed or determined, nor shall the repeal of the said Acts and parts of Acts affect 1. Any penalty, forfeiture, or liability, civil or criminal, incurred before the time of such repeal, or any proceedings for enforcing the same, had, done, completed or pending at the time of such repeal. 2. Nor any indictment, information, conviction, sentence, or prosecution had, done, completed, or pending at the time of such repeal. 3. Nor any action, suit, judgment,.decree, certificate, execution, process, order, rule, or any proceeding, matter or thing whatever respecting the same, had, done, made, entered, granted, completed, pending, existing, or in force at the time of such repeal. 4. Nor any act, deed, right, title, interest, grant, assurance, descent, will, registry, contact, lien, charge, matter, or thing, had, done, made, acquired, established or existing at the time of such repeal. 5. Nor any office, appointment, commission, salary, allowance, security, duty, or any matter or thing appertaining thereto, at the time of such repeal. 6. Nor any marriage certificate or registry thereof, lawfully had, made, granted, or existing before or at the time of such repeal. 7. Nor shall such repeal defeat, disturb, invalidate, or prejudicially affect any other matter or thing whatsoever had, done, completed, existing or pending at the time of such repeal. 8. But every Such penalty, forfeiture, and liability, and every such

282 - DOCUMENTS ON CONFEDERATION

Indictment, information, conviction, sentence, and prosecution, and every such Action, suit, judgment, decree, certificate, execution, process, order, rule, proceeding, matter, or thing, and every such Act, deed, right, title, interest, grant, assurance, descent, will, registry, contract, lien, charge, matter or thing, and every such Office, appointment, commission, salary, allowance, security, and duty, and every such Marriage certificate and registry, and every such other matter and thing, and the force and effect thereof respectively, may aiid shall, both at law and in equity, remain and continue as if no such repeal had taken place, and, so far as necessary, may and shall be continued, prosecuted, enforced, and proceeded with under the said Laws, so far as applicable thereto. UNION. 4. It shall be lawful for The Queen to declare by Proclamation that the said Provinces of Canada, Nova Scotia, and New Brunswick, upon, from, and after a certain day in such proclamation to be appointed, which day shall be within six months next after the passing of this Act, shall form and be one united dominion under the name of the Kingdom of Canada, and thenceforth the said Provinces shall constitute and be One Kingdom under the Name aforesaid, upon, from, and after the -day so appointed as aforesaid. 5. The seat of Government of Canada shall be the City of Ottawa, subject to the Royal Prerogative. 6. From and after the Union, Upper Canada and Lower Canada shall be severed, and each shall form a separate Province. 7. From and after the Union, Upper Canada shall be named and known as the Province of Ontario, and Lower Canada shall be named and known as the Province of Quebec. 8. Subject to any future action of the Governments of the Provinces respectively, the seats of Government shall be as follows: In Ontario, the City of Toronto; in Quebec, the City of Quebec; in Nova Scotia, the City of Halifax; and in New Brunswick, the City of Fredericton. ^Clauses 9-12, inclusive, correspond to Clauses 7-9, inclusive, of the Third Draft (see above, pp. 266-277).—

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 283

13. The Governor-General may assign, depute, substitute, and appoint any person or persons jointly or severally, to be his deputy or deputies within any part or parts of Canada, and in that capacity to exercise, perform and execute during the pleasure of the said Governor-General such of the powers^ functions and authorities as may under this Act be vested in or exercised by the Governor-General as the Governor-General shall deem to be necessary.or expedient, but the appointment of a Deputy or Deputies as aforesaid shall not abridge, alter, or in any way affect the power or authority of the Governor-General. THE LEGISLATIVE POWER. • • • ^Clauses 14-19, inclusive, correspond to Clauses 10-15, inclusive, of the Third Draft (see above, pp. 266-268) .~ 20. On the application of the Government of Canada, Her Majesty in Council may from time to time sanction an appointment of additional Senators, so as that the whole number shall in no case exceed seventy-eight, the proportion allotted to each of the three divisions being preserved. In case of vacancies after any such increase above seventy-two; no appointment shall be made without the sanction of the British Government till the whole number is reduced below seventy-two. ^Clauses 21-30, inclusive, correspond to Clauses 18-27, inclusive, of the Third Draft (see above, pp. 268-269).~ HOUSE OF COMMONS. 31. The House of Commons shall consist of one hundred and eighty-one Members, of whom eighty-two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick. 32. Until otherwise provided by Parliament, Ontario, Quebec, Nova Scotia, and New Brunswick, shall for the purposes of the Election of Members in the House of Commons, be and the same are hereby respectively divided into Electoral Districts as follows: 1. ONTARIO. For the purpose of representation in Parliament, Ontario shall be territorially divided into the Counties, Ridings of Counties,

284 - DOCUMENTS ON CONFEDERATION

Cities, and Towns hereinafter mentioned, which shall form Electoral Districts, and each such Electoral District, as hereinafter numbered, shall be represented by one Member in the House of Commons.* 2. QUEBEC. Quebec shall be divided into sixty-five Electoral Districts, to be composed of the sixty-five Electoral Divisions into which Lower Canada is now divided, under Chapter 2 of the Consolidated Statutes of Canada, chapter 75 of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada 23 Victoria, Chapter 1, or of any other Act amending the same in force at the time of the Union: and each such Electoral Division is hereby constituted an Electoral District for the purposes of this Act, and shall be entitled to return one Member to the House of Commons. 3. NOVA SCOTIA. Each of the eighteen counties of Nova Scotia shall constitute an Electoral District. The County of Halifax shall be entitled to return two Members to the House of Commons, and each of the other Counties one Member. 4. NEW BRUNSWICK. New Brunswick shall be divided into fifteen Electoral Districts (of which the City of Saint John shall be one, and entitled to return one Member), and each of the fourteen Counties into which New Brunswick is divided, shall constitute an Electoral District, and shall be entitled to return one Member to the House of Commons. ^ Clauses 33-35, inclusive, correspond to Clauses 34-36, inclusive, of the Third Draft; Clause 36 corresponds to Clause 41 (see above, p. 270).^ 37. Every Member of the House of Commons shall, before taking his seat, make and subscribe before the Governor-General, or some person authorized by him to administer the same, the oath of Allegiance to the Queen set forth in Schedule A. 38. The Governor-General shall, within six months from and after the Union, cause writs to be issued in such form and by such person, and to such Returning Officers as he may prescribe

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 -

285

for the first election of Members to serve in the House of Commons, and such person shall have all such and the same powers as are possessed by the Officers, at the time of the passing of this Act, charged with the issue of writs for the election of Members to serve in the House of Assembly, or Legislative Assembly of each of the Provinces of Canada, Nova Scotia, or New Brunswick, or of Returning Officers (as the case may be), and in case any vacancy in the representation of an Electoral District shall occur in the House of Commons before the meeting of Parliament, or after the meeting of Parliament, and before provision is made by Parliament in such respect, a writ in respect of such vacant Electoral District may be issued in like manner, and the Governor shall, within six months after the Union, and thereafter from time to time, as occasion shall require, in The Queen's name, and by an instrument or instruments under the Great Seal, summon and call together a House of Commons. 39. The House of Commons shall, upon its first assembling, after every general election, proceed forthwith to elect one of its number to be Speaker, and in case of his death, resignation, or removal by a vote, the said House of Commons shall forthwith proceed to elect another of their Members to be Speaker; and the Speaker so elected shall preside at all Meetings of the Commons. And until otherwise provided by Act of Parliament, in case of the absence from the Chair of the House from any cause of the Speaker of the House of Commons for a period of forty-eight consecutive hours, the House of Commons may elect one of its number to act as Speaker, and such one so appointed shall, during the continued absence of the Speaker, preside at all Meetings of the Commons, and for the time being execute all the powers and privileges of the Speaker. ^Clauses 40-47, inclusive, correspond to Clauses 44-51 inclusive, of the Third Draft (see above, p. 271).^

POWERS OF PARLIAMENT. • • • '-'The introductory remarks of Clause 48, as well as Heads 1-13, inclusive, and 15-35, inclusive, correspond to the introductory remarks, Heads 1-13, inclusive, and Heads 15-35, inclusive, of Clause 52 of the Third Draft (see above, pp. 271-272) .~ *Here follows the first Schedule of the B.N.A. Act. [Pope]

286 - DOCUMENTS ON CONFEDERATION

14. Quarantine and the Establishment and Maintenance of Marine Hospitals. 36. Fixing and providing for the salaries and allowances of the Lieutenant Governors of the several Provinces, and of all other Officers of Canada, and the salaries, allowances and pensions of the Judges of the Superior, District and County Courts, and of the Admiralty Courts, in cases where the Judges thereof are or shall be paid by salaries. 37. And such laws shall control and supersede any laws in any wise repugnant thereto which may have been made prior thereto; and any law made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and subjects in which concurrent jurisdiction is hereby given to Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by Parliament, be null and void. REVENUES, CIVIL LIST, &C. ^Clause 49 corresponds to Clause 55 of the Third Draft (see .above, p. 273).~ 50. The said Consolidated Revenue Fund of Canada shall be permanently charged with all the costs, charges, and expenses incident to the collection, management, and receipt thereof, such costs, charges, and expenses being subject, nevertheless, to be reviewed and audited in such manner as shall be ordered by the Governor-General in Council until otherwise provided by any Act of Parliament. 51. Unless altered by any Act of Parliament, the salary of the Governor-General shall be ten thousand pounds sterling money of Great Britain. 52. The expenses of the collection, management, and receipt of the said Consolidated Revenue Fund shall form the first charge thereon; and the annual interest of the public debt of the Provinces of Canada, Nova Scotia, and New Brunswick, or either of them at the time of the Union, shall form the second charge thereon. 53. Subject to the several payments hereby charged on the

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

287

said Consolidated Revenue Fund the same shall be appropriated by Parliament for the public service. 54. All stocks, cash, bankers' balances, and securities for money belonging to each Province at the time of the Union, except as hereinafter mentioned, shall be the property of Canada, and shall so far be considered as reducing the amount of their respective debts at the time of the Union. 55. The following Public Works and Property of each Province shall be the Property of Canada, to wit: 1. Canals, with lands and water power connected therewith. 2. Public harbours. 3. Light-houses and piers, and Sable Island. 4. Steamboats, dredges, and public vessels. 5. Rivers and lake improvements. 6. Railways and railway stocks, mortgages and other debts due by railway companies. 7. Military roads. 8. Custom-houses, post offices, and all other public buildings, except as may be set aside by the Government of Canada, for the use of the Local Legislatures and Governments. 9. Property transferred by the Imperial Government, and known as Ordnance property. 10. Armouries, drill sheds, military clothing, and munitions of war, and lands set apart for general public purposes. 56. All lands, mines, minerals, and royalties belonging to the Provinces of Canada, Nova Scotia, and New Brunswick, at the time of the Union, shall belong to the Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are so situate, subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same. 57. All sums due for such lands, mines, or minerals at the time of the Union, shall also belong to the several Provinces. 58. All assets connected with such portions of the Public Debt of any Province as are assumed by such Provinces, shall also belong to such Provinces. 59. Canada shall, from and after the Union, assume the debts and liabilities of each Province existing at the time of the Union. 60. The Provinces of Ontario and Quebec, conjointly, shall assume any excess by which the debt of the present Province of Canada may exceed, at the time of the Union, $62,500,000, and shall be charged with interest at the rate of five per centum thereon.

288 - DOCUMENTS ON CONFEDERATION

61. The assets enumerated in Schedule B of this Act hereunto annexed, belonging at the time of the Union to the Province of Canada, shall be the Property of the Provinces of Ontario and Quebec conjointly. 62. Nova Scotia shall in like manner assume any portion of its present Public Debt in excess of $8,000,000, and 63. New Brunswick shall in like manner assume any portion of its Public Debt in excess of $7,000,000. 64. The several Provinces shall retain all other public property therein subject to the right of Canada to assume any lands or public property required for fortifications or for the defence of the country. 65. In case Nova Scotia or New Brunswick have not contracted debts at the time of Union equal to the amount with which they are respectively entitled to enter the Union as hereinafter provided, they shall receive by half-yearly payments in advance from the Government of Canada, the interest at five per cent, on the difference between the actual amount of their respective debts and such stipulated amounts. 66. The following sums shall be paid yearly by Canada, to each Province for the support of their Local Governments and Legislatures: Ontario Quebec Nova Scotia New Brunswick

$80,000 70,000 60,000 50,000 $260,000

and an annual grant in aid of each Province shall be made, equal to eighty cents per head of the population, as established by the Census of One thousand eight hundred and sixty-one, and in the case of Nova Scotia and New Brunswick, by each subsequent decennial Census until the population of each of these Provinces shall amount to Four hundred thousand souls, at which rate it shall thereafter remain. Such aid shall be in full settlement of all future demands upon Canada for local purposes, and shall be paid half-yearly in advance to each Province; but the Government of Canada shall deduct from such subsidy all sums paid as interest on the Public Debt of any Province in excess of the amount provided under the clauses. 67. New Brunswick shall receive by half-yearly payments in advance from Canada for the period of Ten years from the time

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

- 289

of the Union, an additional allowance of Sixty-three thousand dollars per annum. But so long as the Public Debt of that Province remains under Seven millions of dollars, a deduction equal to the interest at five per centum on such deficiency shall be made from the said sum of Sixty-three thousand dollars. 68. All payments to be made under this Act or in discharge of liabilities created under any Act of the Provinces of Canada, Nova Scotia, and New Brunswick respectively, and assumed by Canada from and after the time of the Union, and until otherwise directed by Parliament, shall be made in such form and manner as may from time to time be ordered by the Governor-General in Council. 69. From and after the Union, the Customs and Excise Laws of each Province shall continue to be in force until altered by Parliament; and in any case where the duties enacted to be collected are the same, it shall be lawful for the GovernorGeneral in Council, by proclamation to be issued from time to time, to declare that such goods, wares, and merchandises may be imported free into any port in the Kingdom of Canada from any of the Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, upon proof of having already paid duty, and in cases where any larger duties are enacted in any Province, it shall be lawful for the Governor-General in Council in like manner to authorise the importation of such goods, wares and merchandise on payment of the difference of duty between the said Provinces. 70. All articles, the growth or produce, or manufacture of the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, shall be admitted free into all Ports in Canada, from and after the Union. 71. No lands or property belonging to Canada or any Province thereof shall be liable to taxation. LOCAL CONSTITUTIONS THE EXECUTIVE. 72. For each of the Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, there shall be an officer, styled the Lieutenant-Governor, to be appointed by the Governor-General in Council, under the Great Seal of Canada. 73. A Lieutenant-Governor shall hold office during the pleasure of the Governor-General, but any Lieutenant-Governor appointed after the commencement of the first Session of the Parliament of Canada, shall not be removable within five years

290 - DOCUMENTS ON CONFEDERATION

from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to each of the Houses of Parliament within one week thereafter, if Parliament is then sitting, and if not, then within one week after the commencement of the next session of Parliament; and in the event of the absence, or illness, or inability from any other cause of the Lieutenant-Governor to discharge the duties of his office, the Governor-General in Council may appoint an Administrator to execute the office and functions of Lieutenant-Governor during such absence, illness or other inability. 74. The Lieutenant-Governor of Quebec may, by a proclamation to be issued by him for that purpose under the Great Seal of the Province, and to take effect from a day to be named therein, constitute Townships in those parts of the Province of Quebec in which Townships are not already constituted, and may fix the metes and bounds thereof. THE LEGISLATURES 1. ONTARIO. 75. There shall be a Legislature for Ontario which shall consist of the Lieutenant-Governor and of one Chamber to be called the Legislative Assembly of Ontario. 76. The Legislative Assembly of Ontario shall be composed of eighty-two Members, to be elected to represent the eighty-two Electoral Districts in Ontario, set forth in section of this Act. 2. QUEBEC. 77. There shall be a Legislature for Quebec which shall consist of the Lieutenant-Governor and two Houses, to be called the Legislative Council of Quebec and the Legislative Assembly of Quebec. 78. The Legislative Council of Quebec shall be composed of twenty-four Members, to be appointed by the LieutenantGovernor, under the Great Seal of Quebec, each of whom shall hold office for the term of his life; but if any Legislative Councillor shall, for two consecutive Sessions of the Legislature, fail to give his attendance in the said Council, or if he shall take any oath or make any declaration or acknowledgment of allegiance, obedience or otherwise, to any foreign Prince or

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

291

Power, or shall do, concur in, or adopt any act whereby he may become a subject or a citizen of any foreign state or power, or whereby he may become entitled to the rights, privileges or immunities of a subject or citizen of any foreign State or Power, or shall cease to have any of the qualifications required by this Act, or shall become bankrupt or take the benefit of any Act relating to insolvent debtors, or become a defaulter, or be attainted of treason, or be convicted of felony, or of any infamous crime, his seat in the said Council shall thereby become vacant. 79. The Members of the Legislative Council shall each be of the full age of thirty years, shall each be a natural born subject of the Queen, or her subject naturalised by Act of the Parliament of the United Kingdom of Great Britain and Ireland, or by an Act of any or either or one of the Legislatures of the Provinces of Canada, Upper Canada, Lower Canada, Nova Scotia or New Brunswick, or by an Act of the Parliament of Canada hereby created, and shall each be legally or equitably seised or entitled as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised and possessed for his own use and benefit of lands or tenements held in franc-alleu or roture, in Quebec, of the value of four thousand dollars over and above all debts, charges, dues, and incumbrances thereon, and shall each be and continue to be worth the sum last aforesaid over and above his debts and liabilities. 80. Each of the twenty-four Legislative Councillors shall be appointed to represent one of the twenty-four Electoral Divisions of Lower Canada mentioned in Schedule A of Chapter First of the Consolidated Statutes of Canada, and such Legislative Councillor shall reside or possess his qualification in the Electoral Division he is appointed to represent. 81. Whenever after the first appointment a vacancy in the Legislative Council shall take place, it shall be lawful for the Lieutenant-Governor, in the Queen's Name, by an instrument under the Great Seal of Quebec, to summon to the said Legislative Council a person duly qualified according to the provisions of this Act to fill such vacancy. 82. Every Legislative Councillor shall, before taking his seat, make and subscribe, before the Lieutenant-Governor or some person or persons authorised by him to administer the same, the Oath of Allegiance to the Queen, and make the declaration of qualification in Schedule A mentioned. 83. Any Legislative Councillor may, by writing under his

292 - DOCUMENTS ON CONFEDERATION

hand, addressed to the Lieutenant-Governor, resign his seat in the Legislative Council, and thereupon such seat shall become vacant. 84. If any question respecting the qualification of a Legislative Councillor, or respecting a vacancy in the Legislative Council shall arise, the same shall be heard and determined by the Legislative Council. 85. The Lieutenant-Governor shall have power, by an instrument under the Great Seal of Quebec, to appoint one Member of the Legislative Council to be Speaker thereof, and to remove him and appoint another in his stead. 86. Subject to alteration by the Legislature of Quebec, the presence of at least ten Members of the Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the exercise of its powers. 87. The Speaker shall vote as other Members, and in case of an equality of votes, it shall be held that the decision is in the negative. 88. The Legislative Assembly of Quebec shall be composed of sixty-five Members to be elected to represent the sixty-five Electoral Divisions into which Lower Canada is now divided, under Chapter 2 of the Consolidated Statutes of Canada, Chapter 75 of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada 23 Victoria, Chapter 1, or of any other Act amending the same in force at the time of the Union: Provided that it shall not be lawful to present to the Lieutenant-Governor for assent any Bill of the Legislative Council and Assembly of Quebec, by which the limits of the Electoral Divisions mentioned in the Schedule hereto annexed, marked E, may be altered, unless the second and third readings of such Bill in the Legislative Assembly shall have been passed with the concurrence of the majority of the Members for the time being of the said Legislative Assembly, representing the Electoral Divisions mentioned in said Schedule marked C, and the assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the LieutenantGovernor that such Bill has been so passed. NOVA SCOTIA AND NEW BRUNSWICK. 89. The constitution of each of the Provinces of Nova Scotia and New Brunswick shall, subject to the Provisions of this Actr

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 -

293

continue as now established at the time of the Union, until altered or amended under the authority of this Act, and the House of Assembly of New Brunswick shall, unless sooner dissolved, continue for the period for which it was elected. POWERS OF THE LEGISLATURE. 90. In each Province, the Legislature may make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated: ~ Heads 1, 3, 4, 6-9, inclusive, 14, and 15 of Clause 90 correspond to Heads 1,3,4, 6-9, inclusive, 14, and 15 of Clause 66 of the Third Draft (see above, p. 275).— (2) Direct taxation within the Province in order to the raising of a revenue for Provincial Purposes, and reserving to New Brunswick the right to collect the Lumber Dues provided in Chapter 15, Title III. of the Revised Statutes of that Province, and any amendment thereof made before or after this Act comes into operation, which does not increase the amount, but excepting therefrom the Lumber of any other Province: (5) The management and sale of the public lands belonging to the Province, and all Timber and Wood grown thereon: (10) (11) (12) (13)

Works and Undertakings: The incorporation of Companies. The solemnisation of marriage. Property and Civil Rights but excepting such portions thereof hereby assigned to Parliament.

(16) And generally all matters of a private or local nature not assigned to Parliament. Clauses 91 and 92 correspond to Clauses 67 and 68 of the Third Draft (see above, p. 275-276).~

294 — DOCUMENTS ON CONFEDERATION MISCELLANEOUS SECTIONS RESPECTING ONTARIO AND QUEBEC. The following sections are applicable to Ontario and Quebec only: 93. The Lieutenant-Governors of Ontario and Quebec shall respectively, within six months after the Union, and thereafter from time to time, as occasion may require, in the Queen's Name, and by an instrument or instruments under the Great Seal of the Province summon and call together a Legislative Assembly in and for each Province. 94. Every Member of the Legislative Assembly shall, before taking his seat, make and subscribe before the LieutenantGovernor, or some person authorised by him to administer the same, the oath of allegiance to the Queen set forth in Schedule A. 95. The Legislative Assembly shall, upon its first assembling, after every general election, proceed forthwith to elect one of its number to be Speaker, and in case of his death, resignation, or removal by a vote, the said Legislative Assembly shall forthwith proceed to elect another of their Members to be Speaker: and the Speaker so elected shall preside at all Meetings of the Commons. And until otherwise provided by Act of the Legislature, in case of the absence from the Chair of the House from any cause of the Speaker of the Legislative Assembly for a period of forty-eight consecutive hours, the Legislative Assembly may elect one of its number to act as Speaker, and such one so appointed shall, during the continued absence of the Speaker, preside at all Meetings of the Legislative Assembly, and for the time being execute all the powers and privileges of the Speaker. 96. All powers, authorities, and functions which by any Act passed by the Imperial Parliament, or by any Act passed by the Legislature of the Provinces of Lower and Upper Canada respectively, or by the Legislature of the Province of Canada, were or are vested in or authorised or required to be exercised by the respective Governors or Lieutenant-Governors of Canada, or of Lower Canada or Upper Canada, with the advice or with the advice and consent of the Executive Council of such Provinces respectively, or in conjunction with such Executive Council, or with any number of the Members thereof, or by the said Governors or Lieutenant-Governors individually and alone shall, in so far as the same are not repugnant to or inconsistent with the provisions of this Act, be vested in and may be exercised

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

295

by the Lieu tenant-Governors of Ontario and Quebec respectively, with the advice or with the advice and consent of or in conjunction, as the case may require, with such Executive Council, or any Members thereof as may be appointed for the affairs of Ontario and Quebec, or by the Lieutenant-Governor of Ontario or Quebec respectively, individually and alone, in cases where the advice, consent, or concurrence of the Executive Council is not required. 97. The Lieutenant-Governors of Ontario and Quebec may each appoint, under the Great Seal of the Province, and to hold office during pleasure, the following officers, that is to say: -The Attorney-General, the Secretary, and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works (and for Quebec the Solicitor-General), and may, by and under Order in Council from time to time, prescribe the duties of such officers and of the several departments over which they shall preside, or to which they shall belong, and of the officers and clerks thereof; and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of such officers, and of the several departments over which they shall preside, or to which they shall belong, and of the officers and clerks thereof; and all rights, powers, duties, functions, responsibilities, or authorities now vested or imposed in or upon any Attorney-General, Secretary, and Registrar of the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public Works, and Minister of Agriculture, by any Law, Statute, or Ordinance of the former Provinces of Lower Canada and Upper Canada, or of the Province of Canada, and not repugnant to this Act shall be vested in or imposed upon any officer to be appointed by the Lieutenant-Governor for the discharge of the same or any of them, unless and until, and in such case in so far only as such rights, powers, duties, or authorities be varied, altered, amended, or repealed by the Legislature of the Province, and the Commissioner of Agriculture and Public Works shall, until it is otherwise ordered by the Legislature, combine and perform the duties and functions of the office of Minister of Agriculture as now imposed by the law of the Province of Canada, as well as those of the Commissioner of Public Works. 98. The Executive Councils of Ontario and Quebec may each be composed of the Attorney-General, the Secretary and Registrar of the Province, the Treasurer of the Province, the

296 - DOCUMENTS ON CONFEDERATION

Commissioner of Crown Lands and the Commissioner of Agriculture and Public Works, and in Quebec, of the Speaker of the Legislative Council and of the Solicitor-General, and of any other persons who may at any time, or from time to time be appointed to the office of Executive Councillor by instrument under the Great Seal, and to hold office during pleasure. 99. Until altered by the Lieutenant-Governor in Council the Great Seal of Ontario and Quebec respectively shall be the same, or of the same design, in each of the said Provinces, as that used in the Provinces of Upper Canada and Lower Canada, prior to their Union as the Province of Canada. 100. No person accepting or holding any office, commission, or employment, permanent or temporary, at the nomination of the Crown, in either of the Provinces of Ontario or Quebec to which an annual salary, or any fee, allowance, emolument or profit of any kind or amount whatever from the Crown is attached, shall be eligible as a Member of the Legislative Assembly of either Province, nor shall he sit or vote as such; but nothing in this section shall render ineligible as aforesaid any person being a Member of the Executive Council of either of the said Provinces, or holding any of the following offices, that is to say, of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and for Quebec, the Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he be elected while holding such office and not otherwise disqualified. 101. All laws, statutes, and ordinances of the former Provinces of Lower and Upper Canada, or of the Province of Canada, now in force in the Province of Canada in respect to public lands, or to timber or public lands, and the sale and management thereof respectively, and to public works, and to the Bureau of Agriculture and Agricultural Societies, shall so far as they are not repugnant to this Act, be and continue in force, and applicable to the Provinces of Ontario and Quebec respectively, unless and until and in such case in so far only as such laws, statutes, and ordinances be varied, altered, amended, or repealed by the Legislature of the Province. 102. Until other provisions are made by the Legislature of Ontario and Quebec respectively, changing the same in either of the said Provinces, all the laws which at the time of the Union shall be in force in each of the said Provinces respectively, relating to the qualification and disqualification of any person

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 - 297

to be elected or to sit or vote as a Member of the Assembly of the Province of Canada, and relating to the qualification or disqualification of voters and to the oaths to be taken by voters and to Returning Officers and their powers and duties, and relating to the proceedings at elections and to the period during which such elections may be continued, and relating to the trial of controverted elections and the proceedings incident thereto, and relating to the vacating of the seats of Members and to the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the said Legislative Assembly of Ontario, and in the said the Legislative Assembly of Quebec: Provided that at the first Election for a Member of the Legislative Assembly for the District of Algoma, all persons otherwise qualified except in respect to real property, who are householders, shall have the right to vote at the said Election. 103. The Legislative Assembly of Ontario and the Legislative Assembly of Quebec respectively, shall continue for four years from the day of the return of the writs for choosing the same and no longer, subject nevertheless to either the Legislative Assembly of Ontario, or the Legislative Assembly of Quebec, being sooner prorogued or dissolved by the Lieutenant-Governor of either of the said Provinces respectively; and except for the purpose of Election of a Speaker the presence of at least twenty Members of the Legislative Assembly, including the Speaker, shall be necessary to constitute a Meeting of the said Legislative Assembly for the exercise of its powers; and all questions which shall arise in the said Assembly shall be decided by the majority of voices of such Members as shall be present, other than the Speaker, and when the voices shall be equal, the speaker shall have the casting voice. 104. There shall be a session of the Legislature of each of the said Provinces once at least every year, so that a period of twelve months shall not intervene between the last sitting of the Legislature in each Province in one session, and the first sitting thereof in the next session. 105. And whereas the Legislature of the Province of Canada have from time to time passed enactments, which enactments were to continue in force for a certain number of years after the passing thereof, and from thence to the end of the then next ensuing Session of the Legislatures of the Province in which the same were passed, therefore be it enacted, etc., that whenever the words "and from thence to the end of the then next ensuing

298 - DOCUMENTS ON CONFEDERATION

Session of the Legislature," or words to the same effect, have been used in any temporary Act of the Province of Canada, which shall not have expired before the Union, the said words shall be construed to extend and apply to the next Session of the Parliament of Canada, if the subject thereof be within the powers of the same, as herein defined, or to the next Sessions of the Legislatures of Ontario and Quebec respectively, if the subject thereof be within the powers of the same, as herein defined. 106. All Laws, Statutes, and Ordinances, which at the time of the Union shall be in force within the said Province of Canada, or the Provinces of Lower Canada or Upper Canada, or either of them, or any part of the same Provinces respectively, shall remain and continue to be of the same force, authority, and effect within the Provinces of Ontario and Quebec respectively, as if this Act had not been made, except in so far as the same are repealed or varied by this Act, or in so far as the same shall or may hereafter, by virtue and under the authority of this Act, be repealed or varied by any Act or Acts of Parliament or of the Legislatures of Ontario or Quebec respectively, as the case may be. 107. All the Courts of Civil and Criminal Jurisdiction within the Province of Canada, or within Lower Canada, or Upper Canada, and all legal Commissions, Powers, and Authorities, and all Officers judicial, administrative, or ministerial within the said Province of (Canada, or within Lower Canada, or Upper Canada, except in so far as the same may be abolished, altered, or varied by, or may be inconsistent with the Provisions of this Act, or shall be abolished, altered, or varied by any Act or Acts of Parliament of the Legislatures of the Provinces of Ontario and Quebec respectively, as the case may be, shall continue to subsist within Ontario and Quebec in the same form and with the same effect as if this Act had not been passed. 108. From and after the Union the use of the words "Upper Canada" instead of "Ontario," or "Lower Canada" instead of "Quebec," in any deed, document, writ, process, pleading, matter or thing whatsoever, shall not invalidate the same. 109. Any proclamation under the Great Seal of the Province of Canada which shall, at the time of the Union have been issued to take effect on a day or at a time which may be subsequent to the said Union and whether relating to the said Province or to Lower Canada, or to Upper Canada, and the several matters and things therein proclaimed shall be, remain,

FRAMING OF BRITISH NORTH AMERICA ACT, 1867 - 299

and continue of full force and effect from and after the day or time mentioned in such Proclamation. 110. Any proclamation authorised by any Act of the Legislature of the Province of Canada to be issued under the Great Seal of the Province of Canada, and whether relating to the said Province, or to Lower Canada, or to Upper Canada, and which shall not, at the time of the Union, have been issued, may be issued by the Lieutenant-Governor of Ontario or Quebec, as the subject matter of such proclamation may require under the Great Seal thereof, and from and after the issue of such proclamation the same and the several matters and things therein proclaimed shall be, remain and continue of full force and effect in such Province. 111. The Provincial Penitentiary of Canada shall, until otherwise provided by Parliament, be and continue the Penitentiary of and for Ontario and Quebec respectively. 112. The division and adjustment of the debts, credits, liabilities, properties and assets of the Provinces of Upper and Lower Canada, shall be referred to the arbitrament of three arbitrators, one to be chosen by the Government of Ontario, the other by the Government of Quebec and the third by the Government of Canada; and the selection of the arbitrators shall not take place until after Parliament and the Legislatures for Ontario and Quebec have been elected, and the third arbitrator shall not be a resident in either Ontario or Quebec. 113. The Governor-General in Council may from time to time order that such and so many of the records, books and documents as belong to the Province of Canada shall be appropriated and delivered either to Quebec or Ontario, and the same shall thenceforth become the property of such Province; and any copy or extract therefrom, duly certified by the officer having charge of the original thereof, shall be deemed and taken as evidence in the Courts of either Province. 114. The Lieutenant-Governors of Ontario, Quebec, and Nova Scotia respectively shall cause writs to be issued for the first Election of Members of the Legislative Assembly in such form and by such persons as he may prescribe, and at such time and to such Returning Officer as the Governor-General shall direct; and so that the first Election of Member of Assembly for any Electoral District shall be held at one and the same time with the Election for Member of the House of Assembly for such Electoral Division.

300 - DOCUMENTS ON CONFEDERATION

MISCELLANEOUS SECTIONS RESPECTING ONTARIO, QUEBEC, NOVA SCOTIA AND NEW BRUNSWICK. 115. The following sections are applicable to Ontario, Quebec, Nova Scotia, and New Brunswick: 116. Bills for appropriating any part of the Public Revenue, or for imposing any Tax or Impost shall originate in the Legislative Assembly of each Province. 117. It shall not be lawful for the Legislative Assembly of any Province to originate, or pass any vote, resolution, address, or bill for the appropriation of any part of the Public Revenue, or of any tax or impost, to any purpose that has not been first recommended to that House by message of the LieutenantGovernor in the Session in which such vote, resolution, address, or bill is proposed. 118. Where a bill passed is presented to the LieutenantGovernor for his assent, he shall declare according to his discretion, but subject to the provisions of this Act, either that he assents thereto or that he withholds his consent, or that he reserves the Bill for the signification of the pleasure of the Governor-General. 119. Where the Lieutenant-Governor assents to a Bill he shall by the first convenient opportunity send an authentic copy of the Act to the Governor-General, and if the Governor-General in Council within one year after the passing thereof, thinks fit to disallow the Act, such disallowance being signified by the Governor-General to the Lieutenant-Governor, or by proclamation, shall annul the Act from and after the day of such signification or proclamation. 120. A Bill reserved for the signification of the GovernorGeneral's pleasure shall not have any force unless and until within one year from the day on which it was reserved, the Governor-General signifies to the Lieutenant-Governor, or by proclamation that it has received the assent of the GovernorGeneral in Council; an entry of every such signification or proclamation when transmitted by message from the LieutenantGovernor, shall be made in the Journals of each House, as the case may be. MISCELLANEOUS. 121. It shall be lawful for Parliament by any Act or Acts to define the privileges, immunities and powers to be held, enjoyed, and exercised by the Senate and the House of Commons, and by

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

— 301

the Members thereof respectively: Provided that no such privileges, immunities, or powers, shall exceed those now held, enjoyed and exercised by the Commons House of the Imperial Parliament, or the Members thereof. 122. The Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire to Foreign Countries, arising under treaties between the Empire and such Foreign Countries. 123. The Governor-General shall appoint the Judges of the Superior, District and County Courts in each Province, and until the consolidation of the Laws of Ontario, Nova Scotia, and New Brunswick, such Judges shall be selected from their respective Bars. 124. The Judges of the Courts of Quebec shall be selected from the Bar of Quebec. 125. The Judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable on the address of both Houses of Parliament. •

•

•

~ Clauses 126-129, inclusive, correspond to Clauses 80-83, inclusive, of the Third Draft (see above, p. 277-278).~ SCHEDULE A. Substantially the same as the fifth schedule of the B.N.A. Act. SCHEDULE B. Substantially the same as the fourth schedule of the B.N.A. Act. SCHEDULE C. Same as the second schedule of the B.N.A. Act.

302 - DOCUMENTS ON CONFEDERATION

86

Final Draft of the British North America Bill, 9 February, 1867. (Pope, 212-47.) Confidential

Revise, 9 Feb. 1867. British North America. DRAFT OF A

BILL FOR

The Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof as united; and for the Purposes connected therewith. Whereas the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in Principle to that of the United Kingdom: And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the British Empire: And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the Executive Government therein be declared: And whereas it is expedient that provision be made for the eventual Admission into the Union of other Parts of British North America: Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows: I. PRELIMINARY « Short title » 1. This Act may be cited as the British North America Act, 1867. « Application of Provisions referring to the Queen..» 2. The Provisions of this Act referring to Her Majesty the

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

303

Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland. II. UNION « Declaration of Union » 3. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six Months after the passing of this Act, the Provinces of Canada, Nova Scotia and New Brunswick shall form and be One Dominion under the Name of Canada; and on and after that Day those three Provinces shall form and be One Dominion under that Name accordingly. « Construction of Subsequent Provisions of Act » 4. The subsequent Provisions of this Act shall, unless it is otherwise expressed or implied, commence on and after the Union; that is to say, on and after the Day appointed for the Union taking effect in the Queen's Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the Name Canada shall be taken to mean Canada as constituted under this Act. PROVINCES « Four Provinces » 5. Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick. « Provinces of Ontario and Quebec » 6. The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form Two Separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario, and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec. « Provinces of Nova Scotia and New Brunswick » 7. The Provinces of Nova Scotia and New Brunswick shall have the same Limits as at the passing of this Act.

304 - DOCUMENTS ON CONFEDERATION

« Decennial Census » 8. In the general Census of the Population of Canada which is hereby required to be taken in the Year One thousand eight hundred and seventy-one, and in every Tenth Year thereafter, the respective Populations of the Four Provinces shall be distinguished. III. EXECUTIVE POWER « Declaration of Executive Power in the Queen » 9. The Executive Government and Authority of and over the Dominion of Canada is hereby declared to continue and be vested in the Queen. « Application of Provisions referring to Governor General » 10. The Provisions of this Act referring to the GovernorGeneral shall extend and apply to the Governor-General for the Time being of the Dominion of Canada, or other the Chief Executive Officer or Administrator for the Time being carrying on the Government of Canada on behalf and in the Name of the Queen, by whatever Title he is designated. « Constitution of Privy Council » 11. There shall be a Council to aid and advise in the Government of Canada, to be styled the Queen's Privy Council for Canada; and the Members of that Council shall be from Time to Time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and may be from Time to Time removed by the Governor-General. « Powers to be exercised by Governor General with Advice or alone » 12. All powers, Authorities, and Functions which by any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or authorized or required to be exercised by the respective Governors or Lieutenant-Governors of those Provinces, with the Advice, or with the Advice and Consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or,with any Number of Members thereof, or by those Governors or Lieutenant-Governors individually, as far as the same relate to

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

305

the Government of Canada and continue in existence and capable of being exercised after the Union, shall be vested in and shall or may be exercised by the Governor-General, with the Advice or with the Advice and Consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor-General individually, as the case requires. « Application of Provisions referring to Governor General in Council » 13. The Provisions of this Act referring to the GovernorGeneral in Council shall be construed as referring to the Governor-General acting by and with the Advice of the Queen's Privy Council for Canada. « Appointment of Deputies by Governor-General » 14. The Governor-General may appoint any Person or any Persons jointly or severally to be his Deputy or Deputies within any Part or Parts of Canada, and in that Capacity to exercise during the Pleasure of the Governor-General such of the Powers, Authorities, and Functions of the Governor-General as the Governor-General deems it necessary or expedient to assign to him or them; but the Appointment of such a Deputy or Deputies shall not affect the Exercise by the Governor-General himself of any Power, Authority, or Function. « Command of Armed Forces » 15. The Commander-in-Chief of the Land and Naval Militia, and of all Naval and Military Forces, of and in the Dominion of Canada, is hereby declared to continue and be vested in the Queen. « Seat^of Government of Canada » 16. Until the Queen otherwise directs the Seat of Government of Canada shall be Ottawa. IV. LEGISLATIVE POWER « Constitution of Parliament of Canada » 17. There shall be One Parliament for Canada, consisting of the Queen, an Upper House styled the Senate, and the House of Commons.

306 - DOCUMENTS ON CONFEDERATION

« Privileges, &c. of Houses » 18. The Privileges, Immunities, and Powers to be held, enjoyed, and exercised by the Senate and House of Commons and the Members thereof respectively shall be such as are from Time to Time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland or the Members thereof. « First Session of the Parliament » 19. The Parliament of Canada shall be called together not later than Six Months after the Union. ANNUAL SESSION « Yearly Session of Parliament » 20. There shall be a Session of the Parliament of Canada once at least in every Year, so that a Period of Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and the first Sitting thereof in the next Session. THE SENATE « Number of Senators » 21. The Senate shall, subject to the Provisions of this Act, consist of Seventy-two Members, who shall be styled Senators. « Representation of Provinces in Senate » 22. In relation to the Constitution of the Senate Canada shall be deemed to consist of Three Divisions: 1. Ontario; 2. Quebec; 3. The Maritime Provinces, Nova Scotia and New Brunswick; which Three Divisions shall (subject to the Provisions of this Act) be equally represented in the Senate as follows: Ontario by Twenty-four Senators; Quebec by Twenty-four Senators; and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof representing New Brunswick. In the case of Quebec each of the Twenty-four Senators representing that Province shall be appointed for One of the

FRAMING OF BRITISH NORTH AMERICA ACT, 1867

-

307

Twenty-four Electoral Divisions of Lower Canada specified in Schedule A. to Chapter One of the Consolidated Statutes of Canada. « Qualifications of Senators » 23. The Qualifications of a Senator shall be as follows: (1) He shall be of the full Age of Thirty Years: (2) He shall be either a Natural-born Subject of the Queen, or a Subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of One of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada after the Union: (3) He shall be legally or equitably seised as of Freehold for his own Use and Benefit of Lands or Tenements held in Free and Common Socage, or seised or possessed for his own Use and Benefit of Lands or Tenements held in Franc-alleu or Roture, within the Province for which he is appointed, of the Value of Four thousand Dollars, over and above all rents, Dues, Debts, Charges, Mortgages, and Incumbrances due or payable out of or charged on or affecting the same: (4) His property shall be worth Four Thousand Dollars over and above his Debts and Liabilities: (5) He shall be resident in the Province for which he is appointed: (6) In the Case of Quebec he shall have his real Property Qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. « Summons of Senator » 24. The Governor-General shall from Time to Time, by Instrument under the Great Seal of Canada, summon qualified Persons to the Senate; and, subject to the Provisions of this Act, every Person so summoned shall become and be a Member of the Senate^and a Senator.