Annotations Index

Confederation Debates — Legislative Assembly — February 7, 1865


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direct taxation, all the means whereby the industry of the people may be made to contribute to the wants of the state, it must be evident to every one that some portion of the resources thus placed at the disposal of the General Government must in some form or other be available to supply the hiatus that would otherwise take place between the sources of local revenue and the demands of local expenditure. The members of the Conference considered this question with the most earnest desire to reduce to the lowest possible limits the sum that was thus required, and I think the figures that I have already given to the House afford the best possible evidence that no disposition existed, at any rate on the part of our friends from the Lower Provinces

§.92(2) of the Constitution Act, 1867.

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If, nevertheless, the local revenues become inadequate, it will be necessary for the local governments to resort to direct taxation ; and I do not hesitate to say that one of the wisest provisions in the proposed Constitution, and that which affords the surest guarantee that the people will take a healthy interest in their own affairs and see that no extravagance is committed by those placed in power over them, is to be found in the fact that those who are called upon to administer public affairs will feel, when they resort to direct taxation, that a solemn responsibility rests upon them, and that that responsibility will be exacted by the people in the most peremptory manner. (Hear, hear.) If the men in power find that they are required, by means of direct taxation, to procure the funds necessary to administer the local affairs, for which abundant provision is made in the scheme, they will pause before they enter upon any career of extravagance.

§.92(2) of the Constitution Act, 1867.

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another direction; to seek by free trade with our own fellow colonists for a continued and uninterrupted commerce which will not be liable to be disturbed at the capricious will of any foreign country. (Hear, hear.) On this ground, therefore, we may well come to the conclusion that the union between these colonies is demanded alike on account of their extensive resources, and because of the peculiar position in which they stand relatively to each other, to Great Britain, and to the United States. All these are questions which fall within the province of the General Government, as proposed in the resolutions before tho House, and whatever may be the doubts and fears of any one with respect to the details of the organization by which it is proposed to work the new system of Confederation, no one can doubt that the great interests of trade and commerce will be best promoted and developed by being entrusted to one central power, which will wield them in the common interest.

§.121 of the Constitution Act, 1867.

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It is matter for regret on the part of all of us that the trade between these colonies, subject all to the same Sovereign, connected with the same empire, has been so small.
Intercolonial trade has been, indeed, of the most insignificant character; we have looked far more to our commercial relations with the neighbouring—though a foreign country—than to the interchange of our own products, which would have retained the benefits of our trade within ourselves; hostile tariffs have interfered with the free interchange of the products of the labor of all the colonies, and one of the greatest and most immediate benefits to be derived from their union, will spring from the breaking down of these barriers and the opening up of the markets of all the provinces to the different industries of each.

§.121 of the Constitution Act, 1867.

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But this precedent could not be urged as an objection to Federation, inasmuch as it would be for the General Government to deal with our commercial matters. There could be no reason for well-grounded fear that the minority could be made to suffer by means of any laws affecting the rights of property.

§§.91(2) and 92(13) of the Constitution Act, 1867.

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He was aware that some members of the House, and a number of people in Upper Canada, in Lower Canada and in the Lower Provinces, were of the opinion that a Legislative Union ought to have taken place instead of a Federal Union. He would say, however, at the outset, that it was impossible to have one Government to deal with all the private and local interests of the several sections of the several provinces forming the combined whole.

Preamble and §§.91 and 92 of the Constitution Act, 1867.

Confederation Debates — Legislative Council — February 7, 1865


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As to the representation in the Confederated Legislative Council, it was proposed to give Upper Canada and Lower Canada twenty-four members each, and to the Lower Provinces twenty-eight. That is, the 780,000 souls in the Lower Provinces would have four members more than Upper Canada with its million and a half. This proved that though Canada had talented men in the Conference, they either forgot our interests or sat there powerless. When the Legislative Council of Canada was made elective, his honourable friend near him (Hon. Mr. CHRISTIE) had stood up for the right of Upper Canada, as the Delegates should have done in the Conference. On the second reading of the bill to change the constitution of the Legislative Council, on the 14th March, 1856,—

§.24 of the Constitution Act, 1867.

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HON. MR. CAMPBELL said that yesterday he had promised to give to the House today an explanation of the provision contained in the 14th resolution relating to the selection of members for the Legislative Council of the General Legislature. This resolution read as follows:
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, so that all political parties may as nearly as possible be fairly represented.
And under it the first recommendation for the appointment of Legislative Councillors from Canada would, should the Confederation scheme be adopted, come from the existing Government of this province. In making such recommendations, the spirit of the resolution would be carefully observed, and both sides in this House and as well life as elected members, be equally considered and fairly represented in the new Parliament.
HON. MR. FLINT begged to inquire whether the resolutions before the House were in all respects the same as those sent to the members.
HON. MR. CAMPBELL said they were not in one particular precisely as first printed, there being a clause in those before the House to allow New Brunswick to impose a duty on timber and logs, and Nova Scotia on coal, which was not found in the first ; as for the other provinces, the imposition of such duties was reserved to the General Legislature. (Hear, hear, from Mr. CURRIE.)
HON. MR. CAMPBELL said he hoped that honourable members would rather aid in furthering the scheme than take pleasure in detecting the supposed causes of opposition. (Hear.)
HON. MR. CURRIE asked whether the difference between the two sets of resolutions was merely a misprint.
HON. MR. CAMPBELL could not say whether it was owing to a misprint or to an error in the manuscript.
HON. MR. CURRIE again asked whether the members of the Conference had not signed the instrument containing its resolutions
HON. MR. CAMPBELL could only say that the resolutions now before the House truly and expressly represented the conclusions the Conference had arrived at. (Hear, hear.) Those conclusions had not been changed.

§.25 of the Constitution Act, 1867.

Confederation Debates — Legislative Assembly — February 6, 1865


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We provide that there shall be no money votes, unless those votes are introduced in the popular branch of the Legislature on the authority of the responsible advisers of the Crown—those with whom the responsibility rests of equalizing revenue and expenditure—that there can be no expenditure or authorization of expenditure by Address or in any other way unless initiated by the Crown

§.53 of the Constitution Act, 1867.

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With respect to the local governments, it is provided that each shall be governed by a chief executive officer, who shall be nominated by the General Government. As this is to be one united province, with the local governments and legislatures subordinate to the General Government and Legislature, it is obvious that the chief executive officer in each of the provinces must be subordinate as well. The General Government assumes towards the local governments precisely the same position as the Imperial Government holds with respect to each of the colonies now; so that as the Lieutenant Governor of each of the different provinces is now appointed directly by the Queen, and is directly responsible, and reports directly to Her, so will the executives of the local governments hereafter be subordinate to the Representative of the Queen, and be responsible and report to him. Objection has been taken that there is an infringement of the Royal prerogative in giving the pardoning power to the local governors, who are not appointed directly by the Crown, but only indirectly by the Chief Executive of the Confederation, who is appointed by the Crown.
This provision was inserted in the Constitution on account of the practical difficulty which must arise if the power is confined to the Governor General. For example, if a question arose about the discharge of a prisoner convicted of a minor offence, say in Newfoundland, who might be in imminent danger of losing his life if he remained in confinement, the exercise of the pardoning power might come too late if it were necessary to wait for the action of the Governor General. It must be remembered that the pardoning power not only extends to capital cases, but to every case of conviction and sentence, no matter how trifling— even to the case of a fine in the nature of a sentence on a criminal conviction. It extends to innumerable cases, where, if the responsibility for its exercise were thrown on the General Executive, it could not be so satisfactorily discharged, Of course there must be, in each province, a legal adviser of the Executive, occupying the position of our Attorney General, as there is in every state of the American Union. This officer will be an officer of the Local Government ; but, if the pardoning power is reserved for the Chief Executive, there must, in every case where the exercise of the pardoning power is sought, be a direct communication and report from the local law officer to the Governor General.
The practical inconvenience of this was felt to be so great, that it was thought well to propose the arrangement we did, without any desire to infringe upon the prerogatives of the Crown, for our whole action shows that the Conference, in every step they took, were actuated by a desire to guard jealously these prerogatives.

§.58 of the Constitution Act, 1867.

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It was in the main formed on the model of the Constitution of Great Britain, adapted to the circumstances of a new country, and was perhaps the only practicable system that could have been adopted under the circumstances existing at the time of its formation.

Preamble of the Constitution Act, 1867.

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Our merchants may be obliged to return to the old system of bringing in during the summer months the supplies for the whole year. Ourselves already threatened, our trade interrupted, our intercourse, political and commercial, destroyed, if we do not take warning now when we have the opportunity

§.121 of the Constitution Act, 1867.

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our trade is hampered by the passport system, and at any moment we may be deprived of permission to carry our goods through United States channels

§.121 of the Constitution Act, 1867.

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” That the best interests and present and future prosperity of British North America would be promoted by a Federal Union under the Crown of Great Britain,”

Preamble of the Constitution Act, 1867.

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Thus, we have, in Great Britain, to a limited extent, an example of the working and effects of a Federal Union, as we might expect to witness them in our own Confederation.

Preamble of the Constitution Act, 1867.

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” 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.”

§.121 of the Constitution Act, 1867.

Confederation Debates — Legislative Assembly — February 3, 1865


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there might be some misunderstanding and difference of opinion, as for example those clauses by one of which it was stated that the civil laws of the country were to be under the control of the local governments, and by the other of which the law of marriage was placed under the control of the General Government. The law of marriage pervaded the whole civil code, and he wanted to know how it could be placed under a different legislature from that which was to regulate the rest of the civil law.

§§. 91(26) and 92(12) of the Constitution Act, 1867.

Confederation Debates — Legislative Council — February 3, 1865


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New Brunswick might be rich in coal, in wood and in fisheries, and do a large business in ship building, but these things would seek the best markets under any circumstances, and he did not see that a union with us would increase their value, and if it did it would be no advantage.

§.121 of the Constitution Act, 1867.

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Had they no resources from their trade and manufactures ? If they did not produce wealth in one way they certainly did in others, and so it was with New Brunswick. If it did not produce wheat, it produced timber in immense quantities. It had a very extensive fishing coast which was a source of great wealth. Some honorable gentlemen would perhaps remember what an eminent man from Nova Scotia—the Hon. JOSEPH HOWE—had said at a dinner in this country in 1850, that he knew of a small granite rock upon which, at a single haul of the net, the fishermen had taken 500 barrels of mackerel.

§.121 of the Constitution Act, 1867.

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Still no one could deny that the Gulf Provinces were of immense importance, if only in respect of their fisheries. Then they were rich in minerals. Their coal alone was an element of great wealth. It had been said that where coal was found the country was of more value than gold. Look at England, and what was the chief source of her wealth if not coal? Deprived of coal, she would at once sink to the rank of a second or third rate power. But Canada had no coal, and notwithstanding all her other elements of greatness, she required that mineral in order to give lier completeness. What she had not, the Lower Provinces had ; and what they had not, Canada had.

§.121 of the Constitution Act, 1867.

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He believed the French Canadians would do all in their power to render justice to their fellow-subjects of English origin, and it should not be forgotten that if the former were in a majority in Lower Canada, the English would be in a majority in the General Government, and that no act of real injustice could take place even if there were a disposition to perpetrate it, without its being reversed there.

§.93 of the Constitution Act, 1867.

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The war of races found its grave in the resolutions of the 3rd-September, 1841, and he hoped never to hear of it again.

§.93 of the Constitution Act, 1867.

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It would not be so in a Federal Union, for all questions of a general nature would be reserved for the General Government, and those of a local character to the local governments, who would have the power to manage their domestic affairs as they deemed best. If a Federal Union were obtained it would be tantamount to a separation of the provinces, and Lower Canada would thereby preserve its autonomy together with all the institutions it held so dear, and over which they could exercise the watchfulness and surveillance necessary to preserve them unimpaired.

§§. 91 and 92 of the Constitution Act, 1867.

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This was the British system, and an instance had lately occurred in the Imperial Parliament exemplifying it.

Preamble of the Constitution Act, 1867.

Speech on the Proposed Union of the British North American Provinces — Sherbrooke


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the interests of the British population of Lower Canada were identical with those of the French Canadians ; these peculiar interests being that the trade and commerce of the Western country should continue to flow through Lower Canada.

§.121 of the Constitution Act, 1867.

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The business men of Canada and her farming population too were now entirely dependent on a state of law in the United States, which might not continue forever. (Hear.) If it were possible then to combine with a change in the constitution of Canada such an extension of our territorial limits as to give us access to the sea, we ought not to neglect the opportunity of attaining those means of reaching at all times the mother country and other European countries, which the Maritime Provinces now possessed.

§.121 of the Constitution Act, 1867.

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Consequently, the trade of these Colonies, separated as they were by hostile tariffs, preventing proper commercial intercourse between them—with all the disadvantages of being separated, disunited, and having necessarily smaller Legislatures, and smaller views on the part of their public men

§.121 of the Constitution Act, 1867.

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He considered therefore that, possessing as these Provinces did a large and increasing population, a vast territory, and a trade and commerce which, united, would vie with those of almost any other country in the world, it must be admitted there were material interests which would be greatly promoted it we could agree on a measure of such a nature as to induce the several Provinces to entrust the management of their general affairs to a common government and legislature

§.121 of the Constitution Act, 1867.

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Though he thought the general interest might have been promoted, if we could have gone to Europe and put one comprehensive scheme of colonization and emigration before the world at large, that was prevented now, and all we could hope for, was that such wise measures might be adopted by the Local Legislatures as would have the same results. While it was necessary to leave in the hands of the Local Parliaments and Governments the power of determining the rates or terms on which lands might be obtained by emigrants when they reached us, or when the, natural increase of our own population required our young men to take up lands in the back country, he did not think it should be apprehended that the Local Governments would adopt any policy which would check that which was manifestly for the interest of the community at large. Whatever policy were adopted, whether a wise or a foolish one, must be a policy applying equally to all. No distinction could be drawn, with reference to nationality or creed, among those who went upon the Crown domain to buy lands.

§.95 of the Constitution Act, 1867.

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In the first Parliament under the new system, there would reside the power of making such alterations as they saw fit in the electoral laws. As they now existed in the several Provinces, they were all different; the very franchise was different ; and it must remain so until the General Legislature had made alterations in the law in; no other way could the system be brought into operation at all, and the same law that applied to the electoral law also applied to electoral limits they must from the necessity of the case be adjusted by the local legislatures preparatory to the meeting of the Federal Parliament.

§.41 of the Constitution Act, 1867.

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The interests of trade and commerce, those in which they felt more particularly concerned, which concerned the merchants of Montreal and Quebec, would be in the hands of a body where they could have no fear that any adverse race or creed could affect them. Ail those subjects would be taken out of the category of local questions, would be taken away from the control of those who might he under the influence of sectional feelings animated either by race or religion, and would be placed in the hands of a body where, if the interests of any class could be expected to be secure, surely it would be those of the British population of Lower Canada.

§.121 of the Constitution Act, 1867.

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With regard to the acts of the local legislatures, it was proposed they should, in like manner, either be reserved by the Lieutenant Governor, or should, if assented to by him, be liable to disallowance by the general government within one year.

§.58 of the Constitution Act, 1867.

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and he would take this opportunity of saving—and it was due to his French Canadian colleagues in the Government that he should thus publicly make the statement, that so far as the whole of them were concerned,—Sir Etienne Tache, Mr. Cartier, Mr. Chapais, and Mr. Langevin,—throughout the whole of the negotiations, there was not a single instance when there was evidence on their part of the slightest disposition to withhold from the British of Lower Canada anything that they claimed for their French Canadian countrymen.

§§.93 and 133 of the Constitution Act, 1867.

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It was felt that more advantage would arise by making the reference from the local to the general legislature direct than to have it go through the Colonial Office. It was plain the Queen, or Sovereign authority, must have the right of exercising the power of controlling legislation in the way which had existed for so many years in every part of the British dominions. There would be no object in sending over mere local bills to the Colonial Office or to the Queen for sanction. It was felt that points on which differences might arise on local bills would be better understood by ourselves in this country than by the Imperial authorities. If reserved, they would have to be referred back to the General Government for its advice as to their disposal ; and if this advice were given, the parties concerned would be ignorant of the advisers, who could not be held responsible. The principle upon which our Government was administered was, that no act was done without some one being responsible. It was desirable therefore that such advice should be tendered by parties who could be brought to account for it by the representatives from the section of the country concerned, in the General Parliament.

§§.56 and 58 of the Constitution Act, 1867.

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it was proposed to apply to its acts the same check as now existed over the acts of the several legislatures of the Provinces—that is to say, bills having passed the legislatures might either be reserved for Her Majesty’s assent, or having received the assent of Her representative, might be disallowed by the Queen within two years.

§.56 of the Constitution Act, 1867.

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It was felt that for the million of people in Lower Canada, not supposed to be familiar with English, the laws should be printed in French, and for those unfamiliar with that language they should be struck off in English. It was nothing more than right that parties who were expected to know and obey the law, should have it placed before them in an intelligible form.

§.133 of the Constitution Act, 1867.

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The incorporation of private or local companies, except such as related to matters assigned to the General Parliament, would be reserved to the local Governments, being matters of a local character. Even the present law permitted the incorporation of companies under a very simple system, which would probably be continued.

§.91(15) of the Constitution Act, 1867.

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The control of property and civil rights, the administration of justice, including the constitution, maintenance, and organization of the courts of civil jurisdiction, and the procedure in civil matters, were also left to the local legislatures. From the peculiar position of Lower Canada it was felt impossible to confide the matter of civil law to the General Legislature. The principles upon which the civil law of Lower Canada were founded differed entirely from those of the English law. Under it property was secured, and civil rights of every kind maintained, and the people had no particular wish to see it changed, especially at this moment, when the work of codifying and simplifying it was about completed, and when they knew that within the next three or four months they would have it put into their hands in one volume. He thought it was undesirable to do away with that law, which had been beneficial to the country and under which it had prospered. It was necessary to have it left to the local Legislature, because all in Lower Canada were unwilling to have substituted another law with which they were unacquainted.

§§.92(13)(14) of the Constitution Act, 1867.

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What they would like would be to have additional powers conferred upon them, rather than to have existing ones contrated. Perhaps the system now everywhere in use in Upper Canada would be beneficial in the Townships.

§.92(8) of the Constitution Act, 1867.

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Local works naturally fell within the scope of local governments, and would undoubtedly be under the immediate influence of the municipal councils, but all the works of a really public character would be under the General Legislature; such, he meant, as were connected with the general policy of the whole country.

§§.92(8)(10) of the Constitution Act, 1867.

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The Municipal institutions of the country must necessarily come under the care of the local Legislatures, and in fact the local Legislatures were themselves municipalities of of a larger growth. They were charged with the administration of local affairs, and must be allowed to delegate such powers as they thought might be safely entrusted to the smaller divisions of the country as laid out into townships and parishes.

§.92(8) of the Constitution Act, 1867.

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but all would agree that most of the other hospitals and asylums of various kinds should more properly be supported by local than by general resources.

§§.91(11) and 92(7) of the Constitution Act, 1867.

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The management of all the Penitentiaries and Prisons naturally fell under the scope of the local authorities ; also that of Hospitals, Asylums, Charities, and Eleemosynary institutions. With regard to these, he would merely say that there might be some which could hardly be considered local in their nature ; such, for example, was the Marine Hospital at Quebec, a seaport where there was an enormous trade

§§.91(11) and 92(7) of the Constitution Act, 1867.

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He hoped and believed when the question came up in Parliament for disposal, the Legislature would rescue the Lower Canadian institutions for Superior Education from the difficulties in which they now stood ; and this remark applied both to Roman Catholic and Protestant institutions.

§.93 of the Constitution Act, 1867.

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The question of Education was put in generally,—the clause covering both superior and common school education, although the two were to a certain extent distinct.

§.93 of the Constitution Act, 1867.

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Attention had however been drawn in Conference to the fact that the school law, as it existed in Lower Canada, required amendment, but no action was taken there as to its alteration, because he hardly felt himself competent to draw up the amendments required ; and it was far better that the mind of the British population of Lower Canada should be brought to bear on the subject, and that the Government might hear what they had to say, so that all the amendments required in the law might be made in a bill to be submitted to Parliament; and he would add that the Government would be very glad to have amendments suggested by those, who, from their intelligence or position, were best able to propose them.

§.93 of the Constitution Act, 1867.

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There could be no greater injustice to a population than to compel them to have their children educated in a manner contrary to their own religious belief. It had been stipulated that the question was to be made subject to the rights and privileges which the minorities might have as to their separate and denominational schools.

§.93 of the Constitution Act, 1867.

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He would now endeavour to speak somewhat fully as to one of the most important questions, perhaps the most important— that could be confided to the Legislature- the question of Education. This was a question in which, in Lower Canada, they must all feel the greatest interest, and in respect to which more, apprehension might be supposed to exist in the minds at any rate of the Protestant population, than in regard to anything else connected with the whole scheme of federation. It must be clear that a measure would not he favorably entertained by the minority of Lower Canada which would place the education of their children and the provision for their schools wholly in the hands of a majority of a different faith. It was clear that in confiding the general subject of education to the Local Legislatures it was absolutely necessary it should be accompanied with such restrictions as would prevent injustice in any respect from being done to the minority.

§.93 of the Constitution Act, 1867.

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He had omitted referring to these, when be was reading the list of subjects confided to the General Legislatures, in which they were also included—because he was aware they would come up again, in going over the subjects to be dealt with by the Local Legislatures. These two matters of Agriculture and Immigration must certainly be considered as common in a great measure to all, but at the same time legislation with regard to them might be affected by certain measures which might have only a local bearing. Consequently it was provided that there should be concurrent jurisdiction on these two questions. But, with this concurrent jurisdiction, in the event of any clashing taking place between the action of the General Government and the action of the Local Governments, it was provided that the general policy, the policy of the General Government, that which bad been adopted for the good of the country at large, should supersede and override any adverse action which the Local Legislature might have taken with a view to purely local purposes. The design was to harmonize the system of Immigration and Agriculture over the whole of British North America, while locally it might be subjected to such regulations and stipulations as the Local Legislatures might determine from any cause to apply to it.

§.95 of the Constitution Act, 1867.

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“The establishment and tenure of local offices, and the appointment of local officers,”—these were functions which plainly belonged to the Local Legislatures.

§.92(4) of the Constitution Act, 1867.

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For, while they would be selected from among ourselves, they would be required to administer the Governments of their respective Provinces, not according to their own will and pleasure but according to the advice of officers who possessed the confidence of the Local Legislatures of those Provinces. Consequently we should always have the means of bringing about harmony, if any difficulty arose between any of the local bodies and the General Government, through the Lieutenant Governor, and we should have a system under which, all action beginning with the people and proceeding through the Local Legislature, would, before it became law, come under the revision of the Lieutenant Governor, who would be responsible for his action, and be obliged to made his report to the superior authority.

§.58 of the Constitution Act, 1867.

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It was well that there should be those objects of ambition. At present the Bar and the Bench might be said to possess almost the only prizes the country offered to its public men. It was desirable, he thought, that we should have within our reach the opportunity of rewarding merit by appointing from among ourselves in the several Provinces those who should be the heads of the Local Governments and who should form the links of connection between the Local Governments and the General Government, holding to that General Government the same relations as were now held by the heads of the Provincial Governments to the imperial Government, and discharging the duties
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of their offices under the same local advice as that which the Governors now acted on.

§.58 of the Constitution Act, 1867.

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it was felt there was no necessity whatever for their being in communication with the Imperial Government, but that on the contrary very great mischief might arise, if they were permitted to bold that communication. It was also thought that, in keeping the appointment of the Lieutenant Governors in the hands of the General Government, this further advantage would be gained ; the appointments would be conferred on men in our own country. (Hear, hear.) There would be a selection from the public men of intelligence and standing in the respective Provinces, and they would go to the discharge of the duties imposed upon them with experience gained in public life in the colonies whose local affairs they were called on to administer, so that they would carry to the administration of public affairs in the respective Provinces that valuable acquaintance with the feelings and habits of thought of the people which they had gained during their public life.

§.58 of the Constitution Act, 1867.

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And the first change he had to draw their attention to was with reference to the appointment of the Lieutenant Governor who it was proposed should be appointed by the General Government. The reason why this was preferred to the appointment taking place as heretofore by the Crown was that it was intended that the communication between all the several Provinces and the Imperial Government should be restricted to the General Government.

§.58 of the Constitution Act, 1867.

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that the Local Governments should be constituted, to the powers to be committed to them, and the exercise of those powers. It was proposed that in the meantime they should be constituted as at present, that is to say, consisting of a Lieutenant Governor, a Legislative Council, and a Legislative Assembly.

Part V and §§.64, 65, 69, 71, 80, and 82 of the Constitution Act, 1867.

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He might remark, with reference to the appointment of Judges by the general Government, that they were to be selected from the Bars of the several Provinces, and the idea was thrown out at the Conference that there was such a similarity in the laws of Upper Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island—all of them possessing the English law–that the probability was that they would be able to consolidate their laws, and that of course, if that were done, there would be a larger scope for the selection of the Bench— and in other respects also he believed that great advantages would result from it. But, in the case of Lower Canada, where we had a different system of law altogether, it was plain that the Judges could be selected only from among gentlemen conversant with that law, and therefore it was provided that the Judges should be selected from the Bars of the respective Provinces in which they were to act, but in the case of the consolidation of the laws of the several Maritime Provinces and of Upper Canada, the choice would extend to the Bars of all those Provinces.

§§.97 and 98 of the Constitution Act, 1867.

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He felt that to the gentlemen who had so worthily filled tor so many years the positions of our Judges, was due in a great measure the prosperity of the country, the happiness of the people, and the security to life and property we enjoyed. He thought that the higher their position was made and the more respect paid them, the better it would be for the general interest, and were the appointment and payment of the judges put into the bands of the local legislatures it would be a diminution of the importance the former were entitled to expect at our hands ; he thought there was no one in the country, with the exception of the Governor General himself, whom we should so desire to see upheld in the public estimation as those men who administered justice in the Courts.

§.96 of the Constitution Act, 1867.

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It was also proposed that the Judges of the Superior Courts in each Province, and of the County Courts of Upper Canada, should be appointed by the General Government and paid by it. He was glad this power had been conferred, believing that if there was one thing more than another which they should seek to do in this country, it was to elevate the character of the Bench.

§.96 of the Constitution Act, 1867.

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It was proposed to ask the Imperial Government to confer upon the General Government the power of constituting such a court, not, however, with the desire to abolish the present right of appeal to England.

§.101 of the Constitution Act, 1867.

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At present appeal lay from our courts ultimately to the Queen in Privy Council, and it was not intended to deprive the subject of recourse to this ultimate court ; but at the same time it was well, in assimilating the present systems of law, for the benefit of all the Provinces, that they should have the assembled wisdom of the Bench brought together in a general court of appeal to decide ultimate causes, which would before long doubtless supersede the necessity of going to the enormous expense of carrying appeals to England.

§.101 of the Constitution Act, 1867.

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It was thought proper to give to the General Government the right to establish a general Court of Appeal for the federated Provinces He thought that while there was no express provision for the establishment of such a court, many who had studied the question would agree that it was desirable the General Legislature should have the power of constituting such a court, if it saw fit to do so.

§.101 of the Constitution Act, 1867.

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rime should meet with the same punishment no matter in what part of the Country committed. The right hand of justice should be as sure of grasping the criminal and punishing him for his offence in one part as in another. There should be no distinction anywhere in regard to the amount of punishment inflicted for offences.

§.91(27) of the Constitution Act, 1867.

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It was desirable the General Government should have the control of the medium through which the trade and commerce of the country was carried on, and that in the establishment of banks, the issue of paper money and in offering to the public the paper representative of their labor, in whatever part of the country, there should be the same legislative security for the people

§§.91(2)(14)(15)(16) of the Constitution Act, 1867.

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and in framing a union of these Provinces it was desirable that whatever might be the inducement that brought foreigners hither, whether a desire to embark in the Fisheries of Newfoundland, in the Lumbering of New Brunswick, or in the agricultural and manufacturing industries of Upper or Lower Canada, we should hold out to them the utmost facilities for becoming subjects of the British Crown here.

§.91(25) of the Constitution Act, 1867.

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The protection of the Indians, and the naturalization of aliens were matters which necessarily fell to the general Government.

§§.91(24)(25) of the Constitution Act, 1867.

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The control of the Militia was certainly a subject which they must all feel ought to be in the hands of one central power. If them was one thing more than another which required to be directed by one mind, governed by one influence and one policy, it was that which concerned the defence of the country.

§§.15 and 91(7) of the Constitution Act, 1867.

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In fact he might say that lines of telegraph, railways, etc., and all works of an essentially general character, as distinguished from those merely local, were intended to be under the control of the General Government who would administer them for the common Interest. They would be put beyond the power of any local government to obstruct or interfere with, they being a means by which the trade and industry of the country at large would benefit. It would not be found possible in any part of the united ter-
[Page 12]
ritory to offer objection to that which was in the common interest, simply on account of its being situated in any particular locality.

§.91(29) of the Constitution Act, 1867.

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Lines of steam or other ships, railways, as well as canals and other works connecting any two or more of the Provinces together, or extending beyond the limits of any Province, would be under the control of the General Government.

§.92(10) of the Constitution Act, 1867.

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If there was one branch of the public service which, more than another, should be under the control of the general government it was the Postal Service ; and it had been agreed to leave it entirely in the hands of the General Government.

§.91(5) of the Constitution Act, 1867.

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the Central Government would have the power of raising money by all the other modes and systems of taxation—the power of taxation had been confided to the General Legislature—and there was only one method left to the Local Governments, if their own resources became exhausted, and this was direct taxation.

§§.91(3) and 92(2) of the Constitution Act, 1867.

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its representatives at the conference urged that if the General Government should put an export duty on coal, one of their most important resources would be interfered with, and Nova Scotia was therefore permitted to deal with the export duty on coal and other minerals, just as New Brunswick was with regard to timber.

§.121 of the Constitution Act, 1867.

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The correct interpretation of the clause would, however, leave to the General Government the power of levying a duty on exports of lumber in all the Provinces except New Brunswick, which alone would possess the right to impose duties on the export of timber.

§§.121 and 124 of the Constitution Act, 1867.

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Now inasmuch as the territorial possessions of each Province were reserved as a means of producing local revenue for the respective Provinces, it was evident that if the Province of New Brunswick were deprived of this privilege of imposing an export duty it would be obliged to revert to the old expensive process of levying stumpage dues, against which its representatives in Conference very strongly protested.

§.92(5) of the Constitution Act, 1867.

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He might remark that in the published statement it was said the General Government should not have the right of imposing duties on exports of lumber, coal and other minerals, but the understanding was that the clause should be limited in the case of timber to the Province of New Brunswick, and in the oas3 of coal and other minerals to the Province of Nova Scotia. The reasons for this prohibition were that the duty on the export of timber in New Brunswick was in reality only the mode in which they collected stumpage.

§§.121 and 124 of the Constitution Act, 1867.

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The regulation of duties of customs on imports and exports might perhaps be considered so intimately connected with the subject of trade and commerce as to require no separate mention in this place ; he would however allude to it because one of the chief benefits expected to flow from the Confederation was the free interchange of the products of the labor of each Province, without being subjected to any fiscal burden whatever ; and another was the assimilation of the tariffs. It was most important to see that no local legislature should by its separate action be able to put any such restrictions on the free interchange of commodities as to prevent the manufactures of the rest from finding a market in any one province, and thus from sharing in the advantages of the extended Union

§§.121 and 122 of the Constitution Act, 1867.

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It would have the regulation of all the trade and commerce of the country, for besides that these were subjects in reference to which no local interest could exisit, it was desirable that they should be dealt with throughout the Confederation on the same principles.

§§.91(1a) and (2) of the Constitution Act, 1867.

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Home change would have to be made in the duration of the Parliaments of the local systems, and it was thought desirable that the term of existence of the General Legislature should be longer than any that could possibly be adopted for the local bodies.

§.50 of the Constitution Act, 1867.

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What was desired was that elections and dissolutions of Parliament should take place with sufficient frequency to ensure that the representatives should truly represent the people.

§.50 of the Constitution Act, 1867.

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It was also proposed that the duration of Parliament should be extended from four to five years. The reason for adopting this coarse was that under our present system Parliaments seldom lasted longer than three years. In England where their legal duration was seven years, it was found, on an examination of the records of the last sixty or seventy years, that the average length of each Parliament was only a trifle over four years.

§.50 of the Constitution Act, 1867.

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tion they might be inclined to appoint their own political friends to the exclusion of the others. But it was intended that the nomination should be so made that not only the members composing the Government but also the Opposition to the Government should be fairly represented in the Legislative Council. So far as Canada was concerned, there was no likelihood of difficulty arising on this point, because the coalition which was formed between the Liberal and Conservative parties would preclude any attempt calculated to injure the interests of either. (Hear, hear, and cheers.) In the case of the Lower Provinces the same reasons did not exist. Their governments were still party governments, and though they had associated with them, in the Conference which had taken place, the leaders of the Opposition, still the action to be taken would necessarily be the action of the governments of the Lower Provinces. It was therefore proposed that there should be a guarantee given that all political parties should be as nearly as possible fully represented.

§.25 of the Constitution Act, 1867.

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The House would never have lees than 194 members, but it would increase at a very slow rate, as it would only be the greater increase of any Province over that of Lower Canada which would entitle it to additional representation, while, if the agricultural resources of Lower Canada became developed, and its mineral wealth explored, so that it increased faster than Upper Canada, then the number of representatives for Upper Canada would be diminished, not those for Lower Canada increased. Of course, to provide for the settlement of the remote portions of the country which might be brought in from time to time, power was reserved to increase the number of members ; but such members could only be increased preserving the relative proportions. One advantage which would flow from this was that white 194 or 300 members were certainly sufficient to carry on the business of the country, we should be spared the enormous expense which would be entailed upon us if the representatives were rapidly to grow up to 300 or perhaps 400 members.

§§.51 and 52 of the Constitution Act, 1867.

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Population was made the basis, and to prevent any undue augmentation in the numbers of the Lower House as population increased, it was settled that there should be a fixed standard on which the numbers of the House should be calculated, and Lower Canada was selected as affording the proper basis.

§§.51 and 52 of the Constitution Act, 1867.

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Now unless this were done, it was plain that Upper Canada would not, under any circumstances, have consented to be a party to the Union, since for many years it had been claiming additional representation as a matter of right, and would certainly not have entered a Confederation, unless a due share of control were given it over the expenditure and taxation to which it so largely contributed.

§.51 of the Constitution Act, 1867.

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Consequently there was a greater certainty that fairness would be meted out to both parties, if the representatives in the Upper House were to be chosen from the electoral limits which now existed. It was intended that the first selection of Legislative Councillors should be made from the present Legislative Councils of the several Provinces, and without referring to the reasons which actuated gentlemen from the Lower Provinces in regard to this matter, he thought it might be sufficient to point out that in Canada, where we had forty-eight gentlemen sitting in the Upper House by the right of election, it would have been doing a wrong, not merely to them individually, but to their constituents too, if they had from any cause been attempted to be overlooked. It was quite evident even if no such clause had been inserted, that no attempt would have been made to pass over those gentlemen who had been selected by the people themselves as the most fit and proper persons to represent them in the Legislative Council. However, the arrangement was that they should be chosen, regard being held in that selection to the relative position of political parties. If the power of nomination were entrusted to the Government without restric-

§.25 of the Constitution Act, 1867.

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It then became necessary to settle the number of members tor the Upper House, and the more so because the Upper House was intended to be the means whereby certain local interests and local rights would be protected in the General Legislature, For this reason it was contended that while the principle of Representation by Population might be properly enough extended to the Lower House, equality of territorial representation should be preserved in the Upper House; and it was proposed in its formation, that the Confederation should be divided into three large districts, Upper Canada being one. Lower Canada another, and the Maritime Provinces the third. Newfoundland not having joined the preliminary Conference, arrangements were made for its coming in with the additional number of four members.

§.22 of the Constitution Act, 1867.

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It would not become them to object to the nominative plan, because the members for the Upper House would be nominated by the Crown on the recommendation of the General Government. He might say it here, because it was said by everybody outside, that in the event of any thing like injustice being attempted towards the British population of Lower Canada by their French Canadian fellow-subjects, —they would moat unquestionably look for remedy and redress at the hands of the General Government, who would hare the power of causing their interests to be represented in the Upper House of the General Legislature.

§§.24 and 33 of the Constitution Act, 1867.

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Under these circumstances it was believed that the nominative plan in some respects offered greater advantages than the elective principle, and it was decided that we should again revert to nomination by the crown.

§.24 of the Constitution Act, 1867.

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Therefore, as far as Canada was concerned, he was not aware that they could say that the principle of an elective Legislative Council had proved in any degree a failure. There was no doubt that, in some respects, the elective principle was attended with difficulties and objections. It had been found that complaint was made that the expense connected with the elections in many districts was such as to debar many able men from attempting to come forward as candidates. There was no doubt that to canvass a district composed of three constituencies, each sending a member to the Lower House, was a most formidable undertaking, and one from which many excellent and worthy men naturally shrank. An election for one was bad enough, but to have an election for three constituencies, certainly must be three times as bad.

§.24 of the Constitution Act, 1867.

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He did not think that in Canada they had any cause to regret the change which had been made from the nominative to the elective plan. The circumstances under which that change took place were probably familiar to most of them. The Leg. Council had, from one cause or another, under the nominative system, fallen into public discredit.

§.24 of the Constitution Act, 1867.

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In the constitution of the Legislative Council it would be observed that the principle which now obtained in Canada, of electing be members of that branch, was proposed to be done away with and that we would again revert to nomination by the Crown.

§.24 of the Constitution Act, 1867.

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to the form of government which should be adopted for the administration of the general affairs of the whole union, and that form was copied almost literally from the system existing in the several Provinces.

Preamble of the Constitution Act, 1867.

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having decided that the Federative plan, as he had briefly endeavored to explain it, was the one which ought to be adopted, was whether they ought to adopt the mode of government which they now saw in use in the United States, or whether they should endeavor to incorporate in the Union the principles under which the British Constitution had been for so many years happily administered ; and upon this point no difference of opinion arose in the Conference. They all preferred that system which they had enjoyed for the last eighteen years, by which the Crown was allowed to choose its own advisers ; but those advisers must be in harmony with the well understood wishes of the country as expressed by its representatives in Parliament.

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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It was therefore proposed, 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 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.

Preamble, §§. 91, 92 and 146 of the Constitution Act, 1867.

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a Governor General, who should be appointed by our Gracious Sovereign.

§.10 of the Constitution Act, 1867.

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They were unanimously of the opinion that this system was more likely to operate for the benefit of the people than any attempt to introduce the American system of Government. They certainly believed that they enjoyed more practical freedom under the British Sovereign than they could under a dictator who was chosen for only four years. He believed that the administration of the country could be carried on with more advantage to the people and more in harmony with their wishes if that administration was obliged constantly to retain the confidence of the people ; and if the moment the people ceased to have confidence in those in power, they must give place to others who would be able to govern the country more in harmony with their wishes. The secret of the freedom of the British nation from revolution and disturbance was that the people had at any time the power of making the Government harmonise with their wishes, —it was, in fact, the greatest safeguard the British Constitution gave. No government In Canada could venture to set public opinion at defiance. No government could exist, except for a few short months, unless they had the people at their back ; for although parliamentary majorities could be preserved for a short time against the wishes of the majority of the people still it was impossible to deny that public opinion was, in a complete sense, represented by the opinion or the members of the Legislature. They all knew perfectly well that their representatives were chosen from amongst themselves, and he trusted that we should never in this country lose that control which had been so happily exercised by the people over the government of the day. It was, therefore, concluded that in forming an Union of these Provinces it was desirable, in the interest of the people at large, that the system of responsible government now in force should be maintained.

Preamble of the Constitution Act, 1867.

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each Legislature, and especially each Local Legislature—acting within the bounds prescribed by the Imperial Parliament and kept within these bounds by the Courts of Law if necessity should arise for their interference—would find in the working of the plan of Federation a check sufficient to prevent it from transcending its legitimate authority.

Preamble, §§. 91, 92 and 101 of the Constitution Act, 1867.

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in laying a basis for the union of these Provinces, it was not proposed that the General Government should have merely a delegation of powers from the Local Governments, but it was proposed to go back to the fountain head, from which all our legislative powers were derived—the Imperial Parliament—and seek at their hands a measure which should designate as far as possible the general powers to be exercised by the General Legislature, and also those to be exercised by the Local Legislatures, reserving to the General Legislature all subjects not directly committed to the control of the Local bodies.

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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that the reservation of what were popularly known as State rights had been to a great extent the cause of the difficulties which were now agitating that great country.

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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liar. But it must not be supposed, on account of the use of that term, that in the Union now proposed to be established it was intended to imitate the Federal Union which we had seen existing in the United States. In the United States, the general Government exercised only such powers as were delegated to it by the State Governments at the time the Union was formed. Each State was regarded as a sovereign power, and it chose for the common interest to delegate to the general Government the right of deciding upon certain questions, which were expressly stated All the undefined powers, all the sovereign rights, remained with the Governments of the several States

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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having unfortunately for our common interests comparatively little intercourse with each other, the difficulty was felt that, if we attempted to make a Legislative Union of these Provinces in the first instance, the dread, in the case of the Lower Provinces and probably of many among ourselves that peculiar interests might be swamped and certain feelings and prejudices outraged and trampled upon, was so great that such a measure could not be entertained and we were compelled to look for what was sought in a form of government that would commit all subjects of general interest to a general Government and Legislature, reserving for local Legislatures and Governments such subjects as from their nature required to been trusted to those bodies. (Cheers.) The term Federation was used with reference to the proposed Union, because it was that with which the public mind was most fami

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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to determine whether it should be a Federal or a Legislative Union. A Legislative Union, as they were all aware, had certain advantages over one based on the Federal system. It was a more complete union, and implied a more direct action and control of the government over the interests of the people at large. And, where a people were homogeneous, and their interests of such a character as to admit of – niformity of action with regard to them, it could not be doubted that a government on the principle of a Legislative Union was the one which probably operated most beneficially for all

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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the Hon. Mr. Brown and two other gentlemen representing the Liberal party of Upper Canada had entered, to address themselves to the preparation of a measure that would partake of a federal character as far as necessary with respect to local measures, while it would preserve the existing union in respect to measures common to all ; that they would endeavor, if necessary, to strike out a federal union for Canada alone, but that at the same time they would attempt, in considering a change in the Constitution of this country, to bring the Lower Provinces in under the same bond, as they were already under the same Sovereign. It was highly proper that, before touching the edifice of Government that had been raised in Canada they should address the statesmen of the Lower Provinces, and try to induce them to form a common system If it were found impossible to have a legislative union of all the British American Provinces, then they could reserve to the local governments of the several Provinces the control of such subjects as concerned them, while the rest should be committed to the cue of the General Government

Preamble, §§. 91 and 92 of the Constitution Act, 1867.

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It was adopted by the Imperial Legislature with the view of remedying difficulties which then existed between the two Provinces. The inherent defect in the Imperial Act for the Union of the two Canadas was this : it attempted to combine the federal principle with unity of action. It endeavoured to give equal representation to the two sections of the Province, while it brought them together for the purpose of dealing as one with all subjects both (general and local,

§§. 3 and 12 of the Union Act, 1840.

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Those claims were in themselves undoubtedly founded in justice— but at the same time there was great reason in the objections taken to them—they involved an interference with the Federal principle recognized in the Union Act, an interference which amounted to an entire change in the principles on which the Government of the country was to be administered, and could not be received otherwise than with dread by a large class, if not by the whole of the population of Lower Canada.

§§. 3 and 12 of the Union Act, 1840.

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should have been a concession to Upper Canada, of additional members in proportion to its population, but that concession would, as be had already remarked, have been an invasion of the Federal principle, contained in the Union Act, and would unquestionably have been represented to the uttermost by a large proportion if not by the whole of Lower Canada.

§§. 3 and 12 of the Union Act, 1840; §§. 51 and 52 of the Constitution Act, 1867.

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indeed, extend them in such a way as to promote the peace contentment, and prosperity of the people, at the same time preserving in the new constitution those rights they were afraid would be subjected to injustice.

Preamble of the Constitution Act, 1867.

Constitution Amendment, 1997 (Quebec)


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WHEREAS it is desirable, for that purpose, to amend the Constitution Act, 1867, so that Québec may recover its full capacity to act in matters of education;

Constitution Act, 1867

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This is a test comment.

This relates to the Constitution Act, 1867, specifically re: education.

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