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Date: 1864-11-22
By: Chicago Tribune [From Toronto Leader from Journal de Québec]
Citation: “British American Confederation”, Chicago Tribune (22 November 1864).
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BRITISH AMERICAN CONFEDERATION.

The New Canadian Constitution — a Full Synopsis.

The Toronto Leader translates from the Journal de Quebec the projected Confederate Constitution drawn up by the International Conference at Quebec:

We read attentively the articles in the best informed of the journals of the Provinces, during the conferences of the intercolonial Convention, and heard or read, with the same attention, the speeches made at public dinners by our Ministers, and the statesmen of the Atlantic Provinces. Collecting with minute care the information scattered in these writings and speeches, we have attempted to give a complete account. We believe we have succeeded so as to […] […] that our work is complete, […] […] we give substantially, upon every point, the thoughts of the Convent on.

1. A Federal Union with the Crown of Great Britain at its head, would most conduce to the protection of existing interest and to give a future impetus to the prosperity of British North America, the provided this Union should be established on principles that would be equitable to the various Provinces.

2. The best system for the federation of the Provinces of British North America, the best adapted under the circumstances of the protection of the varied interests of the different provinces, and the most likely to produce efficacy, harmony and permanence in the operations of the Union, would be a General Government and Parliament which should have the control of matters common to the whole country, with local legislatures and governments for each of the Canadas, Nova Scotia, New Brunswick and Prince Edward Island. These local legislatures and governments to have respectively the control of local affairs. Provision should be made for admission into the Union, upon equitable basis, of the Province of Newfoundland, the Northwest Territory, Vancouver’s Island and British Columbia.

3. The Federal Government and Parliament ought to be formed, as nearly as the circumstances will permit, on the model of the British Constitution; The Convention wishing thereby to express its desire to perpetuate the ties which unite us to the mother country, and to serve more effectually the interests of the population of the various provinces.

4. The Executive power shall reside in the Sovereign of Great Britain, and be administered by the Sovereign or her representative, according to the principles of the British Constitution.

5. The Sovereign or her representative shall be Commander-in Chief of the military by sea and land.

6. There shall be for all the federated provinces a General Parliament composed of a Council and House of Commons.

7. To form the Legislative Council, the provinces shall be divided into three parts: The first shall comprise Upper Canada, the second Lower Canada, the third Nova Scotia, New Brunswick, and Prince Edward Island. These three parts shall be equally represented in the Legislative Council. Thus, Upper Canada will have twenty-four representatives, Lower Canada twenty-four, and the three maritime provinces twenty-four; of which ten shall be for Nova Scotia, ten for New Brunswick, and four for Prince Edward Island.

8. Newfoundland, in entering the Union, shall have the right to four legislative councillors.

9. The conditions of admission into the Union of the Northwest Territory, British Columbia and Vancouver’s Island, shall be determined by the Federal Parliament and approved by her Majesty. As far as regards the admission, and the conditions of admission, of Vancouver’s Island, the consent of the local Legislature will be necessary.

10. The legislative councillors shall be appointed for life by the Crown, under the great seal of the General Government; and they shall lose their seats by a continued absence of two consecutive years.

11. The Legislative councillors must be British subjects by birth or naturalization, be 30 years of age, possess, and continue to possess, real estate to the value of $4, 000 clear of all mortgage, &c.; but in regard to Newfoundland, the property may be either real or personal.

12. The Legislative Council shall decide all questions relative to the eligibility or ineligibility of its members.

13. The first legislative councillors shall be selected from the existing Legislative Councils of the various provinces, with the exception of Prince Edward Island. If there cannot be found among these councillors a sufficient number to serve, the complement will necessarily be selected elsewhere.
These councillors shall be appointed by the Crown on the recommendation of the General Government and the presentation of the local governments respectively. In the nominations regard shall be had to the legislative councillors who represent the opposition in each province, in order that all political parties may be, as much as possible, proportionably represented in the Federal Legislative Council.

14. The President of the Federal Legislative Council, until it shall be otherwise declared by the General Parliament, shall be chosen from among the Legislative Councillors of the Crown, who may, by its own will, continue him in office or deprive him thereof.

15. Each of the twenty-four legislative councillors who represent Lower Canada in the Legislative Council of the Federal Legislature, shall be appointed to represent one of the twenty-four electoral divisions named in schedule A, in chapter 1 of the consolidated statutes of Lower Canada; and this councillor shall either reside, or possess the property he qualifies upon, in the division of which the representation shall be assigned to him.

16. The representation in the Federal House of Commons shall have population for its basis, and the numbers shall be determined by the census, officially taken every ten years, and the number of representatives shall, at first, be 194, distributed as follows:

Upper Canada………………………………………………………………………………………….82
Lower Canada………………………………………………………………………………………….65
Nova Scotia…………………………………………………………………………….……………….19
New Brunswick………………………………………………………………………………………..15
Newfoundland……………………………………………………………………………………………8
Prince Edward Island………………………………………………………………………………….5

17. There shall be no change in the representation of the various Provinces before the census of 1871.

18. Immediately after the census of 1871, and each of the decennial censuses, the representation of each of the Provinces in the House of Commons shall be modeled on the basis of population.

19. Lower Canada shall never have more or less than 65 representatives, and the other Provinces shall receive according to the census, the proportion of representation to which they are entitled, taking as a basis of calculation, the number of the Lower Canada representatives.

20. No reduction shall be made in the number of representatives elected for any one Province, at least till the number of its population has decreased 5 per cent or more in comparison with the total population of the Confederate Provinces.

21. In computing the number of representatives at each decennial period, the fractions shall only be taken into consideration when they exceed half the number which has the right to a representative; and then, each of these fractions shall have the right to a representative.

22. The Legislatures of the various Provinces shall respectively divide them into counties, and define the limits thereof.

23. The Federal Parliament may, when it shall think proper, increase the number of its members, but it shall preserve the proportions then existing.

24. The local legislatures may, from time to time, change the electoral districts for the representation in the Federal House of Commons, and distribute, in such a manner as they shall think proper, the representatives to which they shall respectively have a right in the Federal House of Commons.

25. Until it shall be otherwise decided by the Federal Parliament, all the laws which shall be in force at the date of the proclamation of the Union; the laws relative to the eligibility or ineligibility of persons to sit and vote in the Legislative Assemblies of the Provinces, as well as to the qualification or incapacity of voters; to the oath required of voters; to returning officers or to their powers and duties; to elections, and the time which they shall last; to contested elections, and proceedings incident thereto to the vacation of Parliamentary seats; to the issuing and execution of writs in the case of vacancies occasioned by other causes than the dissolution of Parliament; all the laws which apply to the election of representatives to the Federal House of Commons, according to the province for which these representatives are elected.

26. The duration of Parliament shall be five years, unless it shall be previously dissolves by the Governor General.

27. More than twelve months shall never elapse between the end of one Federal session and the commencement of another.

28. The General Parliament shall have power to make laws for the peace, the well-being, and the good government of the Confederated Provinces; always without infringing on the sovereignty of Great Britain.

29. The following subjects shall be specially placed under its control:

The public debt and public property;
Trade and commerce;
Custom duties on importations and exportations, except on the exportation of square timber, staves, masts, spars, oak planks, sawed wood, coal and other minerals;
Excise duties;
The raising of revenues by every other mode of taxation;
The borrowing of money on the public credit;
The postal service;
Companies owing the steamships or other vessels, railroads, the canals, and other works which connect two or more provinces together, or which extend beyond the limits of one of them;
The steamships navigating between the confederated provinces and other countries, telegraphic communications and the incorporation of telegraph companies;
Every other work which, though situated in a single province, shall be specially declared by the act authorizing it to be of general interest;
The census;
The militia, military and naval defense;
Sea marks, buoys, and lighthouses, navigation, and whatever has relation to shipping;
Quarantine;
The fisheries of the sea coast and of the interior;
The water passages between a province and a foreign country, or between two provinces;
Currency and coinage;
Banks of issue and paper money.
Savings banks;
Weights and measures;
Bills of exchange and promissory notes;
Interest;
Legal tenders;
Bankruptcy and insolvency;
Patents of invention and discovery;
Copyright;
The Indians and the lands reserved for the Indians;
The naturalization of aliens;
Marriage and divorce.
The criminal law, (except the constitutional of the Courts of Criminal Jurisdiction,) comprising the procedure in criminal matters.
The power to render uniforms all laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Prince Edward Island, as well as the procedure of all the courts in the provinces. But no statue passed for this object by the Federal Parliament shall have force or authority in any of the provinces before having the sanction of the local Legislature;
The establishment of a general court of appeal for the federated provinces;
Emigration;
Agriculture, and generally all matters of a general character not specially and exclusively reserved to the control of the local legislatures and governments.

30. The General Government and Parliament shall have all the powers which shall be necessary to it as a portion of the British Empire to fulfill toward foreign countries the obligations that may arise between Great Britain and these countries.

31. The Federal Parliament may, when it shall think proper, create new judicial tribunals, and the General Government appoint in consequence new judges and new officers, if it shall become necessary or advantageous to the public.

32. All the county judges and the officers of the various provinces shall aid the general Government and render obedience to it in the exercise of its rights and its powers for these objects there shall be courts, judges and officers of the General Government.

33. The General Government shall appoint and pay the judges of the superior courts in the various provinces, and of the country courts of Upper Canada; the Federal Parliament shall fix their salaries.

34. Until the laws of Upper Canada, New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island become consolidated, the judges, who shall be appointed by the General Government, shall be selected from their respective bars.

35. The Judges of the Courts of Admiralty, who at present receive salaries, shall be paid by the General Government.

36. The Judges of the Superior Courts shall hold their offices during good conduct, and they shall be dismissed only upon an address of the two Houses of the Federal Parliament.
We now come to the local legislatures and governments.

37. Each Province shall have an officer called a Lieutenant Governor, who shall be appointed during pleasure by the Governor General in Council under the Great Sea of the Federated Provinces; but this pleasure shall only be exercised after dive years, unless for cause, and this cause must be communicated in writing to the Lieutenant-Governor immediately after dismissal; and also be message to the two houses of the Federal Parliament in the first week of the first session which follows.

38. The Lieutenant-Governors of the provinces shall be paid by the General Government.

39. The Convention, in thus fixing the salaries of the Lieutenant Governors, has not pretended to prejudice the claim of Prince Edward Island on the Imperial Government to the salary now paid to its Lieutenant-Governor.

40. The Government and the Parliaments of the various provinces shall be constituted in the manner in which their present legislatures shall respectively judge proper to establish them.

41. The local legislatures shall have the power to amend or change from time to time their constitutions.

42. The local legislatures shall have power to make laws on the following subjects:

Direct taxes and the imposition of duties on the exportation of square timber, staves, masts, spars, oak plank, sawn wood, coals and other minerals.
The establishment and tenure of local employments, and the payment of local officers;
Agriculture;
Emigration;
Education, except the rights and privileges which the Protestant and Catholic minorities possess in respect to separate schools in the two Canadas at the time of Union;
The sale and management of the public lands, except those which belong to the General Government;
The fisheries on the sea coast and of the interior;
The establishment, support, and management of hospitals, asylums, lazarettoes, and all charitable institutions;
Municipal institutions;
Tavern, stalls, criers, and other licenses;
Local public works;
The incorporation of private or local companies;
Property and civil rights, except those under control of the Federal Legislature;
Punishments, fines, penalties, and imprisonment, for contravention of laws which are within their legislative competence;
The administration of justice, comprising the constitution, support, and organization of courts of criminal and civil jurisdiction as well as of procedure in civil matters of a private or local nature.

43. The power of pardoning criminals, of suspending, of commuting or remitting, in whole or in part, their sentences, which power belonging of right to the crown, shall reside in the persons of Lieutenant Governors in Council; but these shall obey instructions which may be addressed to them from time […] […] […] by the General Government, as well as […] […] Parliament.
We now proceed to give the various provisions which have for their object to explain the respective attributes of the Federal Government and Parliament, and the local legislatures and governments, and which have reference to other objects of which we have not yet spoken:

44. In respect to what regards the questions submitted concurrently to the control of the Federal Parliament and the local legislatures, the laws of the Federal Parliament shall have force over those of the local legislatures. The laws of the latter shall be null whenever they conflict with those of the General Parliament.

45. The English and French languages may be simultaneously employed in the deliberations of the Federal Parliament as well as in the legislature of Lower Canada, the Federal courts and the courts of Lower Canada.

46. No tax shall be put upon the lands or properties which belong to the federal or local governments.

47. All bills having for their object to appropriate any portion of the public revenues. To create new taxes or new imposts, must, according to the case, originate in the House of Commons, or the Local Legislative Assemblies.

48. Every vote, resolution, address or bill of the Federal Commons or the Local Legislative Assemblies which has for its object the appropriation of any part whatever of the revenue, or to create taxes or imposts must, according to the case, be preceded by a message from the Governor General or the Lieutenant-Governor; and this message must be laid before the Chamber during the session in which such vote, resolution, address or bill shall be passed.

Every bill of the General Legislature will be reserved in the ordinary manner for the sanction of Her Majesty, and the bills of the local legislatures shall also, in the same manner, be reserved for the consideration of the Governor-General.

50. The bills of the General Legislature shall be subject to the vote of Her Majesty for two years after their passage, and those of the local legislatures to the vote of the Governor-General for twelve months after their adoption.

51. Ottawa shall be the seat of the Federal Government, but the royal prerogative is maintained with regard to the fixing of the seat of the General Government.

52. Toronto is chosen as the seat of the Government of Upper Canada, and Quebec for that of the Government of Lower Canada. There is no change with regard to the places of the seats of the local Governments of the other Provinces.

We have now arrived at a very important part of the project. It relates to the repartition of the active and passive of the diverse Provinces at the time of the Union.

53. All cash, the balances in the hands of the bankers, and all other values in cash of the various Provinces at the time of the Union, shall belong to the General Government.

The following public works and properties of the various provinces shall belong to the General Government:

The canals;
The public harbors;
The lighthouses or quays;
The steamboats, the dredges, and other public vessels;
River and Lake Improvements;
Railroad and railroad stocks;
The mortgages and other provincial debt due by railroad companies;
The military roads;
The custom-houses, post offices, and other public edifices, except those which shall be reserved by the General Government for local legislatures and governments;
The ordnance property transferred to the provinces by the Imperial Government;
The arsenals, the drill-sheds, clothing, military accoutrements, munitions of war, &c.; And the lands reserved for public purposes;

54. All lands, mines, minerals and royal prerogatives, which belong to Her Majesty in Upper Canada, Lower Canada, New Brunswick, Nova Scotia, and Prince Edward Island, for the usage of these Provinces shall belong respectively to the local governments in which they are situated. They shall remain, however, subject to trust deeds and to other liens which may exist relatively in respect to these lands.

55. All sums of money due by the purchaser or locataires of these lands, mines and minerals, at the time of the Union, shall belong to the local governments.

56. The various governments shall remain respectively in possession of all other public properties situated there; but the Confederation shall have the right to take the lands which it may require for fortifications or the defense of the country.

57. The General Government shall appropriate all the debts and obligations of the Province.

58. The debt of Canada, which shall not be specially attributed to Upper and Lower Canada respectively, will not, at the time of Union, exceed $52,500,000; the debt of Nova Scotia, $8,000,000, and that of New Brunswick, $7,000,000.

59. But, in case Nova Scotia and New Brunswick do not contract obligations exceeding those to which these provinces are actually subjected, and that these obligations shall be respectively less than $7,000,000 and $8,000,000 at the time of the Union, they shall have the right to receive at five per cent the difference which exists between the real figures and their obligations and those of $7,000,000 and $8,000,000 respectively. Newfoundland and Prince Edward Island are to be similarly dealt with.

The preceding has not for its object to restrain the powers which the Governments of these Provinces through their Legislatures possess, but solely to limit the maximum obligations which they may bring against their General Government. But the respective Legislatures, after five years from this date, will not have the power to contract obligations of which we are about to speak.

60. As Newfoundland and Prince Edward Island have not contracted debts equal to those of the other provinces, they will have the right to receive an advance from the General Government in semi-annual payments, of interest at five per cent, on the difference which may exist between the amount of their respective debts, at the time of the Union, and the average amount of the debt per head of the population of Canada, Nova Scotia and New Brunswick at the same date.

61. In consequence of the transmission of the power of taxation to the General Legislature the provinces will respectively have the right to an annual subsidy of eighty cents per head of the population, computed on the census of 1861. The population of Newfoundland is estimated for this object at 130,000 souls. The province will not be able in future to claim a larger amount from the General Government, and this amount will be paid to them semi-annually in advance.

62. As the position of New Brunswick is such that this Province will be abliged immediately to make considerable payments out of its local revenue, it will receive annually during ten years an additional sum of $63,000. But as long as its obligations remain below $7,000,000 there will be deducted from this sum of $63,000 an amount equal to the interest of five per cent on the difference between the real sum of its provincial debt and $7,000,000.

63. Newfoundland will in consideration of giving up its right in its mines, minerals, and crown lands, which are not yet either sold or occupied, receive $150,000 a year in semi-annual payments, but this province reserves the right to open, construct and control roads and bridges situated on its lands, which will, however, be under subjection to laws which the General Parliament will think necessary to adopt in regard to them.

64. The General Government will assume all the engagements which will be made before the Union with the Imperial Government for the defense of the provinces.

65. The General Government shall cause to be completed without delay the Intercolonial Railroad from River-du-Loup to Truro, in Nova Scotia, causing it to pass through New Brunswick.

66. The Convention regards as of the highest importance to the confederated provinces the communications with the northwest territory, and for the development of the commerce of the great West with the ocean; and it engages to realize these projects as soon as the state of the finances shall permit.

67. The sanction of the Imperial Parliament and of the local Parliaments to the Union of the Provinces, on the principles adopted by the Convention, is to be sought.

68. The deliberations of the Convention shall be signed by the Delegates, and submitted by each local delegation to its Government; and the President of the Convention is authorized to submit a copy of it to the Governor-General, to be transmitted to the Secretary of State for the Colonies.

MODIFICATIONS.

The following alterations to the above Constitution were adopted in a Conference held by the Delegates in the St. Lawrence Hall, Montreal:

These modifications we were not able to discover prior to the publications of the project in the Journal on Tuesday.

Thus, in Article 11, where the question of the property qualification of members is mentioned, instead of, “but in so far as regards Newfoundland, the property, &c., “read, “but in so far as regards Newfoundland and Prince Edward Island the property may be either real or personal.”

In the 13th Article, where we state whence the first Legislative Councillors are to be taken, instead of “if there shall not be found among these Councillors (the present Councillors) who desire to serve, “read, “if there shall not be found among these Councillors a sufficient number who are eligible or who desire to serve, the complement must necessarily be taken elsewhere.”

Article 31 is written as follows: “The Federal Parliament may, when it thinks proper, create,” etc. Read: “The Federal Parliament, for the purpose of executing its laws, may, when it thinks proper, create new judicial tribunals, and the Governor General appoint, in consequence, new judges and officers, if this shall become necessary and advantageous to the public.”

Article 34 says: “That until the laws of Upper Canada, New Brunswick, Nova Scotia, Newfoundland, and Prince Edward Island, shall be consolidated, the Judges of these Provinces, who shall be appointed by the Governor-General, shall be selected from their respective bars.” To which should be added: “35. The Judges of the Courts of Lower Canada shall be selected from the Advocates of the Lower Canada bar.”
In this way Article 35, which has reference to the Judges of the Court of Admiralty, will become 36, and those following take their ranks in consequence.

In Article 42, the enumeration of the subjects submitted to the control of the local Legislatures commenced thus: “Direct taxes and the imposition of duties on the Importation of squared wood, logs, masts, spars, staves, sawed wood, coal, and other minerals.” It should read: “Direct taxes — New Brunswick retains the right to impose export duties on squared timber, logs, masts, spars, staves, sawed wood and Nova Scotia that of imposing export duties on coal and other minerals.”

The same Article 42 ends thus: “The incorporation of private and local companies.” It should read thus: “The incorporation of private and local companies, except those which relate to subjects reserved to the control of the General Parliament.”

In Article 53 it is stated, “all cash, the balances etc.” it should read: “All stocks, and every other value the cash […] […] various Provinces at the time of the Union, shall belong to the General Government.”

Between Articles 57 and 58, it is necessary to place a new article 58, and which is in the following terms:

“All effects relating to the portions of the public debt of the Provinces with which the local governments are charged, will also belong respectively to these governments.”

Then Article 58 will become article 59, and so on.

The following Article requires to be placed between 57 and 58.

“The choice of the title and of the name of the Confederation is left to the decision of Her Majesty.”