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Date: 1866-09-25
By: Colonial Office (UK), Viscount Monck
Citation: Memorandum, Colonial Office, Copy of Two Despatches from Viscount Monck Containing Observations on the Quebec Scheme for the Union of the Provinces of British North America(September 25, 1866), London (UK), The National Archives (CO 880/4/7).
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CONFIDENTIAL.

COPY OF TWO DESPATCHES

FROM

VISCOUNT MONCK,

CONTAINING

OBSERVATIONS

ON THE

QUEBEC SCHEME

FOR THE

UNION OF THE PROVINCES OF BRITISH NORTH AMERICA.

Colonial Office,
September 25, 1866.

Copy of two Despatches from Viscount Monck, containing Observations on the Quebec Scheme for the Union of the Provinces of British North America.

No. 1.

Viscount Monck to the Earl of Carnarvon.—(Received September 19, 1866.)

(Confidential.)

Quebec, September 7, 1866.

My Lord,

I HAVE had the honour of transmitting to your Lordship in my despatches (Nos. 115 and 116) of the 16th August, the Resolutions with respect to the constitution of the local Governments of Upper and Lower Canada, should the contemplated Union of the Provinces of British North America be completed, adopted by the Parliament of this Province in the session which has been just brought to a close.

The general principles upon which it is proposed that the Union should be effected are embodied in the Addresses to Her Majesty from the two Houses of the Legislature of Canada, transmitted to your predecessor in my despatches Nos. 73 and 74 of the 15th of March, 1865. I assume that the scheme of Union developed in these Addresses will form the basis of the measure which your Lordship will be asked to propose to the Imperial Parliament for the following reasons:—

1. It has been adopted by the Legislature of Canada.

2. It has also been adopted by the Upper Chamber of the Legislature of New Brunswick.

3. It has not been rejected by any branch of the Legislature of either of the Provinces which have expressed in the ordinary constitutional way their desire for union.

4. The Delegates who have been deputed to proceed to England from Nova Scotia and New Brunswick with plenary powers to negotiate with the members of Her Majesty’s Government and the Representatives of the other Provinces the terms of union are the same individuals, or include amongst them a majority of those who represented these Provinces at the Quebec Convention of 1864, at which this plan was elaborated.

Assuming, therefore, that this plan will form the groundwork of the Act for the Union of the Provinces, I think it my duty to place unreservedly before your Lordship the conclusions at which I have arrived with respect to it after two years of constant consideration of the subject, and after having had the advantage of confidential communication with all the leading men who took part in the original preparation of the plan.

The great importance of the question, involving no less than the future political organization of what may some day be one of the great Powers of the world, will, I am sure, be considered by your Lordship a sufficient apology for my troubling you at some length.

I feel bound at the outset to repeat the expression of regret which I used in my confidential despatch to your predecessor of November 1864,* that the designation “Federal” was ever applied to the proposed Union, not merely because I think it a misapplication of terms which would be a matter of small moment, but because I fear that the use of this word as descriptive of the intended Union is calculated to direct into a wrong channel the minds of persons who have not very carefully considered the terms of what for shortness I will call “the Quebec plan,” and mislead them as to the intentions of those who prepared that scheme.

The existence in the system of Union proposed by the Quebec plan of a central and local government, appears to me almost the only feature common to this plan and to any instance of “Federal” Union of which we have a record either in history or experience.

* See page 23 of Confidential Correspondence of November 25, l 864. [356] B

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”The powers delegated by the proposed Constitution to the Federal Government are few and defined, Those which are to remain in the State Governments are numerous and indefinite.” This was the description given by Madison in 1788 of what would be the relations of the Federal and State Governments in the United States, even with the additional power which Hamilton then proposed to give to the Central authority; and the same description in a greater or less degree I think applies to all Federal Unions of which we have any account.

The feature common to all of them is contained in the fact that no power belonged under them to the Federal or Central Government except that which had been expressly delegated to it by the instrument of Federation; and that all the residuum of authority remained in the several States constituting the Union, which for these purposes continued as independent of each other and of the Confederation as if the Union had never taken place.

Let us now see from their own language what were the intentions of the framers of the Quebec plan in this respect.

In the 29th Resolution the powers proposed to be intrusted to the Central authority are described in these terms: “The general Parliament shall have power to make laws for the peace, welfare and good government of the Federated Provinces (saving the Sovereignty of England), and especially laws respecting the following subjects.”

The Resolution then goes on to enumerate a great variety of subjects, embracing almost everything “affecting the peace, welfare, and good government” of the people, and in the last article of the catalogue winds up with a sweeping attribution to the Central authority of “all matters of a general nature not specially and exclusively reserved for the local Governments and Legislatures.”

When we come to the portion of the plan which determines the power of the Local Governments (Resolution 43), we find that there is no subject ” exclusively” reserved for the Local Governments or Legislatures.

It is merely provided that “the local Legislatures shall have power to make laws respecting the following subjects,” and that these words were not meant to give any ” exclusive” rights to the local Governments is manifest from the fact that among the subjects with which they are thus permitted to deal there are some—”agriculture, immigration, sea coast, and inland fisheries,” for instance—which are also enumerated in the detailed list of the attributions of the Central Power.

In addition there is reserved to the Governor-General (Resolution 38), the power of appointment and removal of the local Lieutenant-Governors, and also (Resolution 51) the right to disallow any Bill passed by a local Legislature.

From these considerations it will, I think, be apparent that the intention of the framers of the Quebec plan was to constitute a strong Central authority, the power of which should be supreme, and pervading throughout the Union with Provincial bodies of a completely subordinate and municipal character for the administration of purely local affairs.

I think it is also equally apparent that so far from the word ” Federal” being an apt designation of such a form of government, its general meaning conveys an idea the direct contrary of that which I have shown to be the intent of the Quebec plan.

I have pursued the investigation of the intentions of the Quebec Convention on this point at length because although I think in the main the members of that body were guided in their conclusions by, what appears to me, the sound principles which I have pointed out, yet in some important points these principles have been neglected, and I desire to express my earnest hope that m the Act which will be passed to unite these Provinces effect will be given to the general intent of the framers of the scheme, and that particular instances of departure from that intent may be corrected.

The instances in which a departure has occurred from the principles which I have I endeavoured to show guided generally the members of the Quebec Convention will be found, I think, to proceed from concessions either to Local and Provincial jealousy or to the peculiar conditions of the population and institutions of Lower Canada.

The former of these sentiments I think unworthy of any weight.

It is not founded in reason, and, in my opinion, ought not to be allowed any effect in practice.

The peculiar circumstances of Lower Canada are a matter of a much more respectable character, and deserve to be treated with tenderness; and I think I can suggest a mode in which the peculiar rights and institutions of that portion of the Province can be placed in a position of security without having recourse to the vicious expedient of placing them under the protection of the local Legislatures, and thus introducing into the constitution an

3

imperium in imperio in derogation of the principle of Central supremacy on which the system is generally founded.

The plan which I would propose for this purpose would be to import into the constitution, in reference to all those subjects on which the French population of Lower Canada is tenacious of its privileges, a rule analogous to that which prevails in the House of Commons with respect to legislation on questions affecting taxation, religion, and trade.

Your Lordship is doubtless aware that no Bill can be introduced on any of these subjects without having its principles first affirmed by resolution in a Committee of the whole House.

I would propose that no Bill affecting the subjects to which I have alluded should be introduced into the House of Commons of the United Provinces. I would exclude from the origination of such a Bill the Upper House, without its principle having been first affirmed by the resolution of a Committee consisting of all the members from Lower Canada.

The constitutional result of this arrangement would be to place the peculiar rights and institutions of Lower Canada under the protection of the Representatives of that Province in the General Parliament, instead of, as proposed by the Quebec plan, under that of the Local Legislature, which latter proposal seems to me to lay a constitutional foundation for antagonism and conflict between the Central and Local Governments.

The operation of the proposal would be to prevent the passage of any measure which would be either distasteful to the French majority or oppressive to the English minority in Lower Canada.

As any Bill must originate in a Committee in which the French portion of the population are sure to have a majority, their rights will be safe, and as the ultimate decision on the measure will rest with the House, the larger portion of which will consist of members of English extraction, any Bill which would work injustice to that section of the population is certain to be arrested in its progress there.

I think if this principle should be found to work as I confidently expect it would do, its application would enable your Lordship to correct, without giving any just ground of complaint to the French population, what appears to me the great blot in the Quebec plan, namely, the attribution to the Local Governments of the legislation affecting “property and civil rights,” and the administration of justice in civil cases.

I think these are subjects which, in conformity with the general principles of the Quebec plan, should belong to the Central Authority.

The administration of justice in criminal matters and the appointment of the superior Judges are matters specially reserved for the Central Authority, and I think it most desirable that the legislation connected with and the management of the civil law should also be given to it, not only because I believe these important subjects will be more efficiently treated by the larger body, but because I think it necessary in order to establish thoroughly the supremacy of the Central Authority, and to bring this fact home to the minds of the people in connection with circumstances which so largely affect their daily existence.

The sale and management of public lands is another matter which I should desire to see assigned to the Central Government.

I think it is evident that in a new country some of the most important duties of the Government are connected with this subject.

It is most desirable that the conditions under which the settlement of the country is to take place should be decided on broad and liberal grounds, and should attract to their consideration the best intellects of the population.

I much fear that this would not be the case if this subject were assigned to the local authorities.

The men of vigorous intellect and ambitious views will naturally be attracted to the larger sphere of action opened up to them by positions in the Central Government, and I should be apprehensive that the affairs of the Local Governments will necessarily fall into the hands of comparatively inferior men.

I am aware that the proceeds of the public lands have been made by another portion of the scheme (Resolutions 56 and 57) the property of the Local Governments, but it does not appear to me that this consideration need prevent the management of the lands being vested in the Central Administration, with the arrangement that the surplus income arising from them should be annually paid over to the several Local Governments.

The subject of education is also one which on general principles I should be glad to see given to the Central Governments, but after having given the matter my best consideration, and looking to the great difficulties in the way of establishing an uniform system

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for all the Provinces, I think on the whole it may without danger be left to the Local Governments, with the safeguard which exists in the right of the Central Authority to disallow the Acts of the local Parliaments; a right, however, which I need scarcely say I think ought to be exercised only in very extreme cases.

“The establishment, maintenance, and management of penitentiaries, and public and reformatory prisons, of hospitals, asylums, charities, and eleemosynary institutions” is attributed to the Local Governments. This is a duty rather than a right, and I see no objection to its being cast upon the local bodies.

It appears to me, however, that, with a view to the efficient and proper management of these institutions, a power of inspection and control should be vested in the Central Power.

I may now recapitulate the points in which I think it desirable that the expressed opinions of the Quebec plan should be varied, and I hope I have given good reasons for thinking that this departure from the Resolutions of the Convention is necessary, in order to carry into full effect the principles upon which the general plan is founded, namely, the supremacy of the Central and the subordination of the Local Authority:—

1st. The entire administration of justice and the constitution, maintenance and organization of the Courts of Law, both civil and criminal, should be attributed to the Central Authority.

2ndly. The power of legislation with regard to property and Civil rights should also be withdrawn from the Local Governments.

[Both these changes should be made with the modification I have mentioned, for the protection of the peculiar rights of the French Lower Canadians.]

3rdly. The management and sale of the public lands should be also withdrawn from the Local Bodies, without prejudice to their right to receive any surplus income which may arise from them.

4thly. A power should be given to the Central Government to inspect and compel the proper construction and management of penitentiaries, &c.

With these alterations it appears to me that the provisions of the Quebec plan, so far as they concern the relative rights and duties of the Central and Local Governments, may be safely incorporated into the Act for the Union of the Provinces.

I now come to consider the Constitution of the Governments, both Central and Local, as described in the original Quebec Resolutions, and in those which were agreed to by the Canadian Parliament in its last session.

With respect to the Central Legislature I have nothing to add to the considerations which I laid before Mr. Cardwell in my confidential despatch of November 1864.

I still adhere to the opinion that appointments for life to the Upper Chamber, consisting of a limited number of members, is a system likely to lead to serious difficulties in the working of Representative institutions.

The late case of the Colony of Victoria is a proof that these apprehensions are not visionary.

I have also stated in the despatch already referred to my objections to the election of the members of the Upper House.

I beg to refer your Lordship to the suggestion which I made to Mr. Cardwell of a means of meeting the difficulties of the case, as no better mode of doing so has presented itself to my mind.

With this exception I have no criticism to make on the constitution of the General Legislature.

Your Lordship will observe that in the Resolutions of the Parliament of Canada providing for the constitution of the Local Legislatures, a different system is adopted in Upper Canada from that which is proposed for the Lower Province.

In the former a single Chamber is suggested, with administrative officers, on the principle of responsible government. In the latter it is proposed that there should be two Chambers.

I am myself of opinion that on general grounds the Upper Canadians have suggested the better course as being less cumbrous and expensive, and tending to mark more thoroughly the local and municipal nature of the Local Governments as contradistinguished from the political character which should be reserved exclusively for the Central Authority.

At the same time there is no doubt that the arrangement proposed for Lower Canada is that which receives the greatest amount of support in that Province, and if the Local Governments are confined by the changes which I have suggested strictly to local concerns and their sphere of action so defined as to exclude the notion that they are to be in an; sense or under any circumstances the organ of their respective Provinces in controlling the

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supremacy of the Central Authority, I do not think that the nature of their constitutions is a matter of vital importance, or that it is absolutely necessary to make a change which would be unpalatable to the majority of the people.

I think that by leaving these bodies free to change their own constitutions, if on experience it shall be found desirable to do so, the principles of economy and efficiency will in time assert themselves against the sentimental preference for a particular form of constitution.

I think that if it should be decided to have a second Chamber in any of the Local Legislatures, the same observations to which I have referred your Lordship on the mode of appointment to the Upper House of the General Government will equally apply to the manner of selecting members for the body now under consideration.

By the 11th Resolution of the scheme for the constitution of the Local Governments, it is provided that the Local Legislature shall not alter the limits of certain electoral districts in Lower Canada, named in a Schedule to the Resolutions, unless the Bill effecting such change shall be supported on its second and third readings by a majority of the members for the time being representing these electoral divisions.

In order that your Lordship may understand the object of this provision, it is necessary to state that these are the districts in which, according to the present arrangement of their limits, the English element predominates, and it is feared that if the right of altering the boundaries of these districts was entrusted without check to the Local Legislature of Lower Canada, where the French people have a large majority, the electoral districts might be so manipulated as to deprive altogether the English section of the people of representation in the Local Legislature.

While I admit that this might occur, and that in justice to the English population of Lower Canada it ought to be guarded against, I think it would be a great constitutional anomaly to recognize as a distinct controlling body within the Legislature the representatives of a particular number of constituencies.

It appears to me that the object sought can be effectively attained in a way perfectly unobjectionable by making the electoral districts for the Lower House of the Local Legislature conterminous with those for the House of Commons, and providing that the limits of these districts shall not be altered by the Local Legislature. Your Lordship will observe that it is proposed that this system shall prevail in Upper Canada. The English element being in a majority in the General Parliament, will always be able to protect the interests in Lower Canada of that portion of its population, if any attempt should be made to prejudice their interests by alterations in electoral boundaries.

I have endeavoured in the foregoing remarks to lay before your Lordship the criticisms on the Quebec plan of union which have occurred to my mind after long and anxious consideration of the subject.

I am persuaded, both from the internal evidence afforded by the Resolutions which they drew up and from intimate personal knowledge of most of the able men who composed the Quebec Convention, that their intention was to form out of these provinces a solid and lasting political consolidation with a Supreme Central Authority managing all the general interests of the people of the Union, and which would attract to itself the, so to speak, national sentiment and aspirations of the entire population.

I am satisfied that, in reference to the points which I have pointed out as those in which this sound principle has been lost sight of, a majority of the framers of this scheme will at heart rejoice if Her Majesty’s Government and the Imperial Parliament should be guided rather by the general principles which actuated them than by their expressed deviation from those principles, and l venture to express an ardent hope that this may be the case.

But while I would strongly insist on the necessity of fixing beyond doubt the Supreme character of the Central Power, I should regret if it were supposed that I design to undervalue the important and useful part which the Local Governments, under due control, may play.

The great extent of territory which the Union will embrace, the imperfect nature of the present means of intercommunication, the variety of local interests render it undesirable, if, indeed, it would be physically possible, to centralize the whole administration of the Union.

I think the present condition of the British Parliament, overladen as it is with the performance of duties connected with private and local business, affords an example which should warn us not to endeavour to centralize too much the transaction of affairs of this nature.

My own experience of the conduct of affairs in a Colony also leads me to think that

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much advantage will result from having the general and local expenditure of the Union managed by distinct bodies.

The necessity for conciliating the support of local members to measures of general utility when both expenditures are in the hands of the same Legislature often induces wasteful and unnecessary outlay on local works, or, as an alternative, hinders the passage of measures of public importance.

This inconvenience will be obviated by the management of the general affairs of the Union by a different body from that entrusted with the control of the local business.

There is one suggestion of a practical nature which I would desire to lay before your Lordship: it is that the names of the members of the Upper House of the General Parliament should be placed in the Imperial Act of Union.

If that House is to be nominated by the Crown the nomination must, of course, be made by the Representative of the Sovereign on the advice of his Responsible Ministers. Until the Parliament of the Union shall have been organized it will be impossible to ascertain whether the Ministers selected by the Governor to manage ad interim the affairs of the Union possess the confidence of Parliament; but in order to the constitution of Parliament it will be necessary to appoint the members of the Upper House, and it would, therefore, follow that the Upper House would be nominated on the advice of an administration who could not be assured of possessing the confidence of the Lower House of the Legislature.

Your Lordship will have, I hope, in England during the ensuing autumn gentlemen from all the Provinces representing all political parties in their communities, and I think, with their assistance, you would be able to make a selection of names for the Upper House which could not fail to be satisfactory to the people here.

The same objection applies to the first nomination to the offices of Lieutenant-Governors, and your Lordship will observe that the difficulty in this case was met by the Canadian Parliament in the Resolutions respecting the local Governments, by making the first appointments of Lieutenant-Governors provisional only, but this course would be obviously inapplicable to the Upper House of the Legislature.

I have to apologize for the length of this communication, which I trust the importance of the subject will excuse.

I have, &c.

(Signed) MONCK.

No. 2.

Viscount Monck to the Earl of Carnarvon.—(Received September 19, 1866.)

(Confidential.)

Quebec, September 7, 1866

My Lord,

IN another despatch of this date I have endeavoured to place before your Lordship my views as to the constitution of the proposed union of the British North American Provinces.

There remain some incidental subjects upon which I desire to express my opinion.

By the 7th Article of the Resolutions of the Quebec plan, it is provided ”that Her Majesty shall be solicited to determine the rank and name of the Confederate Provinces.”

There exists in Canada, and I think also in the other Provinces, a very strong desire that Her Majesty would be graciously pleased to designate the Union a “Kingdom,” and to give to her Representative the title of Viceroy.

This of course is a sentimental feeling, and one that on first sight may appear of trivial moment; but I cannot think that in any country, and particularly in one circumstanced politically and geographically as these Provinces are, the adoption of a policy which tends to bind the pride and affections of the people to their domestic institutions ought to be neglected.

This aspiration is founded on no desire to found an independent Kingdom; the attachment of the population of these Provinces to their Sovereign and to their fatherland is beyond question, and requires residence among them in order to be appreciated. The wish is based on a consciousness of their increasing importance, and a desire on their part to reconcile their highly-prized position in reference to the Crown of England with the natural yearning of a growing people to emerge, at least in name, from the Provincial phase of existence.

With regard to the name of the intended Union, I would suggest that Canada should

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be adopted as the general designation, and that suitable names, derived from old local associations, should be given to the Provinces hitherto called Upper and Lower Canada.

There are two other points intimately connected with the future political development of this country to which I desire to point your Lordship’s attention.

First, I think the feeling at present in Canada is very strong in favour of monarchical Government as it exists in the British system.

I presume that it is the desire of Her Majesty’s Government to foster and strengthen that feeling.

I think it is generally agreed that limited Monarchy cannot very long exist without the interposition of some class endowed with social and political privileges between the Sovereign and the mass of the people.

Limited Monarchy, without this element, is, in truth, Republicanism under another name.

The want of the material in a new country for creating an hereditary aristocracy is one of the great difficulties in the way of applying the institutions of the British Constitution to our Colonies, and yet, without this, or some substitute for it, we are, in fact, training up the minds of our Colonists, not to the ideas of Monarchy, but of Republicanism.

I can see that, even in a Colony so much advanced as this is, it would be absurd to introduce hereditary titles of any kind. The experiment was tried some time since, in the creation of Baronets, and it is needless to say more than that, in almost every instance, it has proved a failure, tending rather to bring hereditary honours into contempt than to any other conclusion.

It has, however, occurred to me that the Members of the Upper House of Parliament might for life be given titles, accompanied with social precedence, in the same manner as honorary designations are assumed by the Scotch Judges, and that in this way the minds of the people might be habituated to titular distinctions without the inconvenience which in the present social condition of the country would attend the introduction of hereditary rank.

The second point to which I wish to advert, is the absence of the power of conferring any honorary distinction as a reward for important public services.

It is unnecessary to adduce arguments to prove that in addition to the consciousness of having performed his duty, man generally prizes highly some external decoration which testifies the public appreciation of his having done so.

Hitherto the only decoration given in Canada as a reward for public service has been the Civil Companionship of the Bath.

Though this decoration is highly valued, and I would not be understood as suggesting that it should never be conferred, yet if it is to be the only mark of distinction for special merit in so large a community as will now be formed by the· union of these Provinces, it is, I think, plain that one of two inconvenient results must follow: either it must be conferred so sparingly as to omit a large number who would be fairly entitled to some mark of public favour, or if it be given in sufficient quantity to embrace all these, it will become so common as to diminish its value as an Imperial mark of distinction

The plan which I would suggest for your Lordship’s consideration to meet the want to which I have referred, would be the institution of an Order of Knighthood for British North America, on the model of the Order of the Star of India, to be called “the Order of St. Lawrence.”

I have now exhausted all the suggestions which I desire to bring before your Lordship’s mind in connection with the “new departure” which this community is about to take in its national life.

I trust your Lordship will not think that I have gone beyond the line of my proper duty in laying these observations before you.

I have been engaged for five years in earnest study of the requirements, social and political, of the people of these Provinces, and your Lordship will perceive that I have not permitted any motives, personal or otherwise, to interfere with my desire to lay before you fully and frankly every opinion which appears to me likely to lead to a course of action tending to then permanent welfare.

I have, &c.

(Signed) MONCK.