Document Information

Date: 1864-10-21
By: George Brown
Citation: George Brown Papers, Drafts of the Quebec Resolutions, Amended Federal Division of Powers, October 12th, 1864 (MG 24, B 40, Vol. 21, p. 3746).
Other formats: Click here to view the original document (PDF).
Click here for our e-book, The Quebec Resolutions: Including Several Never-Published Preliminary Drafts by George Brown and John A. Macdonald & a Collection of all Previously-Published Primary Documents Relating to the Conference (Calgary: Canadian Constitution Foundation, 2021).
Note: The text also contains handwritten notes and other marginalia. Click here to view an explanatory document on how we have transcribed handwritten notes.

3746^{[Note [1]]}

Confidential.

Resolved, ––

That it shall be competent for the General Legislature to make Laws for the peace, welfare and good Government of the Federated Provinces (saving the Sovereignty of England) and especially Laws respecting: ––
1. Trade and Commerce. ^[checkmark]
2. The imposition or regulation of Duties of Customs on Imports and Exports.
3. The imposition or regulation of Excise Duties. ^[checkmark]
4. All or any other modes or systems of Taxation. ^[checkmark]
5. Currency and Coinage. ^[checkmark]
6. The Borrowing of Money on the Public Credit. ^[checkmark]
7. Banking and the issue of paper money. ^[checkmark]
8. The law relating to Bills of Exchange and Promissory Notes. ^[checkmark]
9. The Rate of Interest.^{[Note [2]]}
10. Legal Tender. ^[checkmark]
11. Weights and Measures. ^[checkmark]
12. Postal Service. ^[checkmark]
13. Bankruptcy and Insolven^[cy] laws operating as a discharge of the debtor. ^[checkmark]
14. Beacons ^[Buoys] and Light Houses. ^[checkmark]
15. Ocean Navigation and Shipping.^{[Note [3]]}
16. Sea Fisheries. ^[checkmark]
17. Patents of Invention and Discovery. ^[checkmark]
18. Copy Rights. ^[checkmark]
19. Telegraphic Communication and the incorporation of Telegraph Companies. ^[checkmark]
20. Naturalization ^{[, and Aliens] [checkmark]}
21. Marriage and Divorce. ^[checkmark]
22. The taking of the Census.
23. Militia – Military and Naval Service and Defence. ^[checkmark]
24. Immigration. ^[checkmark]
25. Agriculture. ^{[Agriculture] [checkmark] [Note [4]]}
26. The Criminal Law (except the Constitution of Courts of Criminal Jurisdiction.)
^[X]        27. Roads, Bridges, ^[L]ines of Steam ^[ships] or other Ships, Railways, ^[and] Canals and other Works connecting any two or more of the Provinces together, or extending beyond the limits of any one Provinces. ^{[lines of Steamship between the Federated Provinces & other countries]}.
^[X]        28. All such Works, as shall, although lying wholly within any one Province, be specially declared by
the Acts authorizing them to be for the general advantage.
29. The Establishment of a General Court of Appeal for the Federated Provinces. ^{[checkmark]
[X]}      30. Subsidies or grants in aid of the Local Governments.
31. The Public Debt and Public Property.
32. And Generally respecting all matters of a general character, not specially and exclusively reserved
for the Local Governments and Legislatures.^{[Note [5]]}

[1] Unlike the previous papers, MG24 B40 3746-47, 3750-51 were likely submitted to committee. One can find an unamended copy of MG24 B40 3746 formally considered to the committee on October 21st, 1864 in Bernard’s “Minutes”, pp. 97-98 in this volume. The amendments in this paper however are contemporaneous, since are the resolutions and their amendments were submitted and accepted on this date by the committee of delegates. For this reason, I have dated tentatively this document on October 21st, 1864.

There are two important points that should be highlighted for MG24 B40 3746 (above). First, the language describing the juris-dictions of each level of government is significantly different across all drafts in this volume. MG24 B40 3746 focuses on the powers of the federal jurisdiction, and it describes the division of its powers from the local jurisdiction with the word “exclusive” (see the last provision no. 32 on the next page). The words “except” and “especially” are also used, while the post-Charlottetown division of powers used word “respective”. The significance of this language should be more closely studied, but it is clear that ‘respective’ is not as strong as ‘exclusive’, and also clear that the Canadian delegates thought that “exclusive” might not have been enough since they added “especially” in provision no. 32 (on the next page). This language most likely captures a desire to give protection to local jurisdictions but, also a desire to constrain local powers by overly defining them while giving more ‘elasticity’ to the federal jurisdiction.

Second, the general framework in the federal powers (in the document above) seems to follow another feature of the post-Charlottetown text (see p. 77 in this volume). Like the post-Charlottetown text, MG24 B40 3746 strongly favours the centralization and control of the economy to the federal jurisdiction (the first 22 resolutions seem to be related to economic matters, while the rest focus on matters of uniformity – e.g., militia, criminal law, and judiciary, and the jurisdiction over “Indians”), whereas non-economic matters tend to be exclusively placed under the jurisdiction of the local or provincial government, given their variations, but in a way that is especially defined in greater detail. As I explore below (see “Amended Provincial Division of Powers”, October 24th, 1864, p. 17 in this volume), efforts to protect local matters (with exclusive powers) may have ended up em-powering federal jurisdictions by overly constraining the former (in provincial legal language of jurisdiction). [C.D.]
[2] An illegible word is blotted out at this spot.
[3] An illegible initial or symbol is found inserted at this spot.
[4] This word is indeed crossed-out and re-inserted. See Bernard’s “Minutes”, p. 98, and “Report of Discussions”, p. 126 in this volume.
[5] This list of powers was in fact resubmitted later on this day to the committee with all the amendments accepted, except resolutions 29 to 32 excised. See Bernard’s “Minutes”, p. 99 in this volume.