John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, Copy 2 (23 January 1867)
Citation: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, Copy 2, January 23rd, 1867 (MG 26, A, Vol. 48, pp. 18989-19000).
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Notes: The transcription still needs to be verified for accuracy.
Confidential Revise, 23 Jan, 1867.
British North America 1
The Union of the British North American Colonies, and for the Government of the United Colony,
[Qu, whether to say the Eastern B.N.A. Colonies.]
WHEREAS the Union of the British North American Colonies for Purposes of Government and Legislation would be attended with great Benefits to the Colonies and be conductive to the Interests of the United Kingdom:
Be it therefore enacted by the Queen’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows:
1. This Act may be cited as The British North America Act, 1867.
[Here would follow:
1. Any Interpretation Clause that may be necessary.
2. Clause repealing Imperial and Colonial Acts, if necessary.]
(0.20.) A Union.
2 British North America.
2. It shall be lawful for Her Majesty, at any Time not later than [blank], by Letters Patent under the Great Seal of the United Kingdom, to declare the Union of the Colonies of Canada, Nova Scotia, and New Brunswick into One Colony, with such Name as Her Majesty thinks fit.
3. The Governor General of British North America shall, within [blank] after Receipt by him of the Letters Patent declaring the Union, proclaim the same by Publication thereof in the Government Gazette of Canada, and thereupon the Union shall have full Effect, and the said Three Colonies shall thenceforth form and be One Colony.
[Qu, as to Mode of Proclamation.]
Provinces of United Colony.
4. The United Colony shall be composed of Four Provinces, namely,—Upper Canada, Lowe Canada, Nova Scotia, and New Brunswick, each thereof having the same Limits as it has immediately before the Union.
5. There shall be One Governor General for the United Colony, appointed from Time to Time by Her Majesty, Her Heirs and Successors, by Letters Patent under the Great Seal of the United Kingdom.
6. The Governor General of the United Colony may, by Instrument under the Great Seal of the United Colony, constitute an Executibe Council, and from Time to Time appoint and remove Members thereof.
[The Resolutions say nothing of an Executive Council.]
7. The Command-in-Chief of all Armed Forces raised in the United Colony, or in any Province, for Service by Land or by Water, shall be vested in Her Majesty, Her Heirs and Successors.
British North America. 3
8. There shall be for the United Colony Two Houses of Parliament styled the Legislative Council and the House of Commons.
9. In the Legislative Council the Four Provinces shall be represented as follows, namely,—there shall be for Upper Canada Twenty-four Members, for Lower Canada, Twenty-four Members, for Nova Scotia Twelve Members, and for New Brunswick Twelve Members.
10. The First Members of the Legislative Council shall be the Persons named in the Schedule to this Act, who shall be deemed respectively to represent the Province in connexion with which they are named; and the Representatives of Lower Canada shall be deemed also respectively to represent the Division in connexion with which they are named.
11. A Member of the Legislative Council may, by Writing under his Hand delivered to the Governor General, resign his Seat.
12. All the First Members of the Legislative Council shall, subject to the Provisions of this Act, hold their Seats for Ten Years from the Union.
13. From and after the End of Ten Years from the Union Members of the Legislative Council shall retire from it according to the following Rotation:
(1.) At the End of each Year from the Commencement of the Rotation Three of the Representatives of Upper Canada and Three of the Representatives of Lower Canada shall retire;
(2.) At the End of the First, the Third, the Fifth, and the Seventh Year from the Commencement of the Rotation Two of the Representatives of Nova Scotia and One of the Representatives of New (0.20.) Brunswick
4 British North America.
Brunswick, and at the End of the Second, the Fourth, the Sixth, and the Eighth Year from the Commencement of the Rotation One of the Representatives of Nova Scotia and Two of the Representatives of New Brunswick shall retire;
(3.) For the first Seven Years from the Commencement of the Rotation the Representatives to retire shall be determined by Lot;
[Qu. How Lots to be drawn; by Speaker of Legislative Council?]
(4.) From and after the Expiration of Eight Years from the Commencement of the Rotation, the Representatives to retire shall be such as have for the Time being longest held their Seats.
14. A Member of the Legislative Council retiring by Rotation shall be capable of Re-appointment.
15. The Seat of a Member of the Legislative Council, either named in the Schedule to this Act or appointed under this Act, shall become vacant in any of the following Cases:—
(1.) If for Two consecutive Sessions of Parliament he fails to give his Attendance in the Legislative Council (without Leave of Absence granted by Her Majesty or the Governor General, and signified by the Governor General to the Legislative Council); [Checkmark]
(2.) If he takes an Oath or makes a Declaration or Acknowledgement of Allegiance, Obedience, or Adherence to a Foreign Power, or does an Act whereby he becomes a Subject or Citizen, or entitled to the Rights or Privileges of a Subject or Citizen, of a Foreign Power;
(3.) If he is adjudged Bankrupt or Insolvent, or applies for the Benefit of any Law relating to Insolvent Debtors, or becomes a public Defaulter;
(4.) If he is attainted of Treason or convicted of Felony or of any infamous Crime;
British North America. 5
(5.) If he ceases to be qualified in respect of Property or of Residence; provided, that a Member shall not be deemed to have ceased to be qualified in respect of Residence by reason only of his residing at the Seat of Government while holding an Office requiring his Presence there.
16. When a Vacancy happens in the Legislative Council by Retirement by Rotation, Resignation, Death, or otherwise, the Governor General of the United Colony shall, by Instrument under the Great Seal of the United Colony, appoint to fill the Vacancy a fit Person qualified as follows, namely,—
(1.) Being a British Subject by Birth or by Naturalization;
(2.) Being of the Age of Thirty years or upwards;
(3.) Possessing Real Property in the Province of which he is appointed a Representative, of the clear Value of Four thousand Dollars or upwards, above all incumbrances;
(4.) Being resident in that Province;
(5.) In the case of Lower Canada either possessing his Property Qualification in the Division of which he is appointed Representative or being resident therein.
17. Except in case of Retirement by Rotation a Person appointed to fill a Vacancy in the Legislative Council shall hold the Seat as long only as the Person vacating the same would have been entitled to hold it.
18. If before the Union any Person named in the Schedule to this Act declares, by Writing under his Hand delivered to the Governor General of British North America, his Refusal to act as a Member of the Legislative Council, or dies, or ceases to be qualified in respect of Property or of Residence, the Governor General, by Instrument under the Great Seal of Canada, shall appoint to be a Member of the Legislative Council in his Stead a fit Person who would be qualified to (0.20.) B be
6 British North America.
be so appointed after the Union, and if Her Majesty thinks fit to confirm such Instrument by Warrant under Her Royal Sign Manual, the Person so appointed shall thereby become a Member of the Legislative Council, and shall be in the same Position with respect to Tenure of Office and otherwise, as if he had been named in the Schedule to this Act.
19. If any Question arises respecting a Vacancy in the Legislative Council, the same shall be referred by the Governor General to the Legislative Council, and shall be heard and determined by them.
20. Subject to the Provision of any Act of the Parliament of the United Colony, the Governor General of the United Colony may from Time to Time, by Instrumental under the Great Seal of the United Colony, appoint a Member of the Legislative Council to be Speaker thereof, and may remove him and appoint another Member of his Stead.
21. Subject to the Provisions of any Act of the Parliament of the United Colony, the Presence of at least Fifteen Members of the Legislative Council, including the Speaker, shall be necessary to constitute a Meeting for the Exercise of its Powers.
22. Questions arising in the Legislative Council shall be decided by a Majority of Voices, and when the Voices are equal, but not otherwise, the Speaker shall have a Vote.
House of Commons.
23. In the House of Commons the Four Provinces shall, subject to the Provisions of this Act be represented as follows,—namely, there shall be for Upper Canada Eighty-two Members, for Lower Canada Sixty-five Members, for Nova Scotia Nineteen Members, and for New Brunswick Fifteen Members.
[The Regulation of Constituencies is to be provided for: there is no Provision on the Subject in the Amended Resolutions. Nos. 23, 24 of the Quebec Resolutions related to the subject, but they would not have operated until after the Union.]
British North America. 7
Provisions will also be required as to Quorum, Election of Speaker, and his Vote.
Qu. Oath of Allegiance to be taken by every Member of either House.]
24. Subject to the Provisions of any Act of the Parliament of the United Colony, all Laws in force in the several Provinces at the Union relative to the following Matters or any of them, namely,—the Qualifications and Disqualifications of Persons to be elected or to sit or vote as Members of the Assembly or Lower House in the respective Provinces, the Voters at Elections of such Members, the Oaths to be taken by Voters, the Returning Officers, their Powers and Duties, the Proceedings at Elections, the Periods during which Elections may be continued, [the Trial of controverted Elections, and Proceedings incident thereto, the vacating of Seats of Members, and the issuing and Execution of new Writs in case of Seats vacated otherwise than by Dissolution,]—shall respectively apply to Elections of Members to serve in the House of Commons of the United Colony for Places situate in the respective Provinces.
[This follows No. 23 of the Amendment Resolutions, and Sect. 27 of the Canada Union Act of 1840; but qu. As to the Propriety of the Words in Brackets.]
25. On the Completion of the Official Census of the Population of the United Colony in the Year One thousand eight hundred and seventy-one, and of each subsequent decennial Census, the Representation of the Four Provinces shall be re-adjusted by such Authority, in such Manner, and from such Time, as any Act of the Parliament of the United Colony from Time to Time directs, according to the following rules:—
[Qu. the Re-adjustment to be made by an independent Authority, as some of the Judges, to be specified in the Imperial Act.]
(1.) Lower Canada shall have the fixed Number of Sixty-five Representatives;
(2.) There shall be assigned to each of the other Provinces such a Number of Representatives as will bear the same Proportion to the Number of its Population (ascertained (0.20.) at
8 British North America.
at such Census) as the Number Sixty-five bears to the Number of the Population of Lower Canada (so ascertained);
(3.) In the Computation of the Number of Representatives for a Province a fractional Part less than One Half of the whole Number requisite for entitling the Province to a Representative shall be disregarded; but a fractional Part exceeding One Half of that Number shall be equivalent to the whole Number;
(4.) On any such Re-adjustment the Number of Representatives of a Provinces shall not be reduced unless the Proportion which the Number of the Population of the Province bore to the Number of the aggregate Population of the United Colony at the then last preceding Re-adjustment of the Number of Representatives of the Province is ascertained at the then latest Census to be diminished by One Twentieth Part or upwards.
26. The Number of Members of the House of Commons may be from Time to Time increased by Act of the Parliament of the United Colony, provided the proportionate Representation of the several Provinces prescribed by this Act is not thereby disturbed.
27. Every House of Commons shall continue for Five Years from the Day of the Return of the Writs for choosing the House (subject to be sooner dissolved by the Governor General), and no longer.
28. Bills for appropriating any Part of the Public Revenue of the United Colony, or for imposing any Tax or Import, shall originate in the House of Commons.
29. It shall not be lawful for the House of Commons to adopt or pass any Vote, Resolution, Address, or Bill for the Appropriation of any Part
British North America. 9
of the Public Revenue, or of any Tax or Import, to any Purpose that has not been first recommended to that House by Message of the Governor General in the Session in which such Vote, Resolution, Address, or Bill is proposed to be adopted or passed.
Royal Assent, &c.
30. Where a Bill passed by the Houses of Parliament of the United Colony is presented to the Governor General of the United Colony for Her Majesty’s Assent, he shall declare according to his Discretion, but subject to the Provisions of this Act and to Her Majesty’s Instructions, either that he assents thereto in Her Majesty’s Name, or that he withholds Her Majesty’s Assent, or that he reserves the Bill for the Signification of Her Majesty’s Pleasure.
31. Where the Governor General assents to a Bill in Her Majesty’s Name, he shall by the First convenient Opportunity send an authentic Copy of the Act to One of Her Majesty’s Principal Secretaries of State, and if Her Majesty in Council within Two Years after Receipt thereof by the Secretary of State thinks fit to disallow the Act, such Disallowance (with a Certificate of the Secretary of State of the Day on which the Act was received by him) being signified by the Governor General, by Speech or Message to the Houses of Parliament of the United Colony or by Proclamation, shall annul the Act from and after the Day of such Signification.
32. A Bill reserved for the Signification of Her Majesty’s Pleasures shall not have any Force unless and until within Two Years from the Day on which it was presented to the Governor General for Her Majesty’s Assent, the Governor General signifies, by Speech or Message to each of the Houses of Parliament of the United Colony or by Proclamation, that it has received the Assent of Her Majesty in Council.
An Entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a Duplicate thereof duly attended shall
(0.20.) C be
10 British North America.
be delivered to the proper Officer to be kept among the Records of the United Colony.
33. There shall be a Session of the Parliament of the United Colony once at least in every Year, so that a Period of Twelve Months shall not intervene between the last Sitting of the Parliament in one Session and the first Sitting thereof in the next Session.
Superintendents of Provinces.
34. For each Province there shall be an Officer, styled the Superintendent, appointed by the Governor General in Council, by an Instrument under the Great Seal of the United Colony.
35. A Superintendent shall hold Office during the Pleasure of the Governor General in Council, but any Superintendent appointed after the Commencement of the first Session of the Parliament of the United Colony after the Union shall not be removable within Five Years from his Appointment, except for Cause assigned, which shall be communicated to him in Writing within [blank] after the Order for his Removal is made, and shall be communicated by Message to each of the Houses of Parliament of the United Colony within One Week thereafter if the Parliament is then sitting, and if not then within One Week after the Commencement of the next Sitting of the Parliament.
36. The Salaries of the Superintendents shall be fixed and provided by Act of Parliament of the United Colony.
[The first Superintendents will have no Salaries fixed till such an Act is passed.
Here will follow Constitutions of Provincial Assemblies; see Note at End of Draft.]
Distribution of Legislative Powers.
37. In each Province the Superintendent may, by and with the Advice and Consent of the Provincial Assembly, make Ordinances in relation to
British North America. 11
Matters coming within the Classes of Subjects next herein-after enumerated, which Ordinances exclusively (subject to the Provisions of this Act) shall in relation to those Matters have the Force of Law in and for the Province, that is to say,—
(1.) The Amendment from Time to Time of the Constitution of the House or Houses of the Provincial Assembly;
(2.) Direct Taxation within the Province in order to the raising of a Revenue for Provincial Purposes, including in the Case of New Brunswick the levying, by the Mode and to the Extent (if any) established by Law at the Union, Dues on Timber, not being the Produce of any of the Provinces other than New Brunswick;
(3.) The borrowing of Money on the sole Credit of the Province for Provincial Purposes;
(4.) The Establishment and Tenure of Provincial Offices and the Appointment and Payment of Provincial Officers;
(5.) The Management and Sale of the Public Lands belonging to the Province;
(6.) The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province;
(7.) The Establishment, Maintenance, and Management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Province (other than Marine Hospitals);
(8.) Municipal Institutions in the Province;
(9.) Shop, Saloon, Tavern, Auctioneer and other Licences in order to the raising of a Revenue for Provincial Purposes;
(10.) Local Works and Undertakings other than such as are of the following Classes:—
(a.) Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province;
(0.20.) (b.) Lines
12 British North America.
(b.) Lines of Steam Ships between the Province and any British or Foreign Country;
(c.) Ferries between the Province and any other or others of the Provinces or between the Province and any British or Foreign Country;
(d.) Such Works as, although situate within the Province, are before or after their Execution declared by Act of the Parliament of the United Colony to be for the general Advantage of the United Colony or for the Advantage of Two or more of the Provinces;
(11.) The Incorporation of Companies with exclusively Provincial Objects;
(12.) The Solemnization of Marriage in the Province;
(13.) Property and Civil Rights in the Province;
(14.) The Administration of Justice in the Province, including the Constitution, Maintenance, and Organisation of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts;
(15.) The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Provincial Ordinance made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section;
(16.) Such other Classes of Subjects (if any) as are from Time to Time added to the Enumeration in this Section by any Act of the Parliament of the United Colony.
38. It shall be lawful for Her Majesty, Her Heirs and Successors, by and with the Advice and Consent of the Houses of Parliament of the United Colony, to make Laws for the Peace, Order, and good Government of the United Colony and of the several Provinces, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Provincial Legislation; and
British North America. 13
for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—
1. The Public Debt and Property.
2. The Regulation of trade and Commerce.
3. The raising of Money by any Mode or System of Taxation.
4. The borrowing of Money on the Public Credit.
5. Postal Service.
6. The Census and Statistics.
7. Militia, Military and Naval Service, and Defence.
8. Beacons, Buoys, Lighthouses, and Sable Island.
9. Navigation and Shipping.
11. Sea Coast and Inland Fisheries.
12. Currency and Coinage.
13. Banking, Incorporation of Banks, and the Issue of Paper Money.
14. Savings Banks.
15. Weights and Measures.
16. Bills of Exchange and Promissory Notes.
18. Legal Tender.
19. Bankruptcy and Insolvency.
20. Patents of Invention and Discovery.
22. Indians, and Lands reserved for the Indians.
23. Naturalization and Aliens.
24. Marriage and Divorce.
25. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction but including the Procedure in Criminal Matters.
26. The Establishment, Maintenance, and Management of Penitentiaries.
27. Such Classes of Subjects as are by this Act expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to Provincial Legislation.
And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Subject of Property
(0.20.) D and
14 British North America.
and Civil Rights comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to Provincial Legislation.
39. In each Province the Superintendent may, by and with the Advice and Consent of the Provincial Assembly, make Ordinances in relation to Education in the Province, subject and according to the following Provisions;
(1.) Nothing in any such Ordinance shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class or Persons have by Law in the Province at the Union;
(2.) All the Powers, Privileges, and Duties for the Time being by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of Her Majesty’s Roman Catholic Subjects shall from Time to Time be extended to the Schools of Her Majesty’s Protestant and Roman Catholic Dissentient Subjects in Lower Canada;
(3.) Where in any Province a System of Separate or Dissentient Schools for the Time being exists by Law, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of any Class of Persons in relation to Education;
(4.) In case any such Provincial Ordinance as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the prepare Provincial Authority in that Behalf, then and in every such Case, and as far as the Circumstances of each Case require, the Power of the Parliament of the United Colony to make Laws in relation to Education shall, notwithstanding anything in this Act, be unrestricted.
British North America. 15
40. Notwithstanding anything in this Act, any Act of the Parliament of the United Colony may make Provision for the Uniformity of all or any of the laws relative to Property and Civil Rights in Upper Canada, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and thenceforth the Power of the Parliament of the United Colony to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of the United Colony making Provision for such Uniformity shall not have effect in any Province unless and until it is approved and adopted by the House or Houses of the Provincial Assembly thereof by Address to the Governor General of the United Colony.
41. Any Act of the Parliament of the United Colony may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for the United Colony.
42. Notwithstanding anything in this Act, any Act of the Parliament of the United Colony may from Time to Time make Provision in relation to Agriculture in all or any of the Provinces, or in relation to Immigration into all or any of the Provinces, and in each Province Provincial Ordinances may make Provision in relation to Agriculture in the Province or Immigration into the Province; but any such Provincial Ordinance shall have the Force of Law in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of the United Colony.
43. Either the English or the French Language may be used by any Person in the Debates of the Houses of Parliament of the United Colony, and of the Houses of the Provincial Assembly of Lower Canada, and either or both of those Languages may be used in the respective Records and [shall] Journals of those Houses, and either of those
(0.20.) E Languages
16 British North America.
Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of the United Colony, and in or from all or any of the Provincial Courts of Lower Canada.
[Qu. whether, as to Courts of the United Colony, this should not be confined to such of those Courts as sit in Lower Canada.]
Newfoundland and Prince Edward Island.
44. It shall be lawful for Her Majesty in Council, on Addresses from the Houses of the Parliament of the United Colony, and from the Houses of the Legislature of the Colony of Newfoundland or of the Colony of Prince Edward Island, to admit the Colony of Newfoundland on the Colony of Prince Edward Island (as the Case may be), into the Union on the Terms and Conditions in the Addresses expressed; and the Provisions of any Order in Council in that Behalf shall have Effect as if they had been enacted in this Act.
British North America. 17
First Members of Legislative Council of United Colony.
1. Upper Canada
2. Lower Canada.
[Specifying the Twenty-four Divisions.]
3. Nova Scotia.
4. New Brunswick
[No. 30 of the Amended Resolutions (Powers and Privileges of the Houses) may be provided for by Colonial Legislation.
Nos. 31-7 (Courts, Judges, &c.) might be left for Colonial Legislation, unless there be some special Reason for having them inserted in the Imperial Act.
No. 40 and Parts of Nos. 47-50 relate to the Constitution and Proceedings of the Provincial Governments and Legislatures. It is understood that Draft Clauses on these Subjects are being prepared by the Delegates of the several Colonies, which when completed can be considered in Consultation with them.
Nos. 53-63 (Property and Liabilities) are reserved for further Consideration.
No. 85 (Intercolonial Railway) must be dealt with separately.
All the other Resolutions seem disposed of in this Draft Bill as far as the Legislation is requisite.
Are such Provisions considered desirable as ss. 47, 48, of the Canada Union Act of 1840, relating to Continuance of Courts, Commissions, &c., and to Temporary Acts?]