John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Drafts and Notes of Section 26 (1867)
Document Information
Date: [prob.] 1867-01
By: Hewitt Bernard, John A. Macdonald, British North American Delegates
Citation: John A. Macdonald Fonds, John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Drafts and Notes of Section 26, 1867 (Vol. 47/1, 18295-18362).[1]
Other formats: To view the original documents, click on the links in the document, and then view the original document from there.
Note: The following version is an amalgamation of fourteen documents [click the titles of each document to access the originals rather than this amalgamated version]. These documents have been amalgamated for use in Michael Scott & Charles Dumais, Book in Progress: The British North America Act (2025). All endnotes are from the Book in Progress and are tentative until the book is published. For more information on this publication in progress, click HERE.
[Conference Opinion re Senate][2]
18303
The subject of the Constitution of the Leg. C. has been under the [illegible] of the Conference + I am reques[illegible] [illegible] to inform you that the Conf. is unanimously of opinion that the clause [illegible] in the draft Bill [illegible] stating a [illegible] [illegible] a life tenure is not acceptable and could not be entertained by them.
I am further desirous to inquire whether the Conference is the to understand that the Cabinet consider the scheme as presented in the Resolutions submitted, as impracticable and one which they should they are not prepared to submit to Parliament. Before [illegible] the [illegible] [illegible] [illegible] for [illegible] the Conference desire Monck that it would be for the [illegible] [illegible] [illegible] [illegible] [illegible] with Your Lordship’s reply in the mean time [illegible]
[Cartier notes re Section 26 + Responsible Government in Preamble][3]
18304
Cartier
Legislative union. No such would have been agreed to by Lower Canada
Protection
3 Sections – Each section dependent on British Govt.
There must be a means to prevent a Vote of Supply
I will explain to my people that the section will have a voice in the “dead lock”
Preamble should embrace Responsible Government[4]
[Senate conditions / architecture][5]
18315
1. The Tenure of office to be for life.
2. Equality between 3 sections to be maintained.
3. The Govt to have the power of adding to numbers of Upper House amending the resolution of Mr. Archibald.
[Objection to Senate deadlock mechanism]
18305
Objection
The proposition in the first place offers an inducement to the Confederate [illegible] to [illegible] the Council, either for the purpose [illegible] support in the Senate or to gain support to their measures in the Lower House.
23. The number being increased to 84. The chances of a dead lock on [illegible] [illegible] as would exist with the fixed number of 72. The [illegible]vacancies occurring in the Senate will appear the same which both the smaller number as [illegible]in the larger. If with the 12 additional members [illegible] appointed [illegible] they will [illegible] [illegible] [illegible] the party represented in the Government [illegible] [illegible] [illegible] and in a change [illegible] Government [administration], the party coming into power will find themselves in a minority in the Senate, with no power to add to their number, until the number is reduced to below 72. If on the contrary, any [illegible] can, at pleasure, add 12 [illegible] to the Senate they [illegible] will destroy the independence + value of that body.
[Draft of Section 26 amending Quebec Resolution Clause 8]
18295
Resolved,
As to the opinion of the Conference that to [illegible] be adopted [illegible] serious conflict that may rise between the two Branches of the Legislatures. The 8th Section of the Quebec Resolutions that power of shall be should be so amended as to give power either to the General Government on [illegible] by a joint ballot of the two branches of the Local Legislatures, to appoint or select not exceeding [Blank] [illegible] add members of the Legislative Council an equal number being appointed or selected from each division. The original number to be returned to, as vacancies occur, [illegible] in each of the [illegible] local divisions.
[Draft of Section 26 amending Quebec Resolution Clause 8, Incomplete Version]
18314
Resolved
As the opinion of this conference that the 8th section should be so amended as [that the event of a conflict between the Senate + House of Commons] to permit the General Government to add [appoint] not exceeding 9 additional members to the Legislative Council, [illegible] taken that the proportionate number of members for Upper and Lower Canada and the Lower Provinces shall not be disturbed, or that the Local Legislatures of the separate shall [illegible] from by a joint Ballot of the two branches of each Legislature to elect
[Draft of Section 26, version 1]
18308
That the Government shall have power from time to time in case of [illegible] which taken the intent of the country [illegible]. [Illegible] to [illegible] add to the number of the Leg. Cnl. [illegible] [illegible] at any an time to be selected equally for each section [illegible] in all case any case [illegible] no new appointment shall be made the amount first is reduced [illegible]. Vacancy below the number of [illegible] for each section [unless] in the [illegible] a new [illegible], [illegible] [and] [illegible] the [illegible] of [the] appointment when new apptmts may be made by [from time to time] [illegible]
18309
extent to be reduced in the [illegible] [illegible].
[Draft of Section 26, version 2]
18311
That the Governor Genl. Shall [illegible] have power [illegible], in case of [illegible] [illegible] when the intent of the [illegible] [illegible] increase the number of the Leg. Cnl. Leg. Cl. Not exceed [illegible] [illegible] [illegible] time [illegible] to be selected [illegible] [illegible] [illegible] equally but in all cases [illegible] [illegible] [illegible] be made until the number shall [illegible] [illegible] normal [illegible…]
[Draft of Section 26, version 3]
18310
If Legislation is obstructed by the antagonism of the Senate to the House of Commons annually for three successive sessions it shall be lawful for Her Majesty by Order in Council to authorize the Governor General to appoint one or more additional Senators in the proportion allotted to each section [illegible] as vacancies occur no new appointment shall be made for any section in which the vacancy occur [illegible] until the number for each Section is reduced to the number provided by this Act.
[Draft of Section 26, version 4]
18312
In case legislation is [illegible] obstructed by the antagonism of the Senate to the House of Commons [illegible] for three [illegible] successive sessions, it shall be lawful for the [illegible] by Order in Council [illegible] [illegible] [illegible] [illegible] [illegible] to appoint [illegible] on a [illegible] additional [illegible] in the portion allotted to each section, but as vacancies [illegible] occur [illegible] in the Senate no new appt shall be made [illegible] [illegible] [illegible] which the vacancy occur shall
18313
be made [illegible] until the number for such section is reduced to the [illegible] [illegible] by this Act.
[Draft of Section 26, version 5]
18360
In case of obstruction to legislation shall be made by the Senate, either:—
1. By the rejection of a Supply Bill passed by the Commons, or:
2. In the case of any other Bill, by its rejection for three consecutive sessions, if on the passing of such Bills in the Commons for the third time, the House shall have been carried by a majority of the members in each of any two of the Sections,
There, in either of such cases the General Government may appoint additional Members to the Senate, [illegible] as in such appointments the equality of the sections shall be preserved provided always that in case of vacancies by death or otherwise occurring thereafter, no new appointments shall be made for any section till its number shall be reduced beneath 24.
[as regard the Supply Bill, when passed or as illegible the Bill, on the passing thereof [illegible]]
[Draft of Section 26, version 6]
18362
In case obstruction to Legislation shall be made by the Senate either
1. By the rejection of a supply Bill passed by the Commons or
2. [illegible] In the case of any other Bill, by the[illegible] rejection for three consecutive sessions of any Bill passed by the Commons[illegible], if [illegible] the passing of such Bill in the Commons for the 3rd time, the same shall have been carried by a majority of the members in each of any two of the sections, [illegible]. In such either of such cases the Genl. Government may appoint additional members to the Senate, so as such appointments the equality [illegible] of the sections shall be preserved.
Provided always that in case of vacancies by death [illegible] or otherwise occuring thereafter, no new appointments shall be made [to the] for any section until its number shall be reduced [beneath] 24.
[Rough Draft of Section 26 for 4th draft, iteration 1]
18354
Resolved
That on the application of the Federal Government Her Majesty in Council may from time to time sanction an appointment of additional Senators so as that the whole number shall in no case exceed 7[illegible], the proportion allotted to the separate sections [illegible] shall [be?] preserved. In case of vacancies after any such increase above 72 no appointment shall be made in that the [illegible] of the British Government until the whole number is reduced below 72.
[Rough Draft of Section 26 for 4th draft, iteration 2]
18316
Clause 19
Resolved,
That on the application of the Federal [General] Government [of Canada] Her Majesty in Council may from time to time sanction an appointment of additional senators, so as that the whole number shall in no case exceed 78, the proportions allotted to [each of] the separate sections [three divisions] being [?equally?] preserved. In case of vacancies after any such increase above 72, no appointment shall be made without the sanction of the British Government until the whole number is reduced below 72.
Endnotes
[1] Library and Archives Canada, MG26-A, Vol. 47/1, 18295, 18303-18305, 18308-18316, 18354, 18360-18362.
[2] Bracketed titles above each entry are ours and not part of the document. All of them have been hyperlinked. The intention is to separate the drafts. Much more study is required for the dating and sequence of these drafts. One indicator of timing is that “Legislative Council” was used later in the drafting period early-mid January), compared with “Senate,” which came after. Due to the wording of documents found in 18354 and 18316, we can assume those were from February, 1867 around the time of the fourth draft, which is similar to the scrap resolutions. More study is needed. We hope to integrate these scrap resolutions into the Part I: London Resolutions and & Part II: The British North America Act in future editions of this volume.
[3] These are probably notes about Cartier’s statements at the conference rather than his own.
[4] This part is written upside down at the bottom of the document.
[5] See also John A. Macdonald’s letter to Lord Carnarvon on this issue of the Senate’s architecture/baseline conditions, also found in this volume.