John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package [n.d.]
Citation: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package, n.d. (MG 26, A, Vol. 49/2, pp. 19451-19461).
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Notes: The transcription for this document has not transcribed the handwritten notes. For those please consult the PDF. The transcription still needs to be verified for accuracy.
1. For each of the Provinces there shall be an Executive Officer styled the Governor, who shall be appointed by the Governor General in Council, under the Great Seal of the Confederation during pleasure; such pleasure not to be exercised before the expiration of the first five years, except for cause, such cause to be communicated in writing to the Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first Session afterwards; but the appointment of the first Governors shall be provisional, and they shall hold office strictly during pleasure, and in the event of the absence, or illness, in inability from any other cause of the Governor to discharge the duties of his office, the Governor General in Council may appoint an Administration to execute the office or the functions of Governor during such absence, illness or other inability.
2. The Governor of each Province shall be paid by the General Government.
3. All powers and authorities expressed in this Union Act, Sect. 50 Act to be given to the Governor of each Province, shall be exercised by such Governor in conformity with and subject to such orders, instructions, and directions as the General Government shall from time to time see fit to make or issue.
4. The power if respiting, reprieving and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part which belongs of right to the Crown, shall, except in capital cases, be administered by the Governor of each Province in Council, subject to any instructions he may from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament.
5. The Governor of each Province may assign, depute, substitute, and appoint any person or persons jointly or severally, to be his deputy or deputies within any part or parts of such Province, and in that capacity to exercise, perform and execute, during the pleasure of the said Governor, such of the powers, functions and authorities as may under this Act be vested in or exercised by the Governor as the Governor shall deem to be necessary or expedient, but the appointment of a Deputy or Deputies as aforesaid shall not abridge, alter, or in any way affect the power or authority of the Governor of the Province.
POWERS OF LOCAL LEGISLATURES.
6. The Local Government and Legislature of each Province shall be constructed in such manner as the Legislature of each such Province shall provide.
7. The Local Legislatures shall have power to make laws respecting the following subjects:—
1. The altering or amending their Constitution from time to time.
2. Direct taxation, and, in the case of New Brunswick, the right of levying timber dues by the mode and to the extent now established by law, provided such tember be not the produce of the other Provinces.
3. Borrowing money on the credit of the Province.
4. The establishment and tenure of Local offices, and the appointment and payment of Local officers.
7. Education; saving the rights and privileges which the Protestant or Catholic minority in any Province may have by law as to denominational schools at the time when the Union goes into operation. And in any Province where a system of separate or dissentient schools by law obtains, or where the Local Legislature may hereafter adopt a system of separate or dissentient schools, an appeal shall lie to the Governor General in Council of the General Government, from the acts and decisions of the Local Authorities which may affect the rights or privileges of the Protestant or Catholic minority in the matter of education; and the General Parliament shall have power in the last resort to legislate on the subject.
8. The sale and management of public lands, excepting lands belonging to the General Government.
9. The establishment, maintenance and management of public and reformatory prisons.
10. The establishment, maintenance and management of Hospitals, Asylums, Charities and Eleemosynary Institutions, except Marine Hospitals.
11. Municipal Institutions.
12. Shop, Saloon, Tavern, Auctioneer and other licences for Local Revenue.
13. Local works.
14. The Incorporation of Private or Local Companies, except such as relate to matters assigned to the General Parliament.
15. Property and civil rights (including the solemnisation of marriage) excepting portions thereof assigned to the General Parliament.
16. Inflicting punishment by fine, penalties, imprisonment or otherwise, for the breach of Laws passed in relation to any subject within their jurisdiction.
17. The administration of Justice, including the constitution, maintenance, and organisation of the Courts, both of Civil and Criminal jurisdiction, and including also the procedure in civil matters.
18. And generally all matters of a Private or Local nature not assigned to the General Parliament.
8. All lands, mines, minerals, and royalties vested in Her Majesty in the Provinces of Upper Canada, Lower Canada, Nova Scotia, and New Brunswick, for the use of such Provinces, shall belong to the Local Government of the territory in which the same are so situate; subject to any trusts that may exist in respect to any of such lands or to any interest of other persons in respect of the same.
9. All sums due from purchasers or lessees of such lands, mines, or minerals at the time of the Union, shall also belong to the Local Government.
10. All assets connected with such portions of the Public Debt of any province as are assumed by the Local Government, shall also belong to those Governments respectively.
11. The several Provinces shall retain all other public property therein subject to the right of the General Government to assume any lands or public property required for fortifications or the defence of the country.
LOCAL GOVERNMENT AND LEGISLATURE OF LOWER CANADA AND UPPER CANADA.
12. Whereas it is expedient and necessary, by reason of the repeal as herein mentioned of an Act passed in the 3rd and 4th years of Her Majesty’s reign, entituled “An Act to reunite the Provinces of Upper and Lower Canada,” that provision be made for the local government and legislature of Lower Canada and Upper Canada respectively.
Therefore Her Majesty, &c., enacts as follows:—
Under and subject to the Constitution of the Confederation, the executive authority of the
Governor of Lower Canada and Upper Canada respectively shall be administered by each of such officers according to the well-understood principles of the British Constitution.
13. All powers, authorities, and functions Union Act, sec. 45 which by any Act passed by the Imperial Parliament, or by any Act passed by the Legislature of the Provinces of Lower and Upper Canada respectively, or by the Legislature of the Province of Canada, were or are vested in or authorised or required to be exercised by the respective Governors or Lieutenant-Governors of Canada, or of Lower Canada or Upper Canada, with the advice or with the advice and consent of the Executive Council of such Provinces respectively, or in conjunction with such Executive Council, or with any number of the Members thereof, or by the said Governors or Lieutenant-Governors individually and alone shall, in so far as the same are not repugnant to or inconsistent with the provision of this Act, be vested in and may be exercised by the Governor of Lower and Upper Canada respectively, with the advice or with the advice and consent of or in conjunction, as the case may require, with such Executive Council, or any Members thereof as may be appointed for the affairs of Lower Canada and Upper Canada, or by the Governor of Lower Canada or Upper Canada respectively, individually and alone, in cases where the advice, consent, or concurrence of the Executive Council is not required.
The Governor of each Province may appoint, under the Great Seal of the Province, and to hold office during pleasure, the following officers, that is to say:—The Attorney General, the Solicitor General, the Secretary of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and may, by and under Order in Council from time to time, prescribe the duties of such officers and of the several departments over which they shall preside, or to which they shall belong, and of the officers and clerks thereof; and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of such officers, and of the several departments over which they shall preside, or to which they shall belong, and of the officers and clerks thereof; and all rights, powers, duties, or authorities now vested or imposed in or upon any such officer by any Law, Statute, or Ordinance of the former Provinces of Lower and Upper Canada, or of the Province of Canada, and not repugnant to this
Act, shall be vested in or imposed upon any officer to be appointed by the Governor, unless and until, and in such case in so far only as such rights, powers, duties or authorities be varied, altered, amended or repealed by the [Illegible].
The Executive Council of the Provinces of Lower and Upper Canada shall be composed of the Attorney General, the Secretary of the Province, the Treasurer of the Province, the Commissioner of Crown Lands and the Commissioner of Public Works, and of any other persons who may at any time or from time be appointed to the office of Executive Councillor by instrument under the Great Seal, and to hold office during pleasure, and the Speaker of the Legislative Council of Lower Canada shall be a Member of the Executive Council of Lower Canada.
No person accepting or holding any office, commission, or employment, permanent or temporary, at the nomination of the Crown, in either of the Provinces of Lower or Upper Canada, to which an annual salary, or any fee, allowance, emolument or profit of any kind or amount whatever from the Crown is attached, shall be eligible as a Member of the Legislative Assembly of either Province, nor shall he sit or vote as such; but nothing in this section shall render ineligible as aforesaid any person being a Member of the Executive Council of either of the said Provinces, or holding any of the following offices, that is to say, of Attorney General, Solicitor General, Secretary of the Province, Treasurer of the Province, Commissioner of Crown Lands, or Commissioner of Public Works, or shall disqualify him to sit or vote in the House for which he is elected, provided he be elected while holding such office and not otherwise disqualified.
14. The Great Seal of each Province of Lower Canada and Upper Canada shall be the same, or of the same design, in each of the said Provinces, as that used in the said Provinces respectively at the time of the existing Union, until altered by the Local Government.
15. There shall be a Local Legislature for Lower Canada, composed of two Chambers, to be called the Legislative Council and the Legislative Assembly of Lower Canada.
16. There shall be a Local Legislature for Upper Canada, composed of one Chamber, to be called the Legislative Assembly of Upper Canada.
17. The Legislative Council of Lower Canada shall be composed of twenty-four members, to be appointed by the Crown, under the Great Seal of the Local Government, who shall hold office during life; but if any Legislative Councillor shall, for two consecutive Sessions of Parliament, fail to give his attendance in the said Council, his seat shall thereby become vacant.
18. The Members of the Legislative Council of Lower Canada shall be British subjects by birth or naturalization, of the full age of thirty years, shall possess a continuous real property qualification, in Lower Canada, of four thousand dollars, over and above all incumbrances, and shall continue worth that sum over and above their debts and liabilities.
19. If any question shall arise as to the qualification of a Legislative Councillor in Lower Canada, the same shall be determined by the Council.
20. The Speaker of the Legislative Council of Lower Canada (unless otherwise provided by the Local Parliament) shall be appointed by the Crown, from among the Members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes, and the presence of at least ten Members of the Legislative Council of Lower Canada, Union Act, Sec 10 including the Speaker, shall be necessary to constitute a Meeting for the exercise of its powers.
21. Each of the twenty-four Legislative Councillors of Lower Canada shall be appointed to represent one of the twenty-four Electoral divisions thereof, mentioned in Schedule A of the first chapter of the Consolidated Statutes of Canada, and such Councillor shall reside or possess his qualification in the Division he is appointed to represent.
22. The Legislative Assembly of Lower Canada shall be composed of the sixty-five Members to be elected to represent the sixty-five Electoral Divisions into which Lower Canada is now divided, under Chapter 2 of the Consolidated Statutes of Canada, Chapter 75 of the Consolidated Statutes for Lower Canada, and the Act 23 Victoria, Chapter 1, or of any other Act amending the same in force at the time when the Local Government shall be constituted, as well for representation in the Local Legislature thereof, as in the House of Commons of the Federated Provinces: Provided that it shall not be lawful to present to the Lieutenant-Governor for assent any Bill of the Legislative Council and Assembly of Lower Canada, by which the limits of the Electoral Divisions mentioned in the Schedule hereto annexed, marked A, may be altered, unless the second and third readings of such Bill in the Legislative Assembly shall have been passed with the concurrence of the majority of the Members for the time being of the said Legislative Assembly, representing the Electoral Divisions mentioned in said Schedule marked A, and the assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant-Governor that such Bill has been so passed.
23. The Legislative Assembly of Upper Canada shall be composed of eighty-two Members, to be elected to represent the eighty-two constituencies in Upper Canada, such constituencies being identical, whether for representation in the Local Legislative Assembly or for representation in the House of Commons of the Federated Provinces, and which constituencies shall consist of the divisions and be bounded as is provided in the Schedule hereunto annexed, marked B.
24. Until other provisions are made by the Local Legislature of Lower and Upper Canada respectively, changing the same in either of the said Provinces, all the laws which at the date of the Proclamation, constituting the separate Provinces of Lower Canada and of Upper Canada, shall be in force in each of the said Provinces respectively, relating to the qualification and disqualification of any person to be elected or to sit or vote as a Member of the Assembly of the Province of Canada, and relating to the qualification or disqualification of voters and to the oaths to be taken by voters and to Returning Officers and their powers and duties, and relating to the proceedings at elections and to the period during which such elections may be continued,
and relating to the trials of controverted elections and the proceedings incident thereto, and relating to the vacating of the seats of Members and to the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the said Legislative Assembly of Lower Canada and in the said the Legislative Assembly of Upper Canada: Provided that at the first Election for the District of Algoma, both for the General and Local Legislatures, all persons otherwise qualified except in respect to real property, who are householders, shall have the right to vote at the said Election.”
25. The Legislative Assembly of Lower Canada and the Legislative Assembly of Upper Canada respectively, shall continue for four years from the day of the return of the writs for choosing the same and no longer, subject nevertheless to either the said the Legislative Assembly of Lower Canada, or the said the Legislative Assembly of Upper Canada, being sooner prorogued or dissolved by the Lieutenant Governor of either of the said Provinces respectively; and the presence Union Act, Sect. 34 of at least twenty Members of the legislative Assemblies of Lower and Upper Canada respectively, including the Speaker, shall be necessary to constitute a Meeting of the said Legislative Assembly for the exercise of its powers; and all questions which shall arise in the said Assembly shall be decided by the majority of voices of such Members as shall be present, other than the Speaker, and when the voices shall be equal, the Speaker shall have the casting voice.
26. There shall be a session of the Legislature of each of the said Provinces once at least every year, so that a period of twelve months shall not intervene between the last sitting of the Local Legislature in one session, and the first sitting thereof in the next session.
27. The division and adjustment of the debts, credits, liabilities, properties and assets of the Provinces of Upper and Lower Canada, shall be referred to the arbitrament of three arbitrators, one to be chosen by the Local Government of Upper Canada, the other by the Local Government of Lower Canada, and the third by the General Government; and that the selection of the arbitrators shall not take place until after the General Parliament for the Confederation, and Local Legislatures for Upper Canada and Lower Canada have been elected—and that the third arbitrator shall not be a resident in either Upper Canada or Lower Canada.
28. The Governor of Lower Canada may, by a proclamation to be issued by him for that purpose under the Great Seal of the Province, and to take effect from a day to be named therein, constitute townships in those parts of the province of Lower Canada in which townships are not already constituted, and may fix the metes and bounds thereof.
29. All the powers, privileges and duties conferred and imposed upon Catholic separate schools and School Trustees in Upper Canada, shall be extended to the Protestant and Catholic Dissentient Schools in Lower Canada.
30. All Laws, Statutes, and Ordinances, which at the time of the Confederation of the said Provinces shall be in force within the said province of Canada, or the Provinces of Lower Canada or Upper Canada, or either of them, or any part of the same Provinces respectively, shall remain and continue to be of the same force, authority, and effect within the Provinces of Lower Canada and Upper Canada respectively, as if this Act had not been made, except in so far as the same are repealed or varied by this Act, or in so far as the same shall or may hereafter, by virtue and under the authority of this Act, be repealed or varied by any Act or Acts of the General Parliament or of the Local Legislatures of the said Provinces respectively, as the case may be.
31. All the Courts of Civil and Criminal Jurisdiction Union Act, sec. 107 within the Province of Canada, or within Lower Canada, or Upper Canada, and all legal Commissions, Powers, and Authorities, and all Officers judicial, administrative, or ministerial within the said province of Canada, or within Lower Canada, or Upper Canada, except in so far as the same may be abolished, altered, or varied by, or may be inconsistent with the Provisions of this Act, or shall be abolished, altered, or varied by any Act or Acts of the General Parliament or the Local Legislatures of the Provinces of Lower Canada and Upper Canada respectively, as the case may be, shall continue to subsist within those parts of the Province of Canada which formerly constituted and will hereinafter constitute the two Provinces of Lower Canada and Upper Canada respectively in the same form and with the same effect as if this Act had not been passed.
32. And whereas the Legislatures of the Province of Canada have from time to time passed enactments, which enactments were to continue in force for a certain number of years after the passing thereof, and from thence to the end of the then next ensuing Session of the Legislatures of the Province in which the same were
passed, therefore be it enacted, &c., that whenever the words “and from thence to the end of the then next ensuing Session of the Legislature,” or words to the same effect, have been used in any temporary Act of the Province of Canada, which shall not have expired before the Confederation of the said provinces, the said words shall be construed to extend and apply to the next Session of the General Parliament, if the subject thereof be within the powers of the same, as herein defined, or to the next Session of the Local Legislatures of Lower Canada and Upper Canada respectively, if the subject thereof be within the powers of the same, as herein defined.
33. Any proclamation under the Great Seal of the Province of Canada which shall, at the time of the Confederation of the several Provinces hereinbefore mentioned, have been issued in the Province of Canada, to take effect on a day or at a time subsequent to the said Confederation, and whether relating to the said Province or to Lower Canada, or to Upper Canada, and the several matters and things therein proclaimed shall be, remain, and continue of full force and effect from and after the day or time mentioned in such Proclamation.
34. Any proclamation authorised by any Act of the Legislature of the Province of Canada to be issued under the great seal of the Province of Canada, and whether relating to the said Province, or to Lower Canada, or to Upper Canada, and which shall not, at the time of the Confederation, have been issued, may be issued by the Governor of Lower Canada or Upper Canada, as the subject matter of such proclamation may require under the great seal thereof, and from and after the issue of such proclamation the same and the several matters and things therein proclaimed shall be, remain and continue of full force and effect in such province.
35. In regard to all subjects over which jurisdiction belongs to both the General and Local Legislatures, the Laws of the General Parliament shall control and supersede those made by the Local Legislature, and the latter shall be void so far as they are repugnant to, or inconsistent with the former.
36. Both the English and French languages may be employed in the General Parliament, and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts, and in the Courts of Lower Canada.
37. No lands or property belonging to the General or Local Governments shall be liable to taxation.
38. All Bills for appropriating any part of the public revenue, or for imposing any tax or impost, shall originate in the House of Commons or House of Assembly, as the case may be.
39. The House of Commons or House of Assembly, shall not originate or pass any vote, Resolution, Address or Bill for the appropriation of any part of the Public Revenue, or of any tax or impost to any purpose, not first recommended by message of the Governor-General, or the Governor as the case may be during the session in which such Vote, Resolution, Address or Bill is passed.
40. Any Bill of the General Parliament may be reserved in the usual manner for Her Majesty’s assent, and any Bill of the Local Legislatures may, in like manner, be reserved for the consideration of the Governor-General.
41. Any Bill passed by the General Parliament shall be subject to disallowance by Her Majesty within two years, as in the case of Bills passed by the Legislatures of the said Provinces hitherto, and in like manner any Bill passed by a Local Legislature shall be subject to disallowance by the Governor-General within one year after the passing thereof.
42. Subject to any future action of the respective Local Governments, the seat of the Local Governments in Upper Canada shall be Toronto; of Lower Canada, Quebec; and the seats of the Local Governments in the other Provinces shall be as at present.
43. All stocks, cash, bankers’ balances, and securities for money belonging to each Province at the time of the Union, except as hereinafter mentioned, shall belong to the General Government.
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