Joseph Cauchon, The Union of the Provinces of British North America (1865)

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Date: 1865-02-15
By: Joseph Cauchon
Citation: Joseph Cauchon, The Union of the Provinces of British North America (Quebec: Hunter, Rose & Co., 1865).
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‘ tered into such an arrangement ourselves without fear, we frank-
‘ ly and cordially state our intention to await the moment when
^ our friends shall have been tried, before condemning them, and
‘ our sympathies are with them, because we appreciate their pat-
< riotism and we know that their task is a difficult one. At any ' rate, let us await the development of negociations in order Uy * judge them with more certainty/ And we concluded our article in the following words : — ^ We write freely on the present occasion, because, nothing in ' this strange chaos of events and personal positions, can affect us- ' individually. ^ Should the result be favorable, we will certainly congratulate ' our friends seriously and cordially ; should the reverse be the ' result, we will give them our feeble assistance to ward off any ^ danger that may ensue.' Since that date we have conscientiously kept our word, in spite of provocation. We have abstained from condemning, as well a» from approving, without being well informed.' We cannot wait any longer. In the matter of Confederation our antecedents and our convictions, as enunciated in 1858, are still in existence. Let it not be supposed that we are desirous of consigning to oblivion opinions which were conscientiously offered and carefully pie*^ pared I On the contrary, we desire to have them remembered, in Digitized by Google 10 THE NEW CONSTITUTION. order that by a oomparison of reasoning and circnmstances, it may be found why ve bare modified those opinions, if we haye modi- fied them, and why we still maintain their correctness should we tiiink proper to do so. We hold to our own dignity as journalistB, against which no accusation of personal interest can be brought ; but, as error is possible and really of frequent occurrence in eyery case, such a feeling of personal dignity would be absurd if placed as an obstacle to a discoyery of the truth. The greatest minds haye often paid the penalty of weakness, and as infallibility is far from being an essential element of the human intellect, it would certainly be a lack of dignity and probity should we persist in error, fearing that by so doing we should be guilty of contradiction and ayow our fallibility. If we write thus^ it is not because we desire in any manner to abandon profound and sincere oonyictions without due examination^ on the contrary, we continue to hold these conyictions until proof of error be adduced. How- eyer, when we are asked to reconsider a question of such grayity as that of Confederation, would we be justified in answering with the Indian, * I have said ii! Six years ago we wrote on hypotheses, but at the present mo- ment we are compelled to giye our opinion on a reality, and that, under circumstances by far more serious. At that time we could haye been silent, now, duty compels us to speak. In 1858, as we then stated, ' We had no tangible fact before 'us, no matured project which could serye as a basis for discus- ^ aion, and we were ineyitably compelled to form our opinions from ' hypotheses.' In a consideration of these hypotheses, we reached the number of twenty-seyen, including the Union as a unit, also a Federal Union. We imagined that ^ the whole question was considered in those ' twenty-seyen hypotheses, and that the solution of the problem ^ oould be found in them.' But, after the labors of Mr. Brown's Oonstitutional Committee, after study, experience, thought, and finally, aft;er a perusal of the Resolutions of the Quebec Conference, we came to the conclusion that our twenty-seyen hypotheses of 1858 did not by any means contain the only practicable conitita- Digitized by Google QUEBEC CONFERENCE. 11 tional fonns of &OYernmeiit suitable for Confederation. Shonld we^ therefore, in the face of such an important error, fearing to be guilty of contradiction in our opinions, stubbornly persist in tilie error we had committed ? At the present moment, we possess for our guidance, a project which is tangible and ayailable, and should we commit any errors, they can only occur in our style of appreei»- tion, because the details of the project are designated by land marks which cannot mislead us in our examination. Were we not^ therefore, justified in warning those who seemed inclined to con- demo summarily ? ^ Do not pronounce your opinion now. Kesenre ^your judgment!' Ameng the principles which we then enunci- ated so positively, there are some that now fall to the ground be- cause they do not agree with facts of the present day, and we established rules which would have had the effect of rendering our public men too unyielding and narrow-minded. Other principles must give way before imperious circumstances, and they should not be considered absolute but subject to those circumstances. The doctrine of ^pSrisse la patrieplut$t qu^wn, frirm'pty enunci- ated by Lez Girondins when they ascended the scaffold, is simply absurd, and in direct opposition to the fundamental principle of public law, ^ Salus popuU suprema lex.' In the government of nations the destructive principle is neither understood nor practised. Moreover, there are other principles which do not hail from any particular date, but which are inflexible and immutable in their nature, because they are based upon facts, and their essential ele- ment is that of truth. We shall now explain. We stated, in 1858, ^^ That the Maritime ' Provinces had raised the cry of (Confederation, because they had * nothing to lose, were utterly valueless as allies, and that they * desired to make up their budgets out of the revenue of Canada.' Nowj the bases of the Coalition formed in June last, distinctly disprove our assertion of 1858, and it is a fact well known to the public, that the cry of Confederation has been first raised by Canada, and not by the Maritime Provinces. It has also been proved that the financial resources of those Provinces are, in proportion to the respective figures of population of all the Pro- Digitized by Google 12 THE NEW CONSTITUTION. ▼inces of the proposed Confederation; at least in as healthy a condition as ours. We stated also^ in 1858 : ^ Bj the adoption of the Federal ^ principle, the provinces, both small and large, will have equal ^ weight or power in the General Federal Legislature, in fact the ^ population of the small Island of Prince Edward will be equivalent '^ ia power to the one million two hundred and fifty thousand "* inhabitants of Lower Canada/ In the project of Confederation which we are now examining, three of these provinces are grouped as it were into one, and these three together, in the Upper Chamber will only have (as thus suited; the same number of members as Lower Canada. The «mall Island of Prince Edward will have only four members out of th« twenty-four representing the group. We also stated, in 1858, ^ That direct taxation by the local legislatures would become ^ actually necessary, should Federation be accomplished under ^ Colonial rule.^ Now, the project is clearly against this peremp- tory condition, inasmuch as it net only permits the local legisla- tures to raise the revenue required for local purposes, without baving recourse to direct taxation ; but it also grants a bonus to these legislatures which will enable them to liquidate their unim- portant debts within a stated time, and to accomplish those public improvements which, although subject to being termed local, are nevertheless the source and essential principle of our national prosperity. Thus, if in spite of our antipathy in regard of any system of Confederation, the plan now proposed has been imposed upon us by the force of circumstances ; if for instance, we were offered the choice of annexation to the United StateS; and a Con- federation of the Provinces; or even between the latter and Representation by Population in a union purely Federal with Upper Canada ; if in fact this Confederation were proved to be necessary for our common protection, and had we the power to- do BQf we could not remain in an isolated position. Why, therefore, should we be held to stand inflexibly or uncompromisingly to an opinion formed years ago upon hypotheses and published under ^circumstances entirely different. Digitized by Google QUEBEC CONFERENCE. IS With regard to the third category, that of absolute principles, we need not enter into proof; it explains itself. We shall find a large number of such principles in the course of the work we have undertaken. CHAPTER III. IN our opinion, the question at issue may be divided into the following propositions : — 1st. By accepting) in an alliance with Hon. George Brown, a Confederation — ^whether, of all the British North American Provinces, or of both sections of the Province of Canada : were the ministers of this Province actuated by a sense of duty, or by a sole desire to remain in power ? 2nd. Could the existing Union between Upper and Lower Canada have been maintained under the present system ? Srd, If not; had we reached the propitious moment at which our Constitution should be amended in order to establish it on a new basis ? Ath, Admitting that it were possible to maintain the existing union intact, should we persist in so maintaining it, or should we seek a greater destiny in a different order of things ? bth. If the moment had arrived at which it became proper to amend our Constitution, have our statesmen who have undertaken this important work solved the difficulties presented by the question in the best possible manner under the circumstances ? When the Government annoi&nced that they had communicated with Mr. Brown, and when later, they informed the House that an alliance had been formed with him on the basis of Confederation, we certainly feared and hesitated, and we reserved our judgment. Digitized by Google 14 THE NEW CONSTITUTION. After having described all the difficult circamstances in which the Cabinet was placed, and all the motives which could justify them in a reconciliation with an old enemy under the conditions proposed, we added, ' Certainly, in the position occupied by our ^ political friends, we should have feared such a test/ But, it was not from want of confidence in those poKtical friends, it was doubt of the result of the test to which they were subjecting themselves ; becau<3e, we stated in our article of 2nd July, in writing which we laboured under the same painfu^ impression ; — ^The Cabinet, after several interviews with Mr. Brown, has agreed ^ to submit to Parliament a Constitutional project which will be ' based on State reasons, as regards the composition of the Federal ' Parliament. " L'Etat en hautf le ' nonibre en Bas,"—*^ The State ' at the head, the people under it." ' This complex system, which the Government do not yet com- ^ prehend better than we do as regards general land marks and ' essential details, the relative positions of the several Legislatures, ^ and, in a word, everything that may effect in any manner our ' social or political position ; this project, (which may fairly be ^ so called), will be carefully, prudently, and patriotically prepared ^ for the interests of all, and will then be submitted to the ' most rigorous test of discussion both in Parliament and in the * press/ Our language would huve been very different, had we not been confident that our public men wore patriotic and disinterested, because, in addition to our fears, our antecedents on this question were entirely opposed to this new idea which had suddenly been created by a political crisis. Nevertheless, as we have already stated frequently, this faith in our public men could only with us be delayed until they had undergone a fair test, because, as regards this test, we had reserved the privilege of forming our opinion upon the merits with perfect independance without looking to righi or left, above or below us. Digitized by Google QUEBEC CONFERENCE. 15 €\t feabian Union. CHAPTER IV. ' Could the eziflting Union between Upper and Lower Canada have been maintained under the preient system 7' WEBE we to accept Hon. A. A. Dorion's opinion^ we could easily answer in the negative. But, as we have always energeti* cally protested against any change, and that, as it were fro^ superstitions fear, as we had always driven the idea from our mind; when we are now called upon to look that proposed change fairly in the face, we are compelled to glance calmly and carefully around OS to seek the solution which we require. We opposed constitu- tional changes when offered to us by Lower Canadians, under the guise of Bepresentation by Population, in 1848 ; we resisted them through annexation, when offered to us by Bepublicans and bank- rupt merchants, in 1849 ; we opposed them when offered to us by the Badicals of Upper Canada in 1851 and 1854; wereftised them in 1857, at the hands of Hon. Mr. &alt, our present Finance Min- ister; we rejected them with indignation, in 1858, when Messrs. Brown and Dorion wished to impose Bepresentation by Population on Lower Canada ; and we refused them with the same disdain when offered to us by the same men in 1859, '60, '61, '62 and '63. We then said to the Upper Canadians, in the powerful words of Shakespeare, and
‘ to prove this, it is only necessary to take the census of 1850.
‘But France did not so decide it; and when we shall feel our
^ colonial fabric falling to pieces around us, too weak to establish
^ an empire of our own, and fearing invasion and destruction, we
^ shall seek for new alliances.

‘ It is true that no alliance could give a complete guarantee of
^ our autonomy, but we must not forget, that placed as we are in
‘ America, in an exceptional position, governed by force and

* circumscribed within the narrow limits of fatality, we must make

* a choice among alliances more or less dangerous to us.

‘No alliance could secure us perfectly from danger, but that

* least to be feared would be a union of the provinces, because,
‘ while it would be strong enough for protection from outside
‘ aggression, it would be weaker for purposes of oppression.*

These remarks, owing to events and the state of the times, seem


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almost to have acquired a prophetic character. Annexation at the
present moment^ would involve the enrolment of our farmers and
mechanics to carry on a war to the knife, which would probably
bring them to destruction in the fetid marshes of the South. It
would involve taxation on landed property, trade and manufac-
tures ; it would impose a tax of five hundred millions of dollars,
out of which we would have to pay annually more than the twen-
tieth part ; it would capitalize a debt against us of three billions
of dollars, the interest of which, each year, we would have to pay,
with the prospect of a still heavier debt and additional taxation.

But, supposing that this frightful picture did not alarm us, in
what position would we French Canadians find ourselves in an
alliance with a nation of thirty millions of Bepublicans so different
from us, not only in language, but in feelings and manners, be-
cause we are conservatives and monarchists, both in our instincts
and in our afipirations. Far be the thought from us to. doubt the
fidelity of the British population of Canada to the Crown of G-reat
Britain, but if, as ourselves, that section of our population aspires
to become a nation at some future day, we may fairly state, taking
our opinion from reasonable sources, that they might favor annex-
tion more than ourselves, because they speak the same language,
are of the same religious persuasion, aud essentially possess the
same social institutions as the inhabitants of the American Union.
The only point for them to consider in making a selection would be,
the material question of profit or loss ; more or less of trade, more
or less of taxes. The truth of this is clearly shown by the project
of Confederation itself, in which it will be seen that the exceptions
affect only Lower Canada, and in the speeches made by Mr.Tilley,
in New Brunswick, in which he states frankly and unequivocally,
that with that Province there can be but one paramount question
in the discussion of the scheme, namely, that of pecuniary
interest 3 will New Brunswick, under the union, pay more or less,
receive more or less— will the taxes imposed, under the union, be
mote or less than they now are ? The question has been thus
received by the press and public men of that Province, and they
have so discussed it, with a view to accept or reject it.


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But for us — what a difference ! If we already feel ill at ease in
an alliance in which we only count for one-third, in what position
would we find ourselves in the midst of a people numbering thirty
millions ? Of course, we are speaking throughout from the point
of view of our national autonomy, and everything that constitutes
it. We again ask, what would be our position ? The annexation-
ists of 1849 have never answered us, although they could do so ;
but the reply could easily be given. That compact was composed
in a great measure of bankrupt merchants and republicans. The
word autonomy had no signification. The former wanted annex-
ation because they desired to recover the commercial prosperity
they had lost, and the latter hoped to obtain democratic institu-
tions under a republican form. The former abandoned the idea
and almost the recollection of it in the prosperity of the years that
followed their declaration ; and the latter, without having aband-
oned their position of ’49, and without paying any attention to
the conservative idea which preoccupies the thoughts of one mil-
lion of their fellow countrymen, nevertheless seek by political
tactics to alarm us with regard to the lot which awaits French
Canadians in a Confederation of the Provinces of British North

With ourselves, they were aware of the position of Louisiana in
the American Union, a state which was founded by our ancestors;
and they well knew that the first act of the masters of the position
was to abolish the French language in Parliament, in the Courts
of Justice, and in the composition of public documents ! This did
not occur such a long time ago. It is but a short time since this
state, which was a French colony, entered into the American
Union, and still the French language is rapidly disappearing, and
it is well known that families bearing French names can no longer
speak the language of their ancestors. Now, change, invasion,
and absorption were much more difficult there than they would
be here, because in that state the climate alarms and prevents
immigration, while in the North the current of population flows
towards us from all European sources. Under such a condition of
things, how long would we remain French ? How long would




we preserve that autonomy which is so precious to us, and how
long could we continue to say as Frenchmen, ^ Our institutions,
‘ our language, and our laws,’ inscribed on pages, some times
glorious, some times bloody and mournful, but always visible on
the frontispiece of our history ?

No ! we cannot always remain in the Colonial condition. We
desire some day to be a nation, and if this be our manifest destiny,
and the object of our aspirations, we much prefer a political condi-
tion,*^in which we shall be^ vital and indestructible element, to
being thrown as a drop of water into the ocean, to form part of a
large nation, in which we would lose in a few years, not only our
language and our laws, but even the recollection of our glorious

Ilfcessiig for ^nian of all t|e ^robinces.


‘ Why should we provide for a Federal or Legislative Union of the
Provinces of British North Amtrica ?’

AS we have already shewn that our local difficulties completely
hampered the working of our political machinery, and neces-
sitated constitutional changes; that a superior power of circumstances
compelled us to select between annexation and the union of the
provinces ; that our interests, our tastes, our habits, the character
of our institutions, and a conservative instinct induced us to lean
towards the latter solution, and that soon, in order to follow that
universal law which, from the beginning of the world had directed
the destinies of these colonies, we must, whether willing or not,
prepare to assume our position in the family of nations. But we
have not yet shewn why it is that as a colony of a great empire,
we had so soon to abandon the protection of the Mother Country,
and direct our course towards an unknown future, and why the


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. Union of the Provinces of British North America is the com-
bination most likely to conduct us towards the desired end; in a
word, how it happens that in this union^ the geographical; maritime
«and commercial elements of a groat people and a great country
seem to be clearly proved to exist This is the complex question
with which we have to deal in this article*

In 1858; we pronounced our opinion against every species of
union — Federal as well as Legislative — because at that time
powerful in the Parliament of the day, in which we had destroyed
all opposition, and caused to cease, for a certain time at least, the
demand of Upper Canada for Representation by Population, we
supposed that we might perpetually remain in the political condi-
tion then existing ; because we hoped that by immigration, the
equilibrium might be re>established between the two sections of
the Province of Oanada ; because we believed that the Maritime
Provinces, poor and without resources, would seek for this union
in order to re-habilitate the impoverished state of their exchequer ;
because we did not believe that the protection of the Imperial
Government would so soon or ever be withdrawn from us ; because
we had no reason to appreciate^ before the breaking out of the
American war, the danger that we incurred by remaining isolated ;
because we never dreamt that at a future day Great Britain, seeing
the approach of our independence, and beginning to feel the
heavy weight imposed by our guardianship, should instruct us to
prepare for that solemn change ; because we could not perceive in
a union, the prospect of commercial advantages which we did not
already possess ; and finally, because we feared the effect of that
union upon our religious and national interests, and the preserva^
tion of our peculiar institutions. However, as we have already
stated in our last article, if called upon to make a choice between
a union of the provinces and annexation, we then offered our
opinion most positively, as we do now, in favor of the former.

As it is wise to make provision for a surprise, to organize and
to constitute the elements of a nation, amply and solidly, in case
the day may come when the Mother Country might give us notice
to rely upon our own resources } it would be too late to commence

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tHe oonsideration of that important question in the midat of a crisis.
We are far from desiring the separation^ and we wish to avoid
it as long as possible, because the yoke of the Mother Country has
for many years been excessively easy, and we require some time,
much reflection and labor, to prepare us for such a separation ;
but since it is providentially reserved for us, when it does come < may we not be proud to be able to number six to eight millions as a people, and to show to the astonished world a commercial status valued at two hundred and fifty to three hundred millions of dollars as our title of admission to the family of nations. We shall occupy the same position in the North as Mexico m the South, and we shall be in a position to act as a counterpoise in the balance in which will be weighed the destinies of British North America, and thus we shall acquire the good will, and, in case of necessity, the protection and even the material support of the great European powers. Let us not forget that the conquerors of the world have invari- ably hailed from the North ; the whole of China, India and Asia has been conquered by the invading hordes of the North ; even the Roman Empire was gradually broken up and extinguished by the robust people of the North. But any such strength can only exist, even national existence is only possible, when the people are strongly organized in virtue of a compact union of all the elements of greatness and future success. Separated from each other, each isolated portion would inevitably be invaded and finally crushed. We are not prone to assist those who are too weak to help them- selves, because we have no desire to perish with them; this is equally true in the history of individuals and of nations. We are convinced, at the present moment, that our internal dis- sensions compelled us, necessarily, to adopt a new order of things ; that, after prolonged resistance, we should have met with a less happier lot; that we had to choose between annexation to the United States and the Union of the Provinces ; that the latter is preferable to the former; that the Maritime Provinces are quite as prosperous as we are, and that an alliance with them would neither be a tax on our budget, nor a gnawing canker-worm on our revenue ; Digitized by Google QUEBEC COKFERENCE. SI that the protective s&gis of the empire would certainly be wanting at a future day, and, therefore, the time had arrived for us to prepare for national emancipation. But we have not yet examined this ^question in one of its most important phases — ^that of commerce • the great, and someymay say, the all-important source of fortune trnd public prosperity, inasmuch as it comprises, in its gigantic folds, agriculture,'arts and manufactures. We wrote in 1858 : ' What would be the advantage to Canada ^ derivable from either a Legislative or a Federal Union of all the ^ Provinces of British North America ? It is as much the interest ^ of the Maritime Provinces to seek for our channels of trade, as it ^ is our interest to seek for theirs. We know that a political union ' would, in no respect, change the present condition of things, and ^ in any case, those provinces could not inflict more injury upon us * than could the United States, our only rivals in their limited markets. < When communication by sea and land shall have been ^ established between us, we will be in a very favorable position to ' furnish our produce in defiance of all possible rivalry, If the * obj ect of those provinces, in soliciting a union, be solely in a ^ commercial sense (and they do not now solicit it), it cannot in any ^ case in our colonial condition be solicited on any other ground. * Why should we not rather have recourse to free-trade, which * could be obtained without organic constitutional changes,— with- ^ out the intervention of the Imperial Parliament, with the mere ^ consent, in fact, of our existing Legislatures ? ^ Free-trade, from a commercial point of view, is equivalent to ' an absolute political fusion ; it produces precisely the same * effect without entailing the same inconvenience and danger, and ^ without necessitating the same sacrifices.' We still hold the same opinion as regards the effect of union on our intercolonial trade. Free-trade would still be for us, from a commercial point of ^iew, equivalent to political fusion ^ but the latter as it is now proved by figures, (the correctness of which cannot be questioned,) would not now require the sacrifices which we then feared. Six years of thought and hard experience Digitized by Google ^ THE NEW CONSTITUTION. \ in the midst of social discord; passioD; hatred and difficulties of every nature, have taught us many things which we could not then know. An experience of six years in the life of the people of the New World, is greater than that of a century in the life of the -people of the Old World. If we are dashing forward on the path of manifest and imperious destiny, as it were, like a charger on the course, impatiently champing the bit, should not wisdom guide us towards that path which leads to safety ? And if this political union be not more costly than free-trade, why should we hesitate and continue to persist in an opinion^ the causes and motives of which have disappeared ? The united budgets of all the Provinces may not be of great assistance to each other, but they will not interfere with each other. A political union will not accomplish more for our internal commerce than free-trade, but is it necessary to the development of our external commerce. Therefore, if we are desirous of occu- pying a respectable position among nations, we should seek such an union. What constitutes, in iact^ the elements of a great people ? We £nd them in an internal territory, suitable for agri- cultural purposes, and otherwise rich by its mineral and other re- sources ; in ample interior navigation, which facilitates the means of exporting our products to, and importing what we require from, foreign countries ; in an extensive sea coast with numerous •deep harbors that can be used at all seasons of the year, that per- mit of trade on a large scale, and the development of a powerful navy, without which moral and material influence cannot be ex- -ercised, and commercial communications cannot be safely protected. rised who observes the
‘ bitterness with which our religious and Catholic institutions are
^ systematically attacked in our present Legislature^ that we should
^ ask; actuated by a feeling of alarm : What will bo in the Union
^ of .all the Provinces; the respective numerical strength of Catho-
< licism and of Protestantbm ? ' These are still our opinions, because they are based upon the experience of every age and of every country. No one can deny the importance of the part taken by the religi- ous element in sacred bistory, dating from the Egyptian era ; in BomC; where paganism and Christianity fought against each other during three centuries and a half; in the seventh century, under the terrible and designing Mahomet ; in the eighth century, in that vast empire governed by Charlemagne ; in the twelfth and thir- teenth in France, in the wars waged against the Albigenses, and in the European crusades against Islamism; in the sixteenth, when the reformation, taking its rise in Germany, spread over Scandinavia, a portion of Switzerland, England and Scotland; and in our days, the influence of the element is still felt in China, India, a portion of Turkey, Russia, Poland, England and Ireland. We thus find that the history of the whole human race justifies our opinion, and to put aside this important aspect of the question from a false sense of delicacy, would be to neglect, in a culpable manner, the obligations and the responsibility of the publicist and the statesman. Moreover, the idea which now creates anxiety with us, as Catho- lics, also engages the attention of Protestants in an equal degree. We are all aware of the important part assumed by the religious element in the formation of a constitution, and each creed claims from another the greatest possible share of protection. Therefore no religious sect can be accused of egotism and intolerance, when instinctively compelled, for the purposes of preservation, to seek, under the roof of a constitutional edifice, a shelter from all possible storms. The same instinct actuates nationalities, who, anxious for the e2 Digitized by Google 42 THE NEW CONSTITUTION, fiiturei seek to know whether they can be at eaaOi can live and be- come freely developed^ in a new state of political existence. The text of our article presents itself to us under two different aspects ; that of general organization and that of local organisation. We must therefore consider the measure of protection that would be afforded to our religion and our nationalityi as French Canadians, how these important interests would be protected under local organizations^ and what would be the legislatiye and governmental forms which would thus protect them. Have we under our present constitution more protection for Catholicism and our French nationality than we would have in a Con- federation of the Provinces, or in that of the two sections of the Province of Canada ? This is a complex question which deserves our serious consideration. With our present mixture of Catholics and Protestants through- out the Provinces, Catholicism, far from being the stronger, does not even exercise in our Legislature an influence in proportion to its numerical force. Thus Catholicism, which counts 1,200,865 souls in the union, is only represented by 52 members in the Lower House, while Protestantism, which counts 1,305,890, is represented by 78 members. If the two religions were represented in equal proportion, there should be a proportion of 62i Catholic to 67f Protestant Bepresentation. Upper Canada, which, according to the Census of 1861, contained 258,051 Catholics, only sends to Parliament 2 Catholic members. With regard to origins, there is a still greater disproportion : French, 883,568 ; English-speaking population and others, 1,623,- 187. We thus flad that the French race is not much protected by the Constitutional Act of 1840, and that it cannot be blamed for seeking a new state of existence which will further guarantee it against the possibility of future contests. The Confederation of the two sections of this province, or that of all the provinces, by giving us a local government which would protect these privileges, the rights and the institutions of the minor- ity^ would certainly offer a measure of protection to us, as Catholics and Frenchmen, much greater than the present union; because, from Digitized by Google QUEBEC CONFERENCE. 43 our present position, as a religious minoritj, we would becomej and always remain^ a national and religious majority. But we would not accept a system wMoh would not protect^ in the same ratio, botli majorities and minorities : notliitig can be enduring that is not founded on justice. We stated in the beginning of this article that in this question two aspects were presented to us for consideration : that of general, and that of local organization. We have treated the question of local organization, and it now only remains for us to shew how our religion and nationality would be protected under a general government. It is evident that as a local constitution is given to Lower Canada in order to protect our peculiar institutions, and as the general government cannot therefore exercbe any influence over them, Confederation cannot possibly endanger them. And, more- over, the French language, the only subject of alarm, has by the project of the Conference obtained the same protection, the same rightl, as it now possesses under the union of the Canadas. With regard to this protection, a Confederation of the two sections of the Province of Canada might have been as favorable as a Confederation of all the Provinces of British North America; but it could not be more favorable. At the same time, it would not have offered the same advantages in every other respect, and that with the former we should not have been as advantageously situated when the proper time had been reached to enter into the family or nations. If we insist so strongly upon the consideration of these delicate questions, it is because there are doubts and fears in the public mind with regard to them, and because the success of the principle of unity in British North America depends upon a close examina- tion of them. Our intentions must not be misunderstood: we neither ask for the exclusion of other origins and other religions^ nor do we seek for any privileges in our own favor. All that we demand is that our institutions may not be annihilated. It does seem to us that^ for a nation that has bequeathed so much blood and liberty to the new world, we are not asking for too much^ Digitized by Google 44# THE NEW CONSTITUTIOM, and it is scarcely right that in some quarters we should be inter- preted in a spirit of bitterness and anxiety. Therefore we say^ that the Quebec Conference, practical in its object, just and liberal in its intentions, clearly understood the duty imposed upon it, and decided the question without hesitation, without opposition, and without murmuring. Now, if we approach the question of material interests, and if, as we think we have shewn more than once in this series of articles, that we were compelled to make a choice between two alternatives, apart from annesation to the United States — ^the Confederation of the two sections of the province, and that of all the colonies of British North America — nothing now remains but to ascertain' under which of these two conditions of political existence we would find the greater protection for those interests which are now the subject of discussion in Upper Canada, New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island. In Lower Canada we are less anxious, because the material question is equally interesting to all the races that inhabit this section of the Province. Until lately, we admit that we were more favorable to a Con- federation of the two sections of our province than to the larger confederation, because, up to that time, we had no ambition for a separate nationality, and we imagined that in the former plan we would find more protection for the interests of Lower Canada. We acted as if we were opposed to actual enemies, and, with good tactics, we desired to have the least possible number of enemies arrayed against us ; but since then, our relations with the eminent political men of the Maritime Provinces have convinced us that many apprehensions and many motives of resistance are no longer justifiable. A feeling of equity undoubtedly guided all the proceedings of that Conference. There appeared to be sympathy for Lower Canada, although justice was meted out to all. Can it be tliat because we were numerically in a minority, and that the instinct of self-preservation kept the weaker in a solid phalanx with a view to protection against a large majority, that we were thus dealt with? Digitized by Google QUEBEC CONFERENCE. • 45 Let it be understood^ there can only be tbe question of material interests at stake in this matter^ because all others are protected by the systdm of local governments. Now^ in the project of the Conference^ as regards those interests^ we hold the balance of power between the contracting parties. An Upper Canada newspaper so well understood this^ that a calculation was published in its columns tending to prove, that in thirty years that province would contain a larger population than the whole of the rest of the Confederation^ and thus would be in command of the position. The compiler forgot one very important item. Let us suppose (and of course history does not justify the supposition) that the population of Upper Canada should double every twenty years^ and that the number of its members in the Lower Chamber of the Union in 1894 would be greater than that of all the other provinces united; it is not the less true that our representation in the upper house, possessing equal powers, in fact a counterpoise of the othet, will have a deliberative voice, and will possess the same power in the National Parliament. Thus, in the Upper Chamber, Upper Canada can never have more than 24 votes, and we shall have 24, while all the Provinces, minus Upper Canada, will have 62 votes. If Upper Canada therefore, may at some future day possess numerical preponderance in the Lower House, it must always be our equal in the Upper House, and the question of number will always remain intact, according to the Constitution. It is therefore evident, that in a material point of view, we would be in a better position in a Confederation of all the Pro- vinces, than in a Federal Union of the two Canadas, because, in the latter we would be 24 to 24, and a change of one vote might place the majority of the Legislative Council on the side of the majority of the Lower House, and thus give preponderance to Upper Ca- nada. In a Confederation of all the Provinces, it will require a change of 28 votes to give that preponderance. Thus, we have nothing to fear from the adoption of the latter alternative. Moreover, no circumstance and no cause could unite iu a com- pact body all the representatives of Upper Canada, either in the Upper or Lower Chamber, because experience teaches us, by Digitized by Google 46 THE NEW CONSTITUTION, reading the pages of history, that political parties will always exi&t, and will pay but little attention to territorial distinctions. Material interests do not always recognize territorial divisions, and the ayenues of commerce are rarely confounded with geographical limits. We observe this in Central Canada and the Ottawa District, the commercial and industrial interests of which are almost identical wiiih those of Lower Canada. Who will contend, with a map of North America in his hand, that the matierial interests of the Maritime Provinces are not more with us than with Upper Canada ? We can therefore conclude, without hesitation, that a Confederation of all the Provinces would be more advantageous to us than that of the two sections of Canada* For all these reasons, we can fairly conclude, that this peculiarity of the situation will produce a feeling of mutual justice among the weak and strong elements of the new political combination. With this article, we terminate our general observations, and we shall now enter upon the question of details. ^t Sakim of i\t problem. CHAPTER X. but ve
believe that all these causes combine to produce present results.

In obedience to the dictates of public opinion; the writer of
these lines in 1856, composed with his own hand the Constitution
of the Elective Legislative Council ; and it is now with heartfelt
satisfaction and true conviction that he hails the return to the old
principle of nomination by the Crown under circumstances far
more favorable than in the past.

If there be any reason for the existence of a Legislative Council^
it is because it acts as a conservative element,^^a counterpoise and
check on the hasty legislation of the people. All statesmen of
forethought of every country, instructed to perform the duty of
framing constitutions, have always provided for the protection of
the people against their own sudden fits of passion ; moreover,
democratic predilections possess too much power in the United
States for us to deny the wisdom of checking them, in the interest
of that nation which we are about to create.

In the Legislative Council of the Federal Parliament will be
found the nominative principle with that of election ; the conser-
vative element, which is absolutely essential, being included by
the wish of the people, and in which no obstacle can be found to
public feeling, matured by evidence, time and reflection.

In critical times the Members of the Council will recollect their
origin, and in their resistance to outward pressure will only act
according to their own wisdom, and the dictates of public interest .

If, in the projected Constitution, there be found a guarantee of
stability against popular outbursts, there will also be found a
guarantee of perfect independence against the servility of the


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administration of the day^ in the first place, because of its popular
origin; and also, as it were still more efficiently, by the provision
made for a limit to the number of Councillors.

Everything therefore, proves that the Conference, in thus fram-
ing the project, have vrisely reflected, while they have acted with
patriotism. Moreover, elections have in our day been of such
frequent occurrence, that the moral sense of the people has
become as it were deadened, and they now ask for elections of a
more reasonable nature, better suited to their feelings and wants.

There should be no misunderstanding with regard to the import
of certain facts. In abandoning the elective principle in the
Legislative Council, the people do not give up an inherent right,
because the elective principle in that body is of no more value in
that respect than the nominative principle. They are merely two
different conditions in the formation of one branch of the Legisla-
ture, and a selection is to be freely made j&om the two, through
the representatives of the people. The duty or right of the people
is to control the Administration of the day through their represen-
tatives, and to choose the mode by which the greatest wisdom and
reflection may be secured, without permitting the existence of a
power which may, at any time, stop the operation of the constitu-
tional machinery.

The motive which caused difficulty during the last years of the
existence of the Constitution of the year 1791, with regard to the
principle of election in the Legislative Council, no longer exists
and, at the present moment, the republican idea is to be found
prevalent only in the minds of. our democrats, who would like to
see it perpetuated.

The Minister for the Colonies is evidently opposed to the elec-
tive principle. He fears, however, that in case of diflGiculty between
the two branches of the Legislature, the proposed system would
preclude the possibility of increasing the number of Legislative

The reason adduced for this limitation of the number of Coun-
cillors can be easily understood j and without it, who would sanction
Confederation ? But the question of danger, as foreshadowed by
Mr. Cardwell, deserves close consideration.


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Can it be established, that real danger can exist, because it might
happen that one branch of the Legislature would, and the other
would not, be elective ? Does it follow, that because the Legisla-
tive Council would bo unchangeable in its will, as in its number,
that it could, at any time, completely interfere with Legislative
action, and absolutely defy public opinion or the public desire,
after a close and careful examination of circumstances by the
people of the country ?

There are two powerful reasons which lead us to a contrary opin-
ion ; the first is, that there are no interests in America foreign to
those of the mass of the people, and we have no castes to be dealt
with ; the second reason is, that even if the latter did exist, no
resistance could be possibly oflfered to the expressed will of the
people ; and the Legislative Council, if it were to abandon its role
of moderation and counterpoise, in order to obstruct the working
of our constitutional machinery, would inevitably be carried away
by a tempest similar to that which has destroyed so many thrones,
and has broken up so many dynasties.

Our Legislative Councillors will be selected from the mass of the
people ; they will live among us, and form part of us ; they will
know and appreciate the wants, desires and predilections common
to us all, with this difference, that, having been spared the ordeal
of election, and exempted from a feeling of constant fear of the
electors, they will not have to undergo the dangerous, and some-
times unreasonable exactions of popular demonstrations. They
will thus be enabled to decide ^calmly, maturely and with reflection,
upon the merits of those legislative questions which may be sent
up from the popular branch, replete with the evidence of hasty

We find that in England where castes exist, where a powerful
nobility enjoying privileges, posts of honor, fortune, and, in a word,
the greater portion of the landed property of the empire, live, aa
it were, beyond and above the people ; those difficulties so mueh
ieared by us cannot last, because public opinion instantly causes
them to cease by threatening to overturn the whole system.

If such conflicts were there persisted in, they would inevitably


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produce revolution^ because it is well understood that tlie House of
Lords merely moderates political affairs, and if the safety valve of
the people’s security were obstinately closed by that body, an
explosion would inevitably be the result.

It may be said in reply that the number of peers is not limited,
and that the Sovereign may at pleasure increase that number.

This is certainly true in theory, but not in practice. The Sover-
eign creates peers when public men have rendered important
services to the nation, or, in exceptional cases, when exceptional
rewards have been deserved, but never with the intention of sub-
merging the will of the majority, of paralyzing free action, and of
weakening the dignity and usefulness of a body so important and
80 necessary in the Constitution.

The constitutional history of G-reat Britain offers but few ex-
amples of conflict between the two branches ; the most celebrated
and most obstinate of these, was that which arose upon the subject
of the Eeform Bill in 1831 and 1832. The people became so
irritated at the stubborn resistance offered by the nobility to a re-
form in the system of parliamentary representation, that they at
last refused to listen to the advice of the most powerful political
men who had hitherto enjoyed their confidence in electoral con-
tests. They even rejected candidates whom they had for a length
of time persisted in sending to the House of Commons, with the
promise, however, that they would be re-elected after the passing
of the Eeform Bill. On several occasions the House of Commons
had, by its vote, manifested the public opinion of the country j
but the House of Lords persistently refused to sanction the bilL
It was supposed by that House that if a certain number of rotten
boroughs were disfranchised, and if the representation of several
of the great commercial centres were increased, there would be
ah end to the privileges and separate existence of 1^ nobility.

The popular anger increased in proportion to tK resistance of

the House of Lords, and the Sovereign — who felt the approach of

the storm from the direction of Manchester, who distinctly heard

the sounds of rebellion rumbling in the distance, clamoring, as in

1660, for the head of a king to gratify their vengeance — ^at last


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gave way to the urgent advice of Sir Charles Orej, who, armed
with the terrible power of swamping the majority of the House
of Lords, obtained the creation of a sufficient number of new
peers to effect that purpose, and thereby saved the realm.

The House of Lords gave way, and its annihilation was thereby

All constitutional writers agree that this creation of a hundred
peers would have been a revolution as great as that which threat-
ened to overthrow the throne of William lY., had it not been that
the monarch believed that between a revolution which threatened
to demolish his throne, and the one which attacked the independ-
ence of the House of Lords, it became his duty, for self-preserva-
tion, to choose the latter alternative.

Thus the principle of limiting the number of Legislative
Oouncillors is not as dangerous as at first sight it may appear.


19. < Immediately after the taking of the census, in 1871, and at the taking of each decennial census, the representation of each province will be re-distributed on the basis of population.' TTTE explained in our article, chapter 4, the powerful reasons * * which determined our statesmen to concede the principle laid down in paragraph No. 17 of the project of the Constitution^ and which we have re-written at the head of this article. The distri- hution of the representation is there based upon the population of the different provinces, determined according to the census of 1861. By that census. Upper Canada contains a population of 1,396,091 souls; Lower Canada, 1,110,664; Nova Scotia, 330,857; New Brunswick, 252,047; Newfoundland, 130,000; and Prince Edwards Island, 80,757. The principle of representation in the Lower House has been conceded by the Maritime Provinces, the populations of which are comparatively small, and whose progressive increase is less rapid Digitized by Google QUEBEC CONFERENCE. 73 than ours. They no doubt believed; that tbey would find a suffi- cient proteqtion against the populations of the larger provinces in the Upper House, where they are upon a footing of representa- tive equality with them. If the population continues to increase in Canada in the same proportion as in the decennial period from 1851 to 1861, we shall have, in 1871, a population of 3,398,070, and 4,606,305 in 1881. We have no data to enable us to establish the average progression of the collective population of the Maritime Provinces, but Mr. Gait has stated that it is much slower than with us. Prom the moment that Confederation was proposed as a substi- tute for our present Constitution, it became, of necessity, a question of numbers in the formation of the Federal Legislature ; for what purpose would it serve to replace a single parliament by three legislatures, necessarily more costly, in order to arrive precisely at the same constitutional mode, and to meet exactly the same diffi- culties ? Every Confederation is a compromise; but where would be the compromise if nothing were ceded either on the one hand or the other ? The compromise on the part of Lower Canada is the con- cession of Representation by Population in the Lower House, and the compromise on the part of Upper Canada is the concession of equality in the Upper House, in exchange for representation based upon population, in the Lower House. The same compromise has been eflFected between the two Canadas and the Atlantic Provinces, and it was the same motive which prompted it. Previous to the introduction of the elective principle in the Legislative Council, representative equality had no existence, and Upper Canada has only succeeded, even up to this day, in pre- serving its numerical preponderance by means of its life Councillors. The Constitution of 1840 only stipulated for equality in the Lower House. Let us suppose that the majority of the Legisla- tive Council had chosen to adopt a project of law which would have been hostile to the interests of Lower Canada ; as Upper and Lower Canada were equally represented in the Lower HousCi the bill adopted by the Upper House would have been certainly thrown Digitized by Google 74 THE NEW CONSTITUTIOM. out; and it is by the Lower House alone that we have, up to this time, been able to protect and save our institutions, taking into account also the good will shown to us by Lower Canadian repre- sentatives of English descent. Why has the Legislative Assembly always been the battle field with respect to the struggle that has been going on for the last fourteen years between Upper and Lower Canada on the question of Eepresentation by Population ? It is because there alone equality has existed, and there alone could be found the means of solving the constitutional problem ; if then, instead of the present Constitution, we substitute Local Legislatures, and over them the Federal Parliament, we shall see in that case precisely the inverse of that which we have always observed in our present Legislature, that is to say : that on the occurrence of any local misunderstanding, the struggle will be carried from the Low^r House to the Legisla- tive Council, and precisely for the reasons that we have adduced. We are speaking here on the hypothesis of the perpetual antag- onism and antipathies which exist between races and provinces, and it is in consequence of this, that we cannot surround sectional interests with too much protection against the chances of the future. But, by enlarging the ground, and in creating, by the Union of the whole of British America, other interests, as distinct as those which are in antagonism with each other to-day, we may hope to soften the asperities of the struggle by turning them aside from the;r object, by dispersing them, and by directing them upon other points less fraught with danger and e^il consequences. It is in the counterpoise of interests freely established by the parties to the contract, that we may hope with reason to find the safe working of the new constitutional machiiiery. We have said, that it was equality in the Lower House that turned that place, since the Union, into the enclosed battle-ground of all our struggles with Upper Canada. But there was another cause added to that, which claims public attention almost exclusively: that is, the power of initiating money measures — the great, and, so to say, the only sinew of politics in the normal period of society. It was probably that Digitized by Google QUEBEC CONFERENCE. 75 consideration that influenced tlie Imperial Government to recom- mend the principle of equality of representation at the period of the union. In extraordinary times^ social questions govern to the fullest extent material interests ; they are pursued with more animation and bitterness through sacrifices, and often produce ruin and desolation. It was representative equality, and the interests of which it was the signification, which gave to the Senate its im- portance and its moral preponderance in the American Congress, and in the eyes of foreign nations. And yet it had not the power of initiating money measures, like the House of Eepresentatives ; it had only the privilege of modifying them. But it was the battle field of social questions, and of territorial interests, just as our Legislative Assembly has been up to the present day. This was the cause of its importance, the reason why the American people sent the most eminent men to that body, and the cause of its triple superiority, intellectually, morally, and politically. giabjnstmint of |lepresentatioi CHAPTER XVI. ' For tht purpose of such readjustments, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each readjustment reeeive, for the ten years next succeeding, the number of Members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy according to the Census last taken by having sixty-fire Members.' rriHIS clause of the project was at first misunderstood and mis- -■• interpreted. It was asked, why must Lower Canada remain stationary, while others provinces have the privilege of progressing J Digitized by Google 76 THE NEW CONSTITUTION. Let us in ihe first place hear Mr. Gait, he who of all the Ministers has the most completely explained and rendered the thought of the Quebec Convention in his speech at Sherbrooke : — ' Population was made the basis, and to prevent any undue aug- ^ mentation in the numbers of the Lower House as population ' increased; it was settled that there should be a fixed standard, on ^ which the numbers of the House should be calculated, and Lower ' Canada was selected as afibrding the proper basis. Although, ^ Lower Canada had not the largest, still it had a very large popu- ' lation^ which was more equable in its increase than any of the ^ others, not increasing on the one hand so fast as Upper Canada, ^ or on the other hand so slowly as the Lower Provinces, and the ^ numbers of the House of Commons (for that was the name ^ selected) would not be subject to such irregular variations as if f the population of any of the other provinces were taken as the * basis.' The Minister of Finance, however, has not given us the whole. This arrangement is entirely to the advantage of the provinceS| whose populations, already less numerous, will only increase in the smallest proportion. The Toronto Globe has perfectly under- stood this, and has perfectly explained the operation of this clause. The principle of representation based on numbers is established by the project of the Conference; by the very conditions of its existence, it is moderated in its consequences ; its work of expan- sion is wisely compressed by checks and considerably delayed in its progress. To enable us to understand this, let us take an example : suppose that the project of Constitution were to stipulate as follows, the House of Commons shall be composed of three members ; as yon would only count for a third of the whole population, you will be xepresented there by one vote, and we shall have the other two, because we are the two-thirds. — Here, the principle of population is perfectly recognized and perfectly practicable ; but the majority against us would be but one vote; and, displacbg that single vote we would have the majority I . Now, let us suppose another case ; and let us say that the repre* Digitized by Google QU£BEC CONFERENCE. aentation inntead of being three^ should be three hundred members in the House ot Commons;— our third would then be one hundred^ and the two other thirds^ two hundred. The same proportions would be perfectly preseryed with the principle of representation based upon population as in the first case^ and yet the majority against us bere^ would be one hundred I Now, it will be conceded| that it is easier to displace one vote than one hundred. Then, while preserring population as a basis, we may consider- ably modify it in its progression and its results ; it is evident, from what we hav« said, that the lower the number that constitutes the pivot of the system is, the better it will be for us, and for the Atlantic Provinces. Now, let us lay hypotheses aside, and work with reality to guide us. Lower Canada^ having a population of 1,110,664 souls, and a representation of 65 members, each of these must represent an average of 17,087 souls. That is the basis adopted by the Con- Tention at the outset. If 17,087 should continue to be the permanent average of the population to each member, and that the total population of Lower Canada should become doubled in thirty years, reckoning from 1861 to 1891, Lower Canada would then have a population of 2,221,328 and a representation of 130 members. If Upper Canada at the end of the same period, should have, (and it is quite possible) a population double the amount of ours — that is to say 4,442,656, it would possess a representation of 260 members, and a majority over us of 130 members. But if on the contrary, the figure 65 of our representation, should remain stationary at the same period, the average of the population to each member, through the whole extent of the Confederation, would be 34,174, and Upper Canada would have a right to 130 members. Thus, in the first case. Upper Canada would have a majonty of 130 votes over Lower Canada, while in the second case, that majority would only be 65 votes ! It is then, evidently important that the figure of our representa- tion should remain as it is. The result would be still more fatal to us, if a lower figure than Digitized by Google 78 THE NBW CONSTITUTIOK. the preient one were taken as a basis for representation«^let us say 15;000, and that it were declared that in future there would be one representative for every fifteen thousand souls. That propor- tion would give us immediately 74 members, and Upper Canada 111, — that is to say a majority for the latter of 37 yotes, while we only find 17 in the present project. In 1891, we should have a representation of 128 members, and Upper Canada would have 296 and a majority over us of 148 votes I The principle whieh we have just analyzed is certainly the most important one ] it is in fact all important; but Mr. Gralt has given it its proper value ; for in adopting a fibced number, or a mecha- nism which enables us to see the possibility of a diminution of the figures of representation, and which in every case moderates its development, we may be brought in a given time to a represen- tation by far too large. The Parliament of Lower Canada under the Constitution of 1791^ had adopted the number of 2,000 as a basis for local representation, and in 1836 the number of members in the Lower Chamber was reckoned at 88. With our population to-day, supposing the same basis to have been persisted in, our representation would be 555. This proves, that if at the outset we ought to give the largest possible share to the popular representation, so that every part of the soil should be represented, and be able to make its wants im- mediately and directly known — on the other hand, when the deve- lopment of public prosperity has improved the means of communi- cation and has thus made all local wants as patent as the general wants, it then becomes possible, even useful, from an economica point of view to ^ve to that same representation a narrower basis. Digitized by Google aUJSBEC C0NF£;R£NC£. 7^ ^proportion of §tmm m Representation. CHAPTER XVII. 21. *Ko reduction shall be made in the number of Members returned by anj section, unless its population shall have decreased, relatively to the population of the whole Union, to the extent of five per centum.*^^ 22. 'In computing fat each decennial period the number of Members to which each section is entitled, no fractional parts shall be consider- ed, unless when exceeding one-half the number entitling to a Mem- ber, in which case a Member shall be giren for each such fractional part.' WE have been asked, how Besolntion No. 21 would operate, and how it should be interpreted ? We think we can explain in a clear and distinct manner its significancy, and the mode in whioli its stipulations will be carried out. In the first place, we may state, that this clause was inspired by interested parties, and it was a happy thought, because it is exclusively faTorable to those pro- yinces whose population may increase in the smallest ratio, and in the same manner as the resolution preceding it, to which we gaye our attention in our last article ; it may be a means of modifyingi and in some cases of nullifying the consequences to be expected from the adoption of the principle of Representation by Population. When this clause provides, that no reduction shall be m^de in the number of members returned by any section, unless its popula- tion shall have decreased, relatively to the population of the whole union, to the extent of five per cent, or more ; it is meant by the word decreased, that an absolute proportionate decrease or increase of five per cent., more or less, of the whole population of the Con- federation shall have taken place. At the starting point, in 1861, the populations of the different sections start from precisely the same point, to dash forward on their career of progress, in the same manner as race horses start- ing for the Derby. The average number represented by each mem- ber over the whole extent of the Confederation is fixed at 17,087. The question is, what sections will first reach the goal in 1871, and what will be the relative distance between each of them ? We mean this to apply to relative increase, anxL not to an absolute in- Digitized by Google so THE NEW CONSTITUTION. orease of tb^ population. Tlie census of 1861 is an establislied €ictf the figure of the total population of the whole Confederation and that of the populations of the different prorinces separately taken^ is also known. It becomes necessary now to establish, in the first place, the proportion in which the collectiTC populations •of the Confederation during the period between 1861 and 1871 liave increased; then to ascertain the proportionate increase of population in each of the proyinces, which^ by the 20th Resolution jire to be submitted to the effects of a rise and fall in the represen- tative thermometer. The figure of the population of Lower Canada, which is to be the basis of all calculations being known, by dividing it by the number 65, the actual number of its members, we will obtain a •quotient or result that will be the figure on which shall be com- puted the representation of all the provinces. If the numerical increase in the population of Lower Canada, during the decennial term, is equal to that of the population of Upper Canada, not only will the latter be deprived of any increase, but its representation will be diminished. In order to prove this, let us give some figures, based of course on hypotheses, because it ]0 impossible to ascertain what will be the real increase. Let us suppose that the increase during the decennial period is 300,000 for Lower Canada, and 300,000 for Upper Canada, the population , or a slow increase
in the representation of any one of the province is still leee

The Maritime Provinces will be subject to the same fluctuatioiie
in this respect as Upper Canada, the representation of Lower
Canada being the pivot. They will remain stationary, will progress
or become reduced in the number of their representatives; according


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to the increase or decrease in their population^ considered pro-
portionately to Lower Canada. “Bnt, admitting the possibility of
their so diminishing as compared with Lower Canada, to effect a
teduotion^ it will be necessary that the loss be at least five per
cent, as compared with the total increase of the population of the
Confederation; or in other words^ that the population of those
provinces should have increased proportionably five per cent,
less than the total population of the Confederation.

NoW; if the population of Lower Canada should increase in
a smaller rate than that of Upper Canada^ the general average will be
immediately reduced ; and that reduction will be still greater if
there be a decline in the Lower Provinces, as compared with
Lower Canada; thus such a result would have the effect of
changing the proportion of increase of those Provinces taken
separately, and to render a lessening of the number of represen-
tatives very difficult, for the disproportion between the general
and partial increase must be at least five per centum.

It is impossible to foresee what may be the increase, or even the
relative increase, during the present decennial period, but we shall
recur to our figures. Thus, in 1861, the total population of the
Pjfovinces was 8,300,446, wlule that of Nova Scotia, for instance,
was 830,887. If we can anticipate that the total population of
the Confederation may increase 25 per cent, from 1861 to 1871,
the increase will be 825,111, and that of the population of Nova
Seotia at 20 per cent., would produce 66,177. In such a case
Nova Scotia may be 8ul>jeoted to a reduction in its representation
ia a proportion which shall be computed on the basis of the
popuktion of Lower Canada as divided by the actual figure of
its present representation.

We purpose establishing this proportion by assuming a hypo-
thetical proportion for Lower Canada. Let us suppose that the
population of Lower Canada shall have increased during the ten
years 28 per cent. ; such an increase would give us 255,452, which
added to the population of 1861, would be l,366,116,which, divided
by 65 (the actual figure of our present representation), would furnish
21,017, the number represented at that time by each member over
the whole extent of the Confederation.

Digitized by VjOOQ IC


Now the population of Nova Sootla^ according to our Hypothe-
sis; including the increase of 66^177^ would be at the same date
397^064; which should be divided^ as that of Lower Canada by
21^017. In such a division^ that province would lose one yote^ it
would only have eighteen^ while the project of the Conference
grants nineteen. But in this casC; the 22nd Eesolution protects
thatproviDce^ because its terms are^that each province shall have
a right to a member tor the fraction of population which may re-
main after a general computation, provided that such fraction be
over the half of the average of the population to be represented
by each member.

NoW; this average of population is 21,017; and the fraction re-
maining to Noya Scotia, after dividing the population by the said
figure, 21,017, would be stated at 18,767; therefore that province
would still be entitled to its nineteen members.

If the disproportions were greater, the result might be that
there would be a change in the proportion of representatives in
some part of the Confederation; but the explanations given in
this article, we think, establish clearly, that such changes, such
difficult decrease or increase in the representation, will be very
dfficult and of rare occurrence.

§Msiau of ^robmces for gleprwentatiim.


23. < The Legislature of •aoh Prorince shall divide such Province into the proper number of constituenciei, and define the boundaries of each of them.' 24. ' The Local Legislature of each Province may, from time to time, alter the Electoral Districts for the purposes of Representation in such Local Legislature, and distribute the Representatives to which the Province is entitled in such Local Legislature, in any manner such Legislature may see fit.' THESE two clauses explain themselves sufficiently. The 23rd teUs us that it will be the Local Legislature in each province, and not the Federal Parliament^ which will fix the limits of the Digitized by Google 84 THE NEW CONSTITUTION. oounties for representation in the Federal Parliament. It is well understood that it is a question of the limits^ and not of the number of counties^ which will be regulated in the way that we explained in the two preceding articles. ThuS; under the Constitutional Act, there will be required a mechanism for enabling the provinces to re-distribute their own representation according to the census. It will doubtless be the Oeneral Government whose duty it will be to communicate to them, through their own Governments, the result of the census, and the share of representation apportioned to each of them. As to the local representation, it will be regulated according to the views of the legislatures of each province, who will fix the limits of the local counties, and will determine the number of its representatives. ^mtm of llitpresettlation. CHAPTER XIX. 25. < The number of Members may at any time be increased by the general Parliament — regard being had to the proportionate rights then exist- ing.' THIS clause is in direct contradiction with the 20th clause, which states that ^ Lower Canada shall never have more, nor ^ less, than s/bAy-five rejiresentatives,* and we cannot understand why, after having surrounded this question of representation with so many precautions and so many modifications to arrest or softea the consequences ; why, after having pronounced the word ^never/ ihey should have written, some lines below, 'may when they please.* Let us hear Mr. Gait on this subject : ^ Of course to provide for the settlement of the remote portions * of the country which might be brought in from time to time, power Digitized by Google QUEBEC CONFERENCE, 85 ^ was reserred to increase tHe number of members^ but sach num- * ber could only be increased preserving the relative proportions/ If Mr. Oalt means by ^ settlement of the remote portions of ^ the country which might be brought in from time to time/ those portions of country which are still in forest^ and which may at a later period be brought under cultivation, it seems to us that to keep true to the word ' never ' of the 20th clause, it would be easy, without increasing the representation, to re-distribute the representative divisions in such a manner as to satisfy all rights, all wants, and all aspirations. If the question were, the entrance of other provinces, such as the North- West Territory, Columbia and the Island of Vancouver, into the Confederation, that would be another thing ; for it would be necessary to give these a representation in the two branches of the Federal Parliament, a permanent one in the Legislative Coun- cil, and another, subject to the fluctuations in the Hense of Com- mons, as provided in all the other federated provinces. The project of convention provides for this latter case. Whatever we may do, if we increase the representation, we must adhere strictly to the same proportions, but we shall never arrive at the same relative numerical results. We can prove this at once by figures ; let us suppose that the representation of Lower Canada (for Lower Canada must always be the basis of our calculations) be one hundred members instead of being sixty-five as it is to-day, the average population to each member will be 11,106, and dividing the population of Upper Canada, say 1,396,094, by 11,106, we shall have for that latter province a representation of 126 members. The proportions may have been preserved, but that would not prevent Upper Canada from gaining 9 votes over us, since, with 65 the present number of Lower Canadian repre3entatives as a basis for representative calculation, Upper Canada ought to have bad only 17 votes more than us ; while, in substituting 100 for 65 as the representation for Lower Canada, Upper Canada would, in that case, have 26 over Lower Canada. Here are the numbers as they stand at present in the project of Confederation : I Digitized by Google 86 THE NEW CONSTITUTION. Lower Canada^ 65 ; Upper Canada^ 82 ; difference in &yor of Upper Canada^ 17 Totes. Here is the way they would stand in the hypothesis which we have submitted : Lower Canada^ 100 ; Upper Canada^ 126 ; difference in favor of Upper Canada, 26. Either the word '^ never^' should he struck out in clause 20 ; or, clauFe 25, which is so diametrically opposed to the former, should be taken out of the scheme. After haying giren such positire limits to representation, and haying placed such a strong check to its expansion, why then declare, almost immediately afterwards, that all this can be blown away by the breath of a simple parliamentary majority ? We haye in the Legislative Council 76 representatives ; which is more ihan they have in the Senate of the United States, with a popula- tion of 80,000,600. We have 194 in the House of Conunons, -for a population, let us say, of 4,000,000 ; while in the House of Eepresentatives they have only about 300 members to a popu- iion of 30,000,000. Our representation, on the other hand, may increase under the conditions laid down for it by the 20th clause of the project; it will be sufBicient to accomplish this, that the population of several provinces, or any single one, shall increase more rapidly than that of Lower Canada. If, for example, the population of Upper Canada followed indefinitely its progressive increase for the last 25 years, there would be no limits to the increase of representation. Still we might establish an average for putting clause 20 and clause 26 in harmony with each other ; this could be effected by modifying the 25th clause in this manner : The Federal Parliament may increase the representation when it deems it proper ; but it must have the consent of two-thirds of the members present and absent in both branches of the Legiala. ture; that is to say, 130 votes in the House of Commons and 51 votes in the Legislative Council. In this way clause 20 would only be touched by Parliament in a ase of actual necessity, and clause 25 would become an ample Digitized by Google QUEBEC CONFERENCE. 87 guarantee for the stability of clause 20. We ought to consent to this restriction^ or something similar to it^ the more readily^ because in placing the word ^' never " in the 20th clause; it has at least been intended to give it stability and durability. ^parliaments m^ i\m ^rMegcs, tit. CHAPTER XX. 2e. ' Until proyisions are made by the General Parliament, all the laws which, at the date of the Proclamation constitating the Union, are in force in the provinces respectirelj, relating to the qualification and disqnalification of any person to be elected, or to sit or rote as a Mem- ber of the Assembly in the said provinces respectively ; and relating to the qaallfication or disqnalification of voters and to the oaths to be taken hj voters, and to Returning Officers and their powers and duties — and relating to the proceedings at Eleetions,— and to the period daring which such elections may be continued, — and relating to the Trial of Controverted Elections, and the proceedings incident thereto, — and relating to the vacating of seats ot Members, and to the iisning and execution of new Writs, in case of anj seat being vacated other- wise than bj a dissolution— shall respectively apply to Elections of Members to serve in the Honse ef Commons, for places situate in those provinees respectively.' 27. 'Every House of Commons shall continue for five years from the day of the return of the writs choosing the same, and no longer ; subject, nevertheless, to be sooner prorogued or dissolved by the Governor-' CLAUSE 26 requires no explanation ; but clause 27 will proba- bly giye rise to some debate. Tbe advocates of annual Parlia- ments; wbo are not very numerous among us to-day, will say^ that we wish to restrict the control of the people over their representa- tiyes. But when we consider that, though, the maximum of the duration of our Parliament has been fixed at a period of four years, we have had nine general eleetions in 24 years, as follows : 1841, '44, '48, '51, '54, '57, '69, '61 and '63, and that consequently the average of each Parliament has been but two years and two-thirds, therefore five years will not be found an exaggerated figure for the maximum period of a Federal Parliament, which will give us Digitized byGoogle 88 THE NEW CONSTITUTION. tliree years and a third for the average duration of Parliament!. That is surely little enough. We are informed that an effort was made to establish it at seyen yearS; as in England^ but that a great majority of the delegates pronounced for five years, as being the most acceptable to the people. This decision of the question has not called forth any objection in the different provinces. How could it possibly do so^ when the population of our provinces are literally worried and tired out by the elections which succeed each other^ as it were, without interruption, from the 1st of January to the last of December in each year ? Election to the Legislative Council, election to the Legislative Assembly, elections of municipal councillors, of com- missioners of schools (in Lower Canada), of church wardens, as well as many others. If Confederation be accomplished, we shall be rid of the elections for the Legislative Council, which now take place every eight years ; but we shall have instead the Federal elections, which will take place nearly every three years and a half ; elections to the local Legislative Assemblies, which will probably be for periods still shorter, and perhaps those of Legislative Councillors for the local governments. Those who have been in the habit of seeing these elections, know their demoralizing effect upon the people, and should not conse- quently desire them, except in that degree necessary to liberty and to the salutary control of the people over their representatives. For our part we would prefer six years for a maximum, which would give us parliaments averaging about four years in duration. Still we williugly accept five years, which is an improvement upon four years, because it tends to lengthen the electoral periods, and because it is more in accordance with the almost universal feeling of the whole of the provinces. Digitized by Google QUEBEC CONFERENCE. 89 ^ttrikfes of % §mtdl Mtxmmi CHAPTER XXI. WE have reached tliat part of tlie EesolutionB wlxioli relates to the attributes of the General Parliament. These comprise all questions of public order^ tntniu those reserved for the action of the Local Governments : — < Th« Public Debt and Propertj. ^TheBegulation of Trade and Commeree. < The impoBition or regalation of DatieB of Castoms oa Importi and EzportS| —except on Exports of Timber, Logs, Masti, Spars, Deals and Sawn Lumber from New Brunswick, and of Goal and other minerals from NoTa Scotia. < Vhe imposition or regulation of Ezeise Duties. < The raising of money bj all or any other systems of Taxation. ' The borrowing of Money on thePublie Credit. < Postal Service. ' Lines of Steam or any other Ships, Railways, Canals and other works, connecting any two or more of the Provinces together or extending beyond the limits of any Province. ' Lines of Steamships between the Federated Provinces and other conntrias. ' Telegraphic Communication and the Incorporation of Telegraph Oea- panies. < The Oensis. < Militiar— Military and Naval^Service and Defence. ' Quarantine. * Sea Coast and Inland Fisheries. ' Currency and Coinage. ' Banking— Incorporation of Banks and the issue of paper money. < Savings Banks. 'Weights ftnd Measures. * Bills of Exchange and Promissory Notes. * Bankruptcy and Insolvency. ' Patents of Invention and Discovery. ' Copy Rights, < Indians and Lands reserved for the Indians. < Naturalization and Aliens. < The Criminal Law, excepting the Constitution of Comrts of Criminal jurisdiction, bat iacluding the Procedure in Criminal matters. < Rendering uniform all or any of the laws relative to property and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island, and rendering uniform the procedare of all or of any of the Courts in these Provinces ; but any Statate for this purpose shall have no force or authority in any Province until sanctioned by the Legislature thereof, < The establishment of a General Court of Appeal for the Federated Provinces. ' Immigration. * Agriculture.' l2 Digitized by CjOOQ iC 90 THE NEW CONSTITUTION, Whenever exceptional causes do not interfere with the general rule; the attributes above alluded to shall belong to the Federal Parliament, because by so deciding, we shall obtain unity in action, rapidity of execution, with uniformity and efficacy in the result. For this reason, we shall only allude to those objections which may furnish matter for discussion on account of the exceptional position occupied by Lower Canada. The first exceptional question is to be found in the 31st para- graph of the 29th Resolution of the Conference. MABBTAGE AND DIYOBCE. IF Lower Canada had not existed, it is more than probable that the Civil Code would have been universalized, and would tave ►been made one of the absolute attributes of the General Parlia- mcDt. "We are led to believe this because the Criminal Code is by the same clause, 32nd Section, made an attribute ; also in the ^3rd Section of the same clause, it seems to be foreseen that the system of civil law will be the same over all the provinces of the Confederation, Lower Canada being specially excepted. The Civil Law of Lower Canada essentially belongs to that section, and nothing on earth could induce Lower Canadians to abandon it, because it is based upon reason, and above all, on the Roman Law, perhaps the greatest e£fbrt of human wisdom; because it is appreciated by us, it agrees with our manners and predelictions, and because we find in its provisions greater protection for our property and our families than under any other system. Marrriage and divorce are essentially component parts of the Civil Code. They involve two great social questions, in other words, they involve the position of society itself, taken either in its normal condition or in a state of dissolution. Reason leads us to believe that on no account whatever should the marriage tie be dissolved, and the Parliament of France afler having replaced in the Civil Code the principle of the indissolubility of that tie in 1816, under the civilizing inspiration of Chateau- briand, has constantly maintained it as part of the Code from that date, in spite of the thrice repeated eflforts of the Representative Chamber to have it erased, and even with the consent of the Digitized by Google QUEBEC CONFERENCE. 91 immense majority of the popular body after the Revolution of July. It was not Catholic feelings that actuated these men^ their opinions were' based upon simple reason^ and the desire to preserve their families intact; in order that society might not be a£fected or broken up. What is society, considered out of the limits of that Christian ^ sanction which elevates it^ and protects its inviolability ? It is composed of a mixture of human beings, living without re- lations one with the other, without an object, without laws and without clearly defined duties. If this be the case, why should we have civil laws which impose obligations and attributions, * duties, rights and reciprocal claims ? Why, again, should we ' have criminal laws that protect civil law in its operation, that * protect persons and property against the violators of those rights created for the former, and the duties created for the latter I In a word, what is the pivot around which circulate these wisely- conceived civillaws, — these complicated and elaborate provisions of the human intellect ? They all rest upon the rights of property. It is therefore only with regard to property, that rights and duties exist in our social system ; in a system of religious order, we find society seeking to attain its object, while in the other, we fied society in its working and mechanical operation. But if the rights of property be surrounded by so much protec- tion and respect, and we might even say, religious veneration 9 it must be because the meum and the tuum, which are the basis of the civil code, exist otherwise than in the roughness of ma- terialism; it must be, that its origin is divine in its nature, because otherwise the meum and tuiim would be of no value ^ would signify nothing, and the laws that establish them would be mere absurdities and criminal violations of liberty. Property constitutes the fundamental basis of society, or rather^ it is society itself, because without it the word society would have no meaning. Why is it that marriage occupies such a prominent position in the history of the whole world, and in the civil code ? It is because property is to society what the form is to the human body ; one cannot exist without the other, and if right of property Digitized by Google '98 THE NEW CONSTITUTIOMT. be sacred and of divine origin^ the formula inherent to it must neoessarily be of equal importance. Marriage furnishes the natural means by which property can be ^transmitted. It is for this reason that it exists^ under different forms, it is true, but has existed at every period of the world's history, even amongst the most barbarous nations from which ' civilization had been completely excluded. Our ]aws do not establish the right of property, but they form, regulate^ and determine the mode to be adopted in its transmission. Laws do not establish marriage. It waa in exis- tence before the laws. It comes immediately after property the latter as well as society being unable to subsist without it, and the laws operate upon the institution of marriage by guiding its effects and by providing for the transmission of pro- perty. Why do we find Holy writ filled with maledictions and terrible punishment for adultery, if it is not because the latter brings strangers into the family, and thus deprives the legitimate heirs of their rights of property ? Thus, marriage should be held tiacred and inviolable, since property is so, and this could not be {fit were not so held; and the errors of individuals should no more affect it than they do the principles involved in rights of vproperty. We know that Protestant nations differ from us on the subject of marriage ; they admit that reasons for divorce may exist. From the moment that this principle is admitted, the institution of mar- riage is fatally attacked, and a means is furnished by which social bonds are dissolved, because family rights are no longer inviolate. How can they say, < Thus fiir shalt thou go and no further,' be- •eause, if they admit that marrii^e is a question of public order, the laws concerning it will be formed according to the manners of the day which are at all times liable to variation. This is the his- tory of every nation^ and it is unfortunately the history of Eng- land at the present day. Protestantism, when it admits divorce on account of adultery, bases its action on the words of our Saviour : ^He who puts away ' his wife except it be for adultery, and marries another, is himself Digitized by Google QUEBEC CONFERENCE. 93 ' gtdlty of adultery^ and lie who marries her who has been so put * away is also guilty of adultery/ It is certainly difficult to misinterpret the sense of these divine wordS; because the Founder of Christianity, while prohibiting divorce except for adultery, refused to permit even a simple separa- tion on the ground of incompatibility of temper, and only allowed that separation on the ground of adultery. His thought is still more clearly explained, when the act of marrying her who has been so put away is also termed adultery. If the matrimonial bond could be severed by reason of adultery, he who may have married the woman after a divorce could not be considered an adulterer, because reason teaches us that you cannot sever and bind at the same time. While maintaining the inviolability of the conjugal tie, and con- sequently of the social form, the Saviour of the world permitted the casting away of the adulterous wife, and her expulsion from the rights of marriage ; and this principle has been eojbodied in the civil code by Christian legislators under the title of Separa- Hon de corps. Whatever may be said on the subject of principles and duty^ parliaments have an equal power to regulate the questions of mar- riage and divorce, as they have with regard to the rights of persons, the possession of goods and chattels, and the transmission of pro- perty. Our Legislature has frequently exercised this power, be- cause the Protestants are in a majority, and the question we have now to enter upon is the following : — Should marriage and divorce form part of the attributes of the Federal Parliament or of the local Legislatures ? We shall consider in the first place that which relates to divorce. Digitized by Google 94 THE NEW CONSTITUTION. CHAPTER XXIL FOB our part^ we believe that since the questien of diyorce must necessarily be submitted to a certain control^ it should be placed under the direction of the Federal Parliament, instead of being an attribute of the Loeal Legislatures. Catholic opinion urged that a question of such social importance should be left to the Local GoTemments, but, let it be understood, that in leaving it as regards Lower Canada to a Protestant majority, we only maintain the present condition of that important question. By so referring it to the Federal Government, we avoid many causes of contention and many violent complaints which might eventually be listened to by the Mother Country, where divorce is legalized and operates as a social institution. Who can say that the Protestants — who are in great majority in our present Parliament, and who will constitute the two-thirds of the Confederation, — ^would ever have consented to localize legisla- tion on the subject of divorce ; and even had they consented to this, would it have been wise to establish a rule which, although apparently favorable to one province, might have fatally interfered with five other provinces^ in all of which Protestants are in majority ? By submiting divorce to the control of the Local Legislatures, it would have been rendered too easy, and might have become of as frequent occurrence as in certain states of the American Union. The higher the position of the tribunal before which interested parties must appear to demand the dissolution of the marriage tie^ the smaller will be the number of divorce cases. From 1841 until the present day, we only know of four such applications. Diyorce is always oostly, and the public proof of dishonor is so hideous and so solemn, that in almost every case the accuser falters before the terrible ordeal. But if legislation on the subject of divorce were left to each Digitized by Google QUEBEC CONFERENCE. 95 province^ there might be a great difference^ because the oheapnefls of the procedure and the comparatiye lessening of the solemnity would be the means of multiplying cases ad infinUum^ as in certain portions of the United States^ where divorce is an institution which regulates marriage^ and has a greater hold on the manners and customs of the people. If at a future day^ and we sincerely hope that it may not be sO; the Federal Legislature were to establish general enactments on the subject of diyorce^ let us hope that we shall at least be able to secure the privilege^ that they shall only apply to Protestants. But if^ up to the present day, the Protestant majority have neyer eyen thought of general legislation on that subject; if it has reseryed the privilege of deciding each case according to its own merits, in order that divorce might be more difficult to obtain, and to prevent it, except under circumstances of an extraordinary nature, by surrounding it with all kinds of difficulties, and by making the procedure very costly : we must believe, that unle80 the standard of morals becomes lowered (and we [see no indication of such a result), the same opinion on this subject will prevail in the Federal Parliament. The Local Legislatures, several of which will represent very small provinces, could net give us the same guarantees of conservatism and elevated tone in feelings and ideas that we will find in the Federal Parliament, which will be composed, in a great measurei of the eminent men of all the provinces. Those men, from motives of personal dignity apart from every other important consideration, will, we may rest assured, insist upon ^maintaining [society on a respectable basis. Moreover, this proposal does not seem to have raised any opposi- tion OB the part of those who possess authority to speak and to judge; with this exception, that it became unpleasant for Oatholic ears to hear the word ^ divorce* so oflen and so plainly pronounced, and it was still more painful to read it in such distinct letters in the new Constitution. If the Constitutional Act of 1840 gave to the Canadian Parlia- ment the absolute power of legislating upon the subject of divorce, Digitized by Google 96 THE NEW CONSTITUTION. «t least we are spared from seeing it written in the pages of that Act. Therefore (and many complain of this omission)^ why was it not stated in the project of constitntion in general terms^ ^that ^ the powers not attributed specially to the Local Legislatures should ^ belong to the Federal Parliament.' We would certainly agree with those who complain^ if their suggestion could be realized without producing a result precisely contrary to what we desire. It is provided by one of the clauses of this project of the Conference, that ciyil legislation will be left to the Legislature of Lower Canada, and as diyorce^ legally speaking, is nothing more than a dissolution of the civil contract, it follows that, with the question of marriage, it must form part of the category of civil laws, and will thus become a special attribute of our local Legislature. Thus, if it is intended that divorce shall be regulated as a Federal question, it should be distinctly and specially laid down that such would be the case; it is, perhaps, an exaction, but it is a necessary one. CHAPTER XXIII. TH£ same rules do not apply to marriage, because the latter cannot lead to the same inconvenient results and produce the same disastrous consequences. Marriage^ being a civil contract^ belongs to the civil code, in which it occupies a yery prominent position, and, under different titles, it takes up the greater part of that code, we mean of course, as regards consequences. If, therefore, as stated in the project of the Conference, Lower Canada is to haye the control of its own civil legislation, why should that privilege be Digitized by Google QUEBEC CONFERENCE, 97 flurreptitioasly taken away^ particularly as it is clearly granted in another part of that same project ? Either the civil code should or should not be under the control of the local Legislature ; if it is to form part of it, let it be really and substantially incorporated in it. If; on the other hand, we are told, and we really believe it, ^ that ^ there is no intention of interfering with our code and of affecting ' the consequences which may result from the marriage contract/ it would be much better immediately to define what is meant by the word ^marriage' as it occurs in the project. If, by connecting the words divorce and marriage, it be intended to grant to the divorced husband or wife the privilege of re-marry- ing, we require no explanation ; and again, if the degrees of rela- tionship and the absolute impediments that invalidate marriage are to be included, we also understand the meaning ; but it is essential that explanations and definitions should be given with precisioui because otherwise there must inevitably be conflict of opinion be- tween the two legislative authorities, or a complete annihilation or the control to be exercised by our Local Legislatures over the civil code. One Legislature might say : * We have the control of legislation ^ on the subject of marriage,' and the other might say : ' Marriage ' is a civil contract ; is forms part of our code ; you have therefore ' no right to touch the question. Can you now declare that the ' subject no longer forms part of that code ? Therefore, why are ' we told in the clauses of the constitution that we are to have the ' control of our civil laws ? The 15th section of the 48rd clause of ' the project of the Conference is therefore a deception and a lie.' These conflicts will inevitably be brought before the tribunals, and unless there be an exact and distinct definition, the bench of judges will be divided in opinion. Some will say, ^ that marriage in one ' case can only be considered in its relation to divorce and to the ^ liberty of the person divorced to re-marry or not ;' others ^ that ^the word marriage, in its most comprehensive interpretation, ^ means all acts of marriage, all the qualities and conditions re- < quired for the celebration of marriage and the marriage contract, ^ all causes of nullity, all its obligations, its dissolution "siparation Digitized by Google 98 THE NEW CONSTITUTION. ^de corps/' its causes and effects, in a word, all the consequences ^ that may possibly result from marriage, with regard to husband ^and wife, to the children and to successions. Thus, all these 'matters are under the control of the Federal Parliament, and the ' Local Legislature is depriyed of all right of legislation on the sub- 'jeot of marriage/ And again, others may say : * No ; there is concurrent jurisdic- ' tion, and in any case of conflict of legislation, the federal action 'must prevail, and local legislation, with regard to marriage and ' its consequences, shall only be valid when the Federal Parliament ''is silent on the subject/ And there is a fourth view of the question : ' If divorce is ex- -* clusively under the control of the Federal Government, because it 'is placed in the category of its attributes, marriage, which is ^ mentioned in the same manner, and is, in fact, in juxtaposition to ' it in the project, will have to be submitted to the same rule, be- ' cause divorce, in its nature, also forms an essential part of the ' civil code, and if the thesis of a double jurisdiction can be main- ^ tained with regard to marriage, it must be equally applicable in •^ the case of divorce/ This word, thus placed, creates an immense gap in our civil code. We must not forget that the project of the Conference provides, that whenever a conflict of legislation shall occur between the two parliaments in cases of concurrent jurisdiction ; the judges shall give the preference to the laws enacted by the Federal Parliament. It becomes therefore essential that clear explanations should be given, in order that there may be neither ambiguity nor misunder- standing, and that if there are certain matters connected with the questions of marriage or divorce which we would prefer to place under the control of the Federal Parliament, they should be so dis- tinctly defined that no possible misinterpretation can arise. We are aware that the delegates have acted with irreproachable fair play and sincerity, and while they conceded to us the control of our civil code, they never had any intention either of depriving us of its benefits or of weakening it by federal legislation. But they had so many questions of a paramount Digitized by Google QUEBEC CONFERENCE. 99 politioal nature to discuss; they had suoh a short time to deroter to each| that it became impossible to define every question with precisioui and to foresee^ at the moment; all possible conflicts and difSculties. Moreover^ they codd not pretend to be infallible^ and it was im- possible for them; in a first attempt^ to record every point in % rigorous and permanent form. They could only indicate in a gen- eral manner the subjects submitted to them^ and establish, without absolute detail; the reciprocal attributes of the two legislative authorities. It was intended that the project should be submitted to Parlia- ment and the presS; leaving to them the duty of pointing out any- thing that may have been forgotten in the examination of such an important work. It could only be after going through such a rigorous ordeal; that the different governments represented by their delegates could correct and define; if such proceeding were neces- sary ; otherwise; the publicity of thb project which we are now discussing; wOuld be deprived of its object. Criminal fab. CHAPTER XXIV. (Besolation 29, clause 32), » The Criminal Law, exctpting the constitu- tion of Courts of Criminal Jurisdiction, but including the Procedure in Criniinal matteri.' NOTHING can be more reasonable than tbis proviso, as ibe proposed object is unity, and it becomes necessary to advance towards that unity whenever local considerations do not place obstacles in our way. Our criminal law is nothing more than English criminal law slightly modified by our statutes ; and these modifications are^ in a Digitized by Google 100 THE NEW CONSTITUTION. great measure^ copied from the gradual changes made from time to time in that branch of law^ by the Parliament of Great Britain. The criminal law of Upper Canada and of the Maritime Pro- yinces^ is derived from the criminal law of England; slightly modified by local statutes. English law furnishes in the Courts of all the Provinces (in criminal matters) the requisite precedents. Nothing but English authorities are quoted in such matters. If; fcr the reasons given elsewhere^ we are desirous of maintain- ing the operation of our civil code^ for the same reasons^ we are proud to possess English criminal laW; which has governed us since the conquest^ and now happily forms part of our institutions. If the English civil code be frequently obscure; if it rests more on precedents than on principles; if matters of form are frequently considered more important than facts ; if fiction governs reality ; and if the procedure in the courts of England becomes a tortuous labyrinth in which the mind seems to be lost; and in which science even becomes discouraged, we cannot speak in the same terms of the criminal law of England; in which the exercise of absolute power is of itself criminal; in which the accused may find protection and warranty as well against surprises as against tyranny; in which far from being condemned without a hearing; he is furnished with all possible means of defence; and is warned to beware of his own imprudence and indiscretion. If English criminal law really has a fault; it is certainly in an exaggeration of the means provided for individual protection. It seems to have a weakness for individuals; and perhaps does not sufficiently protect society against their aggressions. In France, a man's antecedents frequently lead to his condem- nation ; his career is taken as it were from the cradle, and it is traced by the police through every phase; the points at which he has stopped and the motives of his visits are laid before him ; every act of his whole life is recorded with fidelity. He can even be forced to recollect words unintentionally spokeU; and the society in which he has moved. He is asked to explain these dififerent acts of his life, in order to make use of his replies. He is com- pelled to make avowalS; in order that they may be recorded against Digitized by Google QUEBEC CONFERENCE^ 101 him. ' In suoli a oase^ it is society against the individaal, and in tfuoh an unequal contest, a description of which we hare just given, the latter inevitably succumbs. English criminal law, on the contrary, pays no attention to the past; and fearing that the accused may not be on his guard, he is solemnly warned by the tribunal not to incriminate himself. Doubts are always in his favor, and frequently also the sympathy of the jury. While the prosecuting counsel is obliged to present directs evidence against the accused, and while the former charac- ter of the latter, whatever may be the accusation against him, can be of no moral weight in the case, he can, on the other hand, pro- duce evidence of general good conduct, and thus soften, as ic were, the harshness and strength of the material evidence adduced against him. He possesses the right of challenging a large number of jurymen, and he has, as it were, the selection of his judges, among whom, he frequently finds the means of placing friends and men disposed to acquit him, whatever the evidence may be. Such is the respect for individuals, that the least defect in the form of procedure des- troys the whole accusation, and sometimes even permits of escape from the gallows, after sentence has been recorded against the criminal. Although the jury system contains defects and produce? incon- venience, by permitting the escape of many guilty parties ; taken with habeas corpus, it is one of the greatest of all guarantees for individual liberty. These two great principles are justly regarded with pride by the people of England. That law is ours, as well as it is that of the other provinces, and they perhaps, more than oarselves, insist upon the immunities en- joyed under the English criminal code. Therefore, there can be no danger ; on the contrary, there is wisdom, in trusting this question to the Federal Parliament. Digitized by Google 102 THE NBW CONSTITUTION. ^t €mxU, Jppointmtnts anb ^ofoers of f cgis- latans^ CHAPTER XXV. THE establishment of a General Court of Appeal for the Federated Provinces. (Section 29, clause 34.) 31. < The General Parliament may also, from time to time, establish additional Conrts, and the General GoTtrnment maj appoint Judges and Officers thereof, when the same shall appear necessary or for the pnblic advantage, in order to the due ezacutioa of the laws of Parlia- ment. 32. * All Courts, Judges and officers of the several Provinces shall aid, assist and obe j the General Government in the exercise of its rights and powers, and for such purposes shall be held to be Courts, Judges and Officers of the General GoTcrnment, 33. 'The General Government shall appoint and paj the Judges of the Superior Courts in each Province, and of the County Courts in Upper Canada, and Parliament shall fix their salaries. 35. ^The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada. 37. * The Jndges of the Superior Courts shall hold thdr offices during good behaviour, and shall be removeable only on the Address of both Houses of Parliament. 45. '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. 38. * For each of the Provinces there shall be an Executive Officeri styled the Lieutenant Governor, who shall be appointed by the Governor General in Couneil, under the Great Seal of the Federated Pro- vinces, 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 Lieutenant 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. 39. ' The Lieutenant Governor of each Province shall be paid by the General Government. 60, 'Any Bill of the Local Legislatures may be reserved for the considera- tion of the Governor General, 61. ' Any Bill passed by a Local Legislature shall be subject to dis- allowance by the Governor General within one year after the passing thereof.' The bearing of all these resolutions is to concentrate the legis- lative and judicial power in the hands of the Federal Government and Parlislment. Their principle is correct^ provided that nothing in Digitized by Google QUEBEC CONFERENCE. 103 it can interfere witli the ooncessioDS made to the Local Legislatares, or which may absorb their spedfic attributes. We could find neither ioconTenienco nor danger in such a principle, if our laws and institutions were similar to those of the other proyinces ; but, unfortunately, such is not the case. We haye special laws and institutions of our own, which really require special protection. We freely admit that there were great difficulties to oyercome with regard to Lower Canada ; that if on the one hand/ French Canadians and Catholics exacted protection for their institutions, Protestants, on the other hand — ^who should have known better- feared that their own institutions might be sacrificed in a Legisla- ture composed of French Canadians and Catholics. As they could not obtain a Legislative Union which neither the Lower Provinces nor ourselves could accept, they desired at least to obtain, in an indirect manner, a Central Government and Parliament^ in which they imagined they would find greater protection for themselves and their property ; and, in a case of emergency, for their prejudices and antipathies. We quote from Mr. Gait's speech : — * It was thought proper to give to the General Government the ^ right to establish a general Court of Appeal for the Federated Pro- ' vinces. He thought that while there was no express provision ^ for the establishment of such a court, many who had studied the ' question would agree, that it was desirable that the general Legis- ^ lature should have the power of constituting such a court, if it ' saw fit to do so. At present, appeal lay from our courts u)ti- ' mately to the Queen in Privy Council, and it was not intended to ' deprive the subject of recourse to this ultimate court ; but at the ' same time it was well, in assimilating the present systems of law ^ for the benefit of all the provinces, that they should have the ^ assembled wisdom of the bench brought together in a general ^ Court of Appeal, to decide ultimate causes which would, before ' long, doubtless supersede the necessity of going to the enormous ^ expense of carrying appeals to England. It was proposed to ask ' the Imperial Government to confer upon the General Gt>yern-


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^ ment the power of constituting such a ooort, not, howeyer, vith

* the desire to abolish the present right of appeal to England.’

After having alluded to the importance of giving to the Gene-
ral Government the power of selecting the judges in the different
provinces; he adds :— *

^ But; in the case of Lewer Canada^ where we had a different
^ system of law altogether, it was plain that the judges could be

* selected only from among gentlemen convers&nt with that law,
^ and therefore it was provided that the judges should be selected
^ from the bars of the respective provinces in which they were to
‘ act ; but in the case of the consolidation of the laws of the seve-
‘ ral Maritime Provinces and of Upper Canada, the choice would
-^ extend to the bars of all those provinces/

If we have grouped so many resolutions together at the head of
4his article, it was with the view of giving their general tendency,
and because, as regards the judicial question, they may be consi-
dered as corollaries of the same proposition. We shall, at another
time, examine several of these resolutions under different aspects,
and from different points of view.

With unity as a main object, these tests give additional secu-
rity to the Lower Canada minority in the results that may be pro-
duced by Confederation. We have no objection to this, provided
that the protection granted to one class will not be the means of
causing injustice to others, and that privileges given’ cheerfully
may not eventually produce disappointment.

We purpose showing that every thing in the series of resolutions
at the head of this article seems to tend towards the same object :

Ist The courts, the judges, and the public officers of the pro-
vinces are to assist the General Government^ and in the exercise
•of their rights and attributeS| they must obey that power, and be-
come, to all intents and purposes, the courts, the judges, and the
officers of that Government,

2fu2. The Federal Government shall appoint and pay these

Srd. That power alone can deprive them of office.

4th. When the General Government becomes dissatisfied with


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any such oiSoers^ although the law may establish that they are
amenable to that power aa it appoints; pays, and may remove them;
new judicial tribunals; new judges and new officers may be ap-
pointed, who will in reality be subject to that power; and whe may
be placed over provincial tribunals perfectly independant of them^
and in exclusive possession of the attributes above alluded to.
Under no other circumstances could their appointment be possibly

In any question submitted to the concurrent jurisdiction of the
Federal Parliament and local Legislatures; the laws of the former
shall prevail over those of the latter. Should a conflict occur; we
can easily foresee what would be the chances of the latter; judged
by men who know nothing of them; and who will be specially ap-
pointed for the purpose of giving ascendancy to the laws of the
central Parliament.

5^A. In order to cap the climax to this judicial edifice; the
Federal Parliament reserves the privilege of creating; in case of
necessity; a general Court of Appeal; which will be superior to the
whole judicial hierarchy; and which may at any time annul all

How can this provision be reconciled with clause 35th; which
declares; ‘ That the judges of Lower Canada shall be selected from
^ the bar of Lower Canada;’ because; according to Mr. G-alt’s worda^
none but Liower Canada advocates can really understand the laws
of Lower Canada 7

How can this Court of Appeal; composed of a majority of men
ignorant of our lawS; decide in cases referred to them J It is in-
tended that they will consult judges from Lower Canada; who form
part of the Bench in Appeal; on the model of the House of Lords,
which leaves to the Law Lerds the decision of questions of law.
In such a casC; it would have been more reasonable to leave the
decision to the Court of Appeal for Lower Canada; more competent
to undertake the judgment of such exceptional cases.

Either our civil code is lefb to our Local Legislature; or it is not
If it iS; we should not thus surrender the power of handing over
the privilege of decision to a tribunal composed of men who do


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not anderBtand it, and who would regulate those deebioDS accord-
ing to the principles of laws which we have obstinately refused to
accept since the days of the conquest.’

What seems to us very strange is, that while creating this Su-
preme Federal Court, and by placing it above the courts of the six
provinces, the Privy Council of Her Majesty still remains as a
tribunal which can be finally appealed to. The object then, of
creating this court, at great expense, must be merely to establish
another degree in the judicial scale, because suitors who may be
dissatisfied with the decision of a court (declared by the constitu-
tion itself to be incompetent) will invariably appeal to the Privy
Council for a final decision.

If the privilege were granted to appeal directly to the highest
tribunal in London, we may rest assured that they would ignore
the Federal Supreme Court, and thus save considerable expense,
w)iile they would perhaps obtain a better decision.

The jurists who compose the judicial committee of the Privy
Council are profoundly versed in the science of Roman law, which
forms the basis of our civil code ; and they are in close proximity
to the leading French jurists, whom they consult in any case of
difficulty. They may err sometimes in giving judgment, but, at
least, they give as great a guarantee of science and experience as
it is possible to obtaia among any class of legists, and, in any case,
they must be regarded as composing the supreme tribunal of the
realm. It is very true, as Mr. Gait remarked, that we do not im-
mediately constitute this Federal Court of Appeal, but we obtain
the power to establish it when deemed necessary. We must not
forget the popular proverb : — ^ As we make our bed so must toe lie
^ on it J * Comms on fait son lit^ on $e couche’

If this tribunal be considered unnecessary, why should we re-
serve the right of creating it 7 If the reserve is made, it must be
because it may have to be used against us at a future day, under
influences which we cannot now foresee, and which we may not
then be able to control.

We can easily understand the thought of the Conference, and
we have great confidence in Mr. Gait’s sincerity, when he stateiB


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that ‘ there is a great difierenoe between the possession of power
‘ and the exercise of it.’ This Court of Appeals can scarcely ex-
ist under a Colonial Confederation, but might be created in a Con-
federation holding the position of an independent nation. With
regard to our civil code, it would not be required, but in the ge-
neral constitutional questions that may arise in a conflict between
the legislation of the federal and that of the local governments, it
would be very usefal. In such a case it would be much better to
state distinctly and clearly what is desired, and to define at the
outset the attributes of that great constitutional tribunal, instead
of thus trusting vaguely to misapprehensions as to its powers at a
future day, and so give rise to difficulty and danger.

But there are many clauses and judicial provisions placed in
the way of suitors, that may interfere with our civil code; and
there are others which seem to tend towards the same result : —

Ist, The Lieutenant G-overnors shall be appointed by the G-ene-
ral Grovemment.

2nd. They shall be paid by that Government.
Brd, They may be removed by the same power.
4/A. These Lieutenant Governors — ^mere creatures of the General
Government — will have the right of veto with respect to all laws
passed by the Local Legislatures.

bth. They may reserve these laws for the consideration of the
General Government.

6/A. As officials of that same Government, they will be com-
pelled to act with respect to such laws, on the instructions received
from the central power.

With all these obstacles, how will the Local Legislature be able
to be put into operation, should the General Government be in-
clined to thwart their legislation ? Of course we mean all this in
<3onnection with the operation of our civil code. It may be said, in reply to our objections, that these difficulties may never exist, because they will never be entertained in the General Government more than they have been in the opinions of the members of the Oonference. But, if the most eminent statesmen of British North America have met together to write a constitution, and that in Digitized by Google 108 THE NEW CONSTITUTION. th« eonstitatioQ s« written or composed, they have deemed it pru- dent to make certain stipulations and protect certain rights in the future, it must be that they haye considered such precautions ne- oessary, otherwise they would have passed over them in order to ceachy with greater certainty, that perfect unity which we also would desire, could it be found practicable. In concluding this lengthy article, we may remark, that if we do object to a federal Court of Appeal so constituted, which would oyerride our civil code, we could have no objection to reserve the power for its creation as a supreme tribunal at a future day, when the circumstances and consequences above described might render it necessary. Neither could we object to it, if constituted solely fi>r the five other provinces of the Confederation, whose civil laws
are identically similar.

Imfonmtg of CM fab.


33. * Rendering uniform all or any of the laws relatlre to the property and
civil rights in Upper Canada, Nova Scotia, NewBrunswick,Newfoand-
land and Prinee Edward I8land,an4 rendering nnlform the procedure of
all or any of the Gonrts in these Profinces ; bat any statute for this
purpose shall have no force or authority in any Province until sanc-
tioned by the Legislature thereof/

THIS is an important clause to all the provinces except Lower
Canada. We here find what a degree of protection the project
gives to these provinces in relation to their civil laws. All their
laws are nearly similar, and yet the Federal Parliament is not to be
permitted to complete that assimilation without the consent of the
Local Legislatures!

The veto here, instead of coming from above, will come from
below, and it will not be the central Parliament which will control
local Legislatures, but it will be the Local Legislatures which will
€ontrol the Federal Legislation.


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In this clause the yigilant eye of the representatives of the
English Proyinces is plainly visible ; these provinces, therefor6|
should not find it strange if Lower Canada should seek for itself^
in the project^ an equal measure of protection under different
forms ; nor should they find it more strange because we have the
assurance of it in the spirit of liberality shown by their representa-
tives in the Convention.

(Immigration anb ^griciilturt.


‘Emigration.’ Section 35, Clause 29.
‘Agricalture.’ Section 36, Glause 29.

EMIGRATION and Agriculture are questions of extreme impor-
tance to the country 3 the Conference so well understood this,
that it has established^ with respect to these subjects, a concurrence
of legislation between the Central Parliament and the Local
Legislatures. Thus sections four and five of clause 43^ place Agri-
culture and Emigration under the head of Local Legislation.

Here we should have some fear of conflict^ if clause 45 did
not say: ‘In all questions which have been submitted concur-
^ rently to the control of the Federal Parliament and the Local
^ Legislatures, and in cases where the Federal Parliament shall have
‘ carried a measure againsta Local Legislature, the laws of the latter

* will be null and void in all cases, where they might cooflict with

* those of the General Parliament/

To understand the object of these concurrent attributes, it will
be as well to read that part of Mr. Gait’s speech which comes
under the head of ^Emigration and Lands.’ The word
‘ lands’ here, doubtless represents the word agriculture in the 36th
section of the 29th clause, and in the fourth section of the 43rd


Digitized by CjOOQ iC


clause of the project. Let us listen at this point to the Minister
of Finance :


^ With regard to the position they would occupy in the Loca]
‘ Legislature, there were two or three questions in which they must
^ feel very great interest, and in which they might fear, that hostile
‘ action might be taken towards them, if such an unwise course
t should be attempted by their French Canadian fellow-subjects.
‘ He would refer first to the question of Emigration and Lands.
^ No doubt here in the Eastern Townships it had been felt by many,
( that possibly, in leaving the lands in the hands of the Local
t Grovernments, some rules might be made which would restrict the
‘ occupation of those lands to their French Canadian friends solely.
^ So far as his experience went, we had always been delighted to see
^ our wild lands settled by French Canadians* They had, like the
‘ rest of the people, come in and bought the lands they occupied.
^ With regard to the public domain, it was clear that no distinction

* could be drawn by the Local Legislatures. It was possible they might
^ adopt the unwise policy of putting on a price which would prevent
‘ any from buying, but, if the land was exposed to sale, it must be
‘ open to one race as the other. In some respects, he might have

* preferred, not in the interests of Lower Canada, but in the inte.
^ rests of the whole country, to have seen them at the disposal of
^ the General Government. But circumstances prevented that —
^ not the ^position of Lower Canada, but the great importance
‘ attached to the public domain by the Upper Canadians, and in

* the case also of Nova Scotia and New Brunswick by their respec.
‘ tive governments and people, who were determined to have control
^ of their own lands ; though he thought the general interes^

* might have been promoted, if we could have gone to Europe and
‘ put one comprehensive scheme of colonization and emigration
^ before the world at large. That was prevented now, and all we
‘ could hope for, was that such wise measures might be adopted by

< the Local Legislatures as would have the same results, while it was ^ necessary to leave in the hands of the Local Parliaments and < Governments the power of determining the rates or terms on Digitized by Google QUEBEC CONFERENCE. Ill * which lands might bd obtained by emigrants when they reached ^ US; or when the natural increase of our own population required ^ our young men to take up lands in the back country. He did not ^ think it should be apprehended that the Local Qovernments would ' adopt any policy which would check that which was manifestly * for the interest of the community at large. Whatever policy wero ' adopted; whether a wise or a foolish one, must be a policy, apply- ^ ing equally to all. No distinction could be drawn, with reference ^ to nationality or creed among those who went upon the Crown ^ domain to buy lands. Se did hope and trust that Lower Canada ^ would set an example of liberality, in regard to the disposal of her ' lands; which he was satisfied was her true policy — ^and especially ' in regard to her mineral lands, which were now exciting so much ^ attention, — and he hoped it would be the case that Lower Canada,in ^ seeking to dispose of her lands, would look rather to the adrant- ^ age of haying an industrious population settled upon them, than ' to the direct pecuniary benefit she might get from their sale.' We may be sure that these are not Mr. Gait's own fears that he expressed on that solemn occasion, but rather those of the popula- tion to whom he spoke ; for in all his relations with us, that eminent man must have learnt to know us better. He knows that on every occasion, we have carried toleration and generosity to its utmost limits ; he knows that fanaticism and prejudice have never enjoyed the right of citizenship among us ; if they have been found in our country, and if they have thrust themselves upon the national soil, he may rest assured that they are not indigenous to that soil. Were the French Canadians to be in a majority to-morrow in the Local Legislature, we would not find them adopting the exclusive policy of which they have seen so many sad examples elsewhere. In asking to be allowed to develope their own resources, accord- ing to their natural force and expansion, they do not desire to restrain the liberty of others; and as the supreme interest of all is the settlement of the country, they will never foolishly place taxes on the sale of public lands to such a degree as to force their own people to go and seek their fortune and livelihood in a strange landi Digitized by Google 112 THE NEW CONSTITUTION. There is then no danger, as Mr. Gait has observed, that they will, by such a suicidal policy, drive away men of other creeds and other origins ; for a similar erroneous policy would drive awaj those of their own creed and of their own origin. But Mr. Gult has not said a word of the concurrent Legislation of which the project of the constitution speaks in regard to emigration and agriculture. He only tells us, that it would be desirable that they should organize in Europe an emigration to the British Provinces on a vast scale. Is it with that object that the Federal Parliament reserves the right of legislating upon emigration and agriculture t and, in that concurrent power, does it reserve also the right of fizbg the price and conditions of the sale of lands ? This is an important point to clear up, for conflicts on this subject would be regrettable, and^ in any case, to avoid them, it would be wise to define with care the attributes of the two Legislatures in relation to these same questions. CHAPTER XXVIIL 33. < The General Goyernment shall appoint and pay the Judges of the Superior Courts in the different provinces, and of the County Courts in Upper Canada, and the Federal Parliament shall fix their salaries.' IF local legislation is otherwise protected, and if some amend- ments, such as we have indicated in our last articles, might be made in the project of constitution, we could see no incon- venience to Lower Canada arising from the judges being nominated and paid by the Federal Government; for it is evident, according to that same text of the project, that if any judge be guilty of flagrant dereliction of duty, he may be dismissed ; such derelio- tion as has not been seen since the Union, — though it has been Digitized byCoogle QUEBEC CONFERENCE. Il3 our fate to witness many strange things daring these last 25 years of social and political existence,— and oonseqaently, nothing would induce the judges to give an undue preference to federal over Local Legislation. One of the guarantees for Lower Canada is the obligation upon the Central Goremment to take the judges from Lower Canada. This is a species of compromise between the two autthori- ties — that the one shall pay and the other shall furnish them. If the Local Government had both paid and provided the judges, the Federal Government might perhaps have had some apprehensions in respect to the legislation of the Central Parliament; the same way as if the Federal Government had both furnished and paid the judges, the Local Legislature would have had some ground for fears in respect to the integrity of their own laws. But beyond these considerations^ the Conference seems to have wished to establish an equilibrium between the two legislative and governmental authorities. They had another and a higher interest — that was the social and scientific value of the judicial tribunals. They feared that, in leaving the choice of the high functionaries of justice at the disposal of the Local GovernmentSi the intellectual and moral level of our tribunals would have Buccumbed under the influence of intrigue, and they justly thought that the General Government would, on the whole, choose better, and make that choice among the most eminent men of our bar, without being swayed by small local coteries, in fact, without paying any attention to their recommendations. k2 Digitized by Google 114 THE NEW CONSTITUTION. CHAPTER XXIX. S8. 'Each ProYlnce Bball have an Execatiye officer, stjied *< Lieuteaant GoYernor/'.wko will be appointed bj the Goyemor General in Councli, etc' THIS plan' will probably be the one most discussed in the debate which is about to open in a few days. Some desire that the XieutenantjGovemors should be chosen by the Local Legislatures ; ^otJiers, that they be chosen by the Sovereign, as in the case of the jpresent governors of provinces ; others again, that they be elected J)y the people. We may say in the first place, that the election of Lieutenant 'Governors by the Legislature is simply absurd; for, if they were elected by the members, they would always be dependent upon them, and would not be sufficiently free to resist the aggressions of those who had elected them. The Governor himself forms one «of the three bodies which compose the Legislature; he is as ^essential as the other two, for without his concurrence no law can be passed by them. It is then necessary that he should be inde- pendent of them in the same degree that they are independent of him, and that he should be as free to refuse and sanction as them- selves. It is necessary that he should hold the right of veto, a right inherent in the nature of his legislative existence. But if he were to be their creature, he would cease to be their equal, iand the utility as the reason for his ' r61e' would no longer exist. Thus, the only three rational modes, upon which opinions differ^ are : the choice by the General Government, as the Conference desire it; by the Sovereign ; and by the election of the people. It is easy to understand the object of the nomination of gover- nors by the Sovereign, in the colonial condition of British North America. These men are the immediate representatives and guardians of Imperial sovereignty. But that would rationally cease to be necessary from the moment that, by another political Digitized by Google QUEBEC CONFERENCE. 116 organizatioD, the necessity for local representation of iho Orown ceaseS; and that we can concentrate in a single person the character and attributes of Imperial sovereignty; from the moment that, by a single representation, the arm of the Sovereign can reach every point of the domain of the empire. The only argument against this order of things iS; that it tends to diminish the number of chances for the advancement of certain men in the country, but the argument is worth nothing to anybody but them; the personal interests of individuals can weigh but little against the destinies of a whole people. The object of this concentration of the administrative power is sufficiently evident. The Conference desired by that means, to simplify the relations of the Sovereign, with all Her domains situated in North America ; they also wished by this concentration to render the executive action more spontaneous and more effica- cious^ — on great occasions and where decisive action is necessary — they wished also, for the future, to substitute the sovereignty of the Federal Government for Imperial sovereignty, in order to maintain in the new empire that direct action, but tempered always by those constitutional checks, by means of which the Government of the Mother Country has been able to maintain its sovereignty over the whole extent of its colonial possessions. Some have also spoken of the honor the colonies would derive from being represented by men bom within their limits. But this consideration would be personal only, in the case of those who should have the good fortune to be chosen, but would have no value in the consideration of the great question of which we were just speaking ; that is to say, in relation to governors named by the Imperial Government. Those who would wish the governors to be elected by the people follow another order of ideas. They are even opposed to monar- chical institutions. Kepublicans rather than Democrats, they prefer the elective principle, pushed to its most extreme and exaggerated limits, to the really democratic constitution of Great Britain, which gives to Digitized by Google 116 THE NEW^ CONSTITUTION. that people a more immediate, constant and effioacious control over the Government. They want elective goyemors, because elective governore are a direct step towards the establishment of a republic. But, for those who aspire te another state of things — ^for those who would escape the demagogical water-spout in the midst of which the Northern Southern and Central American Republics are conyulsiyelj strug- gling ; for those who would keep beyond the sphere of influence of the Great Republic which is now, after eighty years' experience, already decrepit and worm-eaten ; for those who are not annexadon- ists ; for those who cherish the noble thought of founding a new empire upon bases more stable and upon principles more in har. mony with the institutions, the manners and the sentiments of the Lower Canadian people ; for those who do not wish to see their in- stitutions and their language, of which they are so proud, swallowed up in the immense abyss where everything disappears, and to the Burface of which only ascends the fetid scum of material interests and moral corruption ; for those who desire not to be taxed to exhaus- ' tion, to pay their share of five hundred millions of dollars of annual tax and of the three billions of accumulated debt in the United States; in short, for those .who do not desire to see their children perish by hundreds of thousands in the miasmatic marshes of Vir- ginia and the other Southern States, or spilling their blood in «treams in the fratricidal combats which have been going on there for the last four years ; for people who do not desire any part or share in such things as these, the principle of electiye governors can have no charm. That which they do desire, is, that in the projected institu- tions, there should be established good guarantees for personal liberty, national liberty and the permanent and active control of the people who pay taxes, over the administration of public afiairs. Now, with regard to this direct, prompt and permanent action of the people, we should also have the local representatives and the federal representatives, without whose will, governments, whether local or central^ could not expend a single cent of the Digitized by Google QUEBEC CONFERENCE. 117 public money. We should have it further, in the control that these same representatives of the people would exercise over the selection of the Councillors of the Crown. Parties are necessary under representative institutions. They only do harm when they go beyond their functions. What are the political institutions that have existed from the time of the ancient republics of Greece and £ome down to our own day ? Where are the political ^institutions under which parties and ideas of every kind, could move more at their ease than under the constitution of Great Britain, and that which we have borrowed from it ? And after saying thb much, we need scarcely add, that we are not for elective governors. CHAPTER XXX. 41. < The Local Govemment and Legislature of each ProTince shall be constructed in such manner as &e existing Legislature of each such Province shall proyide.' 42. < The Local Legislature shall have power to alter or amend their con- stitution from time to time.' THE several provinces will, therefore, establish their respective legislatures and governments on a basis which they may themselves select. In addition to this, they shall have the power^ at pleasure, of amending or changing the constitutions thus esta- blished. The only conditions to which they will be submitted, are those laid down by Clauses 48, 49, 50, and 51. We will give our attention to these clauses on another occasion. These two clauses involve the consideration of two different ques- tions of order ; that relating to local administrative and legisla- tive organization, and the expenditure to be rendered necessary by Digitized by Google 118 THE NEW CONSTITUTION. the workiDg of tbe whole system. With regard to the machinery to be employed in the Local Legislatures and Governments; we will immediately lay down the fundamental principle to be established. These local institutions are intended to control the public funds through the representatives of the people; to have the initiation of money measures through the Crown with a double responsibility to the Crown and to the people. K we go beyond this^ we must have recourse to hypotheses. Will the provinces agree upon a uniform system of Government and Legislature, and will toe decide upon having one or two branches in our Lotcal Legislature ? Will the departmental system be divided into two, three, four, five, or six branehes, and how will these branches be styled f How many members will we have in each branch of our Legislature, if we have a Legislative Council ? Will the members of the Upper House be elected by the people or nominated by the Crown ? How long will be their term of office, if elected by the people 7 Shall ihey be compelled to show properly qualification? and what will that qualification be ? For what term will the members of the Lower House be elected ? Will the length of sessions and the date of their opening be determined upon 7 And, finally, will candidates for the lower branch of the Local Legislatures be required to possess property qualification ? All these questions can be put without the possibility of a solu- tion, because we do not now know how the different provinces will setUe them. If economy be aimed at by the provinces of the Confederation, as each will have a stated, revenue, and as they will not be much inclined to resort to direct taxation for the purpose of maintaining an expensive Government and Legislature, it is probable that they will decide upon having only one House, composed of a small num- ber of members ; that the term of sessions will be fixed, and of short duration; and that the indemnity to members will be very small in amount. A session of 30 to 40 days, under such conditions, would be comparatively inexpensive. Nothing can prevent this limitation to the length of the sessions of the Local Legislature, because very Digitized by Google QU£B£C CONFERENCE. ' 119 few measores submitted to that body can be supposed to create pro- tracted debates, and it would be easy to regulate the procedure in a manner which would secure the prompt passing of measures ; provided always^ that public and private interests would not suffer thereby. Another condition might be, that measures still on the roll for consideration should stand over in the same stage till the ensuing session. It would, perhaps, be difficult to reduce the number of members in the Local Legislature below that of the present Legis- lative Assembly of Jjower Canada, but that number would be suffi- cient to satisfy all requirements. If we are well informed, competent judges have estimated the surplus of expenditure over income, in the complicated system of local and general governments and legisla- tures at 8400,000. This is a large sum, but if the sacrifice can secure, as we believe it will, for British North America, peace, happiness, harmony, prosperity and national greatness, we are certain that such a sacrifice would be willingly made by the people of the diffe- rent provinces. The only objections will be offered by those who are in favor of a Legislative Union, for the same reasons which in- duce us to reject such a union. CHAPTER XXXI. * Education ; saviBg the rights and pririlegeB which the Protestant or Catholic minority in bothOanadas may possess as to their Denomina- tional Schools at the time when the Union goes into operation.' (43rd paragraph, 6th Section.) IHE Local Legislatures are thus entrusted with the control of education, certain acquired rights being specially excepted. !rhis is a concession of very great importance, and without it, con- T Digitized by Google 120 THE NEW CONSTITUTIOK. federation wonid be impracticable^ because education is society itself in a state of infancy. It comprises in its meaning and import manners; feelings, tendencies^ and the works of generations still unborn. In the difficulty wbicb arose in tbe debates of the Con- ference, with the view of deciding whether the rights of parents to instruct their children should prevail^ or whether the child might be taken away forcibly from its father and mother, to be instructed under a radical system, where the name of Qod and sacred symbols are not invoked; the victory, we are happy to say, was gained in the interests of the parents. This question of education was considered so important by the delegates, that Mr. Gait considered it to be his duty to allude to it twice in his Sherbrooke speech : * He would now endeavor to speak somewhat fully as to one of ^ the most important questions, perhaps the most important, that ' could be confided to the Legislature — ^the question of education. ^ This was a question in which, in Lower Canada, they must all ^ fed the greatest interest, and in respect to which more apprehen- ^ sion might be supposed to exist in the minds, at any rate, of the ^Protestant population, than in regard to anything ebe connected 'with the whole scheme of federation. It must be clear that a ^ measure would not be favorably entertained by the minority of ^ Lower Canada, which would place the education of their children ' and the provision for their schools wholly in the hands of a ma- 'jority of a different faith. It was clear that in confiding the ^ general subject of education to the Local Legislatures it was abso- ' lutely necessary it should be accompanied with such restrictions ^ as would prevent injustice, in any respect, from being done to ' the minority. Now this applied to Lower Canada, but it also ^ applied, with equal force, to Upper Canada and the other pro- ^ vinces, for in Lower Canada there was a Protestant minority, and ^ in the other provinces a Roman Catholic minority. The same ' privileges belonged to the one of right here as belonged to the ^' other of right elsewhere. There could be no greater injustice to ' a population than to compel them to have their children educated ^ in a manner contrary to their own religious belief. It had been Digitized by Google QUEBEC CONFERENCE. 121 ^ stipulated that the question was to be made subject to the rights 'and privileges which the minoritiesmighthaveas to their separate 'and denominational schools. There had been grave difficulties ' surrounding the separate school question in Upper Canada^ but ' they wejre all settled now^ and with regard to the separate school ' system of Lower Canada; he was authorized by his colleagues to ' say, that it was the determination of the Government to bring ' down a measure for the amendment of the school laws before the ^ Confederation was allowed to go into force. 'It was clear that injustice could not be done to an important class ' in the country^ such as the Protestants of Lower Canada^ or the ' Eoman Catholics of Upper Canada, without sowing the seeds of ' discord in the community, to an extent which would bear fatal ' fruit in the course of a very few years. The question of educa- 'tion was put in generally, — the clause covering both superior and ' common school education, although the two were to a certain extent ' distinct' And elsewhere he says : ' He would take this opportunity of ' saying, and it was due to his French Canadian coUeagues in the ' Government that he should thus publicly make the statement, ' that so far as the whole of them were concerned — Sir Etienne ' Tach^, Mr. Cartier, Mr. Chapais and Mr. Langevin — throughout ' the whole of the negotiations, there was not a single instance ' where there was evidence on their part of the slightest disposition 'to withhold from the British of Lower Canada anything that they ' claimed for their French Canadian countrymen. They acted wisely * in taking the course they did^ for certainly it encouraged himself ' and others to stand up for the rights of their French Canadian ' friends. The opponents of the measure had tried to excite ap- < prehensions in the minds of the British of Lower Canada on the ' one hand, and in the minds of the French Canadians on the ' other, by representing to one and to the other that they were to 'be sacrificed. This, in fact, was the best evidence that the ' measure had been wisely framed, and that it was not to give ' power or dominance to one over the other.' Digitized by Google 122 THE NEW CONSTITUTIONT. The publication" of the project of the Conference created a stir among the Protestant population of Lower Canada. Some con- tended that there should be amendments to the law which places that minority as regards the Catholic majority on the same footing as the Catholic minority of Upper Canada with the Protestant majority of that section ; some again claim that a superintendent of public instruction should be appointed for the Protestant minor- ity, while others consider that their superior educational institu- tions are entitled to endowment. If the present school law does not sufficiently protect the Protestant minority of Lower Canada, the Government has performed its duty by promising amendments, which will afford additional protection ; but the establishment of two Bureaus of Public Instruction would be an insult to common sense, and a material impossibility, unless it were intended to expend in salaries and office contingencies a sum which could be more usefully appropriated for the purposes of public instruction. We must not forget also, that the concession of this principle in Lower Canada, would necessarily involve its repetition in Upper Canada, because in that section of the province the Catholics are more numerous than the Protestants of Lower Canada, the figures being,— Catholici, Upper Canada 358,141 Protestants, Lower Canada 1 67,940 Professor Dawson has publicly admitted that the Hon. Mr. Chauveau, Superintendent of Public Instruction, has always con- ducted himself towards Protestants with the most perfect justice and impartiality ; but, as an argument, he expressed his opinion that possibly in the future, Mr. Chauveau's successor might not act in the same spirit of justice and impartiality. He is strangely mistaken. Liberality cannot be exclusively attri- buted to Mr. Chauveau ; it is an inherent element in the character of the race of which he belongs. In order to be convinced of this fact, it is only necessary to read the history of our legislation, from the granting of our Constitution in 1791, to thepresent day. Is it not the case that the Lower Canada House of Assembly, long before the union, granted to Dissenting Protestants the civil rights Digitized by Google QUEBEC CONFERENCE. 123 whiob^ up to tliat time^ had onlj been enjoyed by Roman Catholics and members of the Churoh of England ? Is it not equally true that Jewish disabilities were abolished in Lower Canada twenty years before the question was agitated for the first time in the Par- liament of Great Britain ? With such facts before us, our case is eloquently pleaded, and surely Protestants cannot have any suspicion of our liberality, nor can their apprehensions be justifiable. They need not fear; the teachings of the past will guide us in the future, and we shall strive to surpass in that respect, anything that may have been done by our ancestors. We desire that a law should be passed, which neither the Federal nor Local Legislature could control, by which minorities would be universally protected, and that any acts of the Superintendent of Public Instruction, which might be considered unjust in their object, would be properly dealt with, according to their merits, by the judicial tribunals of the country, and such acts would thus be always certain to meet with the punishment they would deserve. Moreover, the population of Lower Canada is so distributed in certain districts, that if Protestants are in a minority in some locali- ties, Catholics are in others, and consequently a common interest must necessarily guide the whole population. Experience and the law teach us that the local functionaries in charge of the school system are more powerful for evil and injustice, than the Chief Superintendent of Public Instruction, because they exercise a con- stant and immediate control over education, the teachers, the sup- port and the management of common schools. The endowment of Superior Protestant Educational Institutions, is as impracticable as the appointment of two superintendents of public instruction. Such a proceeding would necessitate grants by the State to Catholic Institutions of the same character, and eventually the revenue of the public domain would be totally ab- sorbed by such a system. It is perfectly absurd to pretend at the present day, that the State should endow such institutions, when we find that the Sulpicians of Montreal, build churches, support at heavy cost the Catholic religion and give gratuitous instruction Digitized by Google 124 THE NEW CONSTITUTION. to upwards of ten thousand children ; when the Seminary of Que- bec gives a classical education to upwards of five hundred pupils^ and at considerable sacrifice; maintains on a splendid footing the Laval University, which was constructed twelve years ago on the promontory of Quebec. These institutions were in possession long before the conquest, of property which they do not hold firom the Crown. Under the proposed system, claims would be multiplied as often as new institutions would be brought into existence; for instance, with greater reason the Catholics of Upper Canada might say : * the comparatively recent endowment of the University of ' Toronto, has been the means of procuring for that institution ^ an annual revenue that now exceeds twenty thousand pounds f we should have an institution similarly endowed, if equity and justice are to prevail. The Protestants of Lower Canada have certainly no reason to complain of the division of public grants for educational purposes, because, they have always had the lion's share, and but a few days ago Mr. Chauveau, in Le Journal de V Instruction Puhlique, proved by figures, the correctness of which cannot be questioned, that they receive for their superior educational institutions much more in proportion to the number of their pupils, than their fellow- citizens of the Roman Catholic religion. As a proof of the liberal- ity of the latter, they have never even complained of this unjust division. Digitized by Google QUEBEC CONFERENCE. 195 |iig^t of 5Parhn aub |lepritk. CHAPTER XXXn. 44. ' The power of respiting, reprieving, and pardoning prisoners conricted of crimes, and of commating and remitting of sentences in t\ hole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant Governor of each Proyince in Council, subject to anj instructions he maj, from time to time, receive from the general Gorernment, and subject to anj provisions that may be made in this behalf by the General Parliament,^ THIS provision changes the condition of the existing law with regard to the prerogative of granting pardons, commating punishments and delaying executions. This prerogative of mercy, after the judicial tribunals have pro- nounced sentence, belongs naturally to the Sovereign, and is spe- cially delegated to her representatives in those distant parts of the empire, where, without this extension of the arm, the sword of mercy could not reach those about to be struck down by the sword of justice. Here it is different. The Conference, while recognizing the source and principle of that power, have set aside the principle of delegation, and have placed the Q-overnors General precisely in the position of the Sovereign Herself, who, then, if we may so speak, loses that prerogative through the whole extent oi Her North American colonial empire. TheExecutiye Chief of the General Government, called the Go- vernor General or Viceroy, surrounded by his Council, will be, in- stead of the Sovereign, invested with the power of regulating the prerogative of pardon, but cannot delegate it to any one else, be- caule he will not possess it any more than the Sovereign he will represent, and who will have renounced it in granting this new constitution. And further, the Federal Parliament will have the power of making the laws which will affect the exercise of that prerogative. That power did not exist either in the Constitutional Act of 1791 or in that of 1841 ; and in Canada, as in every other colony of Digitized •by Google 126 THE NEW CONSTITUTION. Great BritaiD^ the representatives of the Sovereign have never, up to this time, exercised the prerogative of pardon, except by a spe- cial delegation, which is cited with its existing conditions in the invariable instructions which are addressed to them bj the colo- nial minister, in the name of Her Majesty. It is true that the Sovereign may give Her instructions to Her representative in the Federal Government, and that the Ministry would have to conform to them, or resign their offices. But there is little chance of conflicts arising out of that question ; for if the Government of the empire, after mature reflection, should cede the prerogative of pardon to Lieutenant Governors, who at the flame time would cease to hold their positions in virtue of that prerogative, the power of regulating it being given to the General Government of the Confederation, that would bo the most con- •olusive proof that there is no desire to interfere or to seek any protection for the principle of the Imperial prerogative, except in the veto, which is left to the Sovereign in respect of the whole of ihe legislation of the General Grovernment. The Imperial Government, by the mouth of the Colonial Secre- tary, speaks thus as to the prerogative of pardon : — ^ It appears to her Majesty's Government that this duty belongs to the representative of the Sovereign, and could not with pro- ' priety be devolved upon the Lieutenant Governors, who will, un- * dor tliG present scheme, be appointed, not directly by the Crown, ( but by the Central Government of the United Provinces/ To us this question: — From whence shall the pardoning power emanate ? appears one of minor importance ; and if the Im- perial Government should decide that this prerogative must con- tinue to be exercised by delegation in the person of the direct re- presentative of the Sovereign, the integrity and effioaoity of the proposed system would not be materially interfered with. But it is as well to indicate how we have understood the idea which pre- vailed in the minds of the delegates while framing this clause. They evidently desired, in the first place, that unity and dispatch should be secured in the exercise of the prerogative cf pardon, and next, the establishing, in the order of things, for all time to come^ Digitized by Google QUEBEC CONFERENCE. 127 of a principle that could be found wlien a colonial system had ceased to exist. According to that principle, the Federal Groyernment, whether colonial or national, will not delegate the prerogatiye of pardon ; but what may be considered almost equivalent, they will nominate the Lieutenant Governors; and what is practically equal to dele- gation, they will dictate to them the conditions upon which they shall exercise the prerogative of pardon, absolute or limited, as well as that of reprieve. Conflkt 0f fafos. CHAPTER XXXIII. 45. * In regard to all sabjects over which jurisdiction belongs to both the General and Local Legislatures, the laws of the General Parliament shall control and supersede those made bj the Local Legislature, and the latter shall be void so far as thej are repugnant to, or inco&sistent with the former.' i THE above principle is logical in its application, if we are to have concurrent legislation. We have already indicated how it will operate in certain cases. The Imperial G-overnment seems to have foreseen in the following words of the Colonial Minister, the inconveniences which might result from a concurrence of attributes and a possible conflict of legislation. Mr. Cardwell writes : ^ The point of principal importance to the practical well-working ^ of the scheme, is the accurate determination of the limits between ' the authority of the central and that of the local Legislatures, in ^ their relation to each other. It has not been possible to exclude ^ from the resolutions some provisions which appear to be less con^ ' sistent than might, perhaps, have been desired with the simplicity Digitized by Google 128 THE NEW CONSTITUTION. ^ and unity of the system. But, upon the whole, it appears to Her ^ Majesty's Government that precautions have been taken which ' are obviously intended to secure to the Central Government the ■^ means of efifective action throughout the several provinces, and ^ to guard against those evils which must inevitably arise, if any ^ doubt were permitted to exist as to the respective limits of ^ central and local authority. Thsy are glad to observe that, * although large powers of legislation are intended to be vested in *• local bodies, yet the principle of central control has been ^ steadily kept in view. The importance of this principle cannot ' be over-rated. Its maintenance is essential to the practical ^ efficiency of the system and to its harmonious operation, both in * the General Government and the Governments of the severa * provinces.' In reading the above, it is very easy to see that the Imperial •Government would have preferred a Legislative Union to a Con- federation, because it would have given more compactness, more unity, more strength, to our political system, and more spon- taneity and simultaneousness in its action. But the statesmen of the Mother Country have understood, as well as ourselves, the -difficulty of. our position ; the absolute necessity of making im- portant concessions, the one to the other, in our numerous distinct interests ; of recognizing, with a large measure of equity and liberality, the existing social elements, with their divergenceS| to give full play to local aspirations, and to make allowance for the prejudices of race and religion. To their honor be it spoken, they have recognized the whole extent of the gigantic task to be nocomplished, and the full value of the success to be obtained. But nevertheless it is clearly evident that concurrent legislation is full of danger for the future ; that is plainly laid down even in the clause that we are now discussing, since, to obviate it, 4)entral legislation has invariably been made to predominate over local legislation. Will it be impossible to avoid the points of contact likely to be produced by concurrent legislation, or to define them with such precision that these conflicts would be im- possible or nearly so ? Without harmony tlie system would be Digitized by Google QUEBEC CONFERENCE. 129 worth nothiDg; and would soon destroy itself; and the harmony of the system cannot be found exclusively in the predominant power of the Ooyemment and of the Federal Parliament. It i» necessary that this harmony should also exist in the inferior machinery and be felt throughout the whole system. While con- templating with admiration the vast wheels which give motioB to those gigantic steamers sailing so proudly oyer the ocean, rising with such boldness over formidable waves^ who oan help thinking that the least derangement of some small piece, and in appearance^ the least important of the interior machinery^ may bring the whole to a stand stilly and put the ship and crew in peril? In factj will not the elements upon which the local institutions will be based^ be reproduced in all their vivacity in the Government and in the Federal Parliament^ and this local power which it has been their object to compress^ will react dan- gerously on the whole system? At one time it may be Lower Canada that will be punishing its Ministry and its members for having wounded Lower Canadian feelings and striking at its interests ; at another time it may be Upper Canada, or, perhaps, the Atlantic Provinces that may make similar complaints. This should not be, and to avoid it, our eminent statesmen must put their heads together to find abetter solution to the problem. Jfrm| anb €^h\ Jmrpagts. CHAPTER XXXIV. 46. ' Both the Boglish and French langnages may be employed in the General Parliament and in its proceedings) and in the Local Legisla* tnre of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada.' NOBODY is ignorant of the fact that the Constitutional Act of 1840 banished the French language from the Legislature, and Digitized by Google ISO THE NEW CONSTITUTION. that it was not till 1845 that it was restored to us by a Special Act of the Imperial Legislature at the request of a OoverDment which^ repelled (by Lower Canada, hoped by this concession to acquire public favor. From that time, the two languages, as they ought to be, have been placed precisely upon the same footing, and the French text of our laws has been equally legal with the English text. The project of the Constitution carries out this just policy in the Federal Parliament, where the French Canadians will not be comparatively so numerous, and in this respect, we are infinitely better treated than the men of our origin in the American Union^ where Federal and Local Legislation are ezclusively English. It is true that we had a right to this privilege, but between the existence of a right and the fact of possessing it, there is ofben a wide distance, and when the first is cordially and spontaneously conceded to you, without discussion, without obstacle and without reticence, you feel that you have to do with sincere friends and honorable allies. SJonej anb ai\tx gills, anb i\t $ig|t of Ma. CHAPTER XXXV. 48. < All Bills for appropriating any part of the Public Rereniie, or for im- posing any new tax or impost, shall originate in the House of C ommons or House of Assemblj, as the case may be. 49. < The Honse of Commons or Bouse 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 Lieutenant GoTernor, as the case may be, during the Session in which such Vote, Resolution, Address or Bill is passed. 60. 043, by which figures we
may establish the portion of Fed^al rerenne allowed to the two
Canadas, $2,005;403— in all, $3;302,446.

We have thus a surplus of revenue, over expenditure, of

We are not over-estimating, in taking for Lower Canada the half
of that debt of $4,763,994, that is to say, $2,381,997.

By such a division we should have to pay an annual interest on
this debt, which would amount to $119,035. This would bring
our total expenditure to $1,218,825.

We would thus have a surplus of $22 1,006. But we have above
estimated the revenue of Lower Canada at $551,000, not taking
into account the $888,531, our portion of the general revenue.

As we assume half the debt, we cannot be accused of exaggera-
tion if we also take into account half the local revenue, $648,521.

The difference between the two amounts being $97,521 3 if we
add this to that of $1,439,531, we have for the local revenue of
Lower Canada, $1,537,052 ; and for the expenditure, $1,099,790^
the amount stated above; and $119,035, our part of the interest
of the debt; in all, $1,218,825.

The revenue thus exceeds the expenditure by $318,227.

This a satisfactory result, and is enough to assure us against fears
for the future.

But if it be objected that we have exaggerated the revenue^ we
simply reply, that we have abo very much over-estimated the
amount of the debt, and, consequently, the expenditure.

Let us not forget that if we assume certain special debts, we re-
ceive, at the same time, in compensation, by the 58th Clause of the
scheme, anything that may be produced by the works for which such
debts were contracted. Among these is the Municipal Loan Fund
of Lower Canada. We will thus have the amount produced by this

According to these calculations, Upper Canada has for a local

revenue, the half of theactual local revenue, that is to say^

$648,521, and $1,116,872, her part of the general revenue ; in all|



Digitized by CjOOQ iC


We are not in posseiSHsion of the data to establish in detail the
amount of the expenditure in that seotiony but Mr. Gait has
proved that the eolleetiye lobai expenditure for die two Oanadas,
is equal to $2,260^149. The portion of Upper Canada eannot^
therefore, be in any caae^ less than the half of the said sum, of
$1,130,074. This will leave her an excess, for public works and
other objects, of $635,319.

But, as tho Upper Canadians have other id^as than we have on
many subjects, it is impossible to speak correctly of the amount of
their local expenses. One thing is certain, that the colonization
roads, for example, their hospitals and their other charitable insti-
tutions, and at the same time their penitentiaries and lunatic
Asylums will be self-sustaining by means of local taxes or voluntary

It is sufficient to know, that the calculation of the Conven-
tion amply covers the local matters of all the provinces, if they
are guided, as doubtless they will be, by a spirit of wise economy.

In case the provinces should desire to expend more than their
local revenues, they would have to resort to direct taxation, and as
^direct taxes are unpopular everywhere, but particularly in Lower
Canada, we may, as it was well observed by Mr. Gait, leave in this
respect the ^surveillance^ of the public expenditure to the watchful
and jealous eye of the people.

The Finance Minister has also fixed the local revenues and the
federal grants for the local objects of the different provinces which
intend to enter into Confederation ;-—


Canada $1,297,043

Nova Scotia 107,000

New Brunswick 89,000

Island of Prince Edward 32,000

Newfoundland 5,000

Total ,…$1,530,043


by Google



Canada $2,006,121

Nova Scotia 264,000

New Brunswick 246,000

Island of Prince Edward… 158,728

Newfoundland 367,000

Total $3,056,849


Canada $2,260,149

Nova Scotia 667,000

New Brunswick 424,047

Island of Prince Edward 124,016

Newfoundland 479,000

Total $3,954,212

By adding together the local revenuei and the federal grants
for local purposes, we will have $4,586,892 ; from whieh we must
deduct for expenses $3,954,212 ; this leaves a surplus for local
purposes of $632,680.

In dividing the two Canadas for the purposes of expenditure
and local revenue, we have the following result : —


Upper Canada ….$1,765,393

Lower Canada 1,537,052

Nova Scotia 371,000

New Brunswick 353,000

Island of Prince Edward 185,728

Newfoundland 374,000

Total $4,586,173

This last result differs by $719 from that of Mr. Gait, who
estimates at $2,006,121 the amount of the federal grants to both
Canadas, taken together, for local purposes ; and that taking the
numbers of the population for a basis, we fix it at $2,005,403.
This difference is of little consequence in the general results :


by Google



Upper Canada, approzimatiYolj $1,130,074

Lower Canada ^ 1,218,825

Nova Scotia 667,000

New Brunswick ^ 424,047

Island of Prince Edward 124,816

Newfoundland 479,212

Total ‘ $4,043,974

At the commencement of this article we established the amount
of the expenditure of Lower Canada, not merely the actual local
expense for local objects, such as that furnished by Mr. Gait, but
on our future matters, which would make a di£ference of something
approaching to $S8,750< Not having the data for Upper Canada, as we have already stated, we had to take for our guidance the half of the amount of the actual collective expenditure of the two Canadas for the same local objects. These amounts prove indisputably that the provinces may take action as suits their convenience in their local revenues, and that in this respect there is nothing to cause uneasiness. ^MUt CHAPTER XXXVn. 40. ' The General Goremment shall aisame all the Debts and Liabilities of eaeh Prorince.' <1. < The Debt of Canada, not speeiallj assamed by X^per and Lowar Oanada respectivelj, shall not exceed, at the time of Union, $62, 600,- 000 ; Nova Scotia shall enter the Union with a debt not exceeding $8,000,000 ; and New Brunswick with a debt not exceeding $7,000,000.' 62. * In case Nora Scotia or New Brans wick do not incur liabilities beyond those for which their Governments are bow bound, and which shall Digitized by Google QUEBEC CONFERENCE. 141 make their debts at the date of Union less than $8,000,000, and $7,000,000 regpectively, thej shall be entitled [to interest at five per cent, on the amonnt not so incurred, in like manner as is hereinafter prorided for Newfoundland and Prince Edward Island ; the foregoing resolution being in no respect intended to limit the powers gixen to the respectire Goyernmenta of those Frorinces, bj Legislatire authority, hut onlj to limit the maximum amount of charge to be assumed bj the General Goyemment; proyided always, that the powers so conferred by the respectiye Legislatures shall be exercised within fiye years from this date, or the same shall then lapse.' €3. * Newfoundland and Prince Edward Island, not haying incurred Debta equal to those of the other Proyinees, shall be entitled to receiye, by half-yearly payments, in adyanee. from the General Goyernment, the Interest at fiye per cent, on the difference between the actual amount of their respectiye Debts at the time of the Union, and the ayerage amount of indebtedness per head of the Population of Canada, Koya Scotia and New Brunswick.' 64. * Im consideration of the transfer to the General Parliament of the powers of Taxation, an annual grant )a aid of each Proyince shall be made, equal to eighty cents per head of the population, as established by the Census of 1861 ; the population of Newfoundland being esimatedat 130,000. Such aid shall be in full settlement of all future demands upon the General Goyernment for local purposes, and shall be paid half-yearly in adyanee t6 each Proyince.' €5. ' The position of New Brunswick being such as to entail large Immedi- ate charges upon her local reyenues, it is agreed that for the period of ten years, from the time when the Union takes effect, an additional allowance of $63,000 per annum shall be made to that Proyince. But so long as the liability of that Proyince remains under $7,000,000, a deduction equal to the interest on such deficiency shall be made from the $63,000.' 66. ' In consideration of the surrender to the General Goyernment by Newfoundland of all its rights in Mines and Minerals, and of all the nngranted and unoccupied Lands of the Crown, it is agreed that the sum of $160,600 shall each year be paid to that Proyince, by semi- annual payments ; proyided that that Colony shall retain the right of opening, constructing and controlling Roads and Bridges through any of the said Lands ,Bubjeet to any Laws which the General Par- liament may pass in respect.of the same.' CLAUSE 61 rests on a principle of perfect equity. To be con- rinced of this, it is sufficient to know the motiyes which led to it. Let US commence with figures. The debts of the different pro- yinees were as follows, on 1st January, 1861 : Canada $67,263,994 Nova Scotia 4,858,547 New Brunswick 5,702,991 Newfoundland 946,000 Island of Prince Edward 240,673 Total $79,012,205. Digitized by VjOOQ iC 14S THE NEW CONSTITUTION. AND THE P0PT7LATI0N : Upper Canada 1,396,091 Lower Canada 1,110,664 Nora Scotia 330,857 New BruMwiok 252,047 Newfoundland 130,000 Island of Prince Edward 80,757 Total 3,300,416 These proyinces were therefore indebted in the following propor- tions per head of their population : Canada J26 88 Nova Scotia 14 38 New Brunswick 23 02 Newfoundland .^ 7 27 Island of Frmce Edward : 2 97 Which gives, on an average, for the Confederation. 23 94 Thus, by adding together the united debts of all the provinces^ a flagrant injustice would have been committed as regards the provinces least indebted; Canada, by this arrangement, would have gained $2.89 per head ; Nova Scotia would have lost $9.56 ; New Brunswick, 92 cents; Newfoundland, $16,67; and the Island of Prince Edward, $20.97. In order te induce all the Maritime Provinces to hand over all their revenue to the General Government, and to accept a propor- tion at so much per head, a sum much greater than they could be called upon to pay at the time when the subject of union was broached, it became absolutely necessary to establish a system of compensation. Mr. Gait has undertaken to shew the principle uppn which this system is based, and the pivot upon which the whole mechanism will revolve. He gives his opinions and explains these matters in the following words much better than we could : ^ Now, in the scheme of Confederation, it was proposed that ' there should be a certain fixed rate at which each province should Digitized by Google QUEBEC CONFERENCE. 143 < have the right of charging its debt against the Confederation; and ^ for that purpose the debt of Canada was placed at 962;500;000, ^ which was something like five millions less than the nominal ^ amount of the debt. The mode in which that reduction was made i was this : There were certain liabilities of Canada contracted for ^ local purposes; and certain assets connected with those liabilities. ' He referred more particularly to the Municipal Loan Fund; and ' some similar matters which were more local than general. It had ^ not been thought desirable that a transference of those securities ^ should be made to the G-eneral Qovernment. It was better that ' each province should assume that portion of its debt which was ' particularly local, and take with it those securities which it held ' for its redemption. And in that way there was established for the ^ debt of Canada an amount equal per head to the amounts con- ' tributed or about to be contributed by the two provinces of Nova ' Scotia and New Brunswick. If any of these provinces had been ' in debt to an amount largely exceeding that of the others per ^ head; the matter would have been in a different position. But it ^ was found on examination that; while the debt of Canada might ' be reduced by the mode he had stated to

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