Document Information

Date: 2025-06-23
By: Michael J. Scott
Citation: Michael J. Scott, “Minority Rights in the Constitution Act, 1867,” Second ed. (June 2025), PrimaryDocuments.ca.[1]
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Note Regarding Second Edition: An earlier edition of this report, entitled, Michael J. Scott, “Unwritten Principles: Minority Rights, Analysis of Minority Rights in Constitution Act, 1867”, First ed. (June 2024), PrimaryDocuments.ca was removed from PrimaryDocuments since it veered too much into qualitative analysis. Our site seeks to present the primary documentary record without such analysis to uphold our-selves as a neutral tool for scholars and legal practitioners. Any of the qualitative analysis of the former paper (or this edition) belongs solely to Michael J. Scott, the author.

Minority Rights

Minority Rights in the Constitution Act, 1867

By: Michael J. Scott

Table of Contents

I. Introduction 

II. French-Canadian Minority Rights 

III. Anglo-Protestant Minority in Lower Canada (Quebec) 

IV. Religious (Education) Minority Rights 

V. Regional Minorities 

Endnotes 

I. Minority Rights Clauses in the Constitution Act, 1867: Introduction

Minority Rights are found as a specific compromise that was arrived at in order to federate into what would become Canada. Nevertheless, a full examination of the written record will allow us to determine which rights were explicitly written/agreed to, and if there were any elements that were “unwritten”. This first paper (a sub-report) analyzes the Confederation period leading up to the drafting of the Constitution Act, 1867. This paper argues that there were many explicit constitutional guarantees of minority rights. Furthermore, the unwritten protections of minorities were not guarantees, nor unwritten rights, but rather systems which were thought best to protect minority rights. The majority could still legislate on these issues, however, it would be a laborious battle to do so.

The protection of minority rights was seen by some of the Fathers of Confederation as inherent to the British system of responsible government they sought to emulate. For example, John A. Macdonald says,

John A. Macdonald [Kingston, Attorney-General West]—[…] We all feel the advantages we derive from our connection with England. So long as that alliance is maintained, we enjoy, under her protection, the privileges of constitutional liberty according to the British system. We will enjoy here that which is the great test of constitutional freedom—we will have the rights of the minority respected.

Some Hon. Members—Hear, hear.

John A. Macdonald [Kingston, Attorney-General West]—In all countries the rights of the majority take care of themselves, but it is only in countries like England, enjoying constitutional liberty, and safe from the tyranny of a single despot or of an unbridled democracy, that the rights of minorities are regarded.[2] [Emphasis is mine]

For Taché, this sentiment is echoed, but in a broader terms—not as “minority rights”, but as equality before the law was established with the granting of responsible government. Taché says,

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—[…] The fact was, the result might be considered not only as a mark of confidence in Mr. Price, the son elected, but as a token of respect and gratitude to Mr. Price, senior, who had by his energy and enterprise opened up the Saguenay country, and who, in a certain sense, might be said to be the father of that region. Much had been said on the war of races, but that war was extinguished on the day the British Government granted Canada Responsible Government, by which all its inhabitants, without distinction of race or creed, were placed on a footing of equality.[3] [Emphasis is mine]

These interjections, however, are more idealistic in tone than practical, explicit guarantees. As we shall see in this paper, for example, was that during the debates on the provincial constitutions, it was viewed as more prudent for Lower Canada to have a bicameral legislature, rather than the unicameral legislature proposed for Upper Canada. The reason for this was that Lower Canada had two peoples—the French and the English, and by having a more formalized system of responsible government (with two chambers) hasty legislation would be slowed down. It wasn’t seen as an impossibility for minority rights to be trampled on in the British system, just that the design of the system added delays to rash actions.

In fact, majority rights were seen as crucial to the functioning of the system. And, in the moment of tension between these two ideas, the government ultimately opted for majority rights. As we shall see later in the paper, during the fiery debates on minority education rights, the guarantees for these were abandoned by the coalition ministry because the government argued that national unity and cohesion of the majority was more important to the functioning of the country than minority rights protections. Therefore, the British system should not be explicitly favouring neither majority, nor minority rights, but a balanced approach.

The British system would not inherently protect the minority. And for some, such as Antoine-Aimé Dorion, these guarantees needed to be explicitly written down to prevent future abuses. He says,

Antoine-Aimé Dorion [Hochelaga]—I know there is an apprehension among the British population in Lower Canada that, with even the small power that the Local Government will possess, their rights will not be respected. How, then, can it be expected that the French population can anticipate any more favorable result from the General Government, when it is to possess such enormous powers over the destinies of their section of the country?

Experience shows that majorities are always aggressive, and it cannot well be otherwise in this instance. It therefore need not be wondered at that the people of Lower Canada, of British origin, are ready to make use of every means to prevent their being placed at the mercy of a preponderating population of a different origin. I agree with them in thinking that they ought to take nothing on trust in this matter of entering upon a new state of political existence, and neither ought we of French origin to do so, in relation to the General Government, however happy our relations to each other may be at present.

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics]—That is a glorious doctrine to instil into society.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—Well it is the doctrine generally acted upon, and correctly so. When my honorable friend makes a contract with a friend and neighbor to be filled even a few months in the future, does he not have it put in legal form, in black and white? Of course he does. And when we are making arrangements calculated to last for all time to come, is it not vastly more important that the same safe and equitable principle should be recognized?

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—The honorable gentleman recognized it himself in the most marked manner, by placing in the resolutions guarantees respecting the educational institutions of the two sections of Canada. The Roman Catholics of Upper Canada were anxious to have their rights protected against the hand of the Protestant majority, and, where the Protestants are in a minority, they are just as anxious to have their rights permanently protected. But, sir, the whole scheme, since it must be taken or rejected as

• • (p. 265 in the primary document)

a whole, is one which I do not think any honorable member of this House can really endorse in an unreserved manner, if he were to speak his sentiments freely.[4] [Emphasis is mine]

So then, what were the written guarantees at the time of Confederation? Written minority rights at the time of Confederation can be categorized into four categories. And into each of these categories can we find the existence of explicit constitutional clauses created for their protection. These four elements form the basis of the Confederation agreement. These were practical and specific realities that the Fathers of Confederation sought to address. These guarantees were a means of creating a buy-in amongst the various factions who would usher Confederation into existence. The four categories were broadly:

i) Protections for French-Canadians;
ii) Protections for Anglophone, Protestants in Lower Canada (QC);
iii) Religious/Education Rights; and
iv) Regional Rights

Many of these minority rights, intersect with one another. Throughout the debates of 1865 and 1866, the Fathers of Confederation sought to balance the rights of two minority groups within the larger Confederation. First, they sought to grant autonomy to Lower Canada in order to preserve the rights of the French-Canadian minority vis-à-vis the rest of British North America. However, there were to be checks on a French-speaking majority province in order to protect another minority group—Anglophone, Protestants in what would become Quebec. In some instances, protection for one class of Canadians conflicted with another. This can be most clearly seen with the Disallowance Power of Section 90—a veto power created to protect the Anglophone minority in Quebec, which was seen as eroding the protections of the French-Canadian minority nationally. A crucial aspect of these rights was education, which forms the third element of written protections for minorities and which revealed how the Fathers of Confederation viewed the majority vs. minority rights tension. Finally, this paper presents the fourth explicit protection—regional rights through the composition of the Senate.

II. French-Canadian Minority in Canada

The rights of French-Canadians were inseparable from the concept of federalism. No Confederation could have been achieved without this precondition, of which Lower Canada viewed as necessary to continue their linguistic and cultural existence. However, the Confederation agreement that was forged in Quebec, would cause much tension in Lower Canada as many viewed it as insufficiently federalist. This was due to a conflict with another set of minority rights—that of the Anglophone, Protestant community within Lower Canada. In order to protect their rights, the Fathers of Confederation added guarantees, including the powers of federal interference into provincial domains. And thus, the drafters attempted to balance the minority rights of French-Canadians in a broader English-speaking coalition with the English-speaking minority in what would be Quebec. This was the tension of rights that was hotly debated—that of majority vs. minority rights and how to handle conflicting minority rights claims. There were other considerations too which were critical to French-Canadian rights—the protection of the French language, culture, and their unique civil code. Religious matters are found later in this report.

Federalism, How to Protect Two Sets of Minorities

The main mechanism for protecting rights was unwritten. Not in the sense of an unwritten right, but a mechanism that the Fathers of Confederation thought would protect the balance of power. This was federalism. Essentially, no majority could threaten the rights of either minority without retribution happening in either the provincial or federal arena. Here’s John Rose, an Anglophone member from Montreal, who spoke to this system of checks and balances,

John Rose [Montreal Centre]—[…] Now, sir, I believe that the rights of both minorities—the French minority in the General Legislature and the English-speaking minority in the Local Legislature of Lower Canada—are properly guarded.

I would admit at once that without this protection it would be open to the gravest objection; I would admit that you were embodying in it an element of future difficulty, a cause of future dissension and agitation that might be destructive to the whole fabric; and therefore it is a very grave and anxious question for us to consider—especially the minorities in Lower Canada—how far our mutual rights and interests are respected and guarded, the one in the General and the other in the Local Legislature. With reference to this subject, I think that I, and those with whom I have acted—the English speaking members from Lower Canada—may in some degree congratulate ourselves at having brought about a state of feeling between the two races in this section of the province which has produced some good effect.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—There has been, ever since the time of the union, I am happy to say—and everybody knows it who has any experience in Lower Canada—a cordial understanding and friendly feeling between the two nationalities, which has produced the happiest results. Belonging to different races and professing a different faith, we live near each other; we come in contact and mix with each other, and we respect each other; we do not trench upon the rights of each other; we have not had those party and religious differences which two races, speaking different languages and holding different religious beliefs, might be supposed to have had; and it is a matter of sincere gratification to us, I say, that this state of things has existed and is now found amongst us.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—But if, instead of this mutual confidence; if, instead of the English-speaking minority placing trust in the French majority in the Local Legislature, and the French minority placing the same trust in the English majority in the General Legislature, no such feeling existed, how could this scheme of Confederation be made to work successfully?

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—I think it cannot be denied that there is the utmost confidence on both sides; I feel assured that our confidence in the majority in the Local Government will not be misplaced, and I earnestly trust that the confidence they repose in us in the General Legislature will not be abused.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—I hope that this mutual yielding of confidence will make us both act in a high-minded and sensitive manner when the rights of either side are called in question—if ever they should be called in question—in the respective

• • (p. 406 in the primary document)

legislatures. This is an era in the history of both races—the earnest plighting of each other’s faith as they embrace this scheme. It is remarkable that both should place such entire confidence in one another; and in future ages our posterity on both sides will be able to point with pride to the period when the two races had such reliance the one on the other as that each was willing to trust its safety and interest to the honor of the other.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—This mutual confidence has not been brought about by any ephemeral or spasmodic desire for change on the part of either; it is the result of the knowledge each race possesses of the character of the other, and of the respect each entertains for the other.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—It is because we have learnt to respect each other’s motives and have been made to feel by experience that neither must be aggressive, and that the interests of the one are safe in the keeping of the other. And I think I may fairly appeal to the President of the Council [George Brown], that if, during the ten years in which he has agitated the question of representation by population, we the English in Lower Canada had listened to his appeals—appeals that he has persistently made with all the earnestness and vigor of his nature—if we had not turned a deaf ear to them, but had gone with those of our own race and our own faith, the people of Upper Canada, who demanded this change, where, I would ask him, would have been our union to day? Would not a feeling of distrust have been established between the French and English races in the community, that would have rendered even the fair consideration of it utterly impracticable?

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—Would the French have in that case been ready now to trust themselves in the General Legislature, or the English in the Local Legislature of Lower Canada? No; and I pray God that this mutual confidence between two races which have so high and noble a work to do on this continent, who are menaced by a common danger, and actuated by a common interest, may continue for all time to come! I pray that it may not be interrupted or destroyed by any act of either party; and I trust that each may continue to feel assured that if at any time hereafter circumstances should arise calculated to infringe upon the rights of either, it will be sufficient to say, in order to prevent any aggression of this kind—”We trusted each other when we entered this union; we felt then that our rights would be sacred with you; and our honor and good faith and integrity are involved in and pledged to the maintenance of them.”

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—I believe this is an era in our history to which in after ages our children may appeal with pride, and that if there should be any intention on either side to aggress upon the other, the recollection that each trusted to the honor of the other will prevent that intention being carried out.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—Feeling as I do thus strongly that our French fellow-subjects are placing entire confidence in us—in our honor and our good faith—we, the English speaking population of Lower Canada, ought not to be behind hand in placing confidence in them. I feel that we have no reason as a minority to fear aggressions on the part of the majority. We feel that in the past we have an earnest of what we may reasonably expect the future relations between the two races to be. But although this feeling of mutual confidence may be strong enough in our breasts at this time, I am glad to see that my hon. friend the Attorney General East [George-Étienne Cartier], as representing the French majority in Lower Canada, and the Minister of Finance [Alexander Galt], as representing the English speaking minority, have each carefully and prudently endeavored to place as fundamental conditions in this basis of union such safeguards and protection as the two races may respectively rely upon.

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—I feel that it has been carefully considered and carried out, and with the same amount of mutual confidence in the future working as in the past, we need not have any apprehension in trusting the interests of the two races either in the Federal or Local Legislature. 

Some Hon. Members—Hear, hear.

John Rose [Montreal Centre]—But although we here, and as members of this House, feel this confidence in each other, no doubt those who prepared these resolutions were conscious that the powers must be so distributed, and the reservations of power so made, as to commend them to the people of the country at large. You must carry the people with you in this movement, for you cannot force a new Constitution, a new state of political being, upon a people, unless their own judgment and their own convictions as to its safety go along with it.

Luther Holton [Chateauguay]—Hear, hear.

John Rose [Montreal Centre]—You cannot, I say, force a new Constitution upon an unwilling people, but in this instance I believe a very great majority approve of, and are earnestly desirous of the change. I know you must

• • (p. 407 in the primary document)

satisfy them that their interests for all time to come are safe—that the interests of the minority are hedged round with such safeguards, that those who come after us will feel that they are protected in all they hold dear; and I think a few observations will enable me to show the House that that has been well and substantially done in this case.

Some Hon. Members—Hear, hear.[5] [Emphasis is mine]

The then Premier, too, Étienne Pascal Taché echoed the same principle,

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—Well, it did not much matter; but the honorable member should recollect that Lower Canada had constantly refused the demand of Upper Canada for representation according to population, and for the good reason that, as the union between them was legislative, a preponderance to one of the sections would have placed the other at its mercy. It would not be so in a Federal Union, for all questions of a general nature would be reserved for the General Government, and those of a local character to the local governments, who would have the power to manage their domestic affairs as they deemed best. If a Federal Union were obtained it would be tantamount to a separation of the provinces, and Lower Canada would thereby preserve its autonomy together with all the institutions it held so dear, and over which they could exercise the watchfulness and surveillance necessary to preserve them unimpaired. 

[The honorable member repeated this portion of his speech in French, for the express purpose of conveying his meaning in the clearest and most forcible manner to his fellow-members for Lower Canada, who might not have apprehended so well the English.]

But there might be a portion of the inhabitants of Lower Canada who might at a first glance have greater reason to complain than the French Roman Catholics, and these were the English Protestants. And why? Because they were in a minority; but

• • (p. 10 in the primary document)

he thought that if they took the trouble fully to consider the subject, they would be reassured and satisfied with the scheme.

First a great event had taken place; the law of Lower Canada had been consolidated, and the English-speaking people residing in that section had got reconciled to it; in fact they were well satisfied therewith. In this respect, then, they were secure. But they might say that the majority in the Local Legislature might hereafter be unjust to them, but he thought that, on looking at the past, their fears might be allayed.

[…]

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—Now if there was one name which French Canadians disliked more than another, it was that of Luther.

Some Hon. Members—Hear, hear, and laughter.

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—Yet they had elected a gentleman bearing that significant appellation. He was glad they had, and he had no doubt he had been elected because of his personal worth; but it unquestionably showed a great deal of liberal feeling on the part of the electors.

Some Hon. Members—Hear, hear.

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—But if an English Protestant was bad in the eyes of a French Canadian, a French Protestant was infinitely worse, and yet the county of Lotbinière a French Canadian Protestant without even questioning his religion. That gentleman was as a most worthy, able and well educated person, and every way well qualified for the important trust. But again, quite lately, in a division in Lower Canada numbering over fifty thousand souls, of which only one thousand four hundred were English, an election of a member to this Chamber had taken place, the candidates being a French Roman Catholic gentleman, long and well known, and an English Protestant—and with what result? Why, that the English Protestant had beaten the French Canadian Roman Catholic by one thousand votes.

Some Hon. Members—Hear.

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—Could any greater proof of a tolerant and liberal feeling be exhibited? These examples should show, as he thought, that the Protestants of Lower Canada were sure to meet with not justice simply, but with the largest toleration. It might perhaps be said that Mr. Price who had been elected for the division of which he spoke, being a large merchant doing business in Chicoutimi, had used the influence which his position gave him over many electors who were in his debt to obtain success; but whatever might be said of Chicoutimi, it could not be said of the county of Charlevoix, where he had no such business relations, and yet he obtained a majority there too.

The fact was, the result might be considered not only as a mark of confidence in Mr. Price, the son elected, but as a token of respect and gratitude to Mr. Price, senior, who had by his energy and enterprise opened up the Saguenay country, and who, in a certain sense, might be said to be the father of that region. Much had been said on the war of races, but that war was extinguished on the day the British Government granted Canada Responsible Government, by which all its inhabitants, without distinction of race or creed, were placed on a footing of equality.

Some Hon. Members—Hear, hear.

[…]

He believed the French Canadians would do all in their power to render justice to their fellow-subjects of English origin, and it should not be forgotten that if the former were in a majority in Lower Canada, the English would be in a majority in the General Government, and that no act of real injustice could take place even if there were a disposition to perpetrate it, without its being reversed there.[6] [Emphasis is mine]

Federalism in its most idealistic sense would leave each province in charge of their own affairs. The federal government would not be interfering in culture, language, religion, etc. Here’s cabinet member Hector-Louis Langevin on how he viewed the arrangement,

Hector-Louis Langevin [Dorchester, Solicitor General East]—[…] When the matter under consideration is a great public enterprise, such as a railway, a canal or a telegraph line, our religious and national interests will not be endangered. It will be the duty of the Central Government to see that the country prospers, but it will not be its duty to attack our religion, our institutions or our nationality, which, moreover, as I have just proved, will be amply protected.[7] [Emphasis is mine]

Federalism, as aforementioned was seen as essential for the protection of the French-speaking minority. Confederation could not be carried otherwise. George Brown explains,

George Brown [Oxford South, President Executive Council]—We had either to take a federal union or drop the negotiation. Not only were our friends from Lower Canada against it, but so were most of the delegates from the Maritime Provinces. There was but one choice open to us—federal union or nothing. But in truth the scheme now before us has all the advantages of a legislative union and a federal one as well. We have thrown over on the localities all the questions which experience has shown lead directly to local jealousy and discord, and we have retained in the hands of the General Government all the powers necessary to secure a strong and efficient administration of public affairs.[8] [Emphasis is mine]

John A. Macdonald agreed with Brown’s assessment. Later in. the debates he reiterates the same point. Confederation was an impossibility without federalism,

John A. Macdonald [Kingston, Attorney-General West]—This, Mr. Speaker, is the position of the Government; and what though amendments should be carried—what though the amendment of which the honorable member for North Ontario [Matthew Cameron] has given notice should succeed, and the House should declare in favor of a Legislative instead of a Federal union (supposing the honorable gentleman did present and carry such a motion—what good could it possibly do? The contract that we entered into with the other provinces would be broken, this Legislature would be violating the solemn engagement under which we are to the other colonies, and we would have a Constitution drawn up which none of the other provinces would adopt. We know that they would reject it—we know that Lower Canada would go as one man against it.[9] [Emphasis is mine]

This bargain was applauded by some French-Canadian members, who viewed this new arrangement as the means of settling these problems permanently—for guaranteeing French-Canadian nationality and protection of their language and institutions. Here’s Joseph Dufresne,

Joseph Dufresne [Montcalm]—[…] We ask our Sovereign and the Imperial authorities to unite, by means of a Federal union, all these Provinces of British North America. In examining this question, and in order to express more clearly and fully my opinion of these resolutions, I may say that I accept them for many reasons, but chiefly as a means of obtaining the repeal of the present legislative union of Canada, and securing a peaceable settlement of our sectional difficulties.

I accept them, in the second place, as a means of obtaining for Lower Canada the absolute and exclusive control of her own affairs. I accept them, thirdly, as a means of perpetuating French-Canadian nationality in this country. I accept them, fourthly, as a more effectual means of cementing our connection with the Mother Country, and avoiding annexation to the United States. I accept them, fifthly and lastly, as a means of administering the affairs of the country with greater economy. Such are my reasons for accepting the Confederation scheme submitted to us by the Government.[10] [Emphasis is mine]

And later again,

Joseph Dufresne [Montcalm]—[…] Now, I call the attention of hon. members of this House to the powers here granted to the local governments, and which would consequently be granted to us in Lower Canada. When we opposed representation based upon population, was it because we feared that the majority would pass a tariff weighing unequally on the two sections of the province? Was it because we feared they would erect no more light-houses in the Gulf or elsewhere? Was it because we feared that Upper Canada, by means of its majority, would establish a greater number of post-offices, or increase the rates of postage on letters?

No, Mr. Speaker, it was not for any of these reasons; but it was because we properly and rightly feared that when Upper Canada obtained a larger number of representatives in the Legislature than Lower Canada, they would invade our rights and endanger all that we hold most dear. That is what we feared.

Some Hon. Members—Hear, hear.

Joseph Dufresne [Montcalm]—And at the very moment when the Government presents a measure securing the safety of all our rights and institutions, with guarantees for the minority, honorable members declare that the union must be maintained, even with

• • (p. 926 in the primary document)

representation based upon population. No, they are not sincere in this; it is a mere subterfuge on their part, for they cannot propose anything to the country in place of the Government project.

Some Hon. Members—Hear, hear.

Joseph Dufresne [Montcalm]—The Opposition attempt to show that a Federal union and a Legislative union are the same thing, but the whole world knows that the two kinds of union are not in any way alike. In a Federal union the Legislature cannot go beyond the rights and powers assigned to it, whereas in a Legislative union it is vested with all power—it is sovereign.[11] [Emphasis is mine]

And here’s Joseph Cauchon in 1866,

Joseph Cauchon [Montmorency]—[…] Regarding the preservation of the French Canadian nationality, Mr. C. contended that as the larger body would absorb the smaller, the lower Canadians of French Canadian origin had a better guarantee for their preservation of their language and institutions under Confederation then under any other system.[12] [Emphasis is mine]

Opponents–Confederation Insufficiently Federalist

For detractors, however, the federalism proposed was insufficient. For some, the protections given to Anglophones within Lower Canada meddled with their own sovereignty. For others, the powers of the federal government were far too great. The power which caused the most fear amongst opponents was that of the federal power of disallowance (veto).[13] Opponents feared that such a federal union was rife for abuse and could easily be turned into a legislative union, especially with an overwhelming majority of Anglophones in Canada. Other concerns included a lack of representation—particularly when you factored in Anglophone MPs/Senators in the federal parliament.

Here’s leading anti-Confederation advocate Antoine-Aimé Dorion arguing that Canada would become a legislative union. He says,

Antoine-Aimé Dorion [Hochelaga]—Yes, I suppose that is another necessity of Confederation, to which we may soon look forward. Some western extension of this Grand Trunk scheme for the benefit of Messrs. Watkin & Co., of the new Hudson’s Bay Company. So far as Lower Canada is concerned, I need hardly stop to point out the objections to the scheme. It is evident, from what has transpired, that it is intended eventually to form a legislative union of all the provinces. The local governments, in addition to the General Government, will be found so burdensome, that a majority of the people will appeal to the Imperial Government for the formation of a legislative union. 

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—I may well ask if there is any member from Lower Canada, of French extraction, who is ready to vote for a legislative union. What do I find in connection with the agitation of this scheme? The honorable member for Sherbrooke [Alexander Galt] stated at the dinner to the delegates given at Toronto, after endorsing everything that had been said by the Honorable President of the Council [George Brown]:— 

We may hope that, at no far distant day, we may become willing to enter into a Legislative Union instead of a federal union, as now proposed. We would have all have desired a legislative union, and to see the power concentrated in the Central Government as it exists in England, spreading the series of its protection over all the institutions of the land, but we found it was impossible to do that at first. We found that there were difficulties in the way, which could not be overcome.

Honorable members from Lower Canada are made aware that the delegates all desired a legislative union, but it could not be accomplished at once. This Confederation is the first necessary step towards it. The British Government is ready to grant a Federal union at once, and when that is accomplished the French element will be completely overwhelmed by the majority of British representatives. What then would prevent the Federal Government from passing a set of resolutions in a similar way to those we are called upon to pass, without submitting them to the people, calling upon the Imperial Government to set aside the Federal form of government and give a legislative union instead of it?

Some Hon. Members—Hear, hear.[14] [Emphasis is mine]

Joly argues that the English majority was threatening to Lower Canada’s survival,

Henri Joly [Lotbinière]—[…] French-Canadians! Do not allow yourselves to be led away by those brilliant promises. An Italian poet describes the endeavours of a mother to induce her child to swallow a draught, which is intended to restore him to health; to tempt him, she covers the edge of the cup with honey; in like manner, the edge of the cup which is presented to you has been covered with honey, but instead of containing a health-restoring draught, that cup contains poison and death.

I do not believe that the French-Canadians will abjure the power of their majority in Lower Canada by striving to oppress the English-Canadians; but there are too many points on which they disagree to allow of their living long in peace together, in spite of their sincere wish to do so, under the system of local government which is proposed to us. The Honorable Prime Minister [Étienne Pascal Taché] said in the Council:—

I believe the French Canadians will do all in their power to render justice to their fellow-subjects of English origin; and it should not be forgotten that, if the former are in a majority in Lower Canada, the English will be in a majority in the General Government, and that no act of real injustice can take place without its being reversed by the Federal Parliament.

But who is to decide whether any act of the French-Canadians is really an act of injustice? The Federal Parliament, in which the English element will be all-powerful! In political matters, a disinterested opinion is but seldom come to; the sympathies of the majority in the federal Parliament will be against us; I see in this the prospect of a position which may prove to be a most dangerous one for us; if the strife should commence, no one can tell when it will end.

Joseph-Octave Beaubien [Montmagny]—I have confidence in the conscience of the Federal Parliament. We ought not to attribute evil intentions to men, but rather suppose that they will treat us as they desire to be treated themselves, with justice, and in a conscientious manner.

Henri Joly [Lotbinière]—Despite the honorable member’s sermon—I beg his pardon, I mean despite the honorable member’s observation—I am of opinion that we ought not to leave interests so precious as those which are confided to us to the mercy of men with whom we are not always certain of living on good terms, without any other guarantee than their conscience.

Confederation, by changing the state of things which established harmony between the English and French races in Lower Canada, will destroy that harmony, and the consequences may be only too easily foreseen. In Upper Canada there is much more homogeneity, and, by consequence, the danger of intestine trouble there is much less great; true it is, that the enormous power of the Orangemen and the law respecting separate schools may give rise to difficulties, but I fear more for the relations of Upper Canada with the other provinces, and especially the Atlantic Provinces.[15] [Emphasis is mine]

Taschereau echoes similar concerns, arguing that Anglophone Quebecers will align with their allies in Upper Canada,

Henri Taschereau [Beauce]—We have only 47 French-Canadian votes out of 130, and we could not count on Upper Canadian members for the safety of our interests—either local or religious—whereas they would have the support of all the English and Protestant members from Lower Canada.  

Some Hon. Members—Hear.

Henri Taschereau [Beauce]—And in Confederation the English minority of Lower Canada will not make common cause with the French-Canadian party, but, on the contrary, with the Upper Canadian party; for they will look to Upper Canada for protection.

Some Hon. Members—Hear, hear.

Henri Taschereau [Beauce]—We are told that all our interests and institutions are protected, and that the clergy are in favor of Confederation. I, for my own part, have seen no proof of the truth of that assertion; I believe that the clergy have not made any display of their opinions on this question. I am moreover convinced that those of that body who have considered the question, have looked upon it as fraught with danger for us—as pregnant with evils, the development of which may be grievous to us as a nation hereafter.[16] [Emphasis is mine]

Maurice Laframboise argued along similar lines, saying that French-Canadian representation was very low compared to the majority in the federal parliament, which would threaten their institutions,

Maurice Laframboise [Bagot]—After having granted the favorite measure of the great Clear Grit chief, the Lower Canada delegates doubtless considered that that was not sufficient, since they also made another important concession to Upper Canada and to the Protestants of Lower Canada, by vesting in the Federal Government the power of legislating on marriage and divorce—

Some Hon. Members—Hear, hear.

Maurice Laframboise [Bagot]—two questions upon which the French-Canadians were united by the bonds of a common faith, and on which they could not tolerate any discussion; and the Ministers, therefore, ought not to have made those concessions, which are utterly opposed to the religious doctrines they themselves profess. I say that power has been given to the Federal Government to legislate on divorce and to legalize it, and I am not mistaken in saying it, for the principle is adopted by the fact of giving to the Federal Legislature the right of legislating on this question.

This power ought to have been granted to the local legislatures, and not to the Federal Legislature, as has been done; and I shall prove it in this way: the other day, the Hon. Solicitor General for Lower Canada (Hon. Mr. Langevin) told us. That as regards Lower Canada, there was no necessity for granting to its legislature the power of legislating on divorce, because, said he, “the religious authorities are recognized; but it was necessary and proper to grant that power to Upper Canada.”

Some Hon. Members—Hear, hear.

Maurice Laframboise [Bagot]—Now, I ask, if Lower Canada did not require that power of legislating, why has it been given to the Federal Legislature, which will be composed in great majority of Protestants, who do not hold the same opinion that we do on these questions, when it is evident that that Legislature will probably grant bills of divorce to all persons who apply for them, without considering whether the parties are Catholics or Protestants? If divorce is condemned by the Catholic religion, I maintain that it is wrong to grant that power to a Legislature which will be composed in great part of Protestant members, ready to legislate on divorce, and to grant divorces to those who bring forward what they may consider reasonable grounds, sufficient to entitle them to obtain divorce, without considering whether the religious faith of the parties permits or does not permit divorce. If divorce be condemned by the Catholic Church—and all the world knows that it is so condemned in the most formal manner—the power of the Legislature in this matter ought to have been restricted, and not made general, as it is proposed to make it in the scheme of Confederation submit ted to us.

Mr. Speaker, I have shown, I think, that Lower Canada has gained nothing, but that she has conceded everything in this compromise; true, in order to cover these guilty concessions, we are told, “But the protection of our institutions and the maintenance of our laws are fully and amply guaranteed to us by the new Constitution.”

In the first place, under the Confederation, our institutions will not be protected—as it has vainly been attempted to demonstrate they will; but, even though it were the case, does not the Constitution under which we now live afford us infinitely better guarantees for all our dearest liberties? Let us examine, for a moment, what species of guarantee we have under the present system, and what guarantees we shall have under the Federal system The guarantee which the French-Canadians have under the present system, consists in the fact that out of 65 members, they count at least 51 of their own origin and faith, and that they

• • (p. 847 in the primary document)

possess in the country and in the Legislature so powerful an influence, that the existence of any and every government depends on their good-will, and that no legislation can be carried on without their consent; whereas, under the new Constitution, the General Legislature will be composed of 194 members, Lower Canada having 65, of whom 14 at least will be English and Protestants, leaving thus 51 French-Canadian or Catholic members.

Now, even if these 51 members act together as one man, they will have to struggle against 143 members of a different origin and a different faith from themselves. Thus, Mr. Speaker, I am convinced that the guarantees we enjoy under our present Constitution—guarantees which are assured to us as long as we do not change our system of government—are infinitely superior to those offered to us by the new Constitution which it is sought to force upon the people. But we are told that the Federal Government will have the Catholic minority to deal with, and that the assistance of the latter will be absolutely necessary to carrying it on.

Well, I ask, Mr. Speaker, what can a minority composed of 51 members do against a majority of 143; and what protection can it offer to our laws, our institutions and our language? No; it is evident that all these things which we hold so dear may, under the Federal system, disappear and be annihilated at any moment; they will be constantly at the mercy of our natural enemies. In order to secure Confederation, you have granted to Upper Canada representation based on population—a principle against which the people of Lower Canada have always voted as one man, and you have also granted everything that the Upper Canadian delegates desired to obtain for themselves and their co-religionists.

It is quite natural that the English members in Lower Canada should be nearly all in favor of the scheme, since they have a sure guarantee in the veto power of the Federal Legislature Thus the Local Legislature of Lower Canada cannot pass a single law without submitting it to the sanction of the Federal Legislature, which can, by its veto, amend, change or completely annul, if it thinks proper, any law or any measure so submitted to it But what guarantee will the Federal Legislature offer to the French-Canadian majority of Lower Canada, and to the Catholic minority of Upper Canada? None whatever. How can the great Conservative party which boasts so loudly of representing the interests of the Catholics of Lower Canada, which takes its stand as the natural protector of the religion and the faith of Catholics—

Some Hon. Members—Hear, hear.

Maurice Laframboise [Bagot]—very absurdly I must admit—how can that great party, I say, have forgotten, as it evidently has forgotten, that there are Catholics in Upper Canada who expected and are entitled to its protection? How will the Catholic minority in Upper Canada be protected in the Local Legislature of Upper Canada, composed of Englishmen and Protestants? Shall I tell you how, Mr. Speaker? Well, they will be protected by two members only, the hon. members for Cornwall and Glengarry (Hon. Mr. J.S. Macdonald and Mr. Donald A. McDonald).

The great Conservative party, which styles itself the protector of Catholicism, has simply handed over the Catholic minority of Upper Canada to the tender mercies of their enemies And to give an idea of the kind of protection they will enjoy under the new system, it is sufficient to state that a few days ago, Bishop Lynch, of Toronto, was forced to address himself publicly, through the press, to the citizens of Toronto, to protest against the insults offered in broad daylight, in the public streets of that city and elsewhere, to revered Sisters of Charity, and to ask protection for the venerable ladies of that community; and then look at the fanatical and intolerant writings, such as those I read to this Honorable House before the recess, from an article in the Globe of the 6th March—a paper which represents the opinions of the present Government, and which is the organ and property of the Hon. President of the Executive Council (Hon. Mr. Brown).

Can it be said that we have nothing to fear, that the religious institutions of Upper Canada will be perfectly safe under the system sought to be introduced into the country? Does not the hon. Member for Montmorency [Joseph Cauchon] admit, in his famous pamphlet of 1865, that our religious institutions have many a time been insulted in this House? And has not the Bishop of Toronto just complained that Sisters of Charity have been insulted in the streets of the capital of Upper Canada, and that they have been turned into ridicule at masquerades and masked balls, frequented by the best society of that locality? And in order that every one may be convinced of the fact, I take the liberty of reading his letter, which is as follows:—

• • (p. 848 in the primary document)

To The Citizens of Toronto.

The Sisters of Charity have been from time to time grossly insulted in this city. Men have rudely seized hold of them in the public streets whilst going on their errand of charity; they have been pelted with stones and snow-balls. They have been called the most opprobrious and insulting names; their costume has been contumeliously exhibited in masquerades on a skating rink. We, confiding in the honor and justice of the gentlemen of Toronto, most respectfully ask protection in the premises.

Your obedient servant,

John Joseph Lynch,
Bishop of Toronto.

But even though many hon. members of this House doubted the truth of the statements made in that letter, is not the danger we shall incur, as Catholics, once we are placed at the mercy of our enemies, exemplified by facts which they cannot have forgotten? I mean the numberless injuries and insults offered by an honorable member of this House to everything Catholics hold dear. Have we forgotten the infamous charges uttered by one of the friends and warm supporters of the Hon. President of the Council (Hon. Mr. Brown) on the floor of this House? Well, I ask you now—you, the great Conservative party, the natural protectors of our religion and of its admirable institutions—what have you done to secure protection for the Catholics of Upper Canada in the new Confederation? Nothing whatever![17] [Emphasis is mine]

Joseph Perrault argued that the representation issue was not just limited to the lower house (House of Commons) of what would be the Parliament of Canada, but also in the upper house. If you factored in Anglophone representatives, and federal control over the appointment process, Lower Canada was not protected there either. He says,

Joseph Perrault [Richelieu]—If the hon. member for Montcalm [Joseph Dufresne] had listened attentively to the remarkable speech of the hon. member for Brome [Christopher Dunkin], he would have learned that in the majority of the states composing the American Union, the judges are not appointed

• • (p. 624 in the primary document)

by the people, but by the Executive branch of the local government, in precisely the same way as in Canada, and that they are in every respect as upright and as distinguished as our own judges. If our French-Canadian Ministers had not been in so powerless a minority in the Quebec Conference (four to thirty-two), they would certainly not have accepted a scheme of Confederation so fraught with danger to the French race as that which has been submitted to us. They would have obtained more favorable conditions than those which are imposed upon us, among which is the appointment for life of the legislative councillors, by the Executive branch of the General Legislature.

For my part, Mr. Speaker, I am not in favor of the appointment for life of men taken from the crowd to be converted into the instruments of oppression, and too often to serve to cast impediments in the way of the most important liberties and rights of the people. The appointment for life of the legislative councillors by a majority which is hostile to our race is as dangerous today as it was in the most evil days of our history, and to accept it is to place our most precious liberties at the mercy of the enemies of our race.

With such provisions in the Constitution which it is proposed to force upon us, it is impossible that the French element should be protected in the Legislative Council. It is equally impossible that the aggressive tendencies, of which I gave an historical sketch in the first part of my remarks, will not produce their effect in the Federal Executive, when the question of the appointment of those members is being settled. We have been told, “The French Canadian section will resign if the Federal Executive attempt to practice injustice to the detriment of their fellow countrymen.”

Well, Mr. Speaker, I would willingly believe that they would resign, and that no successors could be found for them, which is still more improbable, and I should like to know to what such a resignation would lead, and what sort of a remedy it would provide for our humiliating position. We shall have forty-eight members in the Federal Parliament against one hundred and forty of English origin; in other words, we shall be in the proportion of one to four. What could so weak a minority do to obtain justice? Evidently the resignation of the French section would make it still more powerless, and it would have to accept the tyrannical dictates of its opponents. The French members of the present Government themselves give as the ground of the necessity of the proposed changes, the fact that the existing Constitution does not afford us sufficient guarantees.

But then, what sort of guarantees shall we have under the Confederation which it is proposed to force upon us and under which we shall be in a minority twice as great? Let us suppose the very probable contingency of a collision between our Local Legislature and the Federal Government, in consequence of the rejection of a measure passed by the Province of Lower Canada and thrown out by the General Parliament; in what position shall we be? Let us remember that the Federal Executive appoints the Legislative Council, presides over the criminal legislation of the country, and appoints the judges who administer it; in a word, that in the Federal Government are vested all sovereign powers, to the exclusion of the local governments.

Well, Mr. Speaker, I say without hesitation that in the case of a collision, we shall find ourselves completely at the mercy of the hostile Federal majority, and that it may oppress us, assimilate our laws; suspend our judges, arm the militia against us, and send us to the scaffold or into exile in any way they may think proper, notwithstanding our protestations and those of the French-Canadian minority in the Federal Parliament. Such has already been found to occur; the past is there to prove the fact, and everything leads us to believe that the same attempts at fanatical aggression will be renewed in our day, if the scheme of Confederation is adopted.

Some Hon. Members—Hear, hear.

Joseph Perrault [Richelieu]—The hon. member for Brome [Christopher Dunkin], whose loyalty will certainly not be called in question, himself declared in this House that this scheme would give rise to difficulties and entail deplorable collisions. Supposing, Mr. Speaker, that those collisions and difficulties arise, what shall we do? Will not all power be in the hands of the Federal Government and of a hostile majority? Is it not because the people understand it that they reject this measure with threats on their lips and in their eyes; that every day they send us numerous petitions in which they prophesy the most serious dissatisfaction? How long will the eyes and the ears of the members of this House remain closed, that they may not be cognisant of this protest of their alarmed fellow-countrymen?

The Hon. Attorney General East [George-Étienne Cartier] himself refuses to communicate to us a single one of the details of the scheme of

• • (p. 625 in the primary document)

Confederation, and he would have us give up all the rights which the existing Constitution confers upon us, by voting in favor of a Local Legislature of which the powers will be naught, and of a General Parliament in which we shall be in the proportion of one to four. Mr. Speaker, it is not surprising that the French-Canadian population of Lower Canada is unanimous in rejecting a Confederation which presents to us so gloomy a future—

Some Hon. Members—Hear, hear.

Joseph Perrault [Richelieu]—and I do not fear to declare that our Ministers are committing an act of very great imprudence in forcing upon the people constitutional changes of so serious a character, and so loudly denounced as an attack on their rights and their privileges. Never, at any period of our history, have there been seen such changes of constitution under such extraordinary circumstances.

And exactly at the moment when we are preparing to resist the invading army of a powerful neighbor, we are deprived of the liberties which we enjoy after having secured them by a century of struggles. But it seems to me that new guarantees of security ought rather to be given us, in order to induce us to fight with warlike antagonists ten times more numerous than ourselves, and whose political organization is perhaps less hostile to our race than the proposed Confederation. Have not the present Ministry taught us to look upon the semblance of local government, which they propose to us, as a sufficient protection for all that we hold most dear, and to accept the position of a powerless minority in the General Government, because commercial interests only will be brought in question there?

If this proposition is a just one, the Constitution of the United States, with the recognized sovereignty of Lower Canada, affords much greater security for our institutions, our language and our laws. For the sovereignty of the state implies their preservation in the state, which yields up nothing to the General Government except a very restricted number of powers.

Yes, Mr. Speaker, in proposing a change of Constitution the Ministry have committed a serious fault, and they have no right to endeavor to prevent the people of this province from examining the question of possible changes in all its bearings. Scarcely six months ago the French-Canadians lived happily, relying upon the security given them by the existing Constitution. Now such can hardly be the case, when the proposed changes threaten their existence as a race. Impose these changes upon them, and then let danger come, and England will find out, but too late, that her most loyal subjects are lost to her.

Our people will have learned that of two evils they must choose the least, and that on a comparison between Confederation and annexation, the least evil will not, unfortunately, be found to be Confederation. Before marching on to certain slaughter, the soldier will ask himself for what he is going to fight, and whether the Constitution which he is going to defend is worth the sacrifice of his life’s blood. The day upon which the French-Canadian soldier puts this question to himself, will be the last day of the English power in America.

I hope I may be mistaken, Mr. Speaker, and I would wish to believe that the views of the Government are sounder than mine, at a time when they propose a measure so full of danger as that which is submitted to us. I would wish to believe, above all, that they have no intention of skilfully leading us into a collision with our neighbors, which would tend to carry us directly into annexation, and would strike a mortal blow at English domination on this continent.

I shall conclude, Mr. Speaker, by summing up my remarks. The union of the two Canadas has not yet done all its work. There is still room for progress under it, and it must be continued. The Hon. Attorney General for Lower Canada (Hon. Mr. Cartier) maintains on the contrary that it has no longer any grounds of existence, and that we must have a new political organization. Well, Mr. Speaker, I venture to hold an opinion different from that of the hon. member for Montreal East [George-Étienne Cartier], and I have no hesitation in saying that under the union we can yet double our prosperity and our numbers, if we introduce into the administration of affairs a little less party spirit and a little more patriotism.[18] [Emphasis is mine]

Perrault argued that the U.S. Constitution was more explicitly federalist and had stricter limits on federal power. That system would have offered a more fruitful protection for Lower Canada.

The most explicit power of federal paramountcy was that of federal disallowance of provincial legislation, which would become Section 90 of the Constitution Act, 1867.[19] Detractors of the clause were worried that giving the power of veto to the federal government (over local legislatures) would destroy the independence of local majorities (such as with Lower Canada). The Disallowance power, however, was created explicitly for the protection of minorities. Nevertheless, it was seen by its opponents as a tool to destroy another minority—French-Canadian institutions and culture. Here’s Antoine-Aime Dorion,

Antoine-Aimé Dorion [Hochelaga]—But how different will be the result in this case, when the General Government exercises the veto power over the acts of local legislatures. Do you not see that it is quite possible for a majority in a local government to be opposed to the General Government; and in such a case the minority would call upon the General Government to disallow the laws enacted by the majority? The men who shall compose the General Government will be dependent for their support upon their political friends in the local legislatures, and it may so happen that, in order to secure this support, or in order to serve their own purposes or that of their supporters, they will veto laws which the majority of a local legislature find necessary and good.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—We know how high party feeling runs sometimes upon local matters even of trivial importance, and we may find parties so hotly opposed to each other in the local legislatures, that the whole power of the minority may be brought to bear upon their friends who have a majority in the General Legislature, for the purpose of preventing the passage of some law objectionable to them but desired by the majority of their own section. What will be the result of such a state of things but bitterness of feeling, strong political acrimony and dangerous agitation?^[20] [Emphasis is mine]

And again later in the debates,

Antoine-Aimé Dorion [Hochelaga]—[…] I say that the Federal Parliament will exercise sovereign power, inasmuch as it can always trespass upon the rights of the local governments without there being any authority to prevent it. What authority have you constituted which can come forward and say to the Federal Parliament:—”You shall not do such and such a thing, you shall not legislate upon such and such a subject, because these matters are reserved to the local governments.”

There will be no such authority, and consequently it will have sovereign power, and can do all that it pleases, and may encroach upon all the rights and attributes of the local governments whenever it may think proper. We shall be—(I speak as a Lower Canadian)—we shall be at its mercy, because it may exercise its right of veto on all the legislation of the local parliaments, and there again we shall have no remedy.^[21] [Emphasis is mine]

Here’s Dorion’s brother, Jean-Baptiste-Éric Dorion, also denouncing the veto,

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska]—[…] I am opposed to the scheme of Confederation, because by means of the right of veto vested in the Governor by the 51st resolution, local legislation will be nothing but a farce.

They may try to make us believe that this power would be but rarely exercised, and that it differs in nowise from that exercised by the present Governor when he reserves bills for the Royal assent; but all the country knows that it would not be so. From the moment that you bring the exercise of the right of veto more nearly within the reach of interested parties, you increase the number of opportunities for the exercise of the right—you open the door to intrigues.

As, for instance, a party will oppose the passing of a law, and not succeeding in his opposition in Parliament, he will approach the Ministers and the Governor General, intriguing to obtain as a favor that the law may be disallowed. Take an example. I suppose your Confederation to be established; that a bill is passed for the protection of settlers, such as we have seen pass the House six times in ten years without becoming law, on account of the opposition to it in the Legislative Council by the councillors from Upper Canada; what would happen?

The few interested parties who were opposed to the measure would rush to the Governor General to induce him to disallow the law. By an appeal to the right of property, to the respect due to acquired rights, and to other sophistries, they would override the will of the people on a measure which is just in itself, and which is sought for and approved of by all legal men of Lower Canada in the present House. The people of Lower Canada will be prevented from obtaining a law similar to those now existing in thirteen different states of the American union, and which would in no way affect the principles of the existing law in Lower Canada. 

Here’s Joly, arguing that, should they wish, the federal government could disallow local responsible government altogether,

Henri Joly [Lotbinière]—[…] The English of Lower Canada, who will gain nothing by having a responsible local government, because that government is the government of the majority, will unite their votes with those of Upper Canada to impose upon us the same system of government as in the other section. The local parliaments, in the event of that system being adopted, having no part in the government, will soon become perfectly useless, and

• • (p. 361 in the primary document)

they will soon be dispensed with, just as in a machine we do away with useless and expensive wheelwork.

Nothing will then be left to us but the legislative union which the honorable members have not ventured to propose, because they are compelled to admit it would be an act of crying injustice to Lower Canada. But we are told to rely on article 42, which gives to the local legislatures the right of amending or changing their Constitutions from time to time, and it is said that when Lower Canada is separated from Upper Canada, she may alter her Constitution if she pleases, and adapt it to her own views.

It must not be forgotten, however, that the Lieutenant-Governor, who will enjoy the right of reserving the bills of the Local Parliament for the sanction of the Governor General, will be appointed by the Governor General in Council, that is to say, by the Federal Government, and, as a matter of course, it must be expected that he will act in conformity with the views of the Federal Government. Any bill reserved by him will require to be sanctioned by the Federal Government, which may refuse such sanction if they think proper, as they undoubtedly will as regards any bill the object of which might be to give responsible government to Lower Canada, whilst all the other provinces would only have governments which were not responsible.[22] [Emphasis is mine]

Another sentiment from French-Canadian critics of Confederation that arose during these debates was that Lower Canada felt unfairly maligned. There was a feeling amongst these critics that the coalition government did not trust a powerful Lower Canada, particularly in regards to minority (Anglophone rights). This distrust was remarked upon by Dorion,

Antoine-Aimé Dorion [Hochelaga]—I always stated that the difference existing in the religious faith of the people of the two sections, in their language, in their laws, in their prejudices even—for there are prejudices which were respectable and ought to be respected—would prevent any member from Lower Canada, representing a French constituency, from voting for representation by population, pure and simple, and thereby placing the people of

• • (p. 250 in the primary document)

Lower Canada in the position of having to trust for the protection of their rights to the people of Upper Canada, who would thereby have the majority in the Legislature.

Some Hon. Members—Hear.

Antoine-Aimé Dorion [Hochelaga]—There is at this moment a movement on the part of the British Protestants in Lower Canada to have some protection and guarantee for their educational establishments in this province put into the scheme of Confederation, should it be adopted; and far from finding fault with them, I respect them the more for their energy in seeking protection for their separate interests. I know that majorities are naturally aggressive and how the possession of power engenders despotism, and I can understand how a majority, animated this moment by the best feelings, might in six or nine months be willing to abuse its power and trample on the rights of the minority, while acting in good faith, and on what it considered to be its right.

We know also the ill feelings that might be engendered by such a course. I think it but just that the Protestant minority should be protected in its rights in everything that was dear to it as a distinct nationality, and should not lie at the discretion of the majority in this respect, and for this reason I am ready to extend to my Protestant fellow-citizens in Lower Canada of British origin, the fullest justice in all things, and I wish to see their interests as a minority guaranteed and protected in every scheme which may be adopted.

With these views on the question of representation, I pronounced in favor of a Confederation of the two Provinces of Upper and Lower Canada, as the best means of protecting the varied interests of the two sections. But the Confederation I advocated was a real confederation, giving the largest powers to the local governments, and merely a delegated authority to the General Government—in that respect in toto from the one now proposed which gives all the powers to the Central Government, and reserves for the local governments the smallest possible amount of freedom of action. There is nothing besides in what I have ever written or said that can be interpreted as favoring a Confederation of all the provinces. This I always opposed.[23] [Emphasis is mine]

And later, in 1866, we hear the same refrain from Laframboise, asking why special precautions were carved out from their sovereignty. He says,

Maurice Laframboise [Bagot] […] If Upper Canada can do with one chamber, why cannot Lower Canada? He had her no reason to prove that one Chamber was good for Upper Canada, and yet not good for Lower Canada. The hon. gentleman had spoken of the good feeling existing between the two races, but if there was so much good feeling, why all these precautions on the part of the British population? Why give them a school bill which the Lower Canadians would not touch? Why guarantee them so many constituencies that the parliament could not change? It was because they had no faith in that feeling.[24] [Emphasis is mine]

This tension between local majorities and minorities would reach its climax in the education debates, which are dealt with in a later section of this report.

The French Language

Of course, linguistic protection was another key element of French-Canadian rights that were explicitly laid out in the new constitution. In order to preserve the French language officially, Section 133 was included in the Constitution Act, 1867.[25] The government was explicit that these protections would continue from the status quo and be enshrined through Imperial Statute. Hector-Louis Langevin, a member of the Cabinet, describes it thus,

Hector-Louis Langevin [Dorchester, Solicitor General East]—[…] Another point on which the honorable member for Verchères [Félix Geoffrion] insisted, no doubt with the view of obtaining information, which I shall be delighted to afford if it should induce him to vote for the resolutions—and I am perfectly certain it ought to be sufficient—is the point as to the use of the French language under Confederation. The forty-sixth resolution is as follows:—

The English and French languages may be used simultaneously in the proceedings of the Federal Parliament as well as in the Legislature of Lower Canada and in the Federal courts and in the courts of Lower Canada.

The honorable member for Verchères [Félix Geoffrion] says—”It is true that the French language may be used in the Federal Parliament and in the Legislature of Lower Canada, as well as in the courts of justice of the Confederation, but the resolutions do not affirm that that language may be used in the drafting of laws and in the Votes and Proceedings of the Federal and Local Legislatures.”

Well,

• • (p. 782 in the primary document)

Mr. Speaker, I am quite sure the honorable member for Verchères [Félix Geoffrion] will be delighted to learn that it was perfectly well understood at the Conference of Quebec that the French language should not only be spoken in the courts of justice, in the Federal Parliament and in the Legislature of Lower Canada, but that, precisely as is now the case, the Votes and Proceedings of the Legislature, as well as all the Federal laws and those of the Legislature of Lower Canada, should be printed in both languages.

And what is still more, under Confederation the French language will be spoken before the Federal tribunals, an advantage which we do not possess at present when we apply to the Court of Appeals of Great Britain. So that the honorable member for Verchères [Félix Geoffrion] and this honorable House will gladly admit that its representatives at the Conference of Quebec did not fail in their duty on that point. These are the principles upon which the new Constitution will be based, and I feel justified in going so far as to say that it was impossible to secure more effectually this essential privilege of our nationality, and at the same time our civil and religious institutions. I was anxious to offer these explanations to the honorable member for Verchères [Félix Geoffrion] and to the House, and I trust they will completely satisfy the country.[26] [Emphasis is mine]

While some Lower Canadian members expressed their fears that this clause was not strong enough and that it could be reversed, they were answered forcefully that the clause would be guaranteed by Imperial Statute. Here’s an exchange on that fear, and the government’s response,

François Evanturel [Quebec County] said—[…] Those friends have expressed alarm in relation to one of the clauses of the resolutions, and have requested me to ask an explanation from the Hon. Attorney General for Upper Canada [John A. Macdonald], as to the interpretation of that clause. I have therefore to ask him whether article 46 of the resolutions, which states that “both the English and French languages may be employed in the General Parliament and in its proceedings, and in the Local Legislature of Lower Canada,” is to be interpreted as placing the use of the two languages on an equal footing in the Federal Parliament? Instating the apprehensions entertained by certain persons on this subject—and I consider that it is a mark of patriotism on their part, and that their apprehensions may be legitimate—I hope the Government will not impute to me any hostile intention, and will perceive that the course I adopt is in their interest, as it will give them an opportunity of dissipating the apprehensions in question.

Some Hon. Members—Hear, hear.

John A. Macdonald [Kingston, Attorney-General West]—I have very great pleasure in answering the question put to me by my hon. friend from the county of Quebec [François Evanturel]. I may state that the meaning of one of the resolutions adopted by the Conference is this, that the rights of the French-Canadian members as to the status of their language in the Federal Legislature shall be precisely the same as they now are in the present Legislature of Canada in every possible respect.

I have still further pleasure in stating that the moment this was mentioned in Conference, the members of the deputation from the Lower Provinces unanimously stated that it was right and just, and without one dissentient voice gave their adhesion to the reasonableness of the proposition that the status of the French language, as regards the procedure in Parliament, the printing of measures, and everything of that kind, should be precisely the same as it is in this Legislature.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—I do not rise to offer any lengthened remarks, but to draw for a moment the attention of the members of the Administration, with a view to obtain some information in connection with this scheme; but before doing so, I would say a word in reply to the explanation given by the Hon. Attorney General West [John A. Macdonald] to the question put by the hon. member for the county of Quebec (Hon. Mr. Evanturel), with regard to the use of the French language.

The Hon. Attorney General West [John A. Macdonald] stated that the intention of delegates at the Quebec Conference was to give the same guarantees for the use of the French language in the Federal Legislature, as now existed under the present union. I conceive, sir, that this is no guarantee whatsoever, for in the Union Act it was provided that the English language alone should be used in Parliament, and the French language was entirely prohibited; but this provision was subsequently repealed by the 11th and 12th Victoria, and the matter left to the discretion of the Legislature.

So that if, to-morrow, this Legislature choose to vote that no other but the English language should be used in our proceedings, it might do so, and thereby forbid the use of the French language. There is, therefore, no guarantee for the continuance of the use of the language of the majority of the people of Lower Canada, but the will and the forbearance of the majority. And as the number of French members in the General Legislature, under the proposed Confederation, will be proportionately much smaller than it is in the present Legislature, this ought to make hon. members consider what little chance there is for the continued use of their language in the Federal Legislature. This is the only observation I have to make on this subject, and it was suggested to me by the answer of the Hon. Attorney General West [John A. Macdonald].

John A. Macdonald [Kingston, Attorney-General West]—I desire to say that I agree with my hon. friend that as it stands just now the majority governs; but in order to cure this, it was agreed at the Conference to embody the provision in the Imperial Act.

Some Hon. Members—Hear, hear.

John A. Macdonald [Kingston, Attorney-General West]—This was proposed by the Canadian Government, for fear an accident might arise subsequently, and it was assented to by the deputation from each province that the use of the French language should form one of the principles on upon which the Confederation should be established, and that its use, as at present, should be guaranteed by the Imperial Act.

Some Hon. Members—Hear, hear.

• • (p. 945 in the primary document)

George-Étienne Cartier [Montreal East, Attorney-General East]—I will add to what has been stated by the Hon. Attorney General for Upper Canada [John A. Macdonald], in reply to the hon. member for the county of Quebec and the hon. member for Hochelaga [Antoine-Aimé Dorion], that it was also necessary to protect the English minorities in Lower Canada with respect to the use of their language, because in the Local Parliament of Lower Canada the majority will be composed of French-Canadians. The members of the Conference were desirous that it should not be in the power of that majority to decree the [George-Étienne Cartier] abolition of the use of the English language in the Local Legislature of Lower Canada, any more than it will be in the power of the Federal Legislature to do so with respect to the French language. I will also add that the use of both languages will be secured in the Imperial Act to be based on these resolutions.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—I am very glad to hear this statement; but I fail to see anything in the resolutions themselves which gives such an assurance, in proof of which we have the honorable member for Quebec county [François Evanturel] asking how the matter really stands. But it is not simply for the use of the French language in the Legislature that protection is needed—that is not of so great importance as is the publication of the laws and proceedings of Parliament. The speeches delivered in this House are only addressed to a few, but the laws and proceedings of the House are addressed to the whole people, a million or nearly a million of whom speak the French language.[27] [Emphasis is mine]

Finally, the protection of Lower Canada’s distinct legal system—its code civil, would be enshrined and doubly protected. Section 92 would guarantee provincial control over its own civil law. AN additional protection was added with Section 94, which prevented Quebec’s system from being integrated into the legal systems of the other provinces. All other provinces could render their laws uniform, but Quebec was specifically excluded. First, here’s Paul Denis discussing the guarantee of Lower Canada’s Code Civil,

Paul Denis [Beauharnois]—It has been also said that the use of our language was in danger, and that the French laws would disappear when Confederation was accomplished. But is it not a well-known fact that we owe the protection of our French laws to the Hon. Attorney General for Lower Canada (Hon. Mr. Cartier), and is not the Code Civil, which he has just laid before us, a sufficient answer to all that can be asserted on this head?

The French laws will be maintained and respected in Lower Canada, and this we owe to the Hon. Attorney General (Hon. Mr. Cartier). We shall have a statute to assimilate the law of evidence in commercial matters in Lower Canada; but the French laws will not be abolished. If there is a man in the whole country who possesses real legal judgment, and who is perfectly acquainted with the laws and statutes of Lower Canada, it is certainly the Hon. Attorney General for Lower Canada [George-Étienne Cartier], Mr. George Etienne Cartier. No one will deny this, and there is not a man who can compete with him in this respect.

Why come here and tell us that our language is about to disappear, and that its use is to be abolished in the Federal Legislature? Is it because lies must be told in order to oppose the scheme of the Government, and real reasons for opposition cannot be found? A drowning man catches at a straw, and that is what the Opposition are doing to-day. But they ought to be just, and to admit that we shall have our code, which will guarantee to us the maintenance of our laws in Lower Canada, just as the Imperial Act will guarantee to us the use of our language.[28] [Emphasis is mine]

As aforementioned, this guarantee went beyond the delegation of this power in Section 92. This guarantee was further solidified with the creation of Section 94, which reads,

94. Notwithstanding anything in this Act, the Parliament of Canada may make Provision for the Uniformity of all or any of the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and of the Procedure of all or any of the Courts in those Three Provinces, and from and after the passing of any Act in that Behalf the Power of the Parliament of Canada to make Laws in relation to any Matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted; but any Act of the Parliament of Canada making Provision for such Uniformity shall not have effect in any Province unless and until it is adopted and enacted as Law by the Legislature thereof.

Thus, provincial laws could be merged together into federal law should they ever desire to. Quebec, however, could not do this explicitly. Their law could not be merged into a federal law. Dunkin explains this as an extra power for Lower Canada that does not exist for the other provinces. He says,

Christopher Dunkin [Brome] […] By reference to the 33rd resolution of the Quebec scheme, it would be found that the control of the civil and criminal courts of all the Provinces, excepting Lower Canada, might be merged in the General Government, thus leaving a responsibility upon the Local Government of Lower Canada, which did not rest upon the others.[29] [Emphasis is mine]

This extra protection also created frustration. Matthew Cameron opined that locking in civil law prevented that colony from ever assimilating with the rest of the country. He says,

Matthew Cameron [Ontario North]—[…] The

• • (p. 463 in the primary document)

33rd sub-section gives to the General Government the power of “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 procedure of all or any of the courts in these provinces; but any statute for this purpose shall have no force or authority in any province until sanctioned by the legislature thereof.” So that in reality no such law will be binding until it has the sanction of the Local Legislature of the province particularly affected thereby. Such being the guarded terms of the resolution, why is it not made applicable to Lower Canada as well as to the other provinces?

Nothing could be done respecting its peculiar laws without the consent of its Local Legislature, and it is quite possible to my mind, that there are some laws which it would be advantageous to all parts of the Confederation to assimilate. But they emphatically declare in these resolutions that there shall be no interference with the laws of Lower Canada. So that while it is proposed to assimilate the laws of the other provinces, there is a large section of intervening country which is to have, for all time to come, laws separate and distinct from the rest.^[30] [Emphasis is mine]

III. Anglo-Protestant Minority in Lower Canada (Quebec)

As aforementioned, it is impossible to untangle the twin concerns that dominated the concerns leading up to Confederation—French Canadian protection in a broader, Anglophone Confederation, and Anglophone Protestant protection in a majority French-speaking, Catholic province. The Fathers of Confederation viewed this situation as an “unwritten” guarantee in that, neither majority would want to infringe on the rights of the minority because they themselves would not want their rights removed. It was a balance of power/checks and balances situation that they wanted to foster. However, this was not an explicit guarantee, merely an analysis of the political situation. For Anglophone Protestants in Quebec, the drafters did conceive of a written guarantees in order to protect their rights—the federal power of disallowance, provincial protections, and minority education rights.[31]

Here’s Cartier on the balance of power,

George-Étienne Cartier [Montreal East, Attorney-General East]—We viewed the diversity of races in British North America in this way: we were of different races, not for the purpose of warring against each other, but in order to compete and emulate for the general welfare.

Some Hon. Members—Cheers. 

George-Étienne Cartier [Montreal East, Attorney-General East]—We could not do away with the distinctions of race. We could not legislate for the disappearance of the French Canadians from American soil, but British and French Canadians alike could appreciate and understand their position relative to each other.

They were placed like great families beside each other, and their contact produced a healthy spirit of emulation. It was a benefit rather than otherwise that we had a diversity of races. Of course, the difficulty, it would be said, would be to deal fairly by the minority. In Upper Canada the Catholics would find themselves in a minority; in Lower Canada the Protestants would be in a minority, while the Lower Provinces were divided. Under such circumstances, would any one pretend that either the local or general governments would sanction any injustice? What would be the consequence, even supposing any such thing were attempted by any one of the local governments? It would be censured everywhere. Whether it came from Upper Canada or from Lower Canada, any attempt to deprive the minority of their rights would be at once thwarted.

Under the Federation system, granting the control of the General Government these large questions of general interest in which the differences of race or religion had no place, it could not be pretended that the rights of either race or religion could be invaded at all. We were to have a General Parliament to deal with the matters of defence, tariff, excise, public works, and these matters absorbed all individual interest.

Now, he would ask those self-styled nationalists who accused him of bartering fifty-eight

• • (p. 61 in the primary document)

counties in Lower Canada to John Bull, and his honourable colleague beside him (Hon. Mr. Brown)—he would ask them, under what supposition could they think it possible for any injustice to be done to the French Canadians by the General Government?

Some Hon. Members—Hear, hear.[32] [Emphasis is mine]

Étienne Pascal Taché elaborated on the same theme, saying the minority in Lower Canada would be able to then use its weight alongside the majority in the federal parliament to rectify abuses,

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—The war of races found its grave in the resolutions of the 3^rd September, 1841, and he hoped never to hear of it again. We were so situated that their must needs be mutual forbearance. This life was one of compromise. Not only was forbearance needed in public life, but in domestic life. If one member in a family insists upon having all his own way, there will be trouble, and so through all possible relations of humanity. He believed the French Canadians would do all in their power to render justice to their fellow-subjects of English origin, and it should not be forgotten that if the former were in a majority in Lower Canada, the English would be in a majority in the General Government, and that no act of real injustice could take place even if there were a disposition to perpetrate it, without its being reversed there.[33] [Emphasis is mine]

Power of Disallowance/Veto

However, if the mechanisms and unwritten balance of power dynamics did not work, the constitution would provide a final, strong tool to protect Anglophone rights in Quebec—the power of veto found in the disallowance clause of Section 90 of the Constitution Act, 1867. This was the clause that caused so much consternation from Lower Canadian assembly members. For them, as aforementioned, this tool could be used to erode the power of their legislature and their ability to protect their culture from the Anglophone majority in Canada. For Anglophones in Quebec, however, it was seen as a guarantee that if their rights were ever seriously impaired, the federal government would step in and disallow the legislation in question.[34]

Here’s Étienne Pascal Taché in the Legislative Council, on the veto,

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—[…] And when I am conscious of having done these things, I feel it comes hard on me to hear honorable gentlemen say that there is no security for them in the future, but that the French—the Papists—may do anything they choose in the lower branch of the Legislature. But, honorable gentlemen, if the lower branch of the Legislature were insensate enough and wicked enough to commit some flagrant act of injustice against the English Protestant portion of the community, they would be checked by the General Government. But the honorable gentleman argues that that would raise an issue between the local and the general governments. We must not, however, forget that the General Government is composed of representatives from all portions of the country—that they would not be likely to

• •       (p. 237 in the primary document)

commit an unjust act—and that if they did so they would be met by such a storm of opposition as would sweep them out of their places in a very short time But, honorable gentlemen, to come back to the electoral divisions.—I wish to look at them a little more closely, to show the results already produced. I will be obliged to make a comparison, but believe me, I do not wish to make invidious comparisons.^[35] [Emphasis is mine]

And here is George-Étienne Cartier giving assurances to John Rose, an Anglophone assembly member for Montreal,

John Rose [Montreal Centre]—Looking at the scheme, then, from the standpoint of an English Protestant in Lower Canada, let me see whether the interests of those of my own race and religion in that section are safely and properly guarded. There are certain points upon which they feel the greatest interest, and with regard to which it is but proper that they should be assured that there are sufficient safeguards provided for their preservation. Upon these points, I desire to put some questions to the Government.

The first of these points is as to whether such provision has been made and will be carried out that they will not suffer at any future time from a system of exclusion from the federal or local legislatures, but that they will have a fair share in the representation in both; and the second is, whether such safeguards will be provided for the educational system of the minority in Lower Canada as will be satisfactory to them?

Upon these points some apprehensions appear to exist in the minds of the English minority in Lower Canada, and although I am free to confess that I have not shared in any fear of injustice at the hands of the majority, as I consider that the action of the past forms a good guarantee for the future, yet I desire, for the full assurance of that minority, to put some questions to my hon. friends in the Government.

[…]

Now, to speak quite plainly, the apprehension which I desire to say again I do not personally share in, but which has been expressed to me by gentlemen in my own constituency, is this, that with respect to the Local Legislature, it will be competent for the French majority in Lower Canada to blot out the English-speaking minority from any share in the representation, and so to apportion the electoral districts that no English speaking member can be returned to the Legislature. That is an apprehension upon which I would be very glad to have an expression of opinion by my hon. friend the Attorney General East [George-Étienne Cartier]. As I read the resolutions, if the Local Legislature exercised its powers in any such unjust manner, it would be competent for the General Government to veto its action, and thus prevent the intention of the Local Legislature being carried into effect—even although the power be one which is declared to be absolutely vested in the Local Government, and delegated to it as one of the articles of its constitution.

George-Étienne Cartier [Montreal East, Attorney-General East]—There is not the least doubt that the Local Legislature of Lower Canada should apportion the electoral districts in such a way as to do injustice to the English-speaking population, the General Government will have the right to veto

• •       (p. 408 in the primary document)

any law it might pass to this effect and set it at nought.

Luther Holton [Chateauguay]—Would you advise it?

George-Étienne Cartier [Montreal East, Attorney-General East]—Yes, I would recommend it myself in case of injustice.^[36] [Emphasis is mine]

This structure, for some, was rife for conflict. As Taschereau explains

Henri Taschereau [Beauce]—It is evident that the federal will never be able to satisfy the local legislatures. In Lower Canada, for instance, we shall have a pretty strong party—the English party, Protestants, who will carry their complaints to the Federal Government, just as, in Upper Canada, they made complaints relative to representation based on population, and that party being a minority in Lower Canada, will seek a remedy for their evils, real or imaginary, at the hands of the Federal Government. Moreover, we shall have constant contests and sectional heart-burnings between the local legislatures themselves, on all those subjects on which their interests may come into collision.[37] [Emphasis is mine]

Provincial Protections

The strategy to ease the fears of the Anglophone minority in Lower Canada was to have both federal and provincial guarantees. As George-Étienne Cartier explains,[38]

But I now reiterate what I have already stated to this House, as a Catholic, and as a member of the Canadian Government, that when the measure for the settlement of the Local Government of Lower Canada comes before this House for discussion, it will be such as to satisfy the Protestant minority in Lower Canada.[39] [Emphasis is mine]

And again in the summer of 1865,

George-Étienne Cartier [Montreal East, Attorney-General East]—Then, if in the future the British feared that the French-Canadians might not treat them fairly, by diminishing the number of constituencies in their possession, then he (Mr. Cartier), in his responsible position as a member of the House and the Government, would unhesitatingly state that he was willing to give the British all the securities which their position and their interests demanded.[40] [Emphasis is mine]

Constituencies

While Lower Canada was given the power to amend its provincial constitution, certain constituencies—those that had a large percentage of Anglophones—were given an extra guarantee—that their constituencies could not be altered without their own assent. Alexander Galt explains,

Alexander Galt [Sherbrooke, Minister of Finance] stated that it was intended to amend the same for the purpose of providing that certain constituencies—those inhabited by the people of British origin—may not be altered as to their limits, except by the vote of a majority of the representatives of the same.[41] [Emphasis is mine]

Here’s Galt further elaborating on the principle of these constituency guarantees,

Alexander Galt [Sherbrooke, Minister of Finance] replied, explaining the object of guarantee given to the British population. It was not because of any ill treatment in the past, but to remove any apprehension of it in the future. The British population in Lower Canada have viewed their position with considerable apprehension, after they should be deprived of the protection of the representatives from Upper Canada in their particular interests, as they would be in the Local Legislature, and they desired to have a guarantee that they should have a place on the floor of Parliament to state their case, when they would trust to the justice of the majority.

They were not afraid of the majority of the Lower Canadians of French origin, but that I might come when the hon. member for Hochelaga [Antoine-Aimé Dorion] and his friends would rule that majority, and the British population were not willing to trust their interests in the hands of that party. It was as a guarantee against the party of the hon. member opposite that they demanded the assurance about place on the floor of Parliament, to make their rights known in Legislature and before the country.

• • (p. 74 in the primary document)

Christopher Dunkin [Brome] said, when this guarantee was offered he had no hesitation in saying that he would accept it, and he thought that any party who should refuse by their votes to give this very small guarantee of their privilege of being heard on the floor of Parliament, gave but a poor assurance of fair play in the future.[42] [Emphasis is mine]

While not an explicit guarantee to Anglophones per se, the structure of Quebec’s legislature was created with the explicit understanding that it would better protect the Anglophone minority. While Ontario was to begin anew in Canada as a unicameral legislature, Quebec was to remain firmly bicameral. The understanding was that Ontario did not need two chambers in their provincial legislature because they were a single people, whereas Quebec needed an upper house because they were a province with two peoples. This was necessary in order to check hasty legislation from a majority. This would be seen as a guarantee of sorts to protect minority rights.[43]  As George-Étienne Cartier says,

George-Étienne Cartier [Montreal East, Attorney-General East]—It was the opinion of Lower Canada that the system of Responsible Government could be carried out better with two chambers than by one. The two chambers would protect the interests of the two races by preventing hasty legislation. The member for Essex [Arthur Rankin] had argued against making Local Legislatures so important, because of the question of State right against Federal right, but that could not occur with us, for the Imperial Parliament would enact both the Local and the Confederate Constitutions. He appealed to Upper Canada members to support the proposition agreeable to the majority of Lower Canada.[44] [Emphasis is mine]

Here’s Cartier again on the subject,

George-Étienne Cartier [Montreal East, Attorney-General East] […] Ainsi chaque province est libre d’établir le gouvernement particulier qui lui conviendra. Le difficile était de trouver le système convenable pour chaque province. Le Haut-Canada n’est habité que par une seule race, il en est autrement du Bas-Canada.

Je ne crois pas que la dualité de races soit un désavantage pour nous, mais il nous faut un système que trouvent acceptable les populations de races et de religions différentes qui habitent le Bas-Canada. Le Haut-Canada, en ne voulant avoir qu’une seule Chambre, a été mû par un désir d’économie. Quant à nous, nous n’avons pas cru ce motif suffisant. Ce n’est pas pour une épargne de ₤15,000 à ₤20,000 que nous refuserions de donner plus de dignité à nos institutions législatives. En pareille matière, l’économie ne doit pas être la principale chose à rechercher, et j’espère que mes amis partageront cette opinion.

[…]

Par les résolutions l’on propose de donner au Bas-Canada soixante-cinq députés, en conservant les circonscriptions électorales de maintenant. Dans le plan fédéral, le Bas-Canada aura toujours ce même nombre de représentants. Il a, en quelque sorte, la position d’honneur, il sert comme de pivot à tout le rouage constitutionnel. Il est important de ne pas nous départir à la légère de cette position, d’un pareil rôle. C’est pourquoi, les circonscriptions électorales ne pourront être changées que du consentement des trois quarts des membres de l’Assemblée législative.

On a cherché à effrayer la population anglaise du Bas-Canada à ce propos. Mais elle n’a rien à craindre. Il y a aujourd’hui dans le Bas-Canada seize circonscriptions électorales, qui fournissent à la population anglaise ou protestante sa bonne part de représentation: Ottawa (comté), Argenteuil, Shefford, Richmond et Wolfe, Compton, Stanstead, Missisquoi, Brome, Huntingdon, Sherbrooke, Mégantic, Châteauguay, Montréal-Ouest, Montréal-Centre, Québec-Ouest et Gaspé. A la vérité, ce n’est qu’un quart de la représentation totale; mais comment ce quart pourrait-il être opprimé?

Supposons qu’on veuille donner un nouveau membre à tel district, les autres districts, jaloux de leur influence, s’y opposeront naturellement. En outre, dans plusieurs autres comtés, il existe une minorité anglaise assez importante pour pouvoir y exercer une influence très sensible: Pontiac, Bonaventure, Québec-Centre, Montréal-Est, Montcalm, etc. Voilà assurément qui doit rassurer ceux de nos concitoyens anglais et protestants qui désirent comme moi, que l’harmonie règne toujours entre nous. Les anciennes luttes ne sauraient renaître, soyons-en bien convaincus.[45] [Emphasis is mine]

And McGee,

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics] […] The people of Lower Canada, by adopting two chambers, were accepting the system which they knew would work well; those of Upper Canada were adopting an experiment, which they might have to abandon, and which, even if it succeeded there, it would not necessarily be applicable to Lower Canada. The people of Upper Canada were one people, speaking one language, strongly imbued with one general class of principles, and they might succeed in their experiment.

But Lower Canada had two distinct peoples, speaking different languages, having separate interests, and for the protection of these, it was desirable that their Legislative machinery should be framed on well tried principles. The spirit of conciliation which had been manifested in Lower Canada had shewn, that under the new constitution, both races with live harmoniously together. The hon. member had tried to belittle the functions of the Local Governments.[46] [Emphasis is mine]

Thomas Ferguson praises Cartier for this protection,

Thomas Ferguson [Simcoe South], […] He had always looked upon the Attorney General East [George-Étienne Cartier] as a man of generous principles, but what he had done tonight was the crowning act of his generosity, for the second chamber had been given to Lower Canada, to protect the British population from the unjust action of his own countrymen, should they ever attempt it.

It would ill become Upper Canada members to deprive the British population of Lower Canada of that protection.[47] [Emphasis is mine]

These provincial carveouts had caused some tension from both the French majority and the Anglophone minority. For the majority, these guarantees were seen as eroding their own control of their legislature.[48] For the minority, these provincial guarantees were seen as easily reversible.

James O’Halloran expanded thoroughly on this topic. He wished for a union without distinction by race, creed, etc. but this could not be had as the rights of French-Canadians could not be guaranteed under such a system. As a result of this, he felt it all the more necessary to guarantee Anglophone, Protestant rights in Lower Canada. For O’Halloran the biggest obstacle was the right of local legislatures to legislate away these protections immediately. For example, English constituencies and education could be altered.

James O’Halloran [Missisquoi]—[…] At an early period of this session, I gave notice

• • (p. 793 in the primary document)

of substantive resolutions which, however little they might have met the sense of the majority of this House, express the views of a large majority of my constituents. It would interest them to see how far those views met the approbation of the representatives of the people here; it would interest them to know how far honorable gentlemen from Upper Canada are prepared to go to insure to the English speaking minority of Lower Canada those rights and liberties which they claim for themselves; it would afford us some criterion by which we might measure the degree of protection we should find in the Federal Parliament, from possible oppression in our Local Parliament.

For if honorable gentlemen from Upper Canada, on the floor of this House, will not hear us today, if they manifest an indifference to the injustice about to be inflicted upon the English speaking inhabitants of Lower Canada by the proposed Constitution, what guarantee have we that similar selfishness may not mark their conduct after we shall be powerless to rebuke it?

I will read those resolutions which I had designed to propose, for the purpose of obtaining the opinion of the House on a modification of this measure, which, if it must be adopted, might possibly have been so amended as to remove many serious objections now entertained to it by a large portion of the people of Lower Canada. They are in these words:—

Resolved, That assuming the Federal system of government to be a political necessity in a union of the British North American provinces, any Confederation of those provinces which ignores the difference of race, language and religion of the inhabitants of the respective states or territories sought to be thus united, and is not framed with a view to secure to the inhabitants of each such state or territory the management of their own local affairs, in accordance with their own peculiar views and sentiments, is unwise and inexpedient, and not conducive to good government, or to the peace and tranquillity of those for whom it is framed.

This resolution I put forth simply for the sake of showing the idea which I had in my mind, without, I am free to confess, any expectation that the particular modification which I was about to propose would meet the sense of the majority of this House, but as giving an indication of the direction in which the English-speaking inhabitants of Lower Canada would consider that their interests might be best preserved. The second resolution I designed to propose is as follows:—

Resolved, That with a view to secure to that portion of the inhabitants of Lower Canada speaking the English language, the free exercise and enjoyment of their own ideas, institutions and rights, in any proposed Confederation of the provinces, Canada should be divided into three civil divisions, to wit: Western, Central, and Eastern Canada.

Why it is that objection is made to a legislative union? The reason why so large a portion of the people of Lower Canada of French origin will not consent to a legislative union, is the very reason that makes it desirable to the English speaking population of Lower Canada. We are in favor of a legislative union. We desire that Canada should be a united people, ignoring sectionalism, and basing our institutions upon one broad principle of Canadian nationality, which shall blend all races, and in time obliterate all accidental distinctions of language, religion, or origin. Our French-Canadian fellow-subjects will not consent to this. If they will not hear our arguments, let them listen to their own. If Federalism is necessary for the protection of their rights, it is necessary in a tenfold degree for the protection of the rights of the English speaking minority.

They tell us we may rely upon their well-known liberality and toleration. We cannot consent to hold our liberties by mere sufferance, when we are entitled to hold them by right. It would be unworthy of us to submit to such humiliation. In these remarks which are forced from me, and which I am compelled to make in defence of the rights and liberties of those who sent me here, I mean no disrespect to those of another origin—to the French-Canadian honorable gentlemen whom I see around me.

Some Hon. Members—Hear, hear.

James O’Halloran [Missisquoi]—In many respects I sympathise with them, and have always sympathised with them. I desire to live among my French-Canadian fellow-subjects in peace. I desire to maintain those amicable relations which have always subsisted between the English-speaking and the French-Canadian populations of Lower Canada. As I said before, I sympathise with my French-Canadian fellow-subjects in many respects. I respect their character, I admire their laws.

But this antagonism is not courted by me. It is forced upon me. Let me call the attention of honorable gentlemen, more especially of those from Upper Canada, to the position in which this proposed Constitution now before the House would place the English-speaking people of Lower Canada. I may say at the outset, that although they number only one-fourth of the population, they possess at least one-third of the property,

• • (p. 794 in the primary document)

and pay one-half of the taxes. The French-Canadian differs very materially in many respects from the Englishman, or the Anglo-Saxon. He is simpler in his habits, more frugal in his mode of life, and less disposed to novelty. He is content to ride in a carriage of the same fashion as that of his grandfather. He is wedded to his institutions, his old customs, and old laws.

It is different with the English-speaking people. They are, as a people, more extravagant, more eager for novelty, and in many other respects widely different from the French-Canadians in their tastes and habits. Of course a comparison would be invidious, and I do not desire to institute one. But I am not at liberty to ignore the facts. Let us see how, under this proposed Constitution, the English-speaking people would be placed in reference to their peculiar interests and their peculiar ideas.

In the first place, I would desire to direct your attention to the 14th resolution, by which it is provided how, especially after the local governments are established, the Legislative Council of the General Government is to be constituted—by its members being appointed by the Federal Government on the nomination of the respective local governments. We must bear in mind that in this Local Legislature which will be imposed on Lower Canada, the English element will not certainly be more than one-fifth in number. Under these circumstances, and under the peculiar provisions with reference to the powers granted to the local governments, by which the legislative councillors are to be appointed by the General Government on the recommendation of the local governments, and in the case of Lower Canada, when its Local Government will be four-fifths French-Canadian and only one-fifth of English origin, think you how many English members from Lower Canada would ever find their way to the Legislative Council?

How would it be possible, when the Legislative Council is to be appointed on the recommendation of the Local Government, and that Local Government four-fifths French-Canadian, for the English element to obtain fair representation in the Legislative Council? When, I say, would an English-speaking inhabitant of Lower Canada ever receive such a recommendation, unless he approved himself more French than English?

Some Hon. Members—Hear, hear.

James O’Halloran [Missisquoi]—Again, by the 23rd resolution, it is provided that “the Legislature of each province shall divide such province into the proper number of constituencies, and define the boundaries of each of them.” How easy would it be, under the provisions of that clause, for the Local Legislature to snuff out one-half of the English constituencies in Lower Canada? They might arrange their bounds in such a manner that the English-speaking element would be confined within very narrow limits. There would be a few constituencies left entirely English, but the English population would thus be deprived of the influence which their numbers and wealth should give them in the Local Legislature.

Some Hon. Members—Hear, hear.

James O’Halloran [Missisquoi]—Again, the Local Legislature will have power to alter or amend their Constitution from time to time. We to-day may frame a Constitution—the English-speaking majority in this House may frame a Constitution which would give proper protection to the English-speaking population of Lower Canada. But, by this scheme it will be in the power of the local legislatures to change that, and to modify it so as to suit it to the wishes or prejudices of the French majority.

We would be powerless, after we leave these halls, any longer to conserve our rights, and the privileges which this Parliament might give us may be taken away at the very first session of the Local Legislature. Then look at the powers which, under this Constitution, are conferred on the Local Government. The first I find is the power of direct taxation. In the case of all governments, the power of taxation is the most important power they can possess. It is that which concerns all portions and all classes of the community, and which gives rise to the greatest controversy, and the greatest amount of difficulty.

It is the most important of all legislative powers, and this power is to be conferred on the Local Legislature of a province, where one nationality has four-fifths of the numbers, and the other nationality contributes one-half of the taxes. Then the Local Legislature is to have the control of immigration—a very important subject, which deeply interests the English-speaking population of Lower Canada—but they would have no voice in framing the measures which might be adopted for directing and controlling that important matter.

Then the Local Legislature is to have the control of education. And what subject can there be of greater importance? And what subject is there which might be a source of greater strife between the two nationalities; which by this provision would be brought into antagonism? Even under our present system, with sixty-five Upper Canadian English-speaking members, who would naturally

• • (p. 795 in the primary document)

be expected to sympathise with the English-speaking people of Lower Canada, it is a crying grievance with the latter that they cannot get such legislation on the subject of education as they desire. What, then, would they have to expect if they went into a Legislature whey four-fifths of the representatives were of a different nationality and a different religion, and whose prejudices and interests were in opposition to the claims of the one-fifth minority?

Some Hon. Members—Hear, hear.

James O’Halloran [Missisquoi]—Then the Local Legislature is to have control of “the establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary institutions.” Now it is a positive fact, as I have stated before, that the English-speaking population of Lower Canada, on account of their wealth and expensive mode of living, their extravagant habits, their desire for change and progress, their different ideas generally from the French-Canadians, consume more than one-half of the dutiable goods that are brought into this country, and pay one-half of the taxes; and yet the money which they would pay into the public chest would be distributed by a majority over whom they had no control—a majority who would not in any manner sympathise with them; and their taxes would be applied to objects which they might not deem desirable—which they might, perhaps, consider detrimental to their interests. And they would be completely without remedy, should this proposed Constitution unfortunately be imposed upon them.

Some Hon. Members—Hear, hear. 

James O’Halloran [Missisquoi]—It is painful to me to be compelled to refer to these matters. It is not with pleasure that I bring before the House the antagonism which would inevitably arise between the two nationalities, should they be brought together into one Legislature, with such a vast disproportion between their means of taking their own part. We are told, and told very truly—I rejoice that it is the fact—that hitherto the two races in Lower Canada have lived in peace.

But it would be impossible that they could any longer live in peace; it would be impossible that with such a disparity of numbers, and with such antagonistic interests, they should not come into conflict. It would be a constant warfare, and this new Constitution, instead of settling the sectional difficulties in this country, instead of bringing peace to this country, instead of removing jealousies and heart-burnings would have the very opposite effect. From the fact that the field of conflict would be smaller, that the arena would be more circumscribed, the strife would be all the fiercer. You are not bringing peace, but a sword.

Some Hon. Members—Hear, hear.[49] [Emphasis is mine]

Guarantees for Confederation

As we saw earlier, a legislative union was a non-starter for Lower Canada. The union had to be a federal union in order to garner their consent. Essentially, federalism was inseparable from protections for the French minority in what would become Canada. However, this then created a new dynamic, which made the Anglophone minority fear their place in a federal union, for they would be at the mercy of the French majority locally (provincially). Cartier explains,

George-Étienne Cartier [Montreal East, Attorney-General East]—[…] we know very well that great efforts have been made by those opposed to this scheme to create apprehension and distrust in the minds of the Protestant minority in Lower Canada in regard to it.[50]

Thus, there was a consistent effort to reassure the British population in Lower Canada. Some were part of the Quebec Resolutions themselves. For Anglophones in Quebec, specific guarantees were also necessary for their assent, as they entered into this new political dynamic with trepidation. In addition the official guarantees (the clauses themselves), a letter was leaked in March, 1865 that said extraparliamentary guarantees had been given in exchange for support on Confederation. These were seen by opposition members as a corrupt bargain.^[51]

Alexander Galt, the Anglophone Minister of Finance who represented Sherbrooke, was the face of the Anglo minority in Quebec. It was revealed in March, 1865 that he had given guarantees to the Anglo minority in exchange for votes on Confederation. He had denied that any official pledge had been given. However, when the minority educational guarantees had fallen through in 1866,[52] Galt resigned from Cabinet,^[53] as he felt he had failed to bring about his promises. Here were the guarantees which were leaked to the press in the summer of 1865,

The secret agreement refers to four guarantees tendered to the Protestant minority of Canada, and which are summed up as follows:–

“1^st. No change in the constituencies of English-speaking members unless on a vote of two-thirds of the latter.—

2. The limits of several municipalities within said counties will be changed by executive interference, but only according to law.—

3^rd. These municipalities will be permitted to acquire the crown lands within their limits at a nominal price, provided they resell them without distinction to every purchaser.—

4^th. The school system of Lower Canada will be remodelled, so as to give Protestants the control of their own schools, and system of education. The government does not pledge themselves, however, to any particular means of reaching this end, which may be by a change in the council for public instruction, by the appointment of a Protestant Superintendent, or otherwise. The dissentients of different municipalities will be allowed to unite their taxes for the support of their schools. Isolated dissentients, however, will not be allowed to send their taxes to support a school far removed from them.”[54] [Emphasis is mine]

After Galt resigned, many applauded Galt’s honorable conduct in resigning after failing to bring about the educational guarantees. John Pope, an English member from Lower Canada summarized the situation thus,

John Pope [Compton] said the Protestants of Lower Canada had never yet complained of injustice from the Superintendent of Education, but the representatives of the minority could not convince those who had sent them here that everything would be right and secure for them, they could not quiet those who went round the country agitating the minds of the people setting class against class, without those guarantees which they had asked, and they (the British members from Lower Canada) had pressed upon the Minister of Finance [Alexander Galt], as their representative, to secure them these guarantees. They had given up much in consenting to go into Confederation, and surely the concession of these guarantees would forever prevent the re-opening of agitation upon this subject. He was glad that the Minister of Finance [Alexander Galt] had left the Government, it was the only honorable course to him, and the country would respect him for having stood to his pledge.[55] [Emphasis is mine]

In order to better understand the rights the Anglophone minority sought to protect, we must turn to the realm of education, which follows this section of the paper.

IV. Religious (Education) Minority Rights

It is difficult to separate the issue of religious minority rights with that of education. In most cases, these were seen as inseparable issues. There was little talk of the practice of faith being constricted.[56] The main fear was in the realm of education, meaning religious education. This was the symbol of the preservation of culture, particularly for Anglophone Protestants in Lower Canada although there were also calls for the Catholic minority in Upper Canada to receive similar assurances. This tit for tat for minority assurances would lead to a fracturing in the 1866 debates causing the government to pull both school bills (one for Protestants in Lower Canada and one for Catholics in Upper Canada). However, educational assurances would later be added in the drafting period for both these groups—Catholics and Protestants.

The only other religious sticking point was that of divorce. French-Canadians, largely Catholic wanted to preserve their ability to restrict the practice in Lower Canada to protect their belief system. The arrangement had given this right to the local legislatures. This guarantee was not enough for many Catholics in Lower Canada, as the federal government also had the right to legislate on “Marriage and Divorce” in Section 91. This was argued to be so that marriage/divorce contracts undertaken in other parts of the union would still be considered valid and not subject to the laws of what would then be Quebec.

Education

Member of the Ministry, Alexander Campbell, explains that protection for religious minorities would be locked in via imperial statute,

James Currie [Niagara, elected 1862]—By the 6th subsection the local legislatures have the control of “Education; saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their denominational schools at the time when the union goes into operation.” I do not know whether the representations which have been made in some portions of the country are correct—that, under this section the Roman Catholics would be entitled to no more schools than they have at the passing of the act? Will the Commissioner of Crown Lands [Alexander Campbell] please explain?

Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—By this section it is affirmed that the principle of action with reference to those schools which may be in existence at the time the Confederation takes effect, shall continue in operation. Should this Parliament and the other legislatures adopt the scheme, and if the Imperial Parliament adopts an act giving effect to it, there will be found in existence certain principles by which the minorities in Upper and Lower, Canada will be respectively protected, and those principles will continue in operation.

James Currie [Niagara, elected 1862]—But suppose no alteration is made in the Common School Law of Upper Canada—and, as I understand, none is promised—would the Roman Catholics be entitled to establish more separate schools?

Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—The present Act [An Act to Restore Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools] would continue to operate, and the honorable gentleman knows what are the rights of Roman Catholic schools under that Act.[57] [Emphasis is mine]

John A. Macdonald, like Campbell, said the current status of the Catholic minority in Upper Canada was settled and would remain unchanged as the protection of those minorities was already solidified. This was similar to what Campbell had said, when he said the new protections would just be for the Protestant minority in Lower Canada. He says,

John A. Macdonald [Kingston, Attorney-General West] […] As to the school question, it had been announced by Hon. Mr. Galt, at Sherbrooke, that before Confederation took place, this Parliament would be asked to consider a measure which he hoped would be satisfactory to all classes of the community. There was a good deal of apprehension in Lower Canada on the part of the minority there as to the possible effect of Confederation on their rights on the subject of education, and it was the intention of the Government, if Parliament approved the scheme of Confederation, to lay before the House this session, certain amendments to the school law, to operate as a sort of guarantee against any infringement by the majority of the rights of the minority in this matter.

Antoine-Aimé Dorion [Hochelaga]—Will it apply to both Upper and Lower Canada?

John A. Macdonald [Kingston, Attorney-General West] said he believed, as regarded Upper Canada, the matter would remain in statu quo, as the present law there was quite satisfactory to the minority. As regarded the Intercolonial Railroad, the resolutions showed precisely what was the intention of the Government in that matter. The railroad was not, as stated by Hon. Mr. Holton, a portion of the Constitution, but was one of the conditions on which the Lower Provinces agreed to enter into the constitutional agreement with us. The North-West question he would leave in the hands of the President of the Council [George Brown], who understood it thoroughly, and could, no doubt, give Hon. Mr. Holton a satisfactory answer.

With respect to the defences of the province, they were now the subject of negotiations with the Imperial Government, and the fullest information would be given to the House on that subject. He might mention that the Maritime Provinces, recognizing the peculiar position of Canada geographically, and its danger in case of hostilities, had most cordially agreed that any sum this Parliament might vote for the defence of Canada, they would undertake their share of.

Thomas Wallbridge [Hastings North] asked if he was to understand that a guarantee was to be given in the Constitution of the Federal Government to Roman Catholic separate schools?

John A. Macdonald [Kingston, Attorney-General West]—I only said this, that before Confederation is adopted, the Government would bring down a measure to amend the school law of Lower Canada, protecting the rights of the minority, and which, at the same time, I believe, would be satisfactory to the majority, who have always hitherto shown respect for the rights of the minority, and, no doubt, will continue to do so.[58] [Emphasis is mine]

Taché, Premier of the Government said that equal rights would be the guiding principle in this matter—whatever was given to one minority, would be given to the other.

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—I have some notes in French, made with the intention of answering honorable gentlemen who spoke in that language; but I think, having commenced, that I will go on in English. It has been asked by several honorable gentlemen how we were to make provision for the protection of the minorities in Upper and Lower Canada respectively. We have in Upper Canada a Catholic minority, in Lower Canada a Protestant minority. Well, those minorities are now in possession of certain rights; and, if we were not to legislate at all upon those rights, my interpretation of the scheme is, that they would still, under the local governments, enjoy the rights which they now possess. But it has been provided that, if necessary, additional  

• • (p. 344 in the primary document)

protection shall be afforded; and in that case, I say, without hesitation, that what will be done for one portion of the country will also be done for the other portions—justice égale distributive.[59] [Emphasis is mine]

These arguments were not clear to everyone. And this issue would flair up later in 1866. Catholics did not feel that Lower Canada Protestants were getting equal protections, but rather given special privileges that Catholics in Upper Canada were not getting. In the 1865 debates, this concern for a lack of protection for Catholic minorities was brought up,

Louis Olivier [De Lanaudière, elected 1863]—[…] For instance, it was stated in the resolutions, that means would be taken to effectually protect the minorities and preserve to them the rights they now possess, but we were not informed as to what those rights were, or as to the means to be used for preserving them untouched and unimpaired. If we had known what these means would be, we would have come prepared to assent to, or to dissent from them, in an intelligent manner, and to express our opinions as we ought to do, but this information was not vouchsafed.

I understand that a bill, to assure to the Protestants of Lower Canada the uninterrupted possession and enjoyment of their rights, is to be brought down and passed before the scheme of Federation itself is fully adopted and sanctioned; but I have not heard that any similar measure is to be passed in favor of the Roman Catholics of Upper Canada. I have no objection, whatever, to grant to the Protestants of Lower Canada, for all future time, the rights they now enjoy, or any other rights and guarantees which may be deemed reasonable and equitable, but I cannot vote to adopt the resolutions until I am informed whether the Roman Catholics of the west are to be dealt with in the same manner.

By refusing us information on this important subject, the Government has placed us in a false position, from which, I think, it is their duty to extricate us. I shall not now address myself to the inquiry of whether the Confederation scheme be really desirable or not, but cannot help saying that the long-standing difference between the two sections of the province might have been arranged, if during the last difficulty between the respective parties the leading men on either side had been willing to sink their personal differences and make mutual concessions.[60] [Emphasis is mine]

In 1866, the government reiterated that the bill was to bring Protestant rights in Lower Canada up to the protections offered to Catholics in Upper Canada,

John Sandfield Macdonald [Cornwall] stated that if a measure was to be introduced on the education question and Lower Canada, the same privileges ought to be extended to Upper Canada. He would, move a resolution to that effect himself, though personally he would have been satisfied to leave it in the hands of the majority of each Province. Since, however, they had not been asked to do that it was only fair that equal privileges should be extended to the minorities in both sections.

George-Étienne Cartier [Montreal East, Attorney-General East] said in Lower Canada there were the Common Schools, which in

• • (p. 46 in the primary document)

each municipality were the schools of the majority, whether Catholics or Protestants, and then Dissentient Schools, which were the schools of the minority, no matter to which religion they belonged. It had been complained that the minorities in Lower Canada had not the privileges which were enjoyed by the minority in Upper Canada, and it was to remedy the new bill was to be brought in.[61] [Emphasis is mine]

William McDougall argued that the protections were necessary due to the differences in the education systems as Lower Canada was “more sectarian in practice than that of Upper Canada”. He says,

William McDougall [Lanark North, Provincial Secretary] said the hon. member had not chosen a proper mode of discussion a question of such great importance as the one before the House. He would take occasion to say, however, that if the hon. gentleman considered himself the guardian and mouthpiece of the Protestants of Upper Canada, he would take the liberty of disputing his right to the position. When the Government was formed, it was agreed that a measure should be framed, to protect the rights of the Protestant minority of Lower Canada, in the future Confederation. Their position was a peculiar one, the School system of the majority was more sectarian in practice than that of Upper Canada.

He had, therefore, after consideration, felt justified in assenting to the proposition that they should be secured in their rights, and the bill now introduced had that object in view. Then the hon. member for Hochelaga [Antoine-Aimé Dorion] had put certain questions touching the School question in Upper Canada, which the Attorney-General West [John A. Macdonald] had answered in a very proper way.

He said the Government did not intend to introduce any measure on the subject, and the reason was that the Government had not believed any measure necessary, they believed the rights of the Catholics well defined, and in no danger of being interfered with under the existing law; but the Attorney-General [John A. Macdonald] had also expressed his individual intention of voting for a measure to assimilate the privileges of the minorities in both sections, which did not effect the Government, as a government.

He (Mr. McD.) would say as he had said before on this question of Separate Schools, when the member for Lambton [Alexander Mackenzie] had supported him, that if the machinery of the law was defective in the working of the Separate School system, he would assent to its improvement, and if any measure of the kind was introduced by a member of the House, he should be prepared to act either with the hon. gentleman opposite or against him, according to his judgment, and the interests of those who had sent him there would direct him.

Antoine-Aimé Dorion [Hochelaga] denied that the schools in Lower Canada were sectarian, except where the population was all Catholic. In Montreal and other places where the population was mixed, the schools were not sectarian.

Christopher Dunkin [Brome] said there could not properly be any analogy between the school systems of Upper and Lower Canada, because they started from entirely different grounds. The Protestants had said: Make the schools of the majority in Lower Canada, the same as the schools of the majority in Upper Canada, and all will be right; but that could only be done by making the Lower Canada majority Protestant.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—The bill was a bill for the minority, which might be Catholic or Protestant, according to the locality; whereas, in Upper Canada, the Catholics were in a minority in every locality. He had no fear of the Lower Canadians agreeing among themselves as to their school system, but protested against Upper Canadians mixing the question with any views which they might see prevail in their own section, as a source of embarrassment to the settlement of the question now before the House.[62] [Emphasis is mine]

William Howland reiterated that this was an internal measure to protect minorities in Lower Canada, as no such issue had arisen in Upper Canada.

Maurice Laframboise [Bagot]—In reply to Mr. Pope denied that the Catholics of Lower Canada had asked for this bill, though they would probably allow it to pass. The bill had been promised to the Protestant members of the House, representing Protestant Constituencies as compensation for their votes in favor of Confederation.

William Howland [York West, Postmaster General] said the government occupied a peculiar position on this question. A measure had been promised to guarantee the privileges of the minority in Lower Canada on the subject of education. But the question was in fact merely one of arrangement between the Catholics and the Protestants of Lower Canada, and the government had taken charge of it in the House. With regard to what had been said on the Separate School question in Upper Canada, the government had taken no action, and did not intend taking any action in the matter.[63] [Emphasis is mine]

Nevertheless, the introduction of this special protection for Protestants in Lower Canada, provoked the creation of another bill—the protection of Catholics in Upper Canada. This provoked a mixed (mostly hostile) reaction from all corners of parliament—Lower Canadians, Upper Canadians, government members, and non-government members. Here are some excerpts from those debates,

George Brown [Oxford South] contended that the Government was responsible for the bill in so far as the Minister of Agriculture [Thomas D’Arcy McGee] had agreed to take the present law as a finality—unless new privileges were to be given to Lower Canada Protestants.  Now the Government had given these new privileges to the Lower Canada Protestants, and here they were asked to give the Catholics the same.[64] [Emphasis is mine]

[…]

 Thomas Ferguson [Simcoe South]—As he had been alluded to, begged to hear testimony to the efforts of the Hon. Minister of Agriculture [Thomas D’Arcy McGee] in keeping up good feeling between all classes, and for the body with which he (Mr. F) was connected, he would also say that during the exciting times through which the country had passed, they had done nothing that could be taken as a cause of offence to any party.  With regard to this bill he was very sorry it had been introduced.  There had not been a single complaint from Upper Canada, that any Roman Catholic child had been unfairly treated, or that the Catholics had any grievance in the matter of schools.  He was opposed to separate schools, and regretted exceedingly that the hon. member for South Oxford [George Brown] had ever consented to make the separate school system a part of the Confederation scheme.  Instead of its being a means of preserving harmony among all classes, it would prove to be the occasion of much ill feeling.[65] [Emphasis is mine]

[…]

Antoine-Aimé Dorion [Hochelaga] said on a former occasion the Attorney-General East [George-Étienne Cartier] had declared that the Lower Canada Education Bill would provide for assimilating the privileges of the Protestants of Lower Canada with those of the Catholics of Upper Canada.  Now there was a bill before the House giving new and extraordinary privileges to the Protestants of Lower Canada, which the Catholics in the other section had never enjoyed.  He did not wish to discuss that bill now, but he contended that equal privileges should be extended to both minorities.  He would vote against the adjournment of the debate, and endeavor to secure the discussion of both the bills together.  The government ought to have had the courage to have introduced both bills.

The Protestant minority of Lower Canada was grouped together and formed a majority of the population of a large part of the country, while the Catholics in Upper Canada were everywhere in the minority, and if any one was more entitled to protection than another, it ought to be that minority, which had the least power to defend itself.  If the Government, or the members of this House, should put through a bill giving such great privileges to one minority without doing equal justice to the other, it would be a most unfair proceeding.  He hoped that members would allow both bills to be considered together, as they ought to be.[66] [Emphasis is mine]

[…]

Joseph Perrault [Richelieu] said there were 168,000 Protestants in Lower Canada, and they had 14 Protestant members in the House, while in Upper Canada there were 258,000 Catholics and only two members of that faith. These figures showed where the liberality was.  It was all very well for Upper Canada members to pat them on the shoulders, praise them for their liberality, and get privileges out of them for their co-religionists in Lower Canada, and then turn round and refuse the same privileges to the Catholics of Upper Canada.  These gentlemen boasted of being liberal, but when a Catholic put himself forward for election in Upper Canada they hounded him from the polls.  He had no objection to the Lower Canada Education Bill; it might be a very good one, but every Catholic member of that House should test the liberality of gentlemen from Upper Canada, and insist that the one should not pass without the other.[67] [Emphasis is mine]

Cartier attempted to balance the concerns of both groups, arguing that the initial idea behind the bill was to equalize the rights—that Protestants in Lower Canada would be given protection as the Upper Canadian Catholics had gotten. But because of some additional clauses given to this former group, he urged Catholics to also receive similar privileges.

George-Étienne Cartier [Montreal East, Attorney-General East]⁠—The Protestants of Lower Canada were complaining last year that the privileges enjoyed by the Catholics of Upper Canada, in regards to the common school, were not enjoyed by them, and the government had promised to bring in a bill to give them these privileges with regard to the common schools, but there was no question of normal schools or superior education at that time.  The answer he had given to the question of which the member for Hochelaga [Antoine-Aimé Dorion] referred had just been similar to the answer given by Sir Narcisse Belleau in the other House^[68], and he wished to be particular on this point, because some parties had told him that Sir Narcisse had said that a bill would be introduced regarding the Catholics of Upper Canada, when in fact it was a bill to give the Protestants of Lower Canada the privileges enjoyed by the Catholics of Upper Canada that had been promised. The Government had redeemed that pledge.

[…]

In Upper Canada there were superior schools endowed for Protestants, but their Catholic friends in that part of the country, would not expect them, by legislation, to give them any portion of the funds or endowments of Protestant institutions.  They had redeemed the pledge to the Protestants of Lower Canada in the bill with regard to common schools, and they had gone further; they had made a permanent provision of superior education and normal schools, but the Catholics should not expect any equivalent for that in Upper Canada because they had no normal school, and the only money for superior education was that voted by Parliament. He then referred to several privileges as to common schools granted to the Protestant minority of Lower Canada, which the minority in Upper Canada did not enjoy.

As to the position of the Government towards the Catholics of Upper Canada, the government had promised nothing at all to the Catholics of Upper Canada, but it comes up that in the bill promised to the Protestants there were two privileges given to the Protestants of Lower Canada which the Catholics of  

• • (p. 75)

 Upper Canada do not enjoy; there was the appointment of a Deputy Superintendent over their own schools, and the permission, if they should see fit, to establish a superintendent for the distribution of their share of the school fund.  He was desirous that any privileges as to common schools given to the minority of Lower Canada, should be given also to the minority of Upper Canada.[69] [Emphasis is mine]

Majority vs. Minority Rights

The religious question created an interesting test case for how the Fathers of Confederation viewed minority rights and how they should be balanced agaibst the wishes of the majority. In this case, they sided with the majority, arguing that majority concerns were better for the cohesion of the country than minority protections. After the government introduced the bill to protect Protestants in Lower Canada, a private member’s bill was brought forward for Catholics in Upper Canada. This caused an absurd situation according to John A. Macdonald, who says,

John A. Macdonald [Kingston, AttorneyGeneral West and Minister of Militia] […] The government had also found that there was a strong feeling, and a very natural feeling, among the Catholic majority of Lower Canada, that their co-religionists in the west ought to enjoy the same privileges as they were willing to give the Lower Canada minority, therefore made a difficulty in the way of carrying the Government bill, which by itself would have passed with a large majority. Had this bill been pushed, the other bill would have been pushed also, and the singular spectacle of a bill for Upper Canada being carried by Lower Canada votes, and a bill for Lower Canada by Upper Canada votes would have been presented.—This would have been a most unfortunate occurrence. These were not like ordinary bills; if passed they would have been a fundamental part of the constitution of the country.

It was not desirable, therefore, in the present position of affairs that such a result should have been produced. Canada, instead of starting in harmony under Confederation would enter it with the worst feelings of division aroused, presenting to the other Provinces the spectacle of a double minority, instead of a double majority. It was seen that the most unfortunate consequences could not but have followed the pushing forward of the Lower Canada bill consequences which the Government felt bound to avert.

The Government, therefore, with the deepest regret had come to the conclusion to abandon this bill. The minority in each section would have to throw themselves on the justice and generosity of the majority. He had no fears that any injustice would be done to the Lower Canada minority; the majority in that section had given too many proofs of their liberality to doubt of it. But in Upper Canada the liberality of the majority had not yet been tried. He hoped, however, that the majority there, feeling strong and powerful, would act in a spirit of generosity.[70] [Emphasis is mine]

Thus, a “double minority” would have been produced, meaning, Lower Canadians voting on issues against the will of Upper Canadians, and vice versa. This tension was first brought forward in 1865 by John Sandfield Macdonald who warned of dire consequences of governing against the wishes of the majority,

John Sandfield Macdonald [Cornwall]—[…] I have no desire that the rights of the Roman Catholic minority of Upper Canada shall be abridged, nor that the rights and privileges of any other denomination shall be interfered with in any respect. But I wish hon. members to bear in mind that the experience we have had in this country—not to allude to that of the neighboring States, proves that a denial of the right of the majority to legislate on any given matter has always led to grave consequences. I need only mention the Clergy Reserve question. This, it must be recollected, was forbidden to be legislated upon by the Union Act; yet it was the cause of fierce strife and legislation for many years. The original Constitution of the United States prohibited the question of slavery from being interfered with by Congress; yet an agitation for its suppression was early commenced, and has at last terminated in civil war.

Some Hon. Members—Hear.

John Sandfield Macdonald [Cornwall]—The agitation of the Clergy Reserve question produced a rebellion in Upper Canada. I say, sir, that by making a constitutional restriction in respect to the schools of the minority, we are sowing the seeds from which will in the end arise a serious conflict, unless the Constitution be amended.

The minority will be quite safe on a question relating to their teeth and their education in a colony under the sway of the British Crown; but if you expressly withdraw that question from the control of the majority, the rights of the minority will not be safe in either section of the province, if you distrust the action of the majority. It is our duty, sir, to see that a question which affects us so dearly as the education of our children—a question which has before now created no little excitement in Upper Canada—shall not be withdrawn from the management of the Local Legislature.

We ought not to deprive them of a power which they will want to exercise, just because they are deprived of it, and provoke a desire on their part to alter the system. You may rely upon it other religious bodies will be sure to protest against any particular creed having special rights, or an exclusive monopoly of certain privileges, whatever they may be. I should be astonished if anyone in this House would say, either to the Protestant minority in Lower Canada or to the Roman Catholic minority in Upper Canada—”You are not to trust to the justice of the majority.”

Have they ever known a country where the majority did not control affairs, and where the minority had not to submit? Does not the majority rule and the minority submit in England and in France? I have never heard of any state where this was not the case. The minority is safe against undue encroachment on its rights, and I am willing to trust to the sense of justice of the majority in Upper Canada to preserve the religious and educational liberties of the Roman Catholics of Upper Canada. I am now getting somewhat advanced in years, and I am the more anxious to put my opinions on record, because before long I shall have ice satisfaction of saying, though perhaps not on the floor of this House, that I protested against resolutions intended to prevent the free expression of opinion by the majority of the people

• • (p. 1026 in the primary document)

of Upper Canada, and the exercise of a power which ought to be intrusted to them. My amendment is:—

That the following woods he added to the original motion:—”And that it be an instruction to the said Committee to consider whether any constitutional restriction which shall exclude from the Local Legislature of Upper Canada the entire control and direction of education, subject only to the approval or disapproval of the General Parliament, is not calculated to create wide-spread dissatisfaction, and tend to foster and create jealousy and strife between the various religious bodies in that section of the province.”

If hon. gentlemen think they are going to silence the bitter feelings which have been engendered in Upper Canada in consequence of the attempt to makes permanent a certain system of education, they are much mistaken; and I desire to have the expression of the opinion of the members of this House on the subject, whether they think that the restriction in the proposed Constitution I have mentioned is calculated to bring about harmony, and whether it is not better to let the Catholics of Upper Canada and the Protestants of Lower Canada protect themselves, or rather trust for protection to the sense of justice of their fellow-subjects.

Some Hon. Members—Hear. 

Alexander Mackenzie [Lambton]—Sir, having already voted for the whole of these resolutions as part of the scheme, I cannot have any hesitation in voting against the amendment, but in doing so I desire to explain my position. 

Some Hon. Members—Hear, hear. 

Alexander Mackenzie [Lambton]—If the hon. member for Cornwall (Hon. J.S. Macdonald) had shown the same zeal against the separate school system when he had the power to prevent legislation on that subject, he would have saved himself and the party which kept him in power some trouble. It seems curious that he who was so anxious to promote the separate school system then should now be anxious in quite another direction. 

Some Hon. Members—Hear, hear.

Alexander Mackenzie [Lambton]—This can only be done for the purpose of party strife, to put as many of us Upper Canadians as he can in a false position; but I can only tell him that I, having struggled as much as anyone to prevent legislation tending to break up our common school system, and having found my efforts utterly ineffectual, do not see that our position would be any worse if the resolutions are carried into law.

Some Hon. Members—Hear. 

Alexander Mackenzie [Lambton]—I formerly stated that I thought the separate school system would not prove very disastrous if it went no further. I do not now think they will do much harm, if they remain in the same position as at present, and therefore, though I am against the separate school system, I am willing to accept this Confederation, even though it perpetuates a small number of separate schools.

Some Hon. Members—Hear, hear. 

Alexander Mackenzie [Lambton]—Under the present legislative union we are powerless in any movement for the abrogation of the separate system; it is even very doubtful if we could resist the demands for its extension. 

Some Hon. Members—Hear, hear. 

Alexander Mackenzie [Lambton]—We will not be in any worse position under the new system, and in one respect we will have a decided advantage, in that no further change can be made by the separate school advocates. We will thus substitute certainty for uncertainty. I deeply regret that the honorable member should have thought it necessary for any purpose to move this resolution.

John Sandfield Macdonald [Cornwall]’s amendment— 

[…] 

—was then negatived on the following division:—[71] [Emphasis is mine]

This statement of democratic control being critical to the scheme was echoed by others. George Brown sold the scheme as one of majority control. He says, 

George Brown [Oxford South, President Executive Council]—But, Mr. Speaker, there is another great evil in our existing system that this scheme remedies; it secures to the people of each province full control over the administration of their own internal affairs. We in Upper Canada have complained that the minority of our representatives, the party defeated at the polls of Upper Canada, have been, year after year, kept in office by Lower Canada votes, and that all the local patronage of our section has been dispensed by those who did not possess the confidence of the people. Well, sir, this scheme remedies that. The local patronage will be under local control, and the wishes of the majority in each section will be carried out in all local matters.[72] [Emphasis is mine]

Arthur Rankin spoke of this as being critical to the concept of self-government. He says,

Arthur Rankin [Essex]—There was no mistake in that case as to what the will of that majority was; and I am free to admit that the rebellious spirit then indulged in, on account of the passage of that bill, was in some respects more worthy of condemnation than the conduct of those who resorted to arms to redress the real grievances which caused the rebellion; and, in course of time, many of those who were most incensed at the passage of this measure, began to realize the fact that it was only one of the natural consequences of the new state of things; and, step by step, the people of Canada have come to understand and appreciate the advantages of self-government. They have come now to understand that whatever is deliberately expressed as the will of the majority of the people, ought to be submitted to by the minority.

Some Hon. Members—Hear, hear.

Arthur Rankin [Essex]—And I hope we have arrived at that stage in our political education, that there is no man in Canada who would now justify a resort to violence to resist any enactment by this Legislature, no matter how unpalatable it might be to the minority, and no matter how important that minority might be. Mr. Speaker, we are now invited to direct our attention to another union of a different kind, and on a larger scale.[73] [Emphasis is mine]

Joseph Dufresne argued that the majority could not be controlled anyhow,

Joseph Dufresne [Montcalm]—Does he not perceive that if the present union he continued, the Upper Canada members will unite together as one man, in order to carry representation based upon population in the Legislature? Notwithstanding the facts we have witnessed during the past few years; notwithstanding that he is aware that three-fourths of the Upper Canadian members were sent here by their electors in order to secure representation based upon population, he says the union has not done its work, and we must remain as we are! No, I cannot, I repeat, believe him to be sincere in that. He knows that we cannot remain as we are. We are in favor of Confederation, not because we believe it to be the very best possible remedy for our evils, but because we are convinced of the necessity of providing a remedy for our sectional difficulties.

The honorable member for Richelieu [Joseph Perrault] may play the alarmist as loudly as he likes. I can assure him that the vast majority of his fellow-countrymen are too intelligent to be deceived. They know full well that the minority cannot control the majority. The duty of the minority is to better their position as far as possible, but they cannot pretend to dictate to the majority—more especially when that majority is composed, if we are to believe the honorable member for Richelieu [Joseph Perrault], of men who delight in oppressing others.[74] [Emphasis is mine]

Returning to 1866, this majority-minority rights tension was at its apex during the education debates. Galt, who had promised the Lower Canadian Protestants rights, was forced to resign when he could not bring this promise to fruition. He agreed with his colleague John A. Macdonald, saying that the harmony of the country (the majority) was more important that the protection of these minority rights. He says,

Alexander Galt [Sherbrooke, Minister of Finance] felt bound to say, in all candour, that the course of the Government was what was demanded by the circumstances of the country, but it was not a course which he could sanction. It was not because he thought the interests of the Protestants of Lower Canada would be jeopardized, in the

• • (p. 80 in the primary document)

hands of the Lower Canada majority, that he had taken the course, for he was bound to say that he had every confidence in the liberality of that majority. He said this in justice to his friend the Attorney-General East [George-Étienne Cartier], but the Government had found that they must merge their duty of protecting the minority, in the greater duties of protecting the peace and harmony of the whole country.[75] [Emphasis is mine]

Sandfield Macdonald applauded Galt for the move in trusting the majority with the safeguarding of rights. He says,

John Sandfield Macdonald [Cornwall] was very glad to learn that these bills had been withdrawn. He had predicted these dangerous consequences, which had already manifested themselves upon this question, when the Quebec Scheme was first submitted. He had pointed out that the placing of special privileges beyond the reach of the majority would lead to consequences such as those which the United States had suffered on account of slavery.

He was glad that the Government had made this concession to the opinion of Upper Canada.—He was not afraid that the Catholics of Upper Canada would not receive full justice from the Protestants of Upper Canada; and was sure that as the Protestants of Lower Canada had never had occasion to complain in the past, they would be equally justly treated in the future. He would think it a great misfortune if the carrying out of Confederation was taken out of the hands of those who had forced it upon the country. He considered it a foregone conclusion, but looked to its condemnation in the future, though it would take years to remedy its defects.

Joseph Cauchon [Montmorency]—By the position of members on the school question he expected a crisis, but not to the extent which had occurred. He exceedingly regretted the resignation of the Minister of Finance [Alexander Galt], and hoped the country might soon again have the benefit of his services. At the time of the adoption of the Confederation scheme, it was understood that the separate school law of Upper Canada [An Act to Restore Roman Catholics in Upper Canada Certain Rights in Respect to Separate Schools] was not to be interfered with, and that the Lower Canada law was to be changed in some particulars, but the Protestants of Lower Canada now claimed privileges which they should not have asked. Though he was not opposed to these privileges, yet he looked upon it as an unjust suspicion upon the conduct of the majority in the future, which their conduct had not deserved in the past. He regretted that government had not confined the bill to the points upon which they were originally pledged, then they would not have excited the jealousy of the Catholics of Upper Canada, nor would they have met with opposition from any part of the country.[76] [Emphasis is mine]

Dorion too, applauded the trust of the majority, saying,

Antoine-Aimé Dorion [Hochelaga] regretted that the member for Compton [John Pope] and the other township members, had not always felt the same confidence in the Lower Canada majority which they now expressed. Had they done so, they would not have driven the member for Sherbrooke [Alexander Galt] from his present position. These gentleman had been caught in their own trap. They had sold their constituencies to the Confederation scheme, for this pledge upon the school question, and now they lost their guarantees. He thought the honorable Minister of Finance [Alexander Galt] had taken an exceedingly honorable course, and he believed that ministers had done everything in their power to carry that bill, but they found it impossible.

He had no doubt of the justice of the majority in Lower Canada, they would give the Protestants every privilege that might be deemed necessary, while he should have contended that the Catholic minority in Upper Canada should have received equal privileges with the Protestant minority of Lower Canada, and the majority of Upper Canada would have only shown themselves more illiberal, more bigoted, by refusing this, still he believed it was better for the minorities in each section, to trust to the justice of their claims and the impartiality of the majority. He believed several provisions of the bill, which was now withdrawn, exceedingly objectionable, in tying the hands of the legislature of the country, as to the future appropriations of the money, no matter what might occur.[77] [Emphasis is mine]

And George Brown, while no longer a member of the Cabinet, was a supporter and leader of Confederation. He says,

George Brown [Oxford South] congratulated the Lower Canadians the they were to be relived from the obnoxious school law which the government designed to impose upon them. He was glad, too, that legislation was not to be disturbed upon this question, and particularly glad the session was to close so soon and hoped that ministers would hasten to England, and get Confederation accomplished as quickly as possible. He contended that the rights of the minority would always be better protected when left to the justice of the majority. He thought that the Catholics of Upper Canada would be very glad to learn the they had been relived of a bill which would have entailed upon them very great additional expenses. He would not be expected to express his regret at the Minister of Finance’s [Alexander Galt] resignation on public grounds. He was glad upon them grounds that his hon. friend had resigned, and it was exceedingly creditable to the hon. gentleman that he had acted from a high conscientious principle.[78] [Emphasis is mine]

And Matthew Cameron,

Matthew Cameron [Ontario North] did not regret that the bill had been withdrawn. He believed the Lower Canada Protestants, and the Upper Canada Catholics, would be perfectly safe in the hands of the majority. If their rights were to be invaded once it would be followed with such an entire change of circumstances as would make its repetition impossible.[79] [Emphasis is mine]

Interestingly, Thomas McGee, a member of the Cabinet, derided what had happened, saying protections should have been guaranteed in the new constitution. McGee says,

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics]—It was not extraordinary that the minority East and West had desired to protect themselves in their fundamental rights. It would have been very extraordinary if they had not. Had not the people of Scotland stipulated for their own laws in the Union with England? Had not Ireland made stipulations as to its rights? Had not guarantees been given to minorities in every Federal Union of States that had ever taken place. He was not afraid himself to trust to the Upper Canada majority, and would not say a word to alarm the feelings of the Catholics, but it came with bad grace from the member for South Oxford [George Brown] to speak for the Roman Catholic feeling, unless from the experiments tried on it. If any man had experimented upon that feeling for upwards of twenty years he had done so, and he might well venture to speak for the Catholics of Upper Canada.

He (Mr. McG.) said it would have been far more for the honor of this House, far better for the peace of the country, had they agreed honestly to take up the case of the two minorities and settled them fairly. We were sending the minorities East and West adrift with feelings of insecurity as to their future, which this House could have removed by frankly dealing with the case. Since that cannot be done, the best that could be was to leave to work out their own case in each section. He referred to the security which the minorities in each section had felt under the United Parliament, which would now be taken away.[80] [Emphasis is mine]

Beyond education, these local majorities were seen as bulwarks, large voting blocks, to defend rights. John A. Macdonald, explains that this was the status quo leading into Confederation,

John A. Macdonald [Kingston, Attorney-General West]—[…] Although we have nominally a Legislative Union in Canada—although we sit in one Parliament, supposed constitutionally to represent the people without regard to sections or localities, yet we know, as a matter of fact, that since the union in 1841, we have had a Federal Union; that in matters affecting Upper Canada solely, members from that section claimed and generally exercised the right of exclusive legislation, while members from Lower Canada legislated in matters affecting only their own section.

We have had a Federal Union in fact, though a Legislative Union in name; and in the hot contests of late years, if on any occasion a measure affecting any one section were interfered with by the members from the other—if, for instance, a measure locally affecting Upper Canada were carried or defeated against the wishes of its majority, by one from Lower Canada,—my honorable friend the President of the Council [George Brown], and his friends denounced with all their energy and ability such legislation as an infringement of the rights of the Upper Province.  

Some Hon. Members—Hear, hear, and cheers.

John A. Macdonald [Kingston, Attorney-General West]—Just in the same way, if any act concerning Lower Canada were pressed into law against the wishes of the majority of her representatives, by those from Upper Canada, the Lower Canadians would rise as one man and protest against such a violation of their peculiar rights.

Some Hon. Members—Hear, hear.[81] [Emphasis is mine]

However, some were unconvinced by this protection. Maurice Laframboise argues that Upper Canadian Catholics had no such majority to protect them, for, they were a minority in their province and federally,

Maurice Laframboise [Bagot]—[…] It is quite natural that the English members in Lower Canada should be nearly all in favor of the scheme, since they have a sure guarantee in the veto power of the Federal Legislature Thus the Local Legislature of Lower Canada cannot pass a single law without submitting it to the sanction of the Federal Legislature, which can, by its veto, amend, change or completely annul, if it thinks proper, any law or any measure so submitted to it But what guarantee will the Federal Legislature offer to the French-Canadian majority of Lower Canada, and to the Catholic minority of Upper Canada? None whatever. How can the great Conservative party which boasts so loudly of representing the interests of the Catholics of Lower Canada, which takes its stand as the natural protector of the religion and the faith of Catholics—

Some Hon. Members—Hear, hear.

Maurice Laframboise [Bagot]—very absurdly I must admit—how can that great party, I say, have forgotten, as it evidently has forgotten, that there are Catholics in Upper Canada who expected and are entitled to its protection? How will the Catholic minority in Upper Canada be protected in the Local Legislature of Upper Canada, composed of Englishmen and Protestants? Shall I tell you how, Mr. Speaker? Well, they will be protected by two members only, the hon. members for Cornwall and Glengarry (Hon. Mr. J.S. Macdonald and Mr. Donald A. McDonald).

The great Conservative party, which styles itself the protector of Catholicism, has simply handed over the Catholic minority of Upper Canada to the tender mercies of their enemies And to give an idea of the kind of protection they will enjoy under the new system, it is sufficient to state that a few days ago, Bishop Lynch, of Toronto, was forced to address himself publicly, through the press, to the citizens of Toronto, to protest against the insults offered in broad daylight, in the public streets of that city and elsewhere, to revered Sisters of Charity, and to ask protection for the venerable ladies of that community; and then look at the fanatical and intolerant writings, such as those I read to this Honorable House before the recess, from an article in the Globe of the 6th March—a paper which represents the opinions of the present Government, and which is the organ and property of the Hon. President of the Executive Council (Hon. Mr. Brown).

Can it be said that we have nothing to fear, that the religious institutions of Upper Canada will be perfectly safe under the system sought to be introduced into the country? Does not the hon. Member for Montmorency [Joseph Cauchon] admit, in his famous pamphlet of 1865, that our religious institutions have many a time been insulted in this House? And has not the Bishop of Toronto just complained that Sisters of Charity have been insulted in the streets of the capital of Upper Canada, and that they have been turned into ridicule at masquerades and masked balls, frequented by the best society of that locality? And in order that every one may be convinced of the fact, I take the liberty of reading his letter, which is as follows:—

• • (p. 848 in the primary document)

To The Citizens of Toronto.

The Sisters of Charity have been from time to time grossly insulted in this city. Men have rudely seized hold of them in the public streets whilst going on their errand of charity; they have been pelted with stones and snow-balls. They have been called the most opprobrious and insulting names; their costume has been contumeliously exhibited in masquerades on a skating rink. We, confiding in the honor and justice of the gentlemen of Toronto, most respectfully ask protection in the premises.

Your obedient servant,

John Joseph Lynch,

Bishop of Toronto.

But even though many hon. members of this House doubted the truth of the statements made in that letter, is not the danger we shall incur, as Catholics, once we are placed at the mercy of our enemies, exemplified by facts which they cannot have forgotten? I mean the numberless injuries and insults offered by an honorable member of this House to everything Catholics hold dear. Have we forgotten the infamous charges uttered by one of the friends and warm supporters of the Hon. President of the Council (Hon. Mr. Brown) on the floor of this House? Well, I ask you now—you, the great Conservative party, the natural protectors of our religion and of its admirable institutions—what have you done to secure protection for the Catholics of Upper Canada in the new Confederation? Nothing whatever![82] [Emphasis is mine]

Post-Debate Guarantees Added into the Constitution Act, 1867

[Section Upcoming In Next Edition of this Report]

Marriage and Divorce

Cabinet member Hector-Louis Langevin explained that the dual power was not a means to restrict religious rights from Lower Canada, but to guarantee marriage and divorce proceedings undertaken in other provinces as being valid in Lower Canada (and vice versa). However, religious minority rights would be decided the majority in each province and were not locked in either provincially or federally. Here is Langevin explaining the situation,

Hector-Louis Langevin [Dorchester, Solicitor General East]—[…] The honorable gentleman has asked the Government what meaning was to be attached to the word “marriage,” where it occurred in the Constitution. He desired to know whether the Government proposed to leave to the Central Government the right of deciding at what age, for example, marriage might be contracted. I will now answer the honorable gentleman as categorically as possible, for I am anxious to be understood, not only in this House, but also by all those who may hereafter read the report of our proceedings. And first of all I will prove that civil rights form part of those which, by article 43 (paragraph 15) of the resolutions, are guaranteed to Lower Canada. This paragraph reads as follows:—

15. Property and civil rights, excepting those portions thereof assigned to the General Parliament.

Well, amongst these rights are all the civil laws of Lower Canada, and among these latter those which relate to marriage; now it was of the highest importance that it should be so under the proposed system, and therefore the members from Lower Canada at the Conference took great care to obtain the reservation to the Local Government of this important right, and in consenting to allow the word “marriage” after the word “divorce,” the delegates have not proposed to take away with one hand from the Local Legislature what they had reserved to it by the other. So that the word “marriage,” placed where it is among the powers of the Central Parliament, has not the extended signification which was sought to be given to it by the honorable member.

With the view of being more explicit, I now propose to read how the word marriage is proposed to be understood:— 

The word marriage has been placed in the draft of the proposed Constitution to invest the Federal Parliament with the right of declaring what marriages shall be held and deemed to be valid throughout the whole extent of the Confederacy, without, however, interfering in any particular with the doctrines or rites of the religious creeds to which the contracting parties may belong.

This is a point of great importance, and the French Canadian members ought to rejoice to see that their fellow-countrymen in the Government have not failed in their duty on a question of so serious a nature. On many other points many of them will doubtless claim that we have not thoroughly fufilled our duty, but as regards the matter in question there can be no difference of opinion, as I we have all a common rule to guide us; and I repeat that they ought to rejoice that their co-religionists in the Conference have not been found wanting on this occasion. The whole

• • (p. 389 in the primary document)

may be summed up as follows:—The Central Parliament may decide that any marriage contracted in Upper Canada, or in any other of the Confederated Provinces, in accordance with the laws of the country in which it was contracted, although that law might be different from ours, should be deemed valid in Lower Canada in case the parties should come to reside there, and vice versa.[83] [Emphasis is mine]

Antoine Harwood explained that it was better for religious minorities if the right was a federal one, for he claimed that there were Catholic minorities across the different provinces and having the provincial majorities legislate on this was not the way forward. He said a federal guarantee was the best way to protect Catholic rights in non-Catholic provinces. However, his testimony seems to misunderstand the government’s position on this rather than a suggested policy proposal.

Antoine Harwood [Vaudreuil]—And the other journals of the same party, inspired by the same spirit, open full cry on the plan of Confederation, as nothing less than a “political suicide!” Others there are—and some in the interest of the present Government—who have some misgivings, some doubts, touching the clauses relating to marriage and divorce.

With respect to the provision of the instrument which bears on these two important questions, they seem at first sight, I confess, a little alarming to Catholics—to us who have learned from the Church the indissolubility of the marriage bond, who look upon marriage not only as a civil contract, but “a sacrament.” With reference to this subject, I answer that the system on which the new Constitution will be based is to be considered in the aspect which it bears to all the provinces.

We are not all Catholics, and the majority are Protestants. Again, if the control of matters connected with marriage and divorce had been assigned to the local governments, what would have been the fate of our co-religionists in Upper Canada, who are in a minority in that province? Add to this, we have not in Canada at present any divorce law, and we need not apprehend that the Federal Government will impose one upon us. Nothing indicates that the proportion of Catholic members in the Federal Legislature will not be about equal to what it is in the Parliament of United Canada.

Moreover, everybody is aware that it was by the help of the Protestants, who think as we do on this subject, that we have hitherto escaped the passing of a divorce law. Divorce is not looked upon with a favorable eye by all Protestants; far from it, and we must hope that at no distant time that source of disorder and scandal of every species will be effaced from the parliamentary records of every Christian community.

Some Hon. Members—Hear, hear.

Antoine Harwood [Vaudreuil]—We must bear in mind, also, that there are Catholics elsewhere besides in Lower and Upper Canada; they are to be found in all the Lower Provinces, and what would be their position if these questions were left to the local legislatures? The Catholics, therefore, of both Upper and Lower Canada, as well as those of the Lower Provinces, are directly interested in the removal of these questions from the local legislatures.

It seems to me that every man who studies this question in a Catholic point of view, as it stands in the five provinces, will find that the Conference was perfectly right in not leaving the question of divorce to the control of the local governments I shall not enter into all the details of the plan of Confederation, inasmuch as hereafter inch of its clauses will be discussed.[84] [Emphasis is mine]

Besides education and marriage, there was also a general malaise for Protestant rights that was voiced by Frederick Haultain. His argument was broader, claiming that Catholics were intolerant towards Protestants. He was particularly fearful of the Catholic Church’s “hierarchy” in leading this oppression, insinuating that they had control of Lower Canadian governance.

Frederick Haultain [Peterborough]—I will now allude, sir, to an opposition to this scheme, which has been very decidedly expressed by a certain section of the Protestant minority of Lower Canada. I am aware, from personal intercourse with many gentlemen belonging to that section of the community, that they do feel a very strong aversion to this scheme, because, as they say, it will place them at the mercy of the French-Canadians. On this point I desire to assure my honorable friends from Lower Canada, that whilst I consider that our present circumstances require us all to speak openly and honestly one to the other, it is and will be my earnest desire to speak with all kindliness of feeling towards them.

I feel compelled to say that there is no part of this scheme that I feel more doubt about, than the effect it will have upon the education and political interests of the Protestants of Lower Canada. It has been said that there is and always has been a spirit of toleration and generosity on the part of the French-Canadians towards their Protestant fellow-countrymen. I have heard it said that they have on every occasion furthered to the utmost of their ability, and in the fairest and most just manner, the educational interests of the Protestant minority. But on the other hand, gentlemen who have paid a great deal of attention to the subject, have

• • (p. 641 in the primary document)

also said that, in time past, although there has not been an open hostility to the education of the Protestant minority, there has been a very decided under-hand obstructiveness. This is stated by gentlemen who have taken a particular interest in the matter, and who, I am confident, would not make such a statement if they did not think it to be the case.

And I must say, for my own part, that I do think the Protestant minority have some grounds for this fear. And this is my reason: the religious faith of the majority in Lower Canada is, as we know, Roman Catholic, and they receive from the head of the Romish Church their inspiration; they are guided by the principles that are laid down, and that are from time to time publicly promulgated by the head of that Church. Now, I do not think that my Roman Catholic fellow countrymen can be surprised—and I would ask their attention to what I am saying, I desire to speak honestly, but, of course, courteously—I do not think they can be surprised at these suspicions and fears of their Protestant brethren. And why? Because they must themselves be aware what are the principles of the Roman Catholic hierarchy.

Charles Alleyn [Quebec City West]—What are they?

Frederick Haultain [Peterborough]—They are not tolerant.

Some Hon. Members—Murmurs of disapprobation from various parts of the House.

Charles Alleyn [Quebec City West]—Are Presbyterians more tolerant? The hon. gentleman has stated that the principles of the Roman Catholic hierarchy are not tolerant. Will he explain whether he means that they are not tolerant with regard to civil liberty, or with regard to religious liberty. We wish to understand precisely what the honorable gentleman means.

Frederick Haultain [Peterborough]—And that is precisely my object. I believe that civil and religious liberty are so bound up that you cannot separate them.

Charles Alleyn [Quebec City West]—You believe they are intolerant on both points?

Théodore Robitaille [Bonaventure]—It is not well to discuss such matters here.

Frederick Haultain [Peterborough]—I think I have only to refer to the letter recently issued from Rome, to find a complete and absolute answer to the question which the hon. member for Quebec [Charles Alleyn] has put to me. I see in that letter, which is invested with all the gravity and authority that necessarily surround a message from the head of the Roman Catholic Church,—I see, amongst other things, that it is there stated as an error to be condemned, “that emigrants to Catholic countries should have freedom of worship.”

Some Hon. Members—Hear, hear.

Frederick Haultain [Peterborough]—I do not think there can be any one more anxious than myself to avoid anything like religious discussion in this House, or to avoid rousing anything like religious animosity. But when we are discussing a scheme of the greatest importance, involving the interests of various sections of the community, I do think it behoves every man to speak honestly.

Some Hon. Members—Hear, hear.

Frederick Haultain [Peterborough]—I have said that the Protestant minority in Lower Canada fear lest they should not have full justice done to them. They know the great power of the Romish hierarchy in Lower Canada. They know how much everything is shaped according to the wishes of that body. They know that that hierarchy receives its inspiration from Rome, and within the last few weeks we find what is the character of that inspiration.

Some Hon. Members—Renewed murmurs of disapprobation.

Frederick Haultain [Peterborough]—Now I ask my Roman Catholic friends to consider this candidly. When there comes from the Pope, the head of the Roman Catholic Church, a letter clothed with all the authority that we know the French Canadians attribute to that source, and when we have it declared here that it is an error to say that in some countries called Catholic, emigrants should enjoy the free exercise of their own worship—

Some Hon. Members—Hear! Hear!

Frederick Haultain [Peterborough]—I hear some of my honorable friends say “Hear, hear,” in rather a jeering tone. But I ask you to think honestly about it. Suppose it were possible for the Protestants of Canada to speak in a manner similar to that in which the head of the Romish Church has spoken, and that we were to declare it to be a principle that should guide us, that we ought not give to those who differed from us the freedom of religious worship, would not the Roman Catholics in Upper Canada have good reason to be alarmed?

Now, I ask you to do me the justice, my hon. friends, to think of it in a just light, and not in the light of an attack upon your religion. I ask you to think of it fairly, especially at such a time as this, when the Protestants of Lower Canada are called to put themselves into the power of the Roman Catholic hierarchy; for I believe it is simply tantamount to that. I ask you to think what must be their feelings when they read, as emanating from the head and ruler of the Romish hierarchy, such a

• • (p. 642 in the primary document)

sentiment as that contained in the passage I have quoted.

George-Étienne Cartier [Montreal East, Attorney-General East]—Will the hon. gentleman allow me to say a word? The Protestant minority of Lower Canada have always lived in harmony, not only with the Catholics, but with the Catholic clergy of Lower Canada. And I may say also, on behalf of the Protestants of Lower Canada—the majority of them at all events—that they are so convinced that there is true liberality in the hierarchy, in the Catholic clergy of Lower Canada, as well as in the great majority of the Roman Catholics of Lower Canada, that they have no such fears as the hon. gentleman entertains.

Some Hon. Members—Hear, hear.

Frederick Haultain [Peterborough]—Of course, it must be perfectly obvious, that in a matter of this kind, what emanates from my hon. friend the Hon. Attorney General East [George-Étienne Cartier] will have very little weight, in comparison with what emanates from the head of the Roman Catholic Church. Now, I do not accuse my French-Canadian fellow-subjects of anything like intolerance. But what I say is this, that there is ground for suspicion on the part of the Protestants of Lower Canada, knowing what is the position in which they will be placed, with regard to the Roman Catholic hierarchy, when they find emanating from the head, the very inspiration and fount of that hierarchy, the intolerant sentiments I have alluded to.

Why do I mention this? Is it with the view of raising any difficulty about the scheme now before us? Quite the reverse. I speak in time—I speak to assure my coreligionists in Lower Canada—to elicit the declaration of tolerant and generous sentiments on the part of Roman Catholic members; I speak in earnest warning now, that there may be no necessity for it hereafter. I need scarcely declare what are my own sentiments—those of every British Protestant; we grant cheerfully to our Roman Catholic fellow-countrymen that which we also demand, the freest liberty of conscience, the freest exercise of every political right.

Some Hon. Members—Hear, hear.

John Sandfield Macdonald [Cornwall]—The Hon. Attorney General East [George-Étienne Cartier] rose and spoke for the Protestants of Lower Canada. My hon. friend from Peterborough (Col. Haultain) also speaks for them. How shall we decide between the two?

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics]—The hon. gentleman from Cornwall [John Sandfield Macdonald] is like the blank leaf between the Old and New Testaments, belonging neither to the one nor to the other.

Some Hon. Members—Laughter.

John Sandfield Macdonald [Cornwall]—I really think this is a very important matter. The hon. member for Peterborough [Frederick Haultain] speaks for the Protestants of Lower Canada, and the Hon. Attorney General East [George-Étienne Cartier] also says he speaks the feelings of the same class. What shall we say between them?

George-Étienne Cartier [Montreal East, Attorney-General East]—I can say this. I have seen, as the hon. Mr. Tiber is aware, a considerable amount of political life, and during all that time I have always stood by the cause, when it was attacked, of the Catholic hierarchy of Lower Canada; but at the same time I have always stood up on behalf of the rights of the Protestant minority, and it has been my lot always to have the confidence of that body.

John Sandfield Macdonald [Cornwall]—Not as a body.

Charles Alleyn [Quebec City West]—I propose that this part of the discussion be postponed till Sunday.

Some Hon. Members—Laughter.

John Sandfield Macdonald [Cornwall]—And sing the doxology before we begin.

Frederick Haultain [Peterborough]—I think, sir, this is a matter too serious to be made the occasion of unmeaning jokes. I speak what I know when I say there is a feeling of distrust on the part of a great many of the Protestants of Lower Canada. And I speak what I know, when I say that what I have quoted as emanating from the head of the Roman Catholic Church, has tended to increase that distrust. It must be evident, that if we are in the future to progress amicably and well, it is better we should speak honestly before we enter into this compact, and that we should all strive to guard against any system being carried out, or any course pursued, that would tend to create difficulties in the future. What do my hon. friends from Lower Canada say with regard to what I have quoted? One hon. gentleman rises with a jeer about deferring this discussion till Sunday.

Some Hon. Members—Hear, hear.

Frederick Haultain [Peterborough]—I should like to know what the hon. gentleman thinks of the passage I have read. Does he agree with it?

Charles Alleyn [Quebec City West]—Upon my word, I have not read the whole letter.

Frederick Haultain [Peterborough]—Does he agree with the portion I have read?

Charles Alleyn [Quebec City West]—I am in favor of liberty of conscience to the fullest extent.

Frederick Haultain [Peterborough]—I think, in justice to themselves, hon. gentlemen of the Roman

• • (p. 643 in the primary document)

Catholic faith should make themselves acquainted with what has emanated from Rome. I feel there is ground for the remarks I have made, and that I would have been failing in my duty to the Protestants of Lower Canada, had I not made them—had I not stated on their behalf the grounds of their fears for the future. I hope hon. gentlemen will make themselves acquainted with what I have alluded to. I do not know whether the long list of errors was read out in the Roman Catholic churches, but I do know that the Encyclical letter which accompanied it was communicated to those who attend church. I do not know whether my hon. friend is in the habit of going to church.

Charles Alleyn [Quebec City West]—Oh!

John Sandfield Macdonald [Cornwall]—I would like to know how my hon. friend from Peterborough [Frederick Haultain] will satisfy those for whom he speaks, if he votes for this Confederation scheme.

Frederick Haultain [Peterborough]—I have sufficient confidence that my honorable friend the Attorney General East [George-Étienne Cartier] would oppose anything like an oppression of the Protestant population of Lower Canada. I am quite satisfied he will faithfully carry out the assurances he has given from his seat in Parliament, with reference to the amendments to the Education Act of Lower Canada.

George-Étienne Cartier [Montreal East, Attorney-General East]—And I may say that my fulfilment of those pledges will be easily performed, because it has never entered the minds of the Catholic clergy in Lower Canada, or of the majority of the Catholics of Lower Canada, to oppress their fellow-subjects the Protestants.

Some Hon. Members—Hear, hear.

Joseph Dufresne [Montcalm]—What happened before the union should be proof of that.

Frederick Haultain [Peterborough]—Well, after all that has been said to me, I ask honorable gentlemen of the Roman Catholic persuasion to look at what the head of their Church has written and published to the world, and then to say either the one thing or the other—either that they have no confidence in what the head of their Church says, or that they have confidence in it, and will act accordingly.

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics]—I hope the honorable gentleman will be found willing to extend to the Roman Catholic minority of Upper Canada the same privileges which we are ready to extend to the Protestant minority of Lower Canada.

John Sandfield Macdonald [Cornwall]—The honorable member for Peterborough [Frederick Haultain] admits that the intentions of the Hon. Attorney General East [George-Étienne Cartier] are sincere, and says he relies on them. But, on the other hand, he reads to this House an edict which supersedes any promises which the Hon. Attorney General [George-Étienne Cartier] can make. That is the difficulty in which the honorable gentleman is placed.

George-Étienne Cartier [Montreal East, Attorney-General East]—I recommend the honorable member for Cornwall [John Sandfield Macdonald] to read the Encyclical letter.

John Sandfield Macdonald [Cornwall]—I have read every word of it.

Joseph Bellerose [Laval]—Then you didn’t understand it.

John Sandfield Macdonald [Cornwall]—All I wished to say was, that I think the honorable member for Peterborough [Frederick Haultain] has put the case very fairly.

Frederick Haultain [Peterborough]—Whether I put it fairly or not, or whether honorable gentlemen approve of what I have said or not, matters net in the least to me. I have simply discharged what I conceived a duty to my fellow-religionists in Lower Canada. I bring to the knowledge of honorable gentlemen of the Roman Catholic persuasion what many of them seem to have been ignorant of. And it is all nonsense to endeavor to ignore the fact that I have brought before them. We know that in some Roman Catholic countries absolute intolerance prevails. In Spain, for instance, not a Protestant church is allowed to be erected throughout the whole length and breadth of that country.

It is of no use, therefore, for honorable gentlemen to jeer at what I say; and when an edict of intolerance is again promulgated and sent out to the world, emanating from the very head of the Romish Church, is it surprising, when the Protestants of Lower Canada are in a small minority, and know that they will be at the mercy of the hierarchy entertaining those views, that they should feel some reluctance to be left in that position. I know this very well, that the generality of Roman Catholics in this country would avow, as they have done, their opposition to the sentiment I have quoted. I call upon them practically to disavow it, and I have confidence that they will do so. Whether they like the dilemma in which they are placed, or not, is another matter.

Some Hon. Members—Hear, hear.

Frederick Haultain [Peterborough]—Composed, as our society is, of those different elements, when we have to discuss matters similar to that before us, when we have to adopt a scheme involving the interests of minorities and sections, it is right that we should do so frankly and honestly one to the other, and face to face. I have spoken with every desire to avoid being

• • (p. 644 in the primary document)

offensive, uncourteous and unkind, and I have done it, I trust, in a manner befitting the occasion and my own character.

Paul Denis [Beauharnois]—Will the honorable member allow me to put to him a question? Since the honorable member has referred to this letter from the head of the Church, does he entertain the opinion that any honorable member has a right to come here and criticise in a similar way the mode of procedure of Protestant clergymen? If so, how are we to get along at all? The honorable member may have his own opinions in regard to this letter, but he ought not to state them on the floor of the House, for if he does so any other honorable member has the right to come here and criticise the conduct of respectable clergymen of the Free Church, of the Episcopal Church, or of any other Protestant Church, and make such comments as he thinks fit.

This ought not to be. Then, the honorable member said the letter ought to be looked upon with suspicion. Well, all I can say is, that if we go into a chapter on suspicions, every man ought to be suspicious. We might bring suspicions to bear upon everything, however respectable it may be, and in this way it would be impossible with frankness to deal with anything.

My hon. friend uses the word “hierarchy.” Well, a word even does damage sometimes. My honorable friend may have his opinion upon these things, and that opinion ought to be respected, because I believe it to be an honest opinion; but if he has a right to speak of “Romish” and all that sort of thing in connection with our Church, we will have a right to speak in a disrespectful manner of ministers of the Free Church, of the High Church, of the Low Church, and of all the other kinds of churches, and bad feeling will be created to no purpose. 

Frederick Haultain [Peterborough]—Mr. Speaker, whenever any one who has the right or authority to speak for Protestants enunciates such a doctrine as that which has emanated from the Pope of Rome, I am quite willing it should be thrown in my teeth on the floor of this House. I will tell my honorable friend who has just addressed me, what he ought to have been aware of, that there is no analogy whatever—no similarity whatever—between the Pope of the Church of Rome and any minister of any other body of Christians. I would dismiss this subject, sir, by simply stating that I have used terms ordinarily employed, and have been anxious to do so in no offensive manner. Some of the reasons given for the opposition which has been offered to the scheme now before the House are, that it is not perfect, and that it embraces principles which would endanger the working of the projected Constitution. Now, of course, sir, the scheme in one sense is not perfect.

Luther Holton [Chateauguay]—Hear, hear.[85] [Emphasis is mine]

Haultain’s comments seemed to imply that Cartier’s guarantees were powerless compared with the Catholic Church’s power. Nevertheless, education was also touched upon here, which shows that even within broader fears, education remained a central node of religious minority rights. For others, such as Louis Olivier, the fear was the reverse. That Lower Canadian Protestants would team up with their coreligionists in the federal parliament to deprive Catholics of their rights,

Louis Olivier [De Lanaudière, elected 1863]—[…] By art. 6 of the 43^rd resolution, we perceive that the local legislatures will have the power of making laws in relation to education, saving, however, the rights and privileges enjoyed by the Catholic and Protestant minorities in relation to their separate schools at the time of the union; so that by this resolution we are to affirm that the minorities shall be bound by the school laws which will be in force at the moment when Confederation will take effect. On the other hand, we are told that a measure will be brought down for the better protection of the rights of the Protestant minority in Lower Canada, whilst at the same time we are not informed whether the same advantages will be accorded to the Catholic minority in Upper Canada.

Thus these school laws form a portion of the scheme upon which we are called to vote, and if unfortunately, after we have adopted these resolutions we are unable to obtain justice for the Upper Canadian minority, shall we not be guilty of having voted for the scheme without having known all about it? We ought then to be on our guard. If, as it is pretended, the measure will not endanger the rights of the Catholic minority in Upper Canada, why are we refused the details and the information which we ask to have afforded to us before pronouncing on the merits of the plan?

I maintain that any one who desires that justice should be extended to the minorities in question, would not know how to vote as we are called upon to do. In the absence of the information which we are entitled to demand from the Government as to the nature opt the guarantees to be offered by the new Constitution to the minorities of the two provinces of Canada, I do not for one instant hesitate to declare that this Honorable House is justified, and indeed fulfils a sacred duty in demanding the delay sought for by the motion of the hon. member for Niagara [James Currie]. If it should so happen that the people are called upon to pronounce on the merits of the measure, it becomes of the utmost necessity that we, their representatives, should be able to explain and point out to them the details of the scheme. We have then every reason to insist that this information should be supplied to us.

The Premier [Étienne Pascal Taché] will now permit me to put to him a question. May it not happen, after the adoption of these resolutions, that the Protestant majority of Upper Canada may ally itself with the Protestant minority of Lower Canada in the present Parliament, and deprive the Catholic majority of Upper Canada of the rights which they are entitled to enjoy in relation to the education of their children? Should such an event occur, I would ask the hon. Premier [Étienne Pascal Taché] what means the aggrieved minority might be able to adopt in order to obtain justice? 

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—I will inform you when the proper time comes.[86] [Emphasis is mine]

V. Regional Minorities

A tripartite, equal Senate was the final written guarantee for minority rights. In this instance, the body was created to protect regional minorities. This body’s equality—an equal number of Senators for Ontario, Quebec, and the Maritime provinces was essential in the new Confederation. Without an equal upper house, there would have been no deal on Confederation. The equality in the Upper House allayed fears of Upper Canadian dominance in a new federation, which would have a lower house (House of Commons) established by population. George Brown summarizes the situation thus,

George Brown [Oxford South, President Executive Council]—The honorable member for North Hastings [Thomas Wallbridge] is of that opinion; but that honorable gentleman is in favor of a legislative union, and had we been forming a legislative union, there might have been some force in the demand. But the very essence of our compact is that the union shall be federal and not legislative. Our Lower Canada friends have agreed to give us representation by population in the Lower House, on the express condition that they shall have equality in the Upper House. On no other condition could we have advanced a step; and, for my part, I am quite willing they should have it.

In maintaining the existing sectional boundaries and handing over the control of local matters to local bodies, we recognize, to a certain extent, a diversity of interests; and it was quite natural that the protection for those interests, by equality in the Upper Chamber, should be demanded by the less numerous provinces. Honorable gentlemen may say that it will erect a barrier in the Upper House against the just influence that Upper Canada will exercise, by her numbers, in the Lower House, over the general legislation of the country. That may be true, to a certain extent, but honorable gentlemen will bear in mind that that barrier, be it more or less, will not affect money bills.[87]  [Emphasis is mine]

The Senate was arranged to further solidify the twin concerns of French-Canadian protection alongside Anglophone protection within Quebec. It is for this reason that the Senators from Quebec would be chosen by electoral division. This was a means of protecting  “French Canadian interests and British interests”. Thus, Anglophone communities would be able to have representation in the Upper House rather than consumed by the majority within the province. This was not a concern to Upper Canada who felt they had a common origin and language.

George Brown [Oxford South, President Executive Council]—[…] Our Lower Canada friends felt that they had French Canadian interests and British interests to be protected, and they conceived that the existing system of electoral divisions would give protection to these separate interests. We, in Upper Canada, on the other hand, were quite content that they should settle that among themselves, and maintain there existing divisions if they chose. But, so far as we in the west were concerned, we had no such separate interests to protect—we had no diversities of origin or language to reconcile—and we felt that the true interest of Upper Canada was that her very best men should be sent to the Legislative Council, wherever they might happen to reside or wherever their property was located.[88] [Emphasis is mine]

Not everyone was convinced by the arrangement. Christopher Dunkin mocked the federal appointment process, arguing that it did not embody federalism.

Christopher Dunkin [Brome]—The vacancies, to be sure, in Lower Canada are to be filled by selection of individuals having or holding property in Lower Canada,—and more than that, in particular territorial divisions of Lower Canada! But are these individuals to be ever so little chosen by the people of such territorial divisions, or even of Lower Canada, or with any necessary reference to their wishes in that behalf? Bless you, no! not at all. That would go towards making a Federal body of this House!

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—It might then be something of a Federal check upon the General Government, and that would never do. But suppose this should happen—and honorable gentlemen opposite must admit that it may,—that in the Federal Executive Council some one province or other—Upper Canada, Lower Canada, or any other, no matter which—either is not represented, or is represented

• • (p. 495 in the primary document)

otherwise than as it would wish to be. While thus out in the cold, a vacancy arises in the Legislative Council, requiring to be filled as for such province. Where is the guarantee that it will be filled on any sort of Federal principle?

Some Hon. Members—Hear, hear.[89] [Emphasis is mine]

Perrault too thought the appointment process of a majority of non-French speakers was dangerous for their representation.

Joseph Perrault [Richelieu]—If the hon. member for Montcalm [Joseph Dufresne] had listened attentively to the remarkable speech of the hon. member for Brome [Christopher Dunkin], he would have learned that in the majority of the states composing the American Union, the judges are not appointed

• • (p. 624 in the primary document)

by the people, but by the Executive branch of the local government, in precisely the same way as in Canada, and that they are in every respect as upright and as distinguished as our own judges. If our French-Canadian Ministers had not been in so powerless a minority in the Quebec Conference (four to thirty-two), they would certainly not have accepted a scheme of Confederation so fraught with danger to the French race as that which has been submitted to us. They would have obtained more favorable conditions than those which are imposed upon us, among which is the appointment for life of the legislative councillors, by the Executive branch of the General Legislature.

For my part, Mr. Speaker, I am not in favor of the appointment for life of men taken from the crowd to be converted into the instruments of oppression, and too often to serve to cast impediments in the way of the most important liberties and rights of the people. The appointment for life of the legislative councillors by a majority which is hostile to our race is as dangerous today as it was in the most evil days of our history, and to accept it is to place our most precious liberties at the mercy of the enemies of our race.

With such provisions in the Constitution which it is proposed to force upon us, it is impossible that the French element should be protected in the Legislative Council. It is equally impossible that the aggressive tendencies, of which I gave an historical sketch in the first part of my remarks, will not produce their effect in the Federal Executive, when the question of the appointment of those members is being settled. We have been told, “The French Canadian section will resign if the Federal Executive attempt to practice injustice to the detriment of their fellow countrymen.”

Well, Mr. Speaker, I would willingly believe that they would resign, and that no successors could be found for them, which is still more improbable, and I should like to know to what such a resignation would lead, and what sort of a remedy it would provide for our humiliating position. We shall have forty-eight members in the Federal Parliament against one hundred and forty of English origin; in other words, we shall be in the proportion of one to four. What could so weak a minority do to obtain justice? Evidently the resignation of the French section would make it still more powerless, and it would have to accept the tyrannical dictates of its opponents. The French members of the present Government themselves give as the ground of the necessity of the proposed changes, the fact that the existing Constitution does not afford us sufficient guarantees.

But then, what sort of guarantees shall we have under the Confederation which it is proposed to force upon us and under which we shall be in a minority twice as great? Let us suppose the very probable contingency of a collision between our Local Legislature and the Federal Government, in consequence of the rejection of a measure passed by the Province of Lower Canada and thrown out by the General Parliament; in what position shall we be? Let us remember that the Federal Executive appoints the Legislative Council, presides over the criminal legislation of the country, and appoints the judges who administer it; in a word, that in the Federal Government are vested all sovereign powers, to the exclusion of the local governments.

Well, Mr. Speaker, I say without hesitation that in the case of a collision, we shall find ourselves completely at the mercy of the hostile Federal majority, and that it may oppress us, assimilate our laws; suspend our judges, arm the militia against us, and send us to the scaffold or into exile in any way they may think proper, notwithstanding our protestations and those of the French-Canadian minority in the Federal Parliament. Such has already been found to occur; the past is there to prove the fact, and everything leads us to believe that the same attempts at fanatical aggression will be renewed in our day, if the scheme of Confederation is adopted.

Some Hon. Members—Hear, hear.

Joseph Perrault [Richelieu]—The hon. member for Brome [Christopher Dunkin], whose loyalty will certainly not be called in question, himself declared in this House that this scheme would give rise to difficulties and entail deplorable collisions. Supposing, Mr. Speaker, that those collisions and difficulties arise, what shall we do? Will not all power be in the hands of the Federal Government and of a hostile majority? Is it not because the people understand it that they reject this measure with threats on their lips and in their eyes; that every day they send us numerous petitions in which they prophesy the most serious dissatisfaction? How long will the eyes and the ears of the members of this House remain closed, that they may not be cognisant of this protest of their alarmed fellow-countrymen?

The Hon. Attorney General East [George-Étienne Cartier] himself refuses to communicate to us a single one of the details of the scheme of

• • (p. 625 in the primary document)

Confederation, and he would have us give up all the rights which the existing Constitution confers upon us, by voting in favor of a Local Legislature of which the powers will be naught, and of a General Parliament in which we shall be in the proportion of one to four. Mr. Speaker, it is not surprising that the French-Canadian population of Lower Canada is unanimous in rejecting a Confederation which presents to us so gloomy a future—

Some Hon. Members—Hear, hear.

Joseph Perrault [Richelieu]—and I do not fear to declare that our Ministers are committing an act of very great imprudence in forcing upon the people constitutional changes of so serious a character, and so loudly denounced as an attack on their rights and their privileges. Never, at any period of our history, have there been seen such changes of constitution under such extraordinary circumstances.

And exactly at the moment when we are preparing to resist the invading army of a powerful neighbor, we are deprived of the liberties which we enjoy after having secured them by a century of struggles. But it seems to me that new guarantees of security ought rather to be given us, in order to induce us to fight with warlike antagonists ten times more numerous than ourselves, and whose political organization is perhaps less hostile to our race than the proposed Confederation. Have not the present Ministry taught us to look upon the semblance of local government, which they propose to us, as a sufficient protection for all that we hold most dear, and to accept the position of a powerless minority in the General Government, because commercial interests only will be brought in question there?

If this proposition is a just one, the Constitution of the United States, with the recognized sovereignty of Lower Canada, affords much greater security for our institutions, our language and our laws. For the sovereignty of the state implies their preservation in the state, which yields up nothing to the General Government except a very restricted number of powers.

Yes, Mr. Speaker, in proposing a change of Constitution the Ministry have committed a serious fault, and they have no right to endeavor to prevent the people of this province from examining the question of possible changes in all its bearings. Scarcely six months ago the French-Canadians lived happily, relying upon the security given them by the existing Constitution. Now such can hardly be the case, when the proposed changes threaten their existence as a race. Impose these changes upon them, and then let danger come, and England will find out, but too late, that her most loyal subjects are lost to her.

Our people will have learned that of two evils they must choose the least, and that on a comparison between Confederation and annexation, the least evil will not, unfortunately, be found to be Confederation. Before marching on to certain slaughter, the soldier will ask himself for what he is going to fight, and whether the Constitution which he is going to defend is worth the sacrifice of his life’s blood. The day upon which the French-Canadian soldier puts this question to himself, will be the last day of the English power in America.

I hope I may be mistaken, Mr. Speaker, and I would wish to believe that the views of the Government are sounder than mine, at a time when they propose a measure so full of danger as that which is submitted to us. I would wish to believe, above all, that they have no intention of skilfully leading us into a collision with our neighbors, which would tend to carry us directly into annexation, and would strike a mortal blow at English domination on this continent.

I shall conclude, Mr. Speaker, by summing up my remarks. The union of the two Canadas has not yet done all its work. There is still room for progress under it, and it must be continued. The Hon. Attorney General for Lower Canada (Hon. Mr. Cartier) maintains on the contrary that it has no longer any grounds of existence, and that we must have a new political organization. Well, Mr. Speaker, I venture to hold an opinion different from that of the hon. member for Montreal East [George-Étienne Cartier], and I have no hesitation in saying that under the union we can yet double our prosperity and our numbers, if we introduce into the administration of affairs a little less party spirit and a little more patriotism.[90] [Emphasis is mine]

François Evanturel suggested that without the best option for regional protection (an elected Senate), the next best option would be to let the provincial governments handle the appointment process.

François Evanturel [Quebec County]—[…] We have accorded the principle of representation based upon population in the House of Commons of the Federal Government, and that is without doubt a great sacrifice; but we ought only to make so important a concession on the condition that we shall have equality of representation in the Legislative Council, and the right reserved to ourselves to appoint our twenty-four legislative councillors, in order that they may be responsible to the public opinion of the province and independent of the Federal Government.—Without this essential guarantee I affirm that the rights of Lower Canada are in danger.

For my part I am ready, on behalf of Lower Canada, to give up her right to elect directly her twenty-four legislative councillors, although the retention of the elective principle might perhaps be the surest means of preserving our institutions; but I am anxious that the new Constitution now proposed should give us adequate guarantees that the legislative councillors to be appointed for life should, at all events, be selected by the Local Government of Lower Canada, which would be responsible to the people. These not ill-grounded sources of anxiety I should like to see removed. I would bespeak the earnest attention of the honorable mexmber for Montmorency [Joseph Cauchon] to this point, which is of the very highest importance to us Lower Canadians; and I hope that he will pardon me for having interrupted him, and that he will be in a position to give me such an answer as will dissipate the anxiety which I am aware has been evinced on this subject.[91] [Emphasis is mine]

Antoine-Aimé Dorion concurred with this sentiment, later in the debates, arguing that an elected upper house or, at the very least, an appointment process through the local (provincial) governments would be the best means of securing the protection of regional/provincial interests. Dorion argues,

Antoine-Aimé Dorion [Hochelaga]—[…] In the Lower House we shall not have one member in three, nor shall we in the Upper House either, for we shall only have twenty-four councillors out of seventy-six. Thus we shall have equality neither in the Lower House nor in the Council.

Some Hon. Members—Hear, hear. 

Antoine-Aimé Dorion [Hochelaga]—But then the General Government will nominate the councillors, and we shall be in a great minority in the Executive Council. Another objection is that the nomination of the legislative councillors on the recommendation of the Executive Council of the General Government, and this offers no guarantee for the institutions of Lower Canada, because the predominating influence in that Council will not be that of the majority of Lower Canada. To offer an effectual guarantee, it would be necessary that they should be elected by the people, or, at all events, only appointed on the recommendation of the local governments. These resolutions, we are told, are only as it were the headings to the chapters of the new Constitution, and the new Constitution may be anything else than what is now under consideration. It will come back to us in the form of an Imperial Act, to which we shall have nolentes volentes to submit.

Some Hon. Members—Hear, hear.[92] [Emphasis is mine]

John Macdonald[93] worried the majority would be hamstrung by the equality in the upper house. He quotes fellow member of the legislative assembly, Joseph Cauchon in his book The Union of the Provinces of British North America (1865). Cauchon argues that equality in the lower house, up to this time, alongside Anglophone goodwill has protected French institutions. This protection would then move to the upper house as it would contain the same equality that was the status quo in the lower house leading up to Confederation.

John Macdonald [Toronto West]—Now, sir, we have long contended in Upper Canada for a just representation in Parliament, and we are told that, because we are going to get seventeen more members than Lower Canada in the Federal Legislature, all the difficulties for the settlement of which representation according to population was sought, are to be thereby remedied. I cannot see that that result will follow, because in the Upper House there is still to be an equality of votes, and I quote now from the pamphlet written by the Hon Mr. Cauchon to show that he is of opinion that any advantage which we gain in the Lower House will be completely paralyzed in the Upper Chamber. He says:—

The Constitution of 1840 only stipulated for equality in the Lower House. Let us suppose that the majority of the Legislative 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 House, the bill adopted by the Upper House would have been certainly thrown 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 representatives of English descent.

Why has the Legislative Assembly always been the battlefield with respect to the struggle that has been going on for the last fourteen years between Upper and Lower Canada on the question of representation 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 Lower House to the Legislative Council, and precisely for the reasons that we have adduced.

Mr. Speaker, we have here, in the language of one of the most determined opponents of the principle of representation according to population, very good reasons given for coming to the conclusion that the granting of increased representation in the Lower Legislature will amount to nothing, while the same just principle is denied in the constitution of the Legislative Council. I hope I may be incorrect, but I am of opinion that if this scheme goes into operation, we shall witness the difficulty alluded to on the floor of the Confederate Legislature in less than six months after its organization.

Some Hon. Members—Hear, hear.

John Macdonald [Toronto West]—And the unfair representation which Upper Canada will have in the Upper Chamber must exist throughout all time. Nor will she be able to add even one member, no matter how great may be the preponderance of her population over other parts of the Confederacy. And this equality of votes between Upper Canada and Lower Canada will act, as Mr. Cauchon tells his Lower Canadian friends, as a perfect counterpoise to the legislation of the Lower House.[94] [Emphasis is mine]

In defence of regional protection, government members stated that it was a means to protect local interests from the majorities in the lower house.  Here’s Alexander Campbell in the Legislative Council,

Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—He (Hon. Mr. Campbell) would, however, take up the point to which he had alluded at the commencement, and from which he had for a moment digressed, and give the reasons which had induced the Conference to determine as they had done, upon the constitution of the Upper House. And the main reason was to give each of the provinces adequate security for the protection of its local interests, a protection which it was feared might not be found in a House where the representation was based upon numbers only, as would be the case in the General Assembly. The number of representatives to the Legislative Council under the Federal constitution would be limited, and they would be appointed for life instead of elected by the people. For the purpose of securing equality in that House, the Confederation would be divided into two sections, viz.: Upper Canada, Lower Canada, and the Maritime Provinces, and each of these sections would send twenty-four members to the House.

In Upper Canada, as had been stated lately by an honorable member, the population has increased very rapidly, and would probably go on increasing in a much larger ratio than that of Lower Canada or the other provinces, and if the Legislative Council were elective, the time might come when the people of that section would fancy themselves entitled to an increased representation in the Council, and commerce to agitate for it. They might object to the fishing bounties paid the Lower Province, to the money expended there in fortifications, or to something else, and claim a representation in the Council, more in accordance with their population to enforce their views; and in view of such contingencies the delegates from those provinces conceived it would not be safe to trust their rights to an elective House.

It was then determined that in one branch there would be a fixed number of members nominated by the Crown, to enable it to act as a counterpoise to the branch in which the principle of representation according to population would be recognized. It might be said that the principle of limitation of numbers could have been adopted, and that of election preserved.

Well, he did not say the scheme was perfect, but it was the best that could be devised, and as the Lower Provinces felt the danger from their inferiority of numbers, being only 800,000 against double that number in Upper Canada alone, it was essential that the security which a fixed representation in the Council afforded to them should be acceded to. The Conference acted upon the conviction that they were not building a structure for a temporary purpose, but,

• • (p. 22 in the primary document)

as they hoped, for centuries, and knowing how the doctrine of representation according to population had operated in distracting the popular branch of the Legislature in Canada, they endeavoured to provide against a similarly disturbing cause in the Confederation.[95] [Emphasis is mine]

Here’s John A. Macdonald in the Legislative Assembly,

John A. Macdonald [Kingston, Attorney-General West]—[…] In order to protect local interests, and to prevent sectional jealousies, it was found requisite that the three great divisions into which British North America is separated, should be represented in the Upper House on the principle of equality. There are three great sections, having different interests, in this proposed Confederation.

We have Western Canada, an agricultural country far away from the sea, and having the largest population who have agricultural interests principally to guard. We have Lower Canada, with other and separate interests, and especially with institutions and laws which she jealously guards against absorption by any larger, more numerous, or stronger power. And we have the Maritime Provinces, having also different sectional interests of their own, having, from their position, classes and interests which we do not know in Western Canada. Accordingly, in the Upper House,—the controlling and regulating, but not the initiating, branch (for we know that here as in England, to the Lower House will practically belong the initiation of matters of great public interest), in the House which has the sober second-thought in legislation—it is provided that each of those great sections shall be represented equally by 24 members.

The only exception to that condition of equality is in the case of Newfoundland, which has an interest of its own, lying, as it does, at the mouth of the great river St. Lawrence, and more connected, perhaps, with Canada than with the Lower Provinces. It has, comparatively speaking, no common interest with the other Maritime Provinces, but has sectional interests and sectional claims of its own to be protected. It, therefore has been dealt with separately, and is to have a separate representation in the Upper House, thus varying from the equality established between the other sections.—[96] [Emphasis is mine]

And here’s Étienne Pascal Taché in the Legislative Council,

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—[…] Well, it so happened that the corner-stone was that which concerned the representation in both Houses. It was agreed on the one hand that in the House of Commons of the Confederate Government representation should be according to numbers, and that in the other branch of the Legislature it should be fixed that this representation should be equal for all the provinces—that is to say, Upper Canada, and Lower Canada, and the Maritime Provinces, grouped into one, should each be allowed to send the same number of representatives, so as to secure to each province its rights, its privileges, and its liberties.

We acted upon this principle, because we felt that if the House of Commons’ representation was based upon population, equality should be secured in the other branch of the Legislature. My honorable friend from Wellington [John Sanborn] has gone over almost every detail of the scheme of Federation, and he thought also he would try his hand a little at constitution-making, by improving that part which has particular reference to the Legislative Council. Well, honorable gentlemen, I think the saying is pretty correct that it is easy to find fault, but it is not so easy to do better.

Some Hon. Members—Hear, hear.

Étienne Pascal Taché [Canada East, appointed 1848, Premier, Minister of Militia, and Receiver General]—The honorable gentleman no doubt thought in his own mind that he was going to improve the scheme of the Conference, but I think he has made it so bad that I believe I can show in the course of the few observations I have to offer, even if we had the power to make amendments, no member of this House either from Upper or Lower Canada would consent to them for a moment. I have just said the agreement was that there should be equality in the representation in the Legislative Council.[97] [Emphasis is mine]

ENDNOTES

[1]      An earlier edition of this report, entitled, Michael J. Scott, “Unwritten Principles: Minority Rights, Analysis of Minority Rights in Constitution Act, 1867”, First ed. (June 2024), PrimaryDocuments.ca was removed from PrimaryDocuments since it veered too much into qualitative analysis. Our site seeks to present the primary documentary record without such analysis to uphold ourselves as a neutral tool for scholars and legal practitioners. Any of the qualitative analysis of the former paper (or this edition) belongs solely to Michael J. Scott, the author.

[2]      Province of Canada, Legislative Assembly, Feb. 6, 1865, Charles Dumais & Michael J. Scott (ed.), The Confederation Debates in the Province of Canada (CCF, 2021), p. 447.

[3]      LC, Feb. 3, 1865, Confederation Debates, pp. 72-73.

[4]      LA, Feb. 16, 1865, Confederation Debates, pp. 593-594.

[5]      LA, Feb. 22, 1865, Confederation Debates, pp. 684-686.

[6]      LC, Feb. 3, 1865, Confederation Debates, pp. 71-73.

[7]      LA, Feb. 21, 1865, Confederation Debates, pp. 634-635.

[8]      LA, Feb. 8, 1865, Confederation Debates, p. 514.

[9]      LA, Mar. 7, 1865, Confederation Debates, p. 1147.

[10]    LA, Mar. 10, Confederation Debates, p. 1424.

[11]    LA, Mar. 10, 1865, Confederation Debates, p. 1429.

[12]    LA, Aug. 2, 1866, Confederation Debates, p. 2135.

[13]    For a full report on the power of disallowance, see Report: The Power of Disallowance, Section 90 of the Constitution Act, 1867 at PrimaryDocuments.ca.

[14]    LA, Feb. 16, 1865, Confederation Debates, pp. 591-592.

[15]    LA, Feb. 20, 1865, Confederation Debates, pp. 609-610.

[16]    LA, Mar. 10, 1865, Confederation Debates, pp. 1389-1390.

[17]    LA, Mar. 9, 1865, Confederation Debates, pp. 1319-1321.

[18]    LA, Mar. 3, 1865, Confederation Debates, pp. 997-999.

[19]    For a full report on the power of disallowance, see Report: The Power of Disallowance, Section 90 of the Constitution Act, 1867 at PrimaryDocuments.ca.

^[20]    LA, Feb. 16, 1865, Confederation Debates, p. 584.

^[21]    LA, Mar. 6, 1865, Confederation Debates, p. 1090.

[22]    LA, Feb. 20, 1865, Confederation Debates, pp. 622-623.

[23]    LA, Feb. 16, 1865, Confederation Debates, pp. 571-572.

[24]    LA, Aug. 2, 1866, Confederation Debates, p. 2135.

[25]    For a full report on language rights in Section 133, see Report: Language Rights, Section 133 of the Constitution Act, 1867 at PrimaryDocuments.ca.

[26]    LA, Mar. 8, 1865, Confederation Debates, pp. 1230-1231.

[27] LA, Mar. 10, Confederation Debates, pp. 1456-1458.

[28]    LA, Mar. 9, 1865, Confederation Debates, pp. 1360-1361.

[29]    LA, Aug. 2, 1866, Confederation Debates, p. 2136.

^[30]    LA, Feb. 24, 1865, Confederation Debates, p. 767.

[31]    Minority (religious) education rights forms its own section in this paper (p. 46) due to the magnitude of that discussion during the Confederation Debates.

[32]    LA, Feb. 7, 1865, Confederation Debates, p.460.

[33]    LC, Feb. 3, 1865, Confederation Debates, p. 73.

[34]    For a full report on the power of disallowance, see Report: The Power of Disallowance, Section 90 of the Constitution Act, 1867 at PrimaryDocuments.ca.

^[35]    LC, Feb. 16, 1865, Confederation Debates, p. 265

^[36]    LA, Feb. 22, 1865, Confederation Debates, pp. 686-687.

[37]    LA, Mar. 10, 1865, Confederation Debates, pp. 1388-1389.

[38]    Cartier was a strong defender of the Anglophone minority’s rights in Quebec and many of the interjections of their protection came from him. These assurances would have held more weight from a French-Canadian leader.

[39]    LA, Mar. 10, 1865, Confederation Debates, pp. 1439-1440.

[40]    LA, Aug. 16, 1865, Confederation Debates, p. 1796.

[41]    LA, Jul. 31, 1866, Confederation Debates, p. 2123.

[42]    LA, Aug. 2, 1866, Confederation Debates, p. 2142.

[43]    There is also a section in this paper on responsible government and a bicameral legislature for federal protections later in this paper, pp. 39-40.

[44]    LA, Aug. 2, 1866, Confederation Debates, p. 2137.

[45]    LA, Jul. 13, 1866, Confederation Debates, pp. 2096-2097.

[46]    LA, Aug. 2, 1866, Confederation Debates,  p. 2134.

[47]    LA, Aug. 2, 1866, Confederation Debates, pp. 2137-2138.

[48]    These can be found in the French-Canadian minority portion of this report, p. 9.

[49]    LA, Mar. 8, 1865, Confederation Debates, pp. 1246-1249.

[50]    LA, Mar. 10, 1865, Confederation Debates, pp. 1439-1440.

^[51]    See LA, Mar. 18, 1865, pp. 1625-1628; LA, Aug. 9, 1865, pp. 1744-1745; LA, Aug. 16, 1865, pp. 1795-1796; LA, Jul. 31, 1866, p. 2118; LA, Aug. 7, 1865, pp. 2167-2168; and LA, Aug. 13, 1866, p. 2200.

[52]    However, education rights of the minority would eventually be added to the Constitution Act, 1867.

^[53]    LA, August 7, 1866, Confederation Debates, p. 2165.

[54]    “The Protestant Minority of Lower Canada in a Bad, but not Hopeless Condition,” Montreal Witness (Aug. 23, 1865).

[55]    LA, Aug. 7, Confederation Debates, p. 2167.

[56]    Apart from Frederick Haultain, whose testimony is dealt with later in this section.

[57]    LC, Feb. 20, 1865, Confederation Debates, pp. 381-382.

[58]    LA, Feb. 3, 1865, Confederation Debates, p. 412.

[59]    LC, Feb. 20, 1865, Confederation Debates, p. 386.

[60]    LC, Feb. 13, 1865, Confederation Debates, pp. 172-173.

[61]    LA, Jul. 13, 1866, Confederation Debates, p. 2091.

[62]    LA, Jul. 31, 1866, pp. 2116-2117.

[63]    LA, Jul. 31, 1866, Confederation Debates, p. 2118.

[64]    LA, Aug. 3, 1866, Confederation Debates, p. 2146.

[65]    LA, Aug. 3, 1866, Confederation Debates, pp. 2146-2147.

[66]    LA, Aug. 3, 1866, Confederation Debates, p. 2147.

[67]    LA, Aug. 3, 1866, Confederation Debates, p. 2148.

^[68]    Footnote from Confederation Debates book: Premier Belleau made the comments to the Legislative Council on Jul. 17, 1866. They do not appear in the “Scrapbook Debates,” but do appear in The Globe’s report of the proceedings for that day. “Provincial Parliament,” The Globe (Jul. 18, 1866). His comments are as follows, “[…] that the rights of the minority of Lower Canada are already guaranteed by the resolutions on Confederation adopted during last session, but an amendment to the School Act will be introduced during this session to put the minority in Lower Canada on the same footing as the Catholics in Upper Canada. It is intended to continue the system of public grants as long as the present system lasts. A measure would be initiated in the Assembly in sufficient time.”

[69]    LA, Aug. 3, 1866, Confederation Debates,p p. 2148-2149.

[70]    LA, Aug. 7, 1866, Confederation Debates, p. 2165-2166.

[71]    LA, Mar. 13, 1865, Confederation Debates, pp. 1575-1577.

[72]    LA, Feb. 8, 1865, Confederation Debates, p. 493.

[73]    LA, Mar. 10, 1865, Confederation Debates, pp. 1413-1414.

[74]    LA, Mar. 10, 1865, Confederation Debates, pp. 1426-1427,

[75]    LA, Aug. 7, 1866, Confederation Debates, p. 2166.

[76]    LA, Aug. 7, 1866, Confederation Debates, pp. 2166-2167.

[77]    LA, Aug. 7, 1866, Confederation Debates, p. 2168.

[78]    LA, Aug. 7, 1866, Confederation Debates, p. 2168.

[79]    LA, Aug. 7, 1866, Confederation Debates, p. 2169.

[80]    LA, Aug. 7, 1866, Confederation Debates, pp. 2168-2169.

[81]    LA, Feb. 6, 1865, Confederation Debates, pp. 428-429.

[82]    LA, Mar. 9, 1865, Confederation Debates, pp. 1319-1321.

[83]    LA, Feb. 21, 1865, Confederation Debates, p. 661.

[84]    LA, Mar. 9, 1865, Confederation Debates, pp. 1303-1304.

[85]    LA, Mar. 3, 1865, Confederation Debates, pp. 1019-1024.

[86]    LC, Feb. 17, 1865, Confederation Debates, p. 339.

[87]    LA, Feb. 8, 1865, Confederation Debates, pp. 483-484.

[88]    LA, Feb. 8, 1865, Confederation Debates, p. 487.

[89]    LA, Feb. 27, 1865, Confederation Debates, p. 812.

[90]    LA, Mar. 3, 1865, Confederation Debates, pp. 997-999.

[91]    LA, Mar. 2, 1865, Confederation Debates, p. 921.

[92]    LA, Mar. 6, 1865, Confederation Debates, pp. 1096-1097.

[93]    Not to be confused with John A. Macdonald or John Sandfield Macdonald.

[94]    LA, Mar. 7, 1865, Confederation Debates, pp. 1193-1194.

[95]    LC, Feb. 6, 1865, Confederation Debates, p. 81.

[96]    LA, Feb. 6, 1865, Confederation Debates, pp. 434-435.

[97]    LC, Feb. 16, 1865, Confederation Debates, p. 261.