“Peace, order, and good government” in Section 91 of the Constitution Act, 1867

2020-04-07 1 Comment

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Date: 2020-04-07
By: PrimaryDocuments.ca
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Constitution Act, 1867: Section 91

Compilation of primary documents to assist in interpreting the meaning of the term, “Peace, order, and good government” in Section 91 of the Constitution Act, 1867

Contents

Part 1
Interpretive note on the terms ‘peace, order and good government’ and ‘peace, welfare and good government.’
(authored by Scott Reid & Michael Scott)

Issue #1: ‘Peace, order, and Good Government’ vs ‘Peace, welfare and Good Government—two terms for the same thing, or for two different things?

Issue #2: ‘Peace, order and good government’ is an assertion of broad powers. What importance should be assigned to the limiting clause which invariably follows?

Issue #3: Is ‘peace, order and good government’ a ‘Guiding Principle’ (ie. a de facto preamble), or a grant of Plenary Power?

Part 2
‘Peace, order and good government’ in successive drafts of Section 91 of the Constitution Act, 1867.

Part 3
Use of the term, ‘peace, order and good government’ in the Confederation Debates in the provinces of Canada, New Brunswick and Newfoundland, 1865-66.

Part 4
‘Peace, order and good government’ as used in the 1867 debates of the Imperial parliament on the subject of Canadian confederation.

Part 5
Examples of the term, ‘peace, welfare and good government’ in pre-1867 British colonial documents.

Part 6
Use of the term, ‘peace, order and good government’ in the organic law of other British colonies / provinces.

Part 7
Links to Canadian secondary sources in which ‘peace, order and good government’ is discussed.

Footnotes

PART 1:

Interpretive note on the terms, ‘Peace, order and good government’ and ‘Peace, welfare and good government’.

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The importance of the term, “Peace, order and good government” arises from its use in the British North America Act, 1867:

91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not So as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming Within the Classes of Subjects next herein-after enumerated; […] [Emphasis is ours]

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Issue #1: ‘Peace, Welfare, and Good Government’ vs ‘Peace, Order and Good Government—two terms for the same thing, or for two different things?

Throughout Canada’s early constitutional history (prior to the definitive adoption of the term, “Peace, Order and Good Government”) the term “Peace, Welfare, and good Government” is regularly used in various organic laws.

The term is found first in the Royal Proclamation of 1763 and continues to be used right up to the drafting of the BNA Act. In the course of the drafting process, “welfare” is changed to “order”.

The term “Peace, Order, and Good Government” was rarely used in the Canadian context prior to 1867. The first use of the phrase that we have been able to locate occurs in 1763—Governor Murray is given private instructions using the term “Order,” while his public commission and the proclamation thereof use the term “Welfare.”

That is to say, three documents are associated with the setting up of his post after the conquest of Quebec in 1763—the Royal Proclamation (which uses “Welfare”), his public commission (which mentions welfare), and his private instructions (which mention order).

The importance of this distinction (if any) is discussed by Hakeem Yusuf in Colonial and Post-colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government and by John Ralston Saul in his book, A Fair Country, both of which are excerpted in the final section of the present memorandum.

Yusuf points to an interesting detail in the instructions to Murray. In case of the governor’s death,

the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that purpose; And that he shall not remove or suspend any of the Members of Our Council, nor any Judges, Justices of the Peace, or other Officers Civil or Military, without the Advice and Consent of at least Seven of the Members of Our said Council…[Emphasis is ours]

Essentially, the governor’s interim replacement would be able to pass laws for the peace and welfare of the colony, but not for the order of the colony. He would not be in a position to remove members of the council, judges, etc. He would, therefore, face restrictions not imposed on Governor Murray. The use of the term, “Peace, Welfare and Good Government” seems to imply restricted, non-plenary powers, whereas “Peace Order and Good Government” may imply a somewhat larger circle of powers.

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Issue #2: ‘Peace, order and good government’ is an assertion of broad powers. What importance should be assigned to the limiting clause which invariably follows?

Throughout British colonial history, the phrases “peace, welfare, and good government,” and “peace order and good government” can be found in many foundational or organic documents. The phrase is typically followed, in the text of the relevant document, by a caveat limiting what might otherwise be seen to be plenary powers. A Proclamation or an Act of Parliament will usually grant full power to make laws for “peace, welfare, and good government”. It will then say something like “provided they are not inconsistent with the laws of Parliament/Her Majesty, etc.”

The BNA Act does not contain the usual caveat with regard to the laws of Britain. The absence of this previously widely-used caveat is likely due to the fact that such a declaration was no longer necessary, as the provisions of the Colonial Laws Validity Act, enacted in 1865, had been incorporated into the organic law of every British province. Section 2 of the Colonial Laws Validity Act states:

Any Colonial Law which is or shall be in any respect repugnant to the Provisions of any Act of Parliament extending to the Colony to which such Law may relate, or repugnant to any Order or Regulation made under Authority of such Act of Parliament, or having in the Colony the Force and Effect of such Act, shall be read subject to such Act, Order, or Regulation, and shall, to the Extent of such Repugnancy, but not otherwise, be and remain absolutely void and inoperative.

The Constitution Act, 1867, does, however, continue the precedent of placing a caveat after the phrase (in this case, a caveat relating to the limits on federal power). Section 91 reads,

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not So as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming Within the Classes of Subjects next herein-after enumerated […] [Emphasis is ours]

Previously, the legislative scope accorded to the parliaments of colonies in British America, under the terms of their organic laws, had been limited only by the restriction that their laws could not be inconsistent with the laws of Britain. In the BNA Act, a new kind of caveat or restriction is imposed: The Parliament of Canada is awarded the power to legislate on any matter, provided it is not inconsistent with the division of powers.

This is a significant new restriction, never before imposed on a colonial government. The caveat has no parallel in the Empire’s only previous attempt at creating a federated colony (New Zealand, which originally was to consist of self-governing provinces). This entirely new development in the development of colonial constitutions can hardly have occurred without reason, and the only reason that makes sense, is that the powers of the central or general Canadian parliament, as conceptualized by the phrase, “peace, order and good government” were intended to be subject to a restriction as definitive as that which had restricted the similarly-worded powers of all colonial parliaments, under preceding colonial constitutions—only this time, it was to be a restriction based on the division of powers as laid out in the Constitution Act, 1867.

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Issue #3: Is ‘peace, order and good government’ a ‘Guiding Principle’ (ie. a de facto preamble), or a grant of Plenary Power?

The term has been understood by some as being a grant of plenary power. But an interesting counter-argument existed at the time of the drafting of the Constitution Act, 1867. The leading legislative draftsman of the day, Lord Thring, argues that the phrase could be intended as a sort of mid-statute preamble at the beginning of a new part within a complex, multi-topic statute. (The Wikipedia article on Lord Thring is HERE).

Legislative draftsmen in mid- and late-Victorian England followed a set of practices designed to produce clear, consistent and unambiguous statutory language, in which the intentions of the framers of the law would be easily understood by future readers of any Act of Parliament. These practices were codified by Lord Thring in his Practical Legislation (1877, 1902). In his chapter on the “Selection and Statement of Principles”, Thring explains that a good piece of legislation will have a guiding principle. In some cases, where the Act is more complicated, it may have more than one guiding principles. When there are multiple guiding principles, they should be divided into sections, with the guiding principle of each section laid out therein. For this more complicated sort of legislation, he talks of the Irish Government Act, 1886.

In his explanation, Thring touches upon the term “peace, welfare, and good government” as a guiding principle for one of the sections of the Act. He states,

In the Home Rule Bill of 1886, entitled Irish Government Act, 1886, a good example will be found of the compression into a few sentences, at the beginning of the Bill, of the whole principle of the measure. Section 1 declared, On and after the appointed day there should be established in Ireland a legislature consisting of her Majesty the Queen and an Irish legislative body.

The second section declared that, with the exceptions and subject to the restrictions in this Act mentioned, it shall be lawful for her Majesty the Queen by and with the advice of the Irish legislative body to make laws for the peace, order and good government of Ireland, and by any such law to repeal and alter any law in Ireland.[1] [Emphasis is ours]

Thring seems to view these statements, which are found at the beginning of one of the parts of the Act, as serving as a kind of preamble to that part of the Act, rather than as being grants of power.

The notion that the terms “Peace, Order and Good Government” (or “Peace, Welfare and Good Government”) implied unlimited power was directly challenged from time to time. Here, for example, is Lord Brougham, speaking in the House of Lords in 1838, and addressing the issue of what was meant by the powers, to act for the “Peace, welfare and good government” of Canada, that were to be invested in the new governor, Lord Durham:

The noble Lord (Glenelg) asked, “Was it to be supposed, that Lord Durham and his council were not to have all the powers of the Legislature of Canada?” He denied, that Lord Durham had any such power. At all events he was clearly forbidden to alter any statute of the Parliament of England. If it were said, that the words of the Act enabled the noble Earl so to proceed, he must regard such an assertion as a mere quibble. Was he to be told, because the words of the Act were so wide and comprehensive with respect to the power of issuing ordinances “for the peace, welfare, and good government of the province,” that therefore Lord Durham was authorised to proceed as he had done? Would any man say, that this provision gave Lord Durham the right to hang individuals, or to visit them with pains and penalties, they not having been brought to trial? [Emphasis is ours]

The foregoing evidence suggests that the term, “Peace, Order and Good Government” should not be interpreted as an unencumbered grant of plenary powers, even in emergency situations.

PART 2:

**“Peace, order and good government” in successive drafts Section 91 of the Constitution Act, 1867[2]**

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(The complete collection of PDFs of all drafts can be found HERE)

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Date unknown (probably early January): British North America Act, 1867 — rough draft.

36. The Parliament shall have power to make laws respecting the following subjects:–

[a list of powers, numbered 1 – 36, follows]

37. And also for the peace, welfare and good government of the Confederation respecting all matters of a general character, not specially and exclusively herein reserved for the Legislatures; and such laws shall control and supersede any laws in any use repugnant thereto or inconsistent therewith which may have been made prior thereto; and any law made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and subjects in which concurrent jurisdiction is hereby given to the Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by the Parliament, be null and void. [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 Rough Draft, n.d. (MG 26 A, Vol. 48, pp. 18768-18793. This text is found on p. 18781-18782. Click HERE.)

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Date unknown (probably early January): British North America Act, 1867 — rough draft., first selection of Senators

36. The Parliament shall have power to make laws respecting the following subjects:–

[a list of powers, numbered 1 – 36, follows]

37. And also for the peace, welfare and good government of the Confederation respecting all matters of a general character, not specially and exclusively herein reserved for the local Legislatures; and such laws shall control and supersede any laws in any use repugnant thereto or inconsistent therewith which may have been made prior thereto; and any law made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and subjects in which concurrent jurisdiction is hereby given to the Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by the Parliament, be null and void. [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 Rough Draft, First Selection of Senators, n.d. (MG 26 A, Vol. 48, pp. 18897-18922. This text is found on p. 18908-18910. Click HERE.)

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23 January, 1867: British North America Act, 1867 — 23rd January rough draft.

38. It shall be lawful for Her Majesty, Her Heirs and Successors, by and with the Advice and Consent of the Houses of Parliament of the United Colony, to make Laws for the Peace, Order, and good Government of the United Colony and of the several Provinces, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to Provincial Legislation; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, J.W. Ritchie’s Copy, January 23rd, 1867 (MG 26 A, Vol. 48, pp. 18971-18988. This text is found on pp. 18982-18983. Click HERE.)

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30 January, 1867: British North America Act, 1867 — 1st draft

Only a partial copy survives of this draft, consisting of the first twenty sections of the draft Bill. Therefore, the wording of the relevant section in this draft is unknown.

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 1st Draft, January 30th, 1867 (MG 26 A, Vol. 48, pp. 19017-19021. Click HERE.)

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31 January, 1867: British North America Act, 1867 — 2nd draft

50. It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft, January 31st, 1867 (MG 26 A, Vol. 48, pp. 19022-19039. This text is found on p. 19033. Click HERE.)

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31 January, 1867: British North America Act, 1867 — 2nd draft with handwritten provisions

52. 50. It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of the United Colony Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft with Handwritten Provisions, January 31st, 1867 (MG 26 A, Vol. 48, pp. 19040-19082. This text is found on p. 19051. Click HERE.)

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Date unknown (between Jan. 31 & Feb. 2): British North America Act, 1867 — 3rd draft, early copy

52. It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada, to make laws for the peace, order, and good government of the Kingdom, and of the several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to Provincial Legislation; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Early Copy, n.d. (MG 26 A, Vol. 48, pp. 19101-19124. This text is found on p. 19113. Click HERE.)

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2 February, 1867: British North America Act, 1867 — 3rd draft, with amendments proposed by John A. Macdonald, in his own handwriting.[3]

52. It shall be lawful for the Queen, by and with the advice and consent of the Houses of Parliament of Canada the Senate and House of Commons, to make laws for the peace, order, and good government of the Kingdom of Canada, and several Provinces, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to [added: the] Provincial Legislation Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Revised Copy, February 2nd, 1867 (MG 26 A, Vol. 48, pp. 19125-19148. This text is found on p. 19137. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, early version.

55. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, n.d. (MG 26 A, Vol. 49/1, pp. 19150-19181. This text is found on p. 19173. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, early version, copy 3

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, copy 3, n.d. (MG 26 A, Vol. 49/1, pp. 19306-19336. This text is found on p. 19328. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, early version with F.S. Reilly’s Notes

48. 55. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Provincial Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:– [Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, n.d. (MG 26 A, Vol. 49/1, pp. 19182-19214. This text is found on p. 19205. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, later version

48. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons to make laws for the peace, order, and good government of the Kingdom of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that the Legislative Authority of Parliament extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say:–[Emphasis is ours]

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, n.d. (MG 26 A, Vol. 49/1, pp. 19337-19367. This text is found on p. 19360. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, later version, revised copy

No changes from the previous version.

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4^th Draft, Later Version, Revised Copy, n.d. (MG 26 A, Vol. 48, pp. 19399-19450. Click HERE.)

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n.d.: British North America Act, 1867 — 4th draft, final version (no change)

(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Final Version, n.d. (MG 26 A, Vol. 49/2, pp. 19614-19664. This text is found on p. 19637. Click HERE.)

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PART 3:

**Use of the term, “Peace, order, and good government” in the Confederation Debates in the provinces of Canada, New Brunswick and Newfoundland, 1865-66**

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Province of Canada (1865)

February 13, 1865: Louis Olivier, speaking in the Legislative Council of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 176)

I hear it said that Confederation, as it is proposed, will be a Federal union—but it seems to me that it will be rather a Legislative union, at least as far as regards the most important interests of Lower Canada. The 29th section of the scheme submitted to us says: “The Federal Parliament shall have the power of making laws for the peace, the well-being, and the good government of the Confederate provinces, and in particular in respect of the following matters.” The powers of the Federal Government will be in reality unlimited.

The fact of the enumeration of these thirty-seven heads does not in the least restrain the power of the Federal Government from legislating on everything. The exceptions are few. [Emphasis is ours]

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February 20, 1865: Étienne Pascal Taché, speaking in the Legislative Council of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 344)

“The General Parliament shall have power to make laws for the peace, welfare and good government of the Federated Provinces (saving the sovereignty of England), and especially laws respecting the following subjects.”

Then follows a list of all the subjects committed to the General Government. But the resolution does not finish there. There is something that comes after all that, and it is this:

“And generally respecting all matters of a general character, not specially and exclusively reserved for the local governments and legislatures.”

Now I would ask honorable gentlemen if an act incorporating a religious body or benevolent society here in Lower Canada is a subject of a general character; is it not a subject purely local? (Hear, hear.)

Take, for instance, the sisters of charity. Could the General Government, under this clause, interfere with the privileges of those ladies? I say they could not. I suppose the honorable gentleman who used the argument advanced it conscientiously and in good faith. But I think it is quite evident from a reading of the resolution that, if Confederation takes place, the General Government will have no power to interfere with such matters. (Hear, hear.)

I must say positively, if I am competent to draw any conclusion at all from what I read, that the General Government will have no right to meddle at all with those religious and benevolent corporations, none in the world. (Hear, hear.)

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March 8, 1865: James O’Halloran, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 793)

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.

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March 13, 1865: John A. Macdonald, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 1007)

My honorable friend refers us to the language of the Constitutional Act to show how limited our Constitution is; but by that act we are empowered, in the widest language that could be employed, to make laws for the peace, welfare and good government of the people of Canada.

There could be no larger powers conferred upon us, and although it is quite true that our political existence is only statutory, that constitutionally our judges have no right to commit for contempt, and that we have no prescriptive rights such as those which the Imperial Parliament possesses, yet this is equally true—that we stand, with regard to the people of Canada, precisely in the same position as the House of Commons in England stands with regard to the people of England. (Hear, hear.)

[…]

If we represent the people of Canada, then, in the words of the Constitutional Act, we are here to pass laws for the peace, welfare and good government of the country. But if we do not represent the people of Canada—if we declare so by passing this resolution—then what great criminals have we been in the past! If we do not represent them, if we have no right to represent them, then we have no power to pass one single bill and declare it to be law, even although it be a bill to establish a saw-mill. If we do not represent the people of Canada, we have no right to be here. But if we do represent them, we have a right to see for them, to think for them, to act for them; we have a right to go to the foot of the Throne and declare that we believe it to be for the peace, welfare and good government of the people of Canada to form of these provinces one empire, presenting an unbroken and undaunted front to every foe; and if we do not think we have this right, we are unworthy of the commission we have received from the people of Canada. (Hear, hear, and cheers.) [Emphasis is ours]

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Newfoundland (1865)

February 28, 1865: William Whiteway, speaking in the House of Assembly of Newfoundland (click HERE to view a PDF of the Newfoundlander, then scroll to p. 2, the newspaper from April 13, 1865)

[T]hose parts of the report which propose to define the powers of the General Government and those of the Local Governments, were not sufficiently clear and explicit. There seemed to be ample room for cailving [sic] upon this point, and for a conflict of opinion upon that which should be as clear an the light. He (Mr. W.) observed that the London Times had an article upon this subject, which we would take the liberty of reading.

But the most important clause in the whole Resolutions, and, unfortunately, by no means the easiest to understand, is the one which defines the powers of the Central Federative Legislature. We have expressed the opinion, which we believe is generally held in the American Colonies, that while certain subjects should be delegated to the Local Legislatures, the Central Legislature should have full power of making laws on every thing relating to the Federation, in strict anology [sic] to the powers possessed by the Imperial Parliament; or that if there be any exception to those powers, it should be only with regard to those subjects which are especially delegated to the Local Legislatures. We are sorry to say that neither of these plans has been adopted. By Resolution 29, ‘the General Parliament shall have power to make laws for the peace, welfare, and good government of the Federated Provinces (saving the sovereignty of England) and especial laws respecting the following subjects.’ Then follow thirty-six heads of legislation, and a thirty-seventh, which is as follows:– ‘And generally respecting all matters of a general character, not specially and exclusively reserved for the Local Government, and Legislatures.’

We cannot find that the Local Legislatures have any exclusive power of legislation given them. They have power by the 43rd Resolution to make laws respecting seventeen subjects, the eighteen being—’And generally all matters of a private or local nature not assigned to the General Parliament.’ It is exceedingly difficult to construe these provisions. First, general powers of legislation are given in the widest terms to the General Parliament; then a power is given especially to make laws on thirty- seven subjects, one of those being all matters of a general character not exclusively reserved to the Local Legislatures. Nothing is exclusively reserved to the Local Legislatures, and it would seem, therefore, that the effect of this clause is to cut the power of central legislation down to matters of a general character—a most vague and unsatisfactory definition, and one sure, if it be retained, to produce conflict and confusion. In the same way, what are matters of a private and local nature not assigned to the General Parliament? We have failed to discover any matters of a private and local nature which are so assigned, and therefore the power will be limited by the words ‘private’ and ‘local;’ so that the effect of these clauses will be that, beyond the subjects attributed to each, the Central Legislature will have jurisdiction over general matters, whatever they are, and the Local Legislature over local matters, whatever they are; while it is in the highest degree doubtful what the Courts would consider general and what local, and whether the Central Legislature, has any concurrent jurisdiction over private and local matters or no.

The inaccuracies are probably the result of a succession of compromises, and we can do ng better service to the Federative movement than by thus early pointing them out. The Resolutions ask for the cooperation of the Local and Imperial Parliaments for the purpose of giving them effect, and we have no doubt that, before they assume, the form of law, they will have undergone consideration and scrutiny fully commensurate to their importance. Of the wisdom of the principle involved, we have no doubt, and we have much pleasure in, giving our tribute to the ability with which, on the whole, that principle has been worked out, in spite of difficulties and constructions, of which our own negotiations for the union of Scotland and Ireland can furnish us only with a very faint idea.

When, therefore, parties at a distance and disinterested are at a loss to understand parts of these, resolutions, framed by 32 of the leading politicians of the British North American Provinces, in which there should be no room for a doubt as to there meaning, our delegates must not be surprised that we whose interests are so vitally affected, should narrowly scrutinize every line of the report, and see that our rights were definitely protected and secured. [Emphasis is ours]

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New Brunswick (1866)

March 24, 1866: Mr. Young, speaking in the House of Assembly of New Brunswick (click HERE to view a PDF of the debates, then scroll to p. 54)

It had been stated that the Times advocates the Quebec Scheme; that the Colonial Secretary, Mr. Cardwell, is strongly in favor of Confederation, and that Her Majesty the Queen is anxious to see the British North American Provinces united. He (Mr. Young) had not the slightest doubt about this, he knew that Union was desirable, and he had no objections to a Union of the Provinces, provided the interests of New Brunswick were protected; otherwise he would not consent to Union. With the permission of the House he would read an article he had copied from the Times some time ago, in which that paper criticised the Quebec Scheme, viz.:—

“But the most important clause in the whole Resolution, and unfortunately by no means the easiest to understand, is the one which defines the powers of the Central Federative Legislation. By Resolution 29. the General. Parliament shall have power to make laws for the peace, welfare and good government of the Federated Provinces, owning the Sovereignty of England and especial laws respecting the following subjects. Then follow thirty- six heads of legislation, and a thirty- seventh which is as follows: And generally respecting all matters of a general character not specially and exclusively reserved for the Local Governments and Legislations. We cannot find that the Local Legislatures have any exclusive power of legislation given them. They have power, by the 43rd Resolution, to make laws respecting seventeen subjects, the eighteenth being:—And generally matters of a private or local nature, not assigned to the General Parliament. It is exceedingly difficult to construe these provisions. First, general powers of legislation are given especially to make laws on thirty-seven subjects, one of those being all matters of a general character, not exclusively reserved to the Local Legislatures. Nothing is exclusively reserved to Local Legislatures, and it would seem, therefore, that the effect of this clause is to cut the power of Central Legislation down to matters of a general character—a most vague and unsatisfactory definition, and one sure, if it be retained, to produce conflict and confusion.

He (Mr. Young) stated that this was an extract from the London Times, which he had found in the St. John Telegraph, of the 7th Dec., 1964, which paper, he believed, was opposed to Union at that time, but, from some cause of other that he did not know, had since gone over. If the opinion of the Times was worthy of consideration, and if its statement in reference to the Quebec Scheme was reliable, it went to prove that the scheme was nothing but a mass of confusion, and in his opinion we ought to reject it, and should not adopt it under any consideration. [Emphasis is ours]

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PART 4:

“Peace, Order and Good Government” as used in the 1867 debates of the Imperial parliament on Canadian confederation:

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1830: The King’s Speech on opening the Session (House of Lords Debates, November 2, vol 1, cc8-11), HERE.

I have witnessed, with deep regret, the state of affairs in the Low Countries.

I lament that the enlightened Administration of the King should not have preserved his dominions from revolt; and that the wise and prudent measure of submitting the desires and the complaints of his people to the deliberations of an Extraordinary Meeting of the States General should have led to no satisfactory result. I am endeavouring, in concert with my Allies, to devise such means of restoring tranquillity as may be compatible with the welfare and good government of the Netherlands, and with the future security of other States. [Emphasis is ours]

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1838: Lord Russell in House of Commons on the “Affairs of Canada”(16 January 1838, vol. 40 cc7-93). HERE.

One of the judges having expressed certain opinions, some time before his nomination to that office, adverse to the notions entertained by the Assembly, that body thought it decent and proper to withhold his salary as a mark of their disapprobation. However, on the opinion of the Committee being made known in Canada in the year 1828, the Assembly allowed that the proposition made by the Committee with reference to the judges was reasonable, and they resolved, on December 6, 1828— That on the permanent settlement before mentioned being effected with the consent of this House, it will be expedient to render the governor, lieutenant-governor, or person administering the government for the time being, the judges or executive councillors, independent of the annual vote of this House, to the extent of their present salaries. That amongst those questions not particularly mentioned on the present occasion, this House holds as most desirable to be admitted, and most essential to the future peace, welfare, and good government of the province, viz., the independence of the judges, and their removal from the political business of the province; the responsibility and accountability of public officers; a greater independence of support from the public revenues, and more intimate connexion with the interests of the colony in the composition of the Legislative Council; […] [Emphasis is ours]

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1838: Lord Brougham in the House of Lords on “The Earl of Durham’s Ordinances” (August 7, vol 44 cc1019-35). HERE.

Lord Brougham said, that having looked over the papers relative to Canadian Affairs, which had been laid on the Table, he must reiterate what he had before asserted, that the ordinances issued by the Earl of Durham were wholly illegal. He had on a former occasion declared, that to be his opinion, and he was now perfectly convinced, that his opinion was a correct one. It was quite clear, that though the power given to Lord Durham was very great, yet, that no power had been bestowed on him by act of Parliament to inflict pains and penalties on individuals who had not previously been brought to trial. The noble Earl was empowered to issue ordinances for the good government of the province—to make general laws for the good government and welfare of the colony; but, from the beginning to the end of the bill by which he was intrusted with this power, there was a grand exception—which exception tied up the Governor of Canada from altering any act of the British Parliament. Now, in the very outset he found, that one of the recently-issued ordinances contravened the provisions of the 7th of William 3rd, “for the trial of all treasonable offences.” if Lord Durham had a right to dispense with that act—if he had a right under the powers which had been granted to him, to condemn in every case as traitors, men against whom no witness had been examined, into whose alleged offence no inquiry had been made—if he could do this, setting at nought all those prudent and salutary safeguards which the law had provided for accused parties, then there was nothing to prevent him from interfering with any other law or enactment of the Parliament of England. It might be alleged, that the parties thus proclaimed had absconded. But what was the course adopted by Parliament in the rebellion of 1715?

[…]

Even then individuals were served with notice; they were informed of what they were accused; but the people designated in Lord Durham’s ordinance were to be declared guilty of high treason, not for what they did in Canada—no, no, but for coming from Bermuda, where the Governor-general had no right to send them, and appearing in Canada. The noble Lord (Glenelg) asked, “Was it to be supposed, that Lord Durham and his council were not to have all the powers of the Legislature of Canada?” He denied, that Lord Durham had any such power. At all events he was clearly forbidden to alter any statute of the Parliament of England. If it were said, that the words of the Act enabled the noble Earl so to proceed, he must regard such an assertion as a mere 1025quibble. Was he to be told, because the words of the Act were so wide and comprehensive with respect to the power of issuing ordinances “for the peace, welfare, and good government of the province,” that therefore Lord Durham was authorised to proceed as he had done? Would any man say, that this provision gave Lord Durham the right to hang individuals, or to visit them with pains and penalties, they not having been brought to trial? He should like to have the opinion of the learned judges as to the construction that was to be placed on this Act. If one of them, even one of them, was of opinion that Lord Durham’s construction was a correct one, he should be exceedingly surprised. He was quite confident, that their Lordships never intended to grant any such power. [Emphasis is ours]

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1838: The Lord Chancellor in the House of Lords on “Canada–Declaratory and Indemnity Bill” (August 9, vol 44 cc1056-103). HERE.

Whether or not the existing Government in Canada, appointed under the Act passed this Session, had exercised their legislative powers discreetly, it was perfectly clear, that under that Act they had full power to make occasional and temporary local Acts affecting individuals or classes of individuals. The noble and learned Lord had assumed, that this point was doubtful in the imperial Act of this Session. Now, that Act, in so many words, recited that— It shall be lawful, after proclamation made, for the governor of the lower province of Canada in council to make such laws or ordinances for the peace, welfare, and good government of the said province, as the legislature of Lower Canada, as now constituted, is empowered to make; and that all laws or ordinances so made, subject to the provisions hereinafter contained for disallowance thereof by her Majesty, and for receiving certain laws or ordinances for the signification of her Majesty’s pleasure therein, shall have the like force and effect as laws passed before the passing of this act by the legislative council and assembly of the said province of Lower Canada, and assented to by her Majesty. This clause clearly gave to the new Governor in council the same powers which the legislature of the province formerly exercised, and there could be no doubt that this legislature had full power to pass any Acts it deemed fitting, under the Act of 1791, and had the clause stopped here there could not have been a moment’s question on the point. When the noble Lord cited the Act of 1774, reference was made to the fifteenth section of that Act, which directed that— None of the said ordinances shall have the power of imposing any punishment beyond three months’ imprisonment. But this had reference only to ordinances made by the Governor in council up to the period when a representative assembly was given to the province, which took place in 1791, after which time the legislature of the province had exercised full legislative power until the act passed which invested the present Governor-general with the powers formerly enjoyed by that legislature. Did the clause contain no other words than he (the Lord Chancellor) had recited, there would have been no grounds for even raising an argument upon the subject of the extent of the Governor-general’s power to make such laws as he thought fit. [Emphasis is ours]

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1839: Joseph Hume in the House of Commons Debates on “Canada” (June 3, vol 47 cc1254-90). HERE.

The noble Lord also proposed to continue and to increase the powers of the Governor, who had already suspended the Habeas Corpus Act, and, in fact, established a perfect despotism. In protesting against the plan of the noble Lord, he must also tell the noble Lord, that the course which he proposed was not the way to secure peace, or to promote the happiness and prosperity of the colony. In order to attain those objects, they must give the Canadian people the means of self-government. They must give them a fair and impartial representation, and not render one class dependent on the other. The noble Lord had alluded to a government carried on by a minority. He would ask, whether her Majesty had not stated to a noble Duke, upon a recent occasion, that she was perfectly satisfied with her present Ministers, lout that, as they had resigned on account of not possessing the confidence of Parliament, she felt herself obliged to call for new advisers? Was then the Governor of Canada to be placed in a situation superior to the Queen? He would tell the noble Lord, that if the Legislative Council was not made elective, there was no other way in which to secure the peace and welfare of the colony. He was clearly of opinion, that some law for the settlement of the disputes was necessary, and if the passing of that law was put off much longer, the effect would be ruinous. He would, therefore, entreat the noble Lord to reconsider his determination. He had no objection to the first resolution, but he did not object to any principle of representation not founded upon the basis of population, and which was proposed with the view of giving the British population a preponderating influence. He could not but regret to see a people so amiable as the French Canadians treated with so little justice or consideration. They were the most amiable people in Europe or America. Let any man look to their condition during the last twenty years, and then say whether a continuance of the same system of government could be productive of peace. He, therefore, felt bound to protest against the plan of the noble Lord, which he considered as nothing more than a continuance of the same system. [Emphasis is ours]

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1843: Lord Campbell in the House of Lords on “Intercourse with China” (August 7, vol 71 cc316-7) HERE.

Lord Campbell was sorry to be obliged to object to this bill. With regard to the island of Hongkong, the Crown had an absolute right to legislate for it, as for a conquered territory; but the difficulty was in respect to the independent territory of the Chinese empire. What this bill proposed to do was wholly unprecedented It was proposed that the governor of Hongkong, with a Legislative Assembly, appointed by the Crown, should have an absolute power of legislating beyond the territory of Hongkong. There was no instance of such a power. The Governor of Hongkong would have an uncontrolled and a despotic power of legislating, criminally as well as civilly, for all British subjects in China, and in ships within 100 miles of the coast, given in the very terms of the Canada Act, the 30th of George 3rd., “for the peace, order, and good Government of her Majesty’s subjects.” He might repeal any law, enact any law, affix any penalty or punishment, and there was not even the usual condition that the ordinances should “not be repugnant to the laws of England.” Hitherto there had been no instance of a British dependency having a power to legislate beyond its own territory. The power given to alter acts was most unconstitutional. The Queen, on the advice of the noble Earl, might appoint a Governor of Hongkong who would legislate for British subjects all over China and for 100 miles from its coast. [Emphasis is ours]

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1850: Earl Grey in the House of Lords on “Australian Colonies Government Bill” (May 31, vol 111 cc497-528), HERE.

This showed the soundness of the principle for which Government contended in its dispute with Guiana and Jamaica. Even with respect to future judges, and also appropriations for the support of religious worship, the governor was not to be at liberty to assent to any Acts which might be passed by the colonial legislature, but would be bound to reserve them for the consideration of the Home Government. He thought it essential, for the future peace and good government of these colonies, that the Executive Government should have the power of refusing its assent to hasty and inconsiderate reduction; but at the same time he was quite prepared to allow that a very wide discretion should be left to the representatives of the colonists in the local legislatures, subject to its qualification, that, as regarded the allowances of judges and public servants, respect should be paid to existing interests. He was convinced that to respect existing interests, would be found in the end the best economy for the colonists themselves. He thought, also, that the Crown ought not to consent to allow any of the more important salaries to be transferred, even after the expiration of existing interests, from permanent charges to annual estimates. In amending the Act as to New South Wales, he proposed to extend the same system to all these colonies; but with regard to Western Australia, he should observe that the operation of this Bill was made contingent on that colony being prepared to meet the expenses of its civil government. He thought there could be no doubt of the justice of the principle that the advantages of self-government should be granted only when there was a disposition to undertake the burdens accompanying them.

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1867: The Earl of Carnarvon in the House of Lords on “British North America Bill, 2nd reading” (February 19, vol 185 cc557-82), HERE.

In closing my observations upon the distribution of powers, I ought to point out that just as the authority of the Central Parliament will prevail whenever it may come into conflict with the Local Legislatures, so the residue of legislation, if any, unprovided for in the specific classification which I have explained, will belong to the central body. It will be seen, under the 91st clause, that the classification is not intended “to restrict the generality” of the powers previously given to the Central Parliament, and that those powers extend to all laws made “for the peace, order, and good government” of the Confederation—terms which, according to all precedent, will, I understand, carry with them an ample measure of legislative authority. I will add, that whilst all general Acts will follow the usual conditions of colonial legislation, and will be confirmed, disallowed, or reserved for Her Majesty’s pleasure by the Governor General, the Acts passed by the Local Legislature will be transmitted only to the Governor General, and be subject to disallowance by him within the space of one twelvemonth. [Emphasis is ours]

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1867: Charles Adderley in House of Commons on “British North America Bill, 2nd reading” (February 28,vol 185 cc1164-96. HERE.

The power of the Provincial Legislatures, in reference to legislation, will be confined to a certain number of specified subjects. The Governor General will have a veto on all legislation; and the Central Legislature will be invested with a general power of providing for the good government and peace of the country; but without derogating from the general power, certain specified powers are enumerated for the Central Legislature. It will be seen that by these provisions arrangements are made as far as possible for ensuring the unity and strength of the Central Government. [Emphasis is ours]

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PART 5:

**Examples of the term, “Peace, Welfare and Good Government” in pre-1867 British colonial documents.**

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1763: Royal Proclamation (UK), HERE:

And whereas it will greatly contribute to the speedy settling of our said new Governments, that our loving Subjects should be informed of our Paternal care, for the security of the Liberties and Properties of those who are and shall become Inhabitants thereof, We have thought fit to publish and declare, by this Our Proclamation, that We have, in the Letters Patent under our Great Seal of Great Britain, by which the said Governments are constituted, given express Power and Direction to our Governors of our Said Colonies respectively, that so soon as the state and circumstances of the said Colonies will admit thereof, they shall, with the Advice and Consent of the Members of our Council, summon and call General Assemblies within the said Governments respectively, in such Manner and Form as is used and directed in those Colonies and Provinces in America which are under our immediate Government; And We have also given Power to the said Governors, with the consent of our Said Councils, and the Representatives of the People so to be summoned as aforesaid, to make, constitute, and ordain Laws, Statutes, and Ordinances for the Public Peace, Welfare, and good Government of our said Colonies, and of the People and Inhabitants thereof, as near as may be agreeable to the Laws of England, and under such Regulations and Restrictions as are used in other Colonies; and in the mean Time, and until such Assemblies can be called as aforesaid, all Persons Inhabiting in or resorting to our Said Colonies may confide in our Royal Protection for the Enjoyment of the Benefit of the Laws of our Realm of England; for which Purpose We have given Power under our Great Seal to the Governors of our said Colonies respectively to erect and constitute, with the Advice of our said Councils respectively, Courts of Judicature and public Justice within our Said Colonies for hearing and determining all Causes, as well Criminal as Civil, according to Law and Equity, and as near as may be agreeable to the Laws of England, with Liberty to all Persons who may think themselves aggrieved by the Sentences of such Courts, in all Civil Cases, to appeal, under the usual Limitations and Restrictions, to Us in our Privy Council. [Emphasis is ours]

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1763: Commission appointing James Murray as governor of Quebec, HERE:

“And we do hereby declare that that the persons so Elected & Qualified shall be called the Assembly of that our province of Quebec; and that you the said James Murray, by & with the advice and Consent of our said Council and Assembly, or the major part of them, shall have full power & authority, to make, Constitute or Ordain, Laws Statutes & ordinances for the publick peace, Welfare, & good Government of our said province, and of the people and Inhabitants thereof…” [Emphasis is ours]

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1763: Instructions to Governor Murray, HERE:

11.…You are in the mean time to make such Rules and Regulations, by the Advice of Our said Council, as shall appear to be necessary for the Peace, Order and good Government of Our said Province, taking Care that nothing be passed or done, that shall any ways tend to affect the Life, Limb or Liberty of the Subject, or to the imposing any Duties or Taxes;…

80. And whereas We have thought fit by Our Commission to direct, that in case of your Death or Absence, and the Death or Absence of Our Lieutenant Governors of Montreal and Trois Rivieres, and in Case there be at that time no Person within Our said Province, commissionated or appointed by Us to be Commander in Chief, that the Eldest Councillor, who shall be at the time of your Death or Absence, or at the Death or Absence of Our Lieutenant Governors, as aforesaid, residing within Our said Province under your Government, shall take upon him the Administration of Government, and execute Our said Commission and Instructions, and the several Powers and Authorities therein directed; It is nevertheless Our express Will and Pleasure, that in such Case the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that purpose; And that he shall not remove or suspend any of the Members of Our Council, nor any Judges, Justices of the Peace, or other Officers Civil or Military, without the Advice and Consent of at least Seven of the Members of Our said Council, nor even then without good and sufficient Reasons for the same, which the said President is to transmit, signed by himself and the rest of Our said Council, to Our Commissioners for Trade and Plantations, by the first Opportunity in order to be laid before Us. [Emphasis is ours]

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1768: Instructions to Governor Carleton, HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), pp. 212-213):

10. “…You are therefore as soon as the more pressing Affairs of Government will allow, to give all possible attention to the carrying this Important Object into Execution, but as it may be Impracticable for the present to form such an Establishment You are in the mean time to make such Rules and Regulations by the Advice of our said Council as shall appear to be necessary for the peace Order and good government of our said province; taking Care that nothing be done or passed that shall any way tend to affect the Life Limb or Liberty of the Subject, or to the Imposing any Duties or Taxes; and that all such rules and Regulations be transmitted to Us by the first Opportunity after they are passed and made for our Approbation or Disallowance. […]” [Emphasis is ours]

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1772: “ABSTRACT of such of the Regulations proposed in Mr Solicitor Genl Report as it may be expedient to establish by Act of Parliament–Inclosed in Mr Sol. Genls Report of 6th Decr 1772.” HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), p. 302):

“That it shall and may be lawful for the Governor or Commander in Chief of the Province of Quebec, by and with the advice & Consent of such Persons as shall be appointed from time to time by His Majesty &c. to be a Council for assisting the said Governor in the Administration of the Province, not exceeding Twenty, nor less than Twelve, to make and ordain Ordinances for the public Peace, Welfare and good Government of the said Province in all Cases whatsoever.” [Emphasis is ours]

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1772: “Abstract of such of the Regulations as the provincial Legislature of Quebec may carry into Execution, Inclosed in Mr. Sol. Gens Report of the 6^th Decr 1772.” HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), p. 305):

That in case of any Offence committed, by which the Peace and good Government of the Province may be effected, it shall be lawful for the Attorney General to apply to the Council for an Order to remove the Offender to be tried at Quebec, or to apply for a Special Commission for the Trial of the Offence in the Place where it has been committed. [Emphasis is ours]

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1774: Quebec Act, First Draft, HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), p. 376):

An act for granting for a limited time, therein mentd Powers of Legislation to the Governor & Council of His Majesty’s Province of Quebec for the time being–

Whereas His Majesty was graciously pleased, by a Royal Proclamation bearing Date at St. James’s the 7th Day of Octr in the third year of His Majesty’s Reign, to publish & declare, that certain Lands & Countries in America, therein mentioned & described, had been erected into a Province by the name of the Province of Quebec, & that the Govr thereof was expressly empowered & directed, by Commission under the Great Seal, that so soon as the State & Circumstances of the said Province would admit thereof, he should, with the Advice & Consent of His Majesty’s Council for the said Province, summon & call a General Assembly within the said Province in such manner & form as is used & directed in those Colonies & Provinces in America, which are under His Majesty’s immediate Government, & that power had been also given to the said Governor with the consent of the Council & of the Representatives of the People so to be summoned & elected as aforesaid, to make constitute & ordain Laws, Statutes & Ordinances, for the public peace Welfare & good Government of the said Province & of the People & Inhabitants thereof.

[…]

They should, with the advice and consent of the Members of His Majesty’s Council, Summon and call General Assemblies within the said Governments respectively in such manner and form as was used and directed in those Colonies and Provinces in America, which were under His Majesty’s immediate Government; with Power to make constitute and ordain Laws, Statutes and Ordinances for the Public peace, Welfare and good Government of His Majesty’s said Colonies and of the People and Inhabitants thereof; as near as might be, agreeable to the Laws of England and under such regulations and restrictions, [Emphasis is ours]

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1774: Quebec Act, Second Draft, HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), p. 380):

…Be it therefore Enacted by the Authority aforesaid That it shall and may be lawful for His Majesty His Heirs and Successors by his or their Letters Patent under the Great Seal of Great Britain to constitute and appoint consist of such Persons resident there not exceeding ( ) nor less than ( ) as His Majesty His Heirs and Successors shall be pleased to appoint and of such other Persons resident there as upon the death removal, or absence, of any of the Members thereof, shall be nominated by His Heirs or Successors under His or their Sign Manual to supply the vacancy ; Which Council so appointed and nominated or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Government of the said Province in all cases whatsoever, with the consent of His Majesty’s Governor or Commander in Chief or in his Absence of the Lieutenant Governor for the time being. [Emphasis is ours]

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1774: Quebec Act, Third Draft, HERE (Reprinted in “Documents Relating to the Constitutional History of Canada 1759-1791” in Sessional Papers (1907), pp. 384-385):

And Whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the occasions of which cannot now be foreseen, nor without much Delay & Inconvenience be provided for without intrusting that Authority for a certain time & under proper Restrictions to Persons resident there

And whereas it is at present inexpedient to call an Assembly; Be it therefore enacted by the Authority aforesaid that it shall & may be lawful for His Majesty, His Heirs and Successors by Warrant under His or Their Signet, or Sign Manual and with the Advice of the Privy Council to constitute and appoint a Council for the Affairs of the Province of Quebec & its Dependencies to consist of such Persons resident there, not exceeding (23) nor less than (17) as His Majesty, His Heirs and Successors shall be pleased to appoint, and upon the Death, Removal, or Absence of any of the Members of the said Council, in like manner to constitute & appoint such and so many other Person, or Persons as shall be necessary to supply the Vacancy, or Vacancies ; which Council so appointed & nominated, or the major part thereof shall have full Power and Authority to make Ordinances for the Peace, Welfare and good Government of the said Province, with the Consent of His Majesty’s Governor, or in his absence of the Lieutenant Governor or Commander in Chief for the time being. [Emphasis is ours]

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1774: Quebec Act (UK), HERE:

XII. And whereas it may be necessary to ordain many Regulations for the future Welfare and good Government of the Province of Quebec, the Occasions of which cannot now be foreseen, nor, without much Delay and Inconvenience, be provided for, without intrusting that Authority, for a certain Time, and under proper Restrictions, to Persons resident there: And whereas it is at present inexpedient to call an Assembly,” be it therefore enacted by the Authority aforesaid, That it shall and may be lawful for his Majesty, his Heirs and Successors, by Warrant under his or their Signet or Sign Manual, and with the Advice of the Privy Council, to constitute and appoint a Council for the Affairs of the Province of Quebec, to consist of such Persons resident there, not exceeding twenty-three, nor less than seventeen, as his Majesty, his Heirs and Successors, shall be pleased to appoint; and, upon the Death, Removal, or Absence of any of the Members of the said Council, in like Manner to constitute and appoint such and so many other Person or Persons as shall be necessary to supply the Vacancy or Vacancies; which Council, so appointed and nominated, or the major Part thereof, shall have Power and Authority to make Ordinances for the Peace, Welfare, and good Government, of the said Province, with the Consent of his Majesty’s Governor, or, in his Absence, of the Lieutenant-governor, or Commander in Chief for the Time being. [Emphasis is ours]

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1791: Constitutional Act (UK), HERE:

WHEREAS an Act was passed in the fourteenth Year of the Reign of his present Majesty, intituled, An Act for making more effectual Provision for the Government of the Province of Quebec in North America: And whereas the said Act is in many Respects inapplicable to the present Condition and Circumstances of the said Province: And whereas it is expedient and necessary that further Provision should now be made for the good Government and Prosperity thereof;” May it therefore please your most Excellent Majesty that it may be enacted; and be it enacted by the King’s most Excellent Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, That so much of the said Act as in any Manner relates to the Appointment of a Council for the Affairs of the said Province of Quebec, or to the Power given by the said Act to the said Council, or to the major Part of them, to make Ordinances for the Peace, Welfare, and good Government of the said Province, with the Consent of his Majesty’s Governor, Lieutenant Governor, or Commander in Chief for the Time being, shall be, and the same is hereby repealed.

II. And whereas his Majesty has been pleased to signify, by his Message to both Houses of Parliament, his royal Intention to divide his Province of Quebec into two separate Provinces, to be called The Province of Upper Canada, and The Province of Lower Canada,” be it enacted by the Authority aforesaid, That there shall be within each of the said Provinces respectively a Legislative Council, and an Assembly to be severally composed and constituted in the Manner herein-after described; and that in each of the said Provinces respectively his Majesty, his Heirs or Successors, shall have Power, during the Continuance of this Act, by and with the Advice and Consent of the Legislative Council and Assembly of such Provinces respectively, to make Laws for the Peace, Welfare, and good Government thereof, such Laws not being repugnant to this Act; and that all such Laws, being passed by the Legislative Council and Assembly of either of the said Provinces respectively, and assented to by his Majesty, his Heirs or Successors, or assented to in his Majesty’s Name, by such Person as his Majesty, his Heirs or Successors, shall from Time to Time appoint to be the Governor, or Lieutenant Governor, of such Province, or by such Person as his Majesty, his Heirs and Successors, shall from Time to Time appoint to administer the Government within the same, shall be, and the same are hereby declared to be, by virtue of and under the Authority of this Act, valid and binding to all Intents and Purposes whatever, within the Province in which the same shall have been so passed.

[…]

L. Provided always, and be it further enacted by the Authority aforesaid, That during such Interval as may happen between the Commencement of this Act, within the said Provinces respectively, and the first Meeting of the Legislative Council and Assembly of each of the said Provinces respectively, it shall and may be lawful for the Governor or Lieutenant Governor of such Province, or for the Person administering the Government therein, with the Consent of the major Part of such Executive Council as shall be appointed by his Majesty for the Affairs of such Province, to make temporary Laws and Ordinances for the good Government, Peace, and Welfare of such Province, in the same Manner, and under the same Restrictions, as such Laws or Ordinances might have been made by the Council for the Affairs of the Province of Quebec, constituted by virtue of the above mentioned Act of the fourteenth Year of the Reign of his present Majesty; and that such temporary Laws or Ordinances shall be valid and binding within such Province, until the Expiration of six Months after the Legislative Council and Assembly of such Province shall have been first assembled by virtue of and under the Authority of this Act; subject nevertheless to be sooner repealed or varied by any Law or Laws which may be made by his Majesty, his Heirs or Successors, by and with the Advice and Consent of the said Legislative Council and Assembly. [Emphasis is ours]

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1838: An Act to Make Temporary Provision for the Government of Lower Canada (UK), HERE:

III. And be it enacted, that from and after such Proclamation as aforesaid, and until the said first day of November, in the year one thousand eight hundred and forty, shall be lawful for the Governor of the Province of Lower Canada, with the advice and consent of the majority of the said Councillors present at a meeting or meetings to be for that purpose from time to time convened by the Governor of the said Province, to make such Laws or Ordinances, for the peace, welfare, and good government of the said Province of Lower Canada, as the Legislature of Lower Canada, as now constituted, is empowered to make ; and that all Laws or Ordinances so made, subject to the Provisions herein after contained for disallowance thereof by Her Majesty, shall have the like force and effect as Laws passed before the passing of this Act by the Legislative Council and Assembly of the said…[Emphasis is ours]

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1840: Act of Union (UK), HERE:

III. And be it enacted, That from and after the Re-union of the said Two Provinces there shall be within the Province of Canada One Legislative Council and One Assembly, to be severally constituted and composed in the Manner herein-after prescribed, which shall be called “The Legislative Council and Assembly of Canada;” and that, within the Province of Canada, Her Majesty shall have Power, by and with the Advice and Consent of the said Legislative Council and Assembly, to make Laws for the Peace, Welfare, and good Government of the Province of Canada, such laws not being repugnant to this Act, or to such Parts of the said Act passed in the Thirty-first Year of the Reign of His said late Majesty as are not hereby repealed, or to any Act of Parliament made or to be made, and not hereby repealed, which does or shall, by express Enactment or by necessary Intendment, extend to the Provinces of Upper and Lower Canada, or to either of them, or to the Province of Canada; and that all such Laws being passed by the said Legislative Council and Assembly, and assented to by Her Majesty, or assented to in Her Majesty’s Name by the Governor of the Province of Canada, shall be valid and binding to all Intents and Purposes within the Province of Canada. [Emphasis is ours]

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PART 6:

Use of the term “Peace, Order and Good Government” in the organic law of other British colonies:

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1774: Massachusetts Government Act (UK), HERE

WHEREAS by letters patent under the great seal of England, […] And whereas the said method of electing such counsellors or assistants, to be vested with the several powers, authorities, and privileges, therein mentioned, although conformable to the practice theretofore used in such of the colonies thereby united, in which the appointment of the respective governors had been vested in the general courts or assemblies of the said colonies, hath, by repeated experience, been found to be extremely ill adapted to the plan of government established in the province of the Massachuset’s Bay, by the said letters patent herein-before mentioned, and hath been so far from contributing to the attainment of the good ends and purposes thereby intended, and to the promoting of the internal welfare, peace, and good government of the said province, or to the maintenance of the just subordination to, and conformity with, the laws of Great Britain, that the manner of exercising the powers, authorities, and privileges aforesaid, by the persons so annually elected, hath, for some time past, been such as had the most manifest tendency to obstruct, and, in great measure, defeat, the execution of the laws; to weaken and, in great measure, defeat, the execution of the laws; to weaken the attachment of his Majesty’s well-disposed subjects in the said province to his Majesty’s government, and to encourage the ill-disposed among them to proceed even to acts of direct resistance to, and defiance of, his Majesty’s authority; And it hath accordingly happened that an open resistance to the execution of the laws hath actually taken place in the town of Boston, and the neighbourhood thereof, within the said province: And whereas it is, under these circumstances, become absolutely necessary, in order to the preservation of the peace and good order of the said province, the protection of his Majesty’s well-disposed subjects therein resident, the continuance of the mutual benefits arising from the commerce and correspondence between this kingdom and the said province, and the maintaining of the just dependance of the said province upon the crown and parliament of Great Britain, that the said method of annually electing the counsellors or assistants of the said province should no longer be suffered to continue but that the appointment of the said counsellors or assistants should henceforth be put upon the like footing as is established in such other of his Majesty’s colonies or plantations in America, the governors whereof are appointed by his Majesty’s commission, under the great seal of Great Britain: […] [Emphasis is ours]

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1852: New Zealand Constitution (UK), HERE.

“Whereas, by an Act of the Session holden in the third and fourth year of Her Majesty, chapter sixty-two, it was enacted, that it should be lawful for Her Majesty, by Letters Patent, to be from time to time issued under the Great Seal of the United Kingdom, to erect into a separate colony or colonies any islands which then were, or which thereafter might be, comprised within and be dependencies of the colony of New South Wales: And Whereas, in pursuance of the powers in Her vested by the said Act, Her Majesty did, by certain Letters Patent under the Great Seal of the United Kingdom, bearing date the sixteenth day of November, in the fourth year of Her reign, erect into a separate colony the islands of New Zealand, theretofore comprised within or dependencies of the colony of New South Wales, bounded as therein described; and the said Islands of New Zealand were thereby erected into a separate Colony accordingly: and Her Majesty did, by the said Letters Patent, authorize the Governor for the time being of the said Colony of New Zealand, and certain other persons, to be a Legislative Council for such Colony, and to make laws for the peace, order, and good government thereof:

18. It shall be lawful for the Superintendent of each Province, with the advice and consent of the Provincial Council thereof, to make and ordain all such laws and ordinances (except and subject as hereinafter mentioned) as may be required for the peace, order, and good government of such Province, provided that the same be not repugnant to the law of England.

53. It shall be competent to” the said General Assembly (except and subject as hereinafter mentioned) to make laws for the peace, order, and good government of New Zealand, provided that no such laws be repugnant to the law of England; and the laws so to be made by the said General Assembly shall control and supersede any laws or ordinances in anywise repugnant thereto, which may have been made or ordained prior thereto by any Provincial Council; and any law or ordinance made or ordained by any Provincial Council, in pursuance of the authority hereby conferred upon it, and on any subject whereon, under such authority as aforesaid, it is entitled to legislate, shall, so far as the same is repugnant to, or inconsistent with, any Act passed by the General Assembly, be null and void. [Emphasis is ours]

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1858: An Act to provide for the Government of British Columbia (UK), HERE

II. It shall be lawful for Her Majesty, by any Order or Orders to be by Her from Time to Time made, with the Advice of Her Privy Council, to make, ordain, and establish, and (subject to such Conditions or Restrictions as to Her shall seem meet) to authorize and empower such Officer as She may from Time to Time appoint as Governor of British Columbia, to make Provision for the Administration of Justice therein, and generally to make, ordain, and establish all such Laws, Institutions, and Ordinances as may be necessary for the Peace, Order, and good Government of Her Majesty’s Subjects and others therein; provided that all such Orders in Council, and all Laws and Ordinances so to be made as aforesaid, shall be laid before both Houses of Parliament as soon as conveniently may be after the making and Enactment thereof respectively.

III. Provided always, That it shall be lawful for Her Majesty, so soon as She may deem it convenient, by any such Order in Council as aforesaid, to constitute or to authorize and empower such Officer to constitute a Legislature to make Laws for the Peace, Order, and good Government of British Columbia, such Legislature to consist of the Governor and a Council, or Council and Assembly, to be composed of such and so many Persons, and to be appointed or elected in such Manner and in for such Periods, and subject to such Regulations, as to Her Majesty may seem expedient. [Emphasis is ours]

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1858: Proclamation of English law in force in British Columbia, HERE.

And whereas by a Commission under the Great Seal of the United Kingdom of Great Britain and Ireland, Her Majesty was pleased to appoint James Douglas to be Governor of British Columbia, and to authorize the said James Douglas by proclamation issued under the Public Seal of the said Colony, to make Laws, Institutions and Ordinances for the peace, order, and good government thereof:

It is therefore hereby enacted and proclaimed by the Governor of British Columbia that the Civil and Criminal Laws of England, as the same existed at the date of the said Proclamation of the said Act, and so far as they are not, from local circumstances, inapplicable to the Colony of British Columbia, are and will remain in full force within the said Colony, till such times as they shall be altered by Her said Majesty in Her Privy Council, or by me, the said Governor, or by such other Legislative Authority as may hereafter be legally constituted in the said Colony. [Emphasis is ours]

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1865: Colonial Laws Validity Act (UK), HERE.

4. Colonial law not void for inconsistency with instructions. No colonial law passed with the occurrence of or assented to by the governor of any colony, or to be hereafter so passed or assented to, shall be or be deemed to have been void or inoperative by reason only of any instructions with reference to such law or the subject thereof which may have been given to such governor by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent or last-mentioned instrument. [Emphasis is ours]

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PART 7:

Links to Canadian secondary sources in which ‘Peace, Order and Good Government’ is discussed.

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Bogna, Rita, “Peace, Order and Good Government: The Bancoult Cases and the Tapestry of Legislative Power in the Twenty-First Century” (2015)
Eggleston, Stephen, “The Myth and Mystery of POgG” (1996-1997)
Library of Parliament, ‘Welfare’ of a Nation: The Origins of ‘Peace, Order and Good Government’ (2017)
Saul, John Ralston, A Fair Country (2009)
Watson, Samuel, The Powers of Canadian Parliament (1880)
Yusuf, Hakeem, Colonial and Post-colonial Constitutionalism in the Commonwealth: Peace, Order and Good Government (2013)

Footnotes

[1] Lord Henry Thring, Practical Legislation: The Composition and Language of Acts of Parliament and Business Documents (London: John Murray, 1902), pp. 34-35.

[2] Please note: the section number shifts during the drafting process.

[3] Note: Macdonald’s handwritten proposed additions to the text are underlined. Macdonald’s handwritten proposed deletions are struckthrough.)

Reports, Secondary Sources and Other Materials

1 Comment »

Donald F Bur
2021-05-22 at 10:21 AM Reply

You refer to the Instructions to Murray as follows:”the said President shall forbear to pass any Act or Acts, but what are immediately necessary for the Peace and Welfare of the said Province, without Our particular Order for that purpose” and then you conclude: “Essentially, the governor’s interim replacement would be able to pass laws for the peace and welfare of the colony, but not for the order of the colony.”

This cannot be right. The reference to “without Our particular Order for that purpose” is not a reduction of the authority in the Instructions. Instead, it simply says that the President can make laws without any further order from the Crown—the words “Our particular Order” is a reference to future Crown orders.

The absence of the words “good government” from the normal tricolon “peace, welfare and good government”, or the change of the tricolon from “peace, order and good government” to “peace and welfare” is interesting but not significant. No legislator divides their laws up into these categories, and says “this law is designed for peace, and this one is for welfare”. And, more to the point, all laws—including basis private laws like contract and tort laws, as well of course as many public laws—are designed to create all of these things. To suggest that, in the absence of the Governor, the President wouldn’t be able to make a new law about, for example, creating new roads because that is a “good government” law and not a “peace” or “welfare” law doesn’t make any sense.

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“Peace, order, and good government” in Section 91 of the Constitution Act, 1867

Constitution Act, 1867: Section 91

Compilation of primary documents to assist in interpreting the meaning of the term, “Peace, order, and good government” in Section 91 of the Constitution Act, 1867

Contents

PART 1:

Interpretive note on the terms, ‘Peace, order and good government’ and ‘Peace, welfare and good government’.

PART 2:

**“Peace, order and good government” in successive drafts Section 91 of the Constitution Act, 1867[2]**

PART 3:

**Use of the term, “Peace, order, and good government” in the Confederation Debates in the provinces of Canada, New Brunswick and Newfoundland, 1865-66**

Province of Canada (1865)

Newfoundland (1865)

New Brunswick (1866)

PART 4:

“Peace, Order and Good Government” as used in the 1867 debates of the Imperial parliament on Canadian confederation:

PART 5:

**Examples of the term, “Peace, Welfare and Good Government” in pre-1867 British colonial documents.**

PART 6:

Use of the term “Peace, Order and Good Government” in the organic law of other British colonies:

PART 7:

Links to Canadian secondary sources in which ‘Peace, Order and Good Government’ is discussed.

Footnotes

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“Peace, order, and good government” in Section 91 of the Constitution Act, 1867

Constitution Act, 1867: Section 91

Compilation of primary documents to assist in interpreting the meaning of the term, “Peace, order, and good government” in Section 91 of the Constitution Act, 1867

Contents

PART 1:

Interpretive note on the terms, ‘Peace, order and good government’ and ‘Peace, welfare and good government’.

PART 2:

“Peace, order and good government” in successive drafts Section 91 of the Constitution Act, 1867[2]

PART 3:

Use of the term, “Peace, order, and good government” in the Confederation Debates in the provinces of Canada, New Brunswick and Newfoundland, 1865-66

Province of Canada (1865)

Newfoundland (1865)

New Brunswick (1866)

PART 4:

“Peace, Order and Good Government” as used in the 1867 debates of the Imperial parliament on Canadian confederation:

PART 5:

Examples of the term, “Peace, Welfare and Good Government” in pre-1867 British colonial documents.

PART 6:

Use of the term “Peace, Order and Good Government” in the organic law of other British colonies:

PART 7:

Links to Canadian secondary sources in which ‘Peace, Order and Good Government’ is discussed.

Footnotes

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**“Peace, order and good government” in successive drafts Section 91 of the Constitution Act, 1867[2]**

**Use of the term, “Peace, order, and good government” in the Confederation Debates in the provinces of Canada, New Brunswick and Newfoundland, 1865-66**

**Examples of the term, “Peace, Welfare and Good Government” in pre-1867 British colonial documents.**