Document Information

Date: 1853-05-31
By: Province of Canada (Parliament)
Citation: Province of Canada, Legislative Assembly, Journals of the Legislative Assembly of the Province of Canada, 4th Parl, 1st Sess, 1853 at 923-937.
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Mr. Malloch, from the Committee to take into consideration certain Resolutions on the subject of the Constitution of the Legislative Council of this Province, reported several Resolutions; which were read, as follow:–

1. Resolved, That under the circumstances in which the Province of Canada is placed, in a social, political, and economical point of view, the introduction of the Elective principle into the Constitution of the Legislative Council, would not only impart greater weight to that important Branch of the Legislature than it can have under existing arrangements, however judiciously the selection of its Members may be made, but would also ensure greater efficiency in carrying out that system of Government which obtains in the Mother Country, and has been happily introduced into this Province.

2. Resolved, That the object in view might best be attained by dividing each of the Sections of the Province into thirty Territorial Divisions, containing each as nearly as possible an equal amount of Population, and by allowing the persons qualified to vote at the Election of Members of the. Legislative Assembly, in each Division, subject to the arrangements hereafter mentioned as to present Members, to elect one person qualified in the manner hereinafter mentioned, to sit in the Legislative Council, which should be composed, after the arrangements as to present Members have had their effect, of sixty persons so elected, one-third of whom shall be required to retire in rotation every two years, so that except as to Members elected after a dissolution, or to fill any occasional vacancies to replace elected Members, the Members shall be elected for the term of six years; and Members retiring by rotation, whose term of service shall expire during a Session of Parliament, may continue to serve until the end of that Session.

3. Resolved, That Twenty new Members of the said Legislative Council ought to be first elected ; that subject to a dissolution as hereinafter mentioned, the present Members of the Legislative Council ought to continue Members thereof, and to retire in rotation in numbers as equal as may be possible, at the end of two and four years respectively, at each of which respective periods Twenty new Members of the said Council ought to be elected, whatever be the number of the Members then retiring ; for which purposes two lists of the present Members, one for each Section of the Province, according to their place of residence at the time they were summoned to the said Council, shall be prepared, and lots drawn under the direction of the Speaker of the Legislative Council, to determine the time at which they shall retire by rotation as aforesaid;–and to provide for Elections in the first instance, and upon the retirement of the present Members in the manner provided, the said Speaker shall also draw lots separately for each Section of the Province, to determine for which Divisions Members are to be first elected, until all Divisions are represented; the said Speaker to apportion also by lot, on the re-assembling of the Legislative Council after a dissolution, for each said Section of the Province respectively, the order in which Members shall retire; Members elected to fill occasional vacancies to be elected for the Divisions for which the former Members were serving, and for the term only for which they would have been entitled to serve.

4. Resolved, That the persons qualified to be elected Members of the Legislative Council should be all subjects of Her Majesty, by birth or naturalization, of the full age of thirty years, and residing in this Province, who shall have been at any time previous to such Election, Members of either of the Legislative Councils of Upper or Lower Canada, or of the Legislative Council of this Province, or Members of either of the Legislative Assemblies of Upper or Lower Canada, or of the Legislative Assembly of this Province; and also all subjects of Her Majesty as aforesaid, qualified as above as to age and residence, who may be possessed for their own use and benefit of real property situated in this Province, held in free and common Soccage, or en fief; or en roture, or en franc aleu, of the value of one thousand pounds, currency, over and above all debts due and chargeable upon the same; no person who may be disqualified by law to be elected Member of the Legislative Assembly being eligible to the said Legislative Council.

5. Resolved, That for the better working of Constitutional Government, the Crown ought to have power to dissolve both Houses of Parliament, or either of them; but that as respects the Legislative Council, such power ought not to be exercised except in the event of the rejection by the said Legislative Council in two successive Sessions, and at least at six months interval, of a measure which shall have passed the Legislative Assembly in the same two successive Sessions, nor unless the said measure shall have passed the Legislative Assembly in the second Session by the vote of an absolute majority of the Members of the said Legislative Assembly; the Parliament convened after a dissolution of either House, or of both, being reckoned as a new Parliament.

6. Resolved, That Members of the Legislative Council ought to have power to vacate their seats. either in vacation or during the sitting of Parliament; but that no Member of either House, while being so, ought to be a Candidate for election to the other House.

7. Resolved, That under the proposed change in the Constitution of the Legislative Council, it is inexpedient that any pecuniary qualification should be retained for being eligible to the Legislative Assembly.

8. Resolved, That the Legislative Council so constituted ought to possess the exclusive power of adjudicating upon all Impeachments preferred by the Legislative Assembly against high Public Functionaries; and that in all other respects the peculiar powers and privileges now possessed and exercised by each of the two Houses of Parliament, should be maintained inviolate, in s far as they may not be repugnant to the foregoing Resolutions.

9. Resolved, That when any Member of the Legislative Council shall accept any office, the holding of which would disqualify him from a seat in the Legislative Assembly, he shall vacate his seat; and when he accepts any office, the holding of which would cause him to return to the people for re-election if he held a seat in the Legislative Assembly, he shall only hold such seat with such office after being re-elected.

The Honorable Mr. Morin moved, seconded by the Honorable Mr. Hincks, and the Question being proposed, That the said Resolutions be now read a second time;

Mr. Laurin moved in amendment to the Question, seconded by Mr. Lemieux,

That all the words after “now” to the end of the Question be left out, in order to add the words “recommitted to a Committee of the whole House, for the purpose of leaving out the 2nd, 3rd, 4th, 5th, and 7th Resolutions, and inserting the following instead thereof: 1. That the only qualification required in order to be elected a Member of the Legislative Council, or of the Legislative Assembly, ought to be the confidence of the People of this Province, subject to the restrictions imposed by the Union Act only, with reference to the age of the Candi- “date, and to his situation as a subject of Her Majesty, born or naturalized : 2. That the Members of the Legislative Council ought to be elected for the same “period as the Members of the Legislative Assembly; that, consequently, the Legislative Council of this Province ought to last four years from the date of the return of the Writs issued for the Election of the Members thereof, and no longer; “subject, nevertheless, to be sooner prorogued or dissolved by the Governor General, as he may be advised: 3. That in order to attain the object in question, each Section of this Province ought to be divided into twenty Territorial Divisions, containing each as approximately as possible an equal number of Inhabitants, and that it should be lawful for the persons qualified to vote at the Elections of Members of the Legislative Assembly, in each Division, to elect a person qualified in the manner above mentioned, as a Member of the Legislative Council;”

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:

YEAS.

[…] 7.

NAYS

[…] 51.

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

Mr. Brown moved in amendment to the Question, seconded by the Honorable Mr. Robinson, That all the words after ”That” to the end of the Question be left out, in order to add the following words instead thereof : ”the system of Government which obtains in the Mother Country and has been introduced into this Province, rests mainly for its safety and efficiency on the facility with which the Ministry of the day can be made amenable to public opinion for their conduct, and removed from office upon Address to the Crown from the Representatives of the People: That the Legislative Assembly, under the existing Constitutional system of Canada, is the admitted exponent of public opinion, and is in a position to exercise a prompt and effective check over the administration of public affairs: That a second Legislative Branch elected by popular vote, would speak equally with the Legislative Assembly the wishes of the People, and would be equally entitled to express them to the Crown: That the rapid changes which experience bas shown continually to take place in public sentiment, the difference in the Electoral Divisions for which the Members of the two Houses respectively would sit, and the different terms for which they would be elected, leave no reason to doubt that the political views of the majority of the Lower House would frequently be in direct opposition to those of the majority of the Upper House: That when such variance of opinion occurred in the political views of the majorities of the two Houses, an Address of want of confidence from one House might be met by a Vote of confidence from the other House, and the Executive would be left practically uncontrolled: That when such variance in the opinion of the two Branches occurred, the responsibility of the Ministry of the day for the right conduct of all public affairs, Legislative and Executive,–so absolutely essential under the British Constitutional system–would cease, for the time being, as no party Administration “could, while such variance existed, command a majority in both Bodies, and the measures deemed necessary by Government could only become law by the consent of its political opponents:

”That two Elective Houses are utterly incompatible with British Responsible Government, and that the great power entrusted under that system to the Ministry of the day, could not be safely continued under the relaxed restraint which two Elective Houses would entail:

“That no urgent necessity calls for a change of the Constitution of the Legislative Council,–that no practical evil exists which such a change would remove,–and that there is no practical end now sought to be attained and found unattainable, which such a change would render attainable:

“That in consideration of the foregoing, and in view of the rapid, social and material progress of the Country, which cannot fail to affect the working of any political system, it is not expedient to, make any change at present in the organization of the Legislative Council, but it is advisable that means should be taken forthwith to render that Body more efficient under its existing Constitution;”

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:-

YEAS.

[…] 17

NAYS.

[…] 50.

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

Mr. Brown moved in amendment to the Question, seconded by Mr. McDougall, That all the words after “That” to the end of the Question be left out, in order to add the words “two Elective Legislative Houses are utterly incompatible with British Responsible Government ; that the great power committed under that “system to the Ministry of the day could not be safely continued with two Elective Houses, and would render necessary the imposition of checks on the power of the Executive known to other Constitutional systems, but totally inconsistent with British party Government; and that in view of the declaration of the majority of “this House that some change in the existing Constitutional system of this Province ought to be made, it is expedient that the Legislative Council should be abolished” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:-

YEAS.

[…] 9.

NAYS.

[…] 58.

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time; Mr. Brown moved in amendment to the Question, seconded by Mr. McDougall, That all the words after “That” to, the end of the Question be left out, in order to add the words “the extensive powers entrusted to the Executive under the system of Government which has obtained in this Province since 1841, cannot be safely continued when the well-understood wishes of the People shall be expressed by two separate houses, elected by popular vote of different constituencies and for different terms ; and that it is expedient to provide for restraing the powers of the Executive simultaneously with the creation of two Elective Houses instead thereof;

And the Question being put on the Amendment; the House divided.:-And it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

Mr. Brown moved in amendment to the Question, seconded by Mr. Malloch, That all the words after “now” to the end of the Question be left out, in order to add the words “recommitted to, a Committee of the whole House, to amend the same, by providing that the Electoral Divisions into which this Province is to be divided, with a view to Representation in the Legislative Council, shall be based upon Population without regard to a separating line between Upper and Lower Canada” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 15

NAYS

[…] 49.

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after ”That” to the end of the Question be left out, in order to add the words “the Constitution of the Legislative Council is inconsistent with the harmonious and efficient working of the Government, and the useful influence it was intended to possess as a Legislative Body: That with a majority created by the Government of the day for securing party measures, it is for most essential purposes but its subservient instrument: That the same majority, upon a change of parties, would make it an obstructive Body, opposed to the Administration for the time being, and the wishes of the People as expressed by their Representatives in Parliament: That the most effectual remedy, therefore, is to be found in the Election of that House by the People for a limited period–the Members going out by sections periodically: That thus this Body would then be brought nearer to the feelings and would more perfectly reflect the opinions of the Country; while the periodical Elections would enable the People to correct the inconveniences that occasionally may arise from its composition by an infusion of new Members” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:-

YEAS

[…] 9

NAYS

[…] 56

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time ;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded Mr. Smith of Frontenac, That all the words after ” That” to the end of the Question be left out, in order to add the words “the Members of the Legislative Council shall be elected by such of the Electors, owners of a freehold or other estate, as are now qualified to vote at the Election of the Members of the Legislative Assembly, the rents, issues and profits of whose estates respectively shall amount to Ten pounds, currency, per annum, over and above all incumbrances, and the Electors in Cities and Towns who are tenants of dwelling houses and who shall respectively pay Thirty pounds currency, rent per annum, on the same conditions and subject to the same restrictions as regards their occupancy and holding as are now provided by law for such class of persons, and shall consist of sixty Members, and the Governor shall, by Proclamation, within three calendar months after any Act passed to make the change proposed, divide Upper and Lower Canada respectively into thirty Electoral Divisions, of as nearly an equal extent as may be found practicable, and to contain as nearly as possible an equal amount of Population; and to sub- divide each of the same into Wards, in each of which Wards a Poll shall be held at every such Election ; and each of the said Electoral Divisions shall elect one Member to the said Legislative Council, but such Electoral Divisions may be altered by the Legislature of the Province; and the said Governor shall, within a reasonable time after such Proclamation is made, issue his Writ for an Election in each Territorial Division, and so from time to time at any future General Election, or at any Election or Elections, to fill vacancies until otherwise provided for by the Legislature” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow

YEAS.

[…] 5

NAYS

[…] 57

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after “That” to the end of the Question be left out, in order to add the words “the Legislative Council shall immediately upon assembling together after its first Election, be divided by lot into three classes, consisting of twenty Members each; and the seats of the first class shall be vacated at the end of the second year from the date of the issuing of the Writs for the first Election; the seats of the second class at the end of the fourth year, and the seats of the third class at the end of the sixth year from the said date; and all Members elected to fill the seats so vacated shall hold their seats for the term of six years; but whenever a casual vacancy occurs in the Legislative Council, the person elected to fill the same shall hold his seat for such period only as the Member in whose stead he is elected would have held his seat” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 5

NAYS

[…] 57

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after ”That” to the end of the Question be left out, in order to add the words “the Legislative Council shall be the Judge of the Elections and qualifications of its own Members, and may compel the attendance of absent Members, and may, with the concurrence of two-thirds of their whole number, expel a Member” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as in the last preceding division. So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after “That” to the end of the Question be left out, in order to add the words “no Member of the Legislative Council shall take his seat or vote until he has, in the presence of the Governor, ” or of some person authorized by him, taken an oath or affirmation of allegiance and fidelity to the British Crown” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as in the last preceding division. So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after “That” to the end of the Question be left out, in order to add the words “no person shal be a Member of the Legislative Council unless he is of the age of thirty years, a natural born or naturalized subject of Her Majesty, and is the proprietor of Real Estate within this Province, of the value of One thousand pounds, or of the yearly value of Two hundred pounds over and above all charges thereon” instead thereof; And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 10

NAYS

[…] 51

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Shercood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after “That” to the end of the Question be left out, in order to add the words “the Legislative Council, when made Elective, may choose its own Speaker, and determine the rules of its own proceedings” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 30

NAYS

[…] 35

So it passed in the Negeative.

.And the Question being again proposed, That the said Resolutions be now read a second time;

The Honorable Mr. Sherwood moved in amendment to the Question, seconded by Mr. Smith of Frontenac, That all the words after “That” to the end of the Question be left out, in order to add the words “when the Legislative Council shall be made Elective, it shall be provided that there shall be a Meeting of the Provincial Parliament on the first Monday of February in each year, which shall continue its Sittings until prorogued by the Governor” instead thereof;

And the Question being put on the Amendment; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 9

NAYS

[…] 53

So it passed in the Negative.

And the Question being again proposed, That the said Resolutions be now read a second time;

Mr. Brown moved in amendment to the Question, seconded by Mr. Gamble, That all the words after “now” to the end of the Question be left out, in order to add the words “recommitted to a Committee of the whole House, to amend the same, by providing that the Members of the Legislative Assembly shall be chosen for two years, and the Members of the Legislative Council for four years, one half of the said Councillors to retire every second year” instead thereof;

And the Question being put on the Amendment; the House divided:–And it passed in the Negative.

Then the main Question being put;

Ordered, That the said Resolutions be now read a second time.

And the first Resolution being read a second time; and the Question being put, That this House doth concur with the Committee in the said Resolution; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 51

NAYS

[…] 14

So it was resolved in the Affirmative.

The second Resolution being read a second time;

The Honorable Mr. Morin moved in amendment thereunto, seconded by the Honorable Mr. Hincks, That after the word ” Divisions” in the second line of the said Resolution, the words “to be hereafter defined by the Provincial Parliament, “and” be inserted;

And the Question being put, That those words be there inserted; the House divided:–And it was resolved in the Affirmative.

And the Question being put, That this House doth concur with the Committee in the said Resolution, so amended, That the object in view might be best attained by dividing each of the Sections of the Province into thirty Territorial Divisions to be hereafter defined by the Provincial Parliament, and containing each as nearly as possible an equal amount of Population, and by allowing the persons qualified to vote at the Election of Members of the Legislative Assembly, in each Division, subject to the arrangements hereafter mentioned as to present Members, to elect; one person qualified in the manner hereinafter mentioned, to sit in the Legislative Council, which should be composed, after the arrangements as to present Members have had their effect, of sixty persons so elected, one-third of whom shall be required to retire in rotation every two years, so that except as co Members elected after a dissolution, or to fill any occasional vacancies to replace elected Members, the Members shall be elected for the term of six years; and.Members retiring by rotation, whose term of -service shall expire during a Session of Parliament, may continue to serve until the end of that Session; the House divided : and the names being called for, they were taken down, as follow:–

YEAS.

[…] 46

NAYS

[…] 18

So it was resolved in the Affirmative.

The third Resolution being read a second time; and the Question being. put, That this House doth concur with the Committee in the said Resolution; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 40

NAYS

[…] 24

The fourth Resolution being read a second time;

Mr. Cartier moved in amendment thereunto, seconded by Mr. Mattice, That the words “who shall have been at any time previous to such Election, Members of either of the Legislative Councils of Upper or Lower Canada, or of the Legislative Council of this Province, or Members of either of the Legislative Assemblies of Upper or Lower Canada, or of the Legislative Assembly of this Province; and also all subjects of Her Majesty as aforesaid, qualified as above as to age and residence” be left out;

And the Question being put, That those words be left out; the House divided: and the names being called for, they were taken down, as follow:-

YEAS.

[…] 17

NAYS

[…] 44

So it passed in the Negative.

Then the Question being put, That this House doth concur with the Committee in the said Resolution; the House divided : and the names being called for, they were taken down, as follow:–

YEAS.

[…] 36

NAYS

[…] 25

So it was resolved in the Affirmative.

The fifth Resolution being read a second time; and the Question being put, That this House doth concur with the Committee in the said Resolution; the House divided: and the names being called for, they were taken down, as follow:–

YEAS.

[…] 42

NAYS

[…] 19

So it was resolved in the Affirmative.

The sixth Resolution, being read a second time, was agreed to.

The seventh Resolution being read a second time; and the Question being put, That this House doth concur with the Committee in the said Resolution; the House divided; and the names being called for, they were taken down, as follow:–

YEAS.

[…] 35

NAYS

[…] 27

So it resolved in the Affirmative.

The eighth Resolution being read a second time ; and the Question being put, That this House doth concur with the Committee in the said Resolution’; the House divided : and the names being called for, they were taken down, as follow:–

YEAS.

[…] 44

NAYS

[…] 19

So it was resolved in the Affirmative.

The ninth Resolution, being read a second time, was agreed to.

Resolved, That a Select Committee, composed of the Honorable Mr. Morin, the Honorable Mr. Attorney General Richards, the Honorable Mr. Attorney General Drummond, Mr. Langton, Mr. Hartman, Mr. Varin, and Mr. Terrill, be appointed to drawn up an humble Address to Her Majesty, upon the said Resolutions