REPORT: Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”

2021-12-06 Leave a Comment

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Date: 2021-12-06
By: Charles Dumais
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Constitution Act, 1867: Section 92 & Constitution Act, 1982: Section 45

Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”.

Introduction
An Interpretation of the phrase “Provincial Constitution” and its other Variations

(i.) A Starting Point: History of Amendments and the Archival Record
(ii.) The Secondary Literature & Case Law
(iii.) The Problem
(iv.) The Record: The History of the Power to Alter or Amend a ‘Provincial Constitution’

List of Documents

Part 1
The Historical Record re: Provincial Constitutions: Excerpts From the Royal Proclamation 1763 to Constitution Act, 1867 (including Drafts, Correspondences, and Other Papers)

Footnotes

45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

&

92 (1). In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. [Repealed]

—–o0o—–

Introduction:

An Interpretation of the phrase “Provincial Constitution” and its other Variations.

by Charles Dumais

(i.) A Starting Point: History of Amendments & the Archival Record

The purpose of this compilation is to determine the sources and contexts for interpreting the English phrase “Provincial Constitution” and its many other variations (i.e., “constitution of the province”, “local constitution”, “colonial constitution”).

I make the tentative suggestion that the prefixes “colonial”, “provincial”, and “local” do not matter as much as we would think they do when it comes to the interpretation of what is meant by these phrases. While these prefixes capture the legal and developmental status of colonies, they for the most part do not matter in the interpretation of their constitution, nor are they used consistently throughout the archival record. For instance, the various provinces are still referred to as colonies in the Colonial Validities Act, 1865. This is not to say that these prefixes do not matter at all. It is simply that they do not matter as much as we might think. When the various provinces confederated, it became a Dominion and this had much to do with recognition of status than any specific legal meaning or constitutional constraint.

If we are trying to recover what is included in the word by “constitution”, these prefixes seem often descriptive of status or of development, and do not carry much weight to understanding practically what these phrases mean. For the most part, what we are only trying to understand the word “constitution” at various phases of development.

I also suggest that while constitutions in North America were, and are still, largely unwritten, and products of custom and convention, there is much in the written archival record that can help outline what they meant. For example, why wouldn’t the legislative record of the resolutions on Provincial Constitutions in 1866, debated and submitted in the Legislature of the Province of Canada, not be helpful in interpreting the phrase “provincial constitution”? This is not to say that it is exhaustive, but simply helpful. Why wouldn’t tracing the history of alterations to constitutional acts and their drafts, as well as commissions and instructions to governors, in particular of the Union Act, 1840 for the Province of Canada, be of relevance in determining what these phrases meant and how they were used?

In tracing this complex history, I will first begin in part iii. below with the expression found in the Constitution Act, 1982, Part V: Procedure for Amending Constitution of Canada, Section 45 “Amendments by provincial legislatures”. The text of section 45 currently reads as follows:

45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province (my emphasis).^[1]

And secondly proceed through each of the previous iterations of this specific provision, from the repealed section 92 (“Subjects of exclusive Provincial Legislation”), class 1, of the Constitution Act, 1867, which read as follows:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. (my emphasis) [Repealed]

And backwards in the chronology from An Act to remove Doubts as to the Validity of Colonial Laws, UK, 1865, c 63. (i.e., “Colonial Validities Act, 1865”), the Colonial Acts Confirmation Act, 1863. 26 & 27 Vic. c. 84 (Imperial), to the drafts of the Union Act, 1840 (A Bill for Re-uniting the Provinces of Upper Canada and Lower Canada, and for the Government of the United Provinces [20th June 1839 Draft]), excerpted in part (iv.) of this introduction and 114 compiled chronologically in Part I. of this compilation.

So far, the record affirms what the courts have already determined provincial constitutions to consist of (see part c. below), and in a few minor cases expand on that understanding (also in part c. below). There are different ways of reaching this meaning, and the following compilation of primary records is another.

(ii.) The Secondary Literature

Surprisingly, there is relatively little written in the secondary literature on “Provincial Constitutions”. The leading authority is undoubtedly Peter Hogg’s Constitutional Law of Canada (2014). According to Hogg:

“Section 45 authorizes each provincial Legislature, by ordinary legislation, to amend the “constitution of the province”. Section 45 is subject to s. 41, which by paragraph (a) requires that an amendment relating to the office of the office of the Lieutenant-Governor be made only with the unanimous consent of all the provinces. Section 45 differs from ss. 38, 41, 42, 43, and 44 in that s. 45 makes no reference to the “Constitution of Canada”, a term which is defined in s. 52(2) of the Constitution Act, 1982. Instead, s. 45 refers to the “constitution of the province”, which is not defined anywhere in the Constitution Act, 1982”.

Section 45 replaced s. 92(1) of the Constitution Act, 1867. Section 92(1) was repealed by the Constitution Act, 1982. Section 92(1) conferred on each provincial Legislature the power to amend the “constitution of the province”. Subject to the doubt expressed in the next paragraph, the case-law under s.92(1) should continue to be relevant under s.45. Interpreting s.92(1), the Supreme Court of Canada has said that a law is an amendment to the constitution of the province if “it bears on the operation of an organ of government of the province”.^[2] This definition embraces laws respecting the abolition of a province’s Legislative Council (upper house), the public service of the province, the powers and privileges of the legislative assembly, and the term of the legislative assembly. The amending power of the province also extend to s.53 of the Constitution Act, 1867, which requires that taxes be levied only by the Legislature. Some laws are expressly or impliedly withdrawn from the amending power of the province. The office of Lieutenant Governor was expressly exempted from 92(1), and is also expressly exempted from s.45. The constitutional guarantees of language rights were held to be implicitly withdrawn from the provincial amending power in s.92(1), and are now explicitly withdrawn from s.45. It has been suggested as well that s.92(1) would not authorize “a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”. (my emphasis)

The scope of s.45 is somewhat obscured by s.43 (the some-but-not-all-provinces procedure). As noted in the commentary to s.43, s.43 explicitly authorizes an amendment to any provision of the Constitution of Canada which applies to a single province, and most of the important rules of each province’s constitution are contained in instruments which form part of the Constitution of Canada. But s.43 requires the concurrence of the Senate and House of Commons for its amendments. The question is whether s.45, which does not require the concurrence of the Senate and House of Commons, can be employed to amend those provisions of a province’s constitution that are contained in instruments forming part of the Constitution of Canada. A negative answer to this question would mean that s.45 was for no good reason much narrower than the old provincial amending power under s.92(1), which extended to provisions of those instruments which are now called the “Constitution of Canada”. Indeed, a negative answer would leave s.45 with very little work to do. The affirmative answer seems the more plausible one, leaving s.43 to apply to only those provisions of the Constitution of Canada which, although applicable to only one province, do not come within the phrase the “constitution of the province”. […]”.^[3] (my emphasis)

In addition to case-law, Hogg references five secondary sources – all of whom, as I will show below, decidedly express some of the structure of a provincial constitution.

1 – Eugene Forsey’s Freedom and Order (1974);
2 – William H. McConnell’s Commentary on the British North America Act (1977);
3 – M.A. Banks “Defining ‘Constitution of the province’” (1986);
4 – Nelson Wiseman’s “Clarifying Provincial Constitutions” (1996);
5 – W.J. Newman’s “Defining the ‘Constitution of Canada’ since 1982” (2003).[4]

No. 1.

Eugene Forsey’s Freedom and Order (1974), Chapter “16. Extension of the Life of Legislatures”, at pp. 205-206.

“[…] In Canada, the Dominion Parliament can prolong its own life, but only “in time of real or apprehended war, invasion or insurrection” and only “if such continuation is not opposed by votes of more than one-third of the members” of the House of Commons.

Every Canadian provincial legislature, however, can prolong its life as often and as long as it pleases. The British North America Act, section 92, head 1, expressly empowers it to amend the provincial constitution in any way it sees fit, “except as regards the Office of Lieutenant-Governor.” Nor is the power a dead letter. The legislatures of Nova Scotia, New Brunswick, Prince Edward Island, and Manitoba have used it to abolish their Upper Houses; and every province except Newfoundland has used it to change the maximum term of its legislature. Quebec began it, with an act passed in 1881, prolonging the maximum term of future legislatures only, from four years to five. Nova Scotia followed suit in 1897, New Brunswick in 1902, Saskatchewan. In 1908, Alberta in 1909, British Columbia in 1916, Ontario in 1930, and Prince Edward Island in 1932, Manitoba, in 1908, passed an act prolonging the life of the existing legislature for a few months (to September 1, 1911) and changing the maximum for future legislatures from four years to five. […]”. (my emphasis)

And in Chapter “18. The Canadian Constitution and its Amendment”, at pp. 227-228.

The power to change the provincial Constitutions was important, and has often been exercised. For example, the provinces extended the maximum life of their Legislatures from four years to five. Quebec, Nova Scotia, New Brunswick, Prince Edward Island and Manitoba abolished their Upper Houses. (my emphasis)

No. 2

William H. McConnell’s Commentary on the British North America Act (1977), “Exclusive Powers of Provincial Legislatures”, at pp. 246-247 (HERE).

“While there is no serious challenge to the proposition that a province may, by ordinary statute, amend its own constitution, accordingly, exactly what constitutes the “Constitution of the province” mentioned in s.92(1) poses some difficulty. In one sense, the provincial powers enumerated in s.92 are part of the local constitution for they delimit the legislative power of the legislatures, but it could not reasonably be argued that these are among the provisions alterable by the provinces pursuant to s.92(1). The constitutional division of powers insofar as it draws a meandering line between provincial and federal jurisdiction cannot be said to be a matter pertaining solely to the internal constitution of the provinces. Where divided powers are in issue any accretion or diminution of either provincial or federal jurisdiction would reciprocally affect the constitutional position of both parties in a way which the extension of the life of a legislative body would not, and such powers, it is suggested, are not alterable under either ss.91(1) or 92(1) (R. v. Ulmer [1923], 1 D.L.R. 304). They pertain to the Constitution of the country as a whole rather than to that of a province. Where a change is desired in such provisions, therefore, barring the patriation of the Constitution through a domestic amending formula, it would still be necessary to go to Westminster for alterations (see e.g., s.94a). (my emphasis)

No. 3

Margaret A. Banks “Defining ‘Constitution of the province’”, in McGill Law Journal, Vol. 31, No. 3 (1986), at p. 472, 478-479.

“[…] To determine the meaning of this term it is necessary to look at both the Constitution Act, 1867, and the Manitoba Act, 1870. The former originally consisted of a preamble, eleven parts divided into 147 sections and five schedules. The parts of particular concern are Parts V and IX. Part V is entitled “Provincial Constitutions” and consists of sections 58-90 inclusive. Part IX is entitled “Miscellaneous Provisions” and consists of sections 127-144 inclusive. The Manitoba Act, 1870, is not divided into parts, but its sections are arranged in much the same order as those of the Constitution Act, 1867; there are omissions from the former because some sections of the latter are made to apply to Manitoba without having to be restated in the Manitoba Act. A comparison of the two Acts will show that sections 6-21 of the Manitoba Act contain provisions comparable to some of those included in the “Provincial Constitutions” part of the Constitution Act. For instance, section 6 of the Manitoba Act corresponds to section 58 of the Constitution Act; sections 59-62 of the Constitution Act are not restated in the Manitoba Act, but under section 2 of the latter apply to that province. Thus, it seems logical to conclude that sections 6-21 of the Manitoba Act and any provisions contained in sections 58-90 of the Constitution Act that apply to Manitoba are part of the Constitution of the Province of Manitoba. A more difficult question is whether any other sections of either of these Acts can be regarded as part of the “Constitution of the province”. In particular we are concerned with section 23 of the Manitoba Act which corresponds to section 133 of the Constitution Act; the latter section, as we have seen, is outside the “Provincial Constitutions” Part. The reason why it is important to define “Constitution of the province” is because another section of the Constitution Act – subsection 92(1) which was included in Part VI, “Distribution of Legislative Powers” – gave each provincial legislature authority to amend “the Constitution of the province, except as regards the Office of Lieutenant Governor.” [at p. 472] (my emphasis)

———-o0o———-

“[…] Dealing at greater length than did the Forest case with the problem of defining “Constitution of the province”, the Court observed that:

[Section] 133 [of the Constitution Act, 1867] is not part of the Constitution of the Province within s. 92(1) but is rather part of the Constitution of Canada and of Quebec in an indivisible sense, giving official status to French and English in the Parliament and in the Courts of Canada as well as in the Legislature and Courts of Quebec.

This statement can be applied with appropriate modifications to section 23 of the Manitoba Act.

The decisions of the Supreme Court of Canada in the Blaikie and Forest cases have been given constitutional endorsement by the Constitution Act, 1982. It repealed subsection 92(1) of the 1867 Act, which allowed a provincial legislature to amend “the Constitution of the province, except as regards the Office of the Lieutenant Governor”, replacing it with a new provision (section 45 of the Constitution Act, 1982) which reads as follows: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” Section 41 deals with amendments to the Constitution of Canada requiring unanimous consent (that is, authorization by resolutions) of federal and all provincial legislatures. Under paragraph 41(a) an amendment relating to “the office of the Queen, the Governor General and the Lieutenant Governor of a province” requires such consent. So too, under paragraph 41(c), does an amendment relating to “the use of the English or the French language”, but this provision is subject to section 43, which deals with amendments to the Constitution of Canada relating to any provision that applies to one or more, but not to all, provinces. Thus although the expression “Constitution of the province” is used without definition in section 45 of the Constitution Act, 1982, just as it was in subsection 92(1) of the Constitution Act, 1867, it is now clear that a provincial legislature cannot unilaterally amend a constitutional provision relating to the use of the English or the French language within the province. Such an amendment can be made by proclamation issued by the Governor General under the Great Seal of Canada when authorized by resolutions of the Senate, the House of Commons, and the Legislative Assembly of each province to which the amendment applies. Thus, an amendment to section 23 of the Manitoba Act requires federal approval as well as that of the Legislature of Manitoba.

Notwithstanding the Supreme Court decisions in Forest and Blaikie, the endorsement of these decisions in the Constitution Act, 1982 and subsequent developments in the Manitoba language controversy, there is still no explicit definition of “Constitution of the province” comparable to that provided for “Constitution of Canada” in subsection 52(2) of the Constitution Act, 1982. This will continue to be a fertile source of controversy: the Canadian federal system comprises a bewildering and overlapping number of constitutional forms – a federal constitution, provincial constitutions and provisions such as section 23 of the Manitoba Act and section 133 of the Constitution Act, 1867, which are part of the constitutions of Canada and of a province. It is precisely owing to this unique structure that defining expressions such as “Constitution of the province” becomes crucial. This short discussion has demonstrated that the ambiguity inherent in the term “Constitution of the province” has been at the root of major constitutional problems in Canadian history and that, as long as such ambiguities remain unresolved, they are likely to be at the crux of future constitutional controversy.” [pp. 478-479] (my emphasis)

A similar point is made in Nelson Wiseman’s “In Search of a Quebec Constitution”, in Revue québécoise de droit constitutionnel, (2008), at pp. 132, 135-137.

“A lingering ambiguity in the term “Constitution of a province” has been at the root of some major constitutional and political issues in Canadian history, and the lack of a firm definition may feed future controversies. The phrase goes undefined in both the Constitution Act, 1867 and the Constitution Act, 1982, but Section 5 of the Colonial Laws Validity Act, 1865 used the term “Constitution of a province” to refer to the powers and procedures of a provincial legislature. Similarly, Section 88 of the Constitution Act, 1867 used this notion of constitution in its reference to ‘The Constitution of the Legislature of each of the Provinces of Nova Scotia and New Brunswick.’ About a third of the Constitution Act, 1867 consists of enactments specifically relating to Ontario and Quebec. […]”.

“[…] An approach to constitutionalism that focuses solely on the written letter of the law is universally understood to be overly technical and narrow. A constitution is more than that: it may also be embellished, modified, and elaborated upon by legal arguments, doctrines, court judgments, parliamentary rules, executive decrees, customs, and conventions. In Canada, the written elements of federal and provincial constitutions include a mixture of British as well as federal and provincial statutes and orders-in-council. The essence of a constitution, however, is both none of these and more than these. It is a product of a collective imagination and dwells in the world of presuppositions. A constitution’s pith may be said to be the public’s and the courts’ images of it. “The image” of a constitution, writes William Conklin, “rebounds off the text.”24 Provincial constitutions, like that of Quebec’s at present, barely dwell in the inchoate conscious world; they rouse little interest, let alone passion. They are “an often-forgotten subject”25 partly because they are not easily organized or orderly. The idea of a provincial constitution has poor circulation because of its obscure, imprecise boundaries. This may change soon however. […]”. [pp.135-136]

In Section “2. Comparative Provincial Perspectives”, Wiseman notes:

“[…] Quebec’s original constitution after the Conquest came in the Commission and Instructions issued in the form of Letters Patent by the British Crown to Governor James Murray in 1763. Similar instruments were issued to the Governors of Nova Scotia, Prince Edward Island, and New Brunswick. The Quebec Act of 1774 superseded the Quebec Governor’s charge. Politically, the Act is noteworthy for the liberties it granted to Catholics; legally it is notable as being the first Canadian constitutional document based on British statutory authority rather than royal prerogative. The Constitutional Act, 1791 – dividing Quebec into Lower and Upper Canada and the Act of Union, 1840 reuniting them as the Province of Canada – followed in this statutory vein.

“Provincial Constitutions” is the title of Part V of the Constitution Act 1867, composing Sections 58-90. The Manitoba Act, 1870, the Saskatchewan Act, 1905, and the Alberta Act, 1905 appear in the Schedule to the Constitution Act, 1982, and are those provinces’ foundational constitutional documents as well as being part of the Constitution of Canada. In contrast, pre- Confederation constitutional documents like the Quebec Act, and the “instruments” granted to Quebec’s and the Maritimes’ early governors are absent, although New Brunswick’s Department of Justice has referred to the first colonial Governor’s Commission and Instructions of 1784 as part of the province’s constitution.

The power to change a provincial constitution was the very first power assigned exclusively to provincial legislatures in Section 92 (1) of the Constitution Act, 1867. This was, according to Lord Carnarvon who piloted the act at Westminster as Under-Secretary of State for the Colonies, “in conformity with all recent colonial legislation”. That section was simultaneously repealed and reinserted as Section 45 of the Constitution Act, 1982. One difference is that the original reference to a provincial “Constitution” is now lowercased to “constitution”. Another difference is that this power originally appeared in Part VI of the Constitution Act, 1867 titled “Distribution of Legislative Powers”, and under Section 92’s rubric “Exclusive Powers of Provincial Legislatures”. It is now located in Part V of the Constitution Act, 1982 titled “Procedure for Amending Constitution of Canada”. Such relocation and re-titling implies that an amendment to a provincial constitution, such as the proposed Québec Constitution, is an amendment to the Constitution of Canada. This might turn out to be of some significance in future developments. […]”. [pp. 136-137]

Another source not consulted by Hogg is:

J.E. Read, “The Early Provincial Constitutions”, The Canadian Bar Review, Vol. XXVI, No. 4 (April 1948)

1. General Principles of Colonial Constitutional Law

The early provincial constitutions were established during the colonial regime, when the British Empire was a unitary state. It was recognized that the new settlements could not be governed effectively from Westminster and that a measure of local representative government was needed. At the same time there was no room for rival sovereignty. The colonial government had to be limited to local matters and be subordinate to the central government and parliament.

There were two types of colonial constitution, prerogative and statutory. No doubt ever existed about the competence of Parliament to provide a constitution for a colony; but there was, at first, serious doubt as to the -extent of the authority of the Crown.

The question arose for the first time in the case of Campbell v. Hall I after the surrender of Granada by France to Britain in 1763. After the Proclamation of October 7th, 1763, which authorized the summoning of a representative legislative assembly, and after the appointment of the governor but before he summoned an assembly, the Crown imposed a 4 1/2% export duty on sugar, thus placing Granada on the same basis as the other British Leeward Islands.

The action was brought by Campbell, a British planter, to recover duties paid, upon the ground that the export duty was illegal. Two contentions were put forward: first, that the Crown could not make laws for a conquered country; and, second, that, before the duty was imposed, the Crown had divested itself of authority to legislate for the colony.

On the first point, it was decided that the Crown had the power to make laws for a conquered country. This power was subject to the terms of the capitulations or treaty of peace and subordinate to the authority of the King in Parliament.

[…]

On the second point it was decided that the Crown had divested itself of authority to legislate for the colony by making provision for the establishment of a local representative legislature. It was the authorization of the legislature and not its actual establishment that divested the Crown of its power. This doctrine had no application to statutory constitutions. The King in Parliament could not divest himself of the power to make laws for His dominions, a principle inherent in sovereignty, but the King in Council was not sovereign and accordingly was subject to the law as laid down in Campbell v. Hall.

There were definite legal limitations upon colonial, legislative power. The first relates to constituent power. Even in the case of the prerogative constitutions, the Crown could, notwithstanding the doctrine in Campbell v. Hall, revoke a colonial constitution and annex the territory to another Colony; 4 or amend the constitution by revising the royal instruments in which it was embodied. In the case of statutory constitutions, there could be no doubt as to the power of Parliament to repeal or amend its own Acts. Consequently, constituent power remained in the Crown or in Parliament.

The second legal limitation was a direct consequence of parliamentary sovereignty. Colonial law was void and inoperative if it was repugnant to legislation of the British Parliament, applicable to the colony by virtue of express words or, necessary intendment. This was not a constitutional limitation in the strict sense, but rather an impediment to the exercise of power. The colonial law was not ultra vires, it was inoperative. There were British statutes, which, by their terms, were applicable throughout the King’s dominions, and no colonial legislature could enact effective legislation repugnant to their provisions. This doctrine had no application to the part of the British statute law which was in force in the colony under the rule in Uniacke v. Dickson. The third legal limitation was territorial. It was doubtful whether the colonial legislature could make laws having extraterritorial operation.

In addition to these legal limitations, there were political controls, which restrained the local legislature even more. Legislation was subject to effective control by the governor’s veto, and the reservation of bills and disallowance of laws. The governor was a servant of the British Government and exercised progressively diminishing influence upon colonial legislation and government. Vitally important and extensive fields were covered by British legislation and administration. While the matters dealt with by the colonial governments and assemblies were steadily increasing in extent and importance, they did not, at any stage, cover more than a modest part of the “publick peace welfare & good government” of the colonies. Too close attention to legal and political limitations upon colonial power may give a misleading picture. In order to be understood, they should be looked at with the broader political and economic movements in the colonies as a background.

[…]

II. The Early Constitutions As a result of this review of the basic principles of colonial constitutional law, it should be possible to understand the early documents. Accordingly, it is time to retrace our steps and look at the Canadian provincial constitutions. The natural starting point is Nova Scotia, not merely because it is the oldest, but because the Cornwallis documents furnished the foundation for later constitutional progress.

[…]

The constitution of Prince Edward Island can be traced to the Commission of August 4th, 1769,11 and the Instructions of July 27th, 1769, to Governor Patterson. These documents correspond closely to the Nova Scotian in their essential features. The provisions for legislative power, disallowance, veto and reservation were substantially identical. In the case of judicial institutions there were express instructions to follow the Nova Scotian model. The authority to summon an assembly was different, in that Council Assemblies, rather than General Assemblies, were to be called. Again, in the grant of legislative power, laws were to be made with the “consent of Our said Council and Assembly, or the major part of them”, instead of with the consent of our said Council and Assembly, or the major part of them respectively”.

The origin of the New Brunswick constitution is found in the Commission, August 16th, 1784,13 and the Instructions 14 to Governor Thomas Carleton. These documents were modelled upon the Nova Scotian, which had already been simplified by the elimination of transitory provisions and the incorporation of the Additional Instructions concerning appeals. There was substantial identity of provisions relating to the following essential matters: establishment of the Council; authority to summon assemblies; legislative power; disallowance; veto; courts of justice; pardons; appeals; reservation of bills.

The constitution of Quebec, at the outset, followed the Nova Scotian model; and, indeed, there are specific references to the Nova Scotian documents in the Instructions to Governor Murray. The recital in the Proclamation of October 7th, 1763, the Commission to Governor Murray of November 28th, 1763, and the Instructions of December 7th, 1763, 15 provide a constitutional position substantially identical to that of Nova Scotia under the Wilmot documents.

[…]

British Columbia was in a special position. By two Acts of Parliament 27 the jurisdiction of the courts of Upper Canada had been extended to the Indian territories, including what is now British Columbia. It was not possible to establish colonial government by prerogative action alone, in areas covered by these Acts.

Vancouver’s Island was established in 1849. The statute withdrew the colony from the application of the two Acts referred to and enabled the Crown to provide for the administration of justice. It did not provide for the establishment of legislative institutions, but it did make the provisions for the administration of justice subject to legislation upon the establishment of a local legislature. The Act also provided for appeals to the Privy Council, but this provision was not made subject to local legislation. The actual constitution was supplied by the Commission and Instructions to Governor Blanshard (July 9th and 13th, 1849), 29 which followed the general lines of the other prerogative constitutions. It will be noted, however, that the Governor and Council were given an independent law-making power; that the wording “peace, order and good government” was used for the Governor and Council, while the general grant used the older form “public peace, welfare and good government”; and that the old form of repugnancy provision was used and not the form that had been used in the Union Act of 1840. It will also be observed that the general direction for reservation of bills of an extraordinary nature and importance whereby the prerogative might be prejudiced is included in the Instructions.

[…]

It seems to be clearly established that the constitutional systems of the provinces, before Confederation, possessed the following characteristics:

(1) The Crown was an integral part of the system and, fundamentally, the provinces were limited monarchies. The governors acted in the name of, on behalf of and subject to the instructions of the Crown. The Crown was a part of the legislature, notwithstanding the formal difference in the style of enactment between the prerogative and the statutory constitutions. The Crown was the fountain of justice; the courts were royal courts; process issued in the King’s name; and, in the field of public law, proceedings were in the name of the Crown. Revenues were the Crown’s revenues; royalties enured to the Crown; the Crown was the owner of the public domain and lord paramount of all lands; and private titles to land were derived from Crown grants. (It should be noted that there are qualifications to be made in this and in the next paragraph to take into account the special position that existed in Lower Canada.)

(2) The Royal Prerogative, to the extent that it was applicable to colonial conditions, was a part of the legal system. The persistence of provisions in the documents directing the reservation of bills that might prejudice the prerogative, and the frequent colonial legislation in prerogative matters such as privy council appeals, indicate clearly that aspects of the prerogative which related to the peace, order and good government of the provinces were regarded as being subject to provincial legislative power.

(3) The grants of legislative power were in broad terms, ranging from “Publick peace, welfare & good government” to “Peace, Order and good Government”. A provincial statute could not be questioned upon the ground that it was unreasonable, oppressive, confiscatory or contrary to imperial interest; although it might be disallowed on such grounds. There were the following legal limitations upon the legislative power:

(a) It was questionable whether the legislature could make laws having extra-territorial operation.

(b) There was a substantial body of imperial statute law, made applicable to the colonies, or to particular provinces, by express words or necessary intendment, which prevented the operation of repugnant provisions of provincial laws. This included: trade and navigation, shipping, admiralty jurisdiction, privy council appeals, copyright, bankruptcy, naturalization, and military and naval discipline.

On the other hand, the powers were augmented by constituent power under the Colonial Laws Validity Act.

(4) There were even more important political restraints upon the exercise of power:

(a) The governor’s influence and authority over legislation and administration, together with his relation with the British government, resulted in an effective, but diminishing, political restraint.

(b) The actual exercise of prerogative power, at Westminster, in matters affecting the colonies, together with the position of the colonies in the world, effectively prevented local action in many fields: foreign affairs, honours, defence and so on.

(c) The exercise of the legal powers of veto, reservation of bills and disallowance of statutes, and even the existence of the powers without their exercise, imposed an effective, but diminishing, political control over legislation. While these were legal powers, their exercise depended upon political instruction and did not impair, in any way, the competence of the legislatures.

In addition, to these special points, it will be noted that the tendency, not unknown in recent years, to whittle down the scope of grants of power to make laws for the peace, order and good government, whether of Canada or of a province, finds little or no support in the history of the early provincial constitutions.

Hogg’s Cited Case law

1. Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032.
2. Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016
3. Ontario (Attorney General) v.OPSEU, [1987] 2 S.C.R. 2.
4. New Brunswick Broadcasting Co. v. Nova Scotia, [1993] 1 S.C.R. 319
5. Eurig Estate (Re), [1998] 2 S.C.R. 565.

No. 1. Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032. (HERE)

[…] Constitution of the Province, conferred upon provincial legislatures by s. 92(1) of the B.N.A. Act.

In Attorney General of Quebec v. Blaikie et al.; Attorney General of Quebec v. Laurier et al., [1979] 2 S.C.R. 1016, the conclusion is upheld by this Court that language rights under s. 133 of the B.N.A. Act do not come within the ambit of the expression “the Constitution of the Province” in s. 92(1). In view of the close similarity between s. 23 of The Manitoba Act and s. 133 in its provincial aspect, there is no need to dwell on the reasons for which the latter enactment is not to be considered as part of “the Constitution of the Province” within the meaning of s. 92(1). There is nothing in Manitoba’s situation to require a different conclusion. (my emphasis)

Although, in a certain way, the whole Manitoba Act may be said to be the constitution of the Province, it is apparent that the amending power conferred by s. 92(1) cannot have been intended to apply to the whole of this statute any more than all the provisions of the B.N.A. Act touching upon the constitution of the provinces in this wide sense can be said to be subject to it. For instance, the provision respecting education, s. 93, embodies an absolute legal restriction on the extent of provincial legislative power followed by a right of appeal to the federal authority in some cases. This federal power is obviously beyond reach of the provincial amending power and it would be absurd to suppose that the more rigid restriction is subject thereto and may thus be removed at will. City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney General of Manitoba, [1895] A.C. 202, referred to. […]”.

“[…] THE COURT—For the detailed and extensive reasons written by Freedman C.J., concurred in by Monnin, Hall, Matas and O’Sullivan JJ.A. ([1979] 4 W.W.R. 229) the Manitoba Court of Appeal granted to the respondent-plaintiff, Georges Forest, a declaration that The Official Language Act enacted by 1890 (Man.), c. 14, and now being R.S.M. 1970, c. O10, “is inoperative in so far as it abrogates rights, including the right to use the French language in the Courts of Manitoba, as conferred by Sec. 23 of The Manitoba Act, 1870, confirmed by the British North America Act, 1871”. In the Court of Queen’s Bench^[2] the plaintiff had been denied standing but, in this Court, the reversal of the trial judge on that point was not questioned. Thus the only issue is that which is set out in the constitutional question determined by order of the Chief Justice:

Are the provisions of “An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba”enacted by S.M. 1890, c. 14 (now R.S.M. 1970, c. O10) or any of those provisions, ultra vires or inoperative in so far as they abrogate the provisions of s. 23 of the Manitoba Act, 1870,33 Vict., c. 3 (Can.) validated by the British North America Act, 1871,34-35 Vict., c. 28 (U.K.)?

The Attorney General of Canada and the Attorney General of New Brunswick have intervened in support of the respondent-plaintiff.

The Official Language Act adopted in 1890 by the Legislature of Manitoba provides: 1(1) Any statute or law to the contrary notwithstanding, the English language only shall be used in the records and journals of the Legislative Assembly of Manitoba, and in any pleadings or process in or issuing from any court in the Province of Manitoba. (2) The Acts of the Legislature of Manitoba need be printed and published only in the English language. 2. This Act applies only so far as the Legislature has jurisdiction to enact. Section 23 of The Manitoba Act, 1870 passed by the Parliament of Canada (33 Vict., c. 3 (Can.)) reads:

23. Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the British North America Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages.

The conflict between the two provisions is obvious and the only basis on which the Manitoba enactment was sought to be supported is the power conferred upon provincial legislatures by s. 92(1) of the B.N.A. Act, as follows:

92. In each Province the Legislature may exclusively make Laws in relation to matters coming within the Classes of Subjects next herein-after enumerated; that is to say,— 1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.

The scope of this provision with particular reference to language rights recently came for consideration before the Courts of Quebec. In the Superior Court, Deschênes C.J. came to the conclusion, as mentioned by Freedman C.J. herein, that language rights under s. 133 of the B.N.A. Act did not come within the ambit of the expression “the Constitution of the Province” in s. 92(1). This conclusion was unanimously affirmed by the Quebec Court of Appeal and is upheld by judgment being delivered today on the appeal to this Court. In view of the close similarity noted by Freedman C.J. between s. 23 of The Manitoba Act and s. 133 in its provincial aspect, it is unnecessary to dwell upon the reasons for which the latter enactment is not to be considered as part of “the Constitution of the Province” within the meaning of s. 92(1). It will therefore be convenient to consider only whether anything in Manitoba’s situation requires a different conclusion. […]

[…] Although, in a certain way, the whole Manitoba Act may be said to be the constitution of the Province, it is apparent that the amending power conferred by s. 92(1) cannot have been intended to apply to the whole of this statute any more than all the provisions of the B.N.A. Act touching upon the constitution of the provinces in this wide sense can be said to be subject to it. For instance, the provision respecting education, s. 93, embodies an absolute legal restriction on the extent of provincial legislative power followed by a right of appeal to the federal authority in some cases. This federal power is obviously beyond reach of the provincial amending power and it would be absurd to suppose that the more rigid restriction is subject thereto and may thus be removed at will. The point is of some importance because, as Freedman C.J. noted, s. 22 of The Manitoba Act is identical with s. 93 except for the addition of a few words intended to cover its special situation. If the provincial power to amend the Constitution of Manitoba did extend to the whole Manitoba Act it would have offered a short answer to the legal challenge of one of its schools Acts, but no such contention appears to have been raised in the two cases in the Privy Council referred to in the judgment of the Court of Appeal, namely, City of Winnipeg v. Barrett^[3]and Brophy v. Attorney General of Manitoba^[4]. The judgments in those cases as well as in some other cases under s. 93 show that these provisions were considered as entrenched. It is of some significance that the provision respecting language rights immediately follows the provision respecting educational rights in The Manitoba Act. (my emphasis)

No. 2. Att. Gen. of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016 (HERE)

“[…] A seven-Judge Quebec Court of Appeal unanimously affirmed both judgments. Appellant, the Attorney General of Quebec, obtained leave to raise the constitutional aspect of the case in this Court. He relied primarily on s. 92(1) of the B.N.A. Act, arguing that the power of legislatures to amend “the Constitution of the Province” enabled the legislature of Quebec to enact the challenged provisions. A subsidiary contention of the appellant was that the challenged provisions were not incompatible with s. 133. […]”.

“[…] The central issue in this case, reflected in the question posed for determination by this Court, is whether the Legislature of Quebec may unilaterally amend or modify the provisions of s. 133 in so far as they relate to the Legislature and Courts of Quebec. It was the contention of the appellant that the language of the Legislature and of the Courts of Quebec is part of the Constitution of the Province and hence is within the unilateral amending or modifying authority of the Legislature under s. 92(1). Emphasis was, understandably, placed on the words in s. 92(1) “notwithstanding anything in this Act”.

What is meant by “the Constitution of the Province” is not defined or described in any enacting terms of the British North America Act. The Act is divided into consecutively numbered parts (following the preamble) from roman numeral Ito XI (part X, respecting the intercolonial railway, was repealed as spent, by 1893 (U.K.), c. 14), each number having an associated heading. The roman numeral V has subjoined to it the words “Provincial Constitutions”, embracing ss. 58 to 90 of the Act. (Sections 81 and 89 were repealed, as spent provisions, by 1893 (U.K.), c. 14).

It was urged against the contention of the appellant that whatever be embraced in a constitution as a generality or in the abstract, the British North America Act provided its own dictionary meaning by embracing only those provisions included under the number and heading “V-Provincial Constitutions”. These did not reach s. 133 which was, therefore, outside of the amending power conferred by s. 92(1). A contrary submission was made that other provisions in the British North America Act, which could be properly regarded as coming within the words in s. 92(1) “The Constitution of the Province”, were outside of Part V, and hence there was no logic to a limitation of those words to what was included only in Part V. Among the provisions said to be in this category were ss. 128, 129, 134, 135, 136, 137 and 144. It is apparent that ss. 129, 134, 135, 136 and 137 are transitional provisions and hence stand on a different footing than s. 133. Section 144, dealing with the establishment of townships in Quebec by proclamation of the Lieutenant-Governor of Quebec, appears to be related more properly to provincial power in relation to municipal institutions in the Province under s. 92(8) of the British North America Act than to the Constitution of the Province under s. 92(1). Section 128, referring to the taking of a prescribed oath of allegiance before the Governor-General or before the Lieutenant-Governor of a Province by elected or appointed members of the federal House of Commons or Senate or a provincial Legislative Assembly or Council, as the case may be, raises a different issue, referable to the office of the Governor-General and of the Lieutenant-Governor and touching the position of the Crown in respect of members of the legislative chambers, so long as such chambers exist. There has not been any Legislative Council in Quebec since its abolition by Quebec legislation in late 1968.

It was also the position of the appellant and of its supporting intervenor, the Attorney General of Manitoba, that Fielding v. Thomas showed that Part V was not exhaustive of what was included in “the Constitution of the Province”. That case, taken broadly, concerned the privileges and immunities of members of the Nova Scotia Legislative Assembly, and legislation giving immunity from civil liability in respect of words and conduct in the Legislative Assembly was held to be intra vires under s. 92(1).

The fact that Fielding v. Thomas concerned matters relating to the Constitution of the Province, in the sense that it bore on the operation of an organ of the government of the Province, does not help to establish the appellant’s position as to the unlimited scope of s. 92(1). The latter may, of course, cover such changes as were dealt with in Fielding v. Thomas and, also, other matters not expressly covered by the British North America Act but implicit in the Constitution of the Province. That does not, however, carry the necessary conclusion that s. 133 is unilaterally amendable. Indeed, the argument goes too far because, as pressed, it would permit amendment of the catalogue of legislative powers in the succeeding catalogue of classes of subjects in s. 92 and this was not suggested.

It does not seem necessary to come to a determination whether s. 128 is part of the Constitution of the Province and amendable as such under s. 92(1), so as to lend support to the appellant’s contention of the amendability by unilateral action of s. 133. The reasons for this transcend even the widest operation of s. 92(1) and are cogently set out in the judgment of Deschênes C.J., followed by the Quebec Court of Appeal. He found that s. 133 is not part of the Constitution of the Province within s. 92(1) but is rather part of the Constitution of Canada and of Quebec in an indivisible sense, giving official status to French and English in the Parliament and in the Courts of Canada as well as in the Legislature and Courts of Quebec. Concerning the qualification in s. 91(1) of the British North America Act (enacted by 1949 (U.K.), c. 81) to the power of Parliament to amend the “Constitution of Canada”, except (inter alia), “as regards the use of the English or French language” it is difficult to see how this amendment enacted in the terms requested by Parliament, can be of any help in interpreting a statute expressly passed for the purpose of giving effect to a political arrangement, made more than eighty years earlier, which did not contemplate such federal power. […]”.

No. 3. Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2. (HERE).

“[…] The constitution of Ontario is not to be found in a comprehensive, written instrument called a constitution. An enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the offices of Lieutenant‑Governor and of the Queen. The fact that a province can validly give legislative effect to a prerequisite condition of responsible government does not necessarily mean it can do anything it pleases with the principle of responsible government itself. Thus, it is uncertain, to say the least, that a province could touch upon the power of the Lieutenant‑Governor to dissolve the legislature, or his power to appoint and dismiss ministers, without unconstitutionally touching his office itself. The principle of responsible government could, to the extent that it depends on those important royal powers, be entrenched to a substantial extent. The power of constitutional amendment given to the provinces by s. 92(1) does not necessarily comprise the power to bring about a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system. […]”. (my emphasis)

“[…] 70. In my respectful opinion, the impugned provisions are not related to the field of federal elections, as is submitted by the appellants. But neither can they be constitutionally justified on the basis, or at least on the sole basis, that they are in pith and substance labour relations legislation and therefore a matter of property and civil rights in the province. I am rather of the view that the impugned provisions are an amendment of the constitution of the province and that they are also related to the tenure of provincial offices. […]”. (my emphasis)

“[…] 75. The Act accordingly provides, in s. 10, that every civil servant shall subscribe an oath of office and secrecy as well as an oath of allegiance to the sovereign, and that any person or class of persons appointed to the unclassified civil service may be required to subscribe either or both the oaths. The oath of office comprises an undertaking to observe and comply with the laws of Canada and Ontario, which include the impugned provisions and it goes without saying that the subscribing of this oath is not negotiable. A provision of this type is unexpected, to say the least, in an employer‑employee legislation or in an act regulating labour relations, but is very much in order in a law relating to the constitution of the province and to the tenure of provincial offices. […]”. (my emphasis)

“[…] 90. To sum up, therefore, and subject to the caveat I will mention later, an enactment can generally be considered as an amendment of the constitution of a province when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of Lieutenant‑Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant‑Governor. […]”

“[…] 91. The above‑described approach seems to me to be consistent with the line followed by this Court in Blaikie, supra, where it explicitly declined to adopt a narrower line. It had been held by the Appellate Division of the Alberta Supreme Court in R. v. Ulmer, [1923] 1 W.W.R. 1, 1 D.L.R. 304, and by the Quebec Court of Appeal in Procureur général du Québec c. Blaikie, [1978] C.A. 351, that s. 92(1) of the Constitution Act, 1867 should be given a restricted meaning embracing only those provisions included under the number and heading V of the Constitution Act, 1867, entitled “Provincial Constitutions”. This restrictive interpretation could not be reconciled with Fielding v. Thomas, [1896] A.C. 600, where it had been held that the privileges and immunities of members of the Nova Scotia Legislative Assembly, and legislation giving immunity from civil liability in respect of words and conduct in the Assembly, were matters coming within s. 92(1). These matters could not conceivably be included under heading V of the Constitution Act, 1867. In Blaikie, supra, this Court had this to say about the question at pp. 1024‑25:

The fact that Fielding v. Thomas concerned matters relating to the Constitution of the Province, in the sense that it bore on the operation of an organ of the government of the Province, does not help to establish the appellant’s position as to the unlimited scope of s. 92(1). The latter may, of course, cover such changes as were dealt with in Fielding v. Thomas and, also, other matters not expressly covered by the British North America Act but implicit in the Constitution of the Province. That does not, however, carry the necessary conclusion that s. 133 is unilaterally amendable. Indeed, the argument goes too far because, as pressed, it would permit amendment of the catalogue of legislative powers in the succeeding catalogue of classes of subjects in s. 92 and this was not suggested. [Emphasis added.] […]” (my emphasis)

“[…] 151. There is no doubt in my mind that the basic structure of our Constitution, as established by the Constitution Act, 1867, contemplates the existence of certain political institutions, including freely elected legislative bodies at the federal and provincial levels. In the words of Duff C.J. in Reference re Alberta Statutes, at p. 133, “such institutions derive their efficacy from the free public discussion of affairs….” and, in those of Abbott J. in Switzman v. Elbling, at p. 328, neither a provincial legislature nor Parliament itself can “abrogate this right of discussion and debate”. Speaking more generally, I hold that neither Parliament nor the provincial legislatures may enact legislation the effect of which would be to substantially interfere with the operation of this basic constitutional structure. On the whole, though, I am inclined to the view that the impugned legislation is in essence concerned with the constitution of the province and with regulating the provincial public service and affects federal and provincial elections only in an incidental way. […]”. (my emphasis)

No. 4. New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 (HERE)

Per Sopinka J.: The impugned rule or practice of the legislative assembly is not immune from Charter scrutiny. The privileges of the members of the legislative assembly are subject to legislation by the province as part of the constitution of the province. The exercise of those privileges, whether by legislation or by rules or practices of the legislative assembly, are matters “within the authority of the legislature” and therefore subject to s. 32 of the Charter. One implication of treating those privileges as part of the Constitution of Canada is that they would arguably not be subject to provincial legislation and any change would require an amendment pursuant to s. 43 or s. 38 of the Constitution Act, 1982. One would expect something more than a general reference to “a Constitution similar in Principle” in a preamble in order to have this effect.

With the system currently used to broadcast the proceedings of the House of Assembly, the media are not allowed to have their hand‑held cameras in the public gallery. The effect on the publication of news is that they are prevented from obtaining the reaction of the members who are not speaking. The inability to gather news can occasion a restriction on freedom of the press if it interferes with disseminating the news, but this Court has not yet determined whether the protection of s. 2(b) of the Charter extends to the means by which the gathering and dissemination of news is done. In any event, assuming that the restriction complained of constitutes a violation of s. 2(b), it is justifiable under s. 1 of the Charter. The exercise of the historic privilege in issue in this appeal is a pressing and substantial objective. That objective is to maintain order and decorum and ensure the smooth functioning of the legislative assembly. The present restriction on the number and location of cameras is rationally connected with the objective. While some other method might have been equally effective, the procedure which has been adopted appears eminently sensible and the Court should not second guess the legislative assembly who studied the matter and adopted a method which ensures that in essence the proceedings of the Assembly are made available to the television viewing audience. Finally, given the importance of preserving the decorum of the House of Assembly, the alleged intrusion on the freedom of the press is not out of proportion to this objective. […]”.

Lamer C.J. – […]

(2) Application of the Doctrine of Privilege in the Present Case

There are essentially four arguments put forward by the appellant and the interveners in support of the appellant as to why the Charter ought not to apply to the exercise of parliamentary privileges:

1. By virtue of s. 88 of the Constitution Act, 1867, and its inclusion in the schedule of the Constitution Act, 1982, the Constitution of Nova Scotia is part of the federal constitution;

2. By virtue of the inclusion of art. 9 of the English Bill of Rights of 1689 in the preamble of the Constitution Act, 1867, and its inclusion in the schedule of the Constitution Act, 1982, the principle that the exercise of parliamentary privileges is not to be reviewed by the courts is enshrined in the Constitution;

3. Parliamentary privileges have an inherent constitutional status derived from the very nature of the institution and from the preamble to the Constitution Act, 1867; or,

4. The exercise of parliamentary privileges is not covered by s. 32 of the Charter, either because:

a) the House of Assembly does not fall within the words “legislature” or “government”; or,

b) the exercise of parliamentary privileges does not fall within the phrase “within the authority of the legislature”.

I will deal with each of these arguments in turn below.

The first argument has two steps. First, it is alleged that the privileges exercised by the Nova Scotia House of Assembly and its members are a part of the Provincial constitution. Second, it is alleged that the Provincial constitution has been made part of the Constitution of Canada by virtue of s. 88 of the Constitution Act, 1867. The first step is clearly made out. In Fielding v. Thomas, supra, at pp. 610-11, the following statement was made:

It surely cannot be contended that the independence of the provincial legislatures from outside interference, its protection, and the protection of its members from insult while in the discharge of their duties, are not matters which may be classed as part of the constitution of the province, or that legislation on such matters would not be aptly and properly described as part of the constitutional law of the province.

The second step, however, is more problematic. The question of whether a Provincial constitution is part of the Constitution of Canada is not free of difficulty. The term “Constitution of Canada” is defined in s. 52(2) of the Constitution Act, 1982. Professor Hogg has opined that, while the definition is exhaustive, s. 88 of the Constitution Act, 1867 arguably incorporates by reference the pre-confederation constitutions of Nova Scotia and New Brunswick into the Constitution of Canada: see Peter W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at pp. 1-6 and 4-24.

However, there is reason to doubt Professor Hogg’s conclusion that the Provincial constitution of Nova Scotia is part of the Constitution of Canada within the meaning of s. 52(2). Professor Hogg has noted the curious result that is obtained in relation to the amending provisions of the Constitution if the Provincial constitutions are found to be part of the Constitution of Canada: see Hogg, supra, at p. 4-24. This consideration, among others, led McEachern C.J.S.C. (as he then was) to find that the Constitution Act of British Columbia is not part of the Constitution of Canada: Dixon v. British Columbia (Attorney General) (1986), 7 B.C.L.R. (2d) 174. With respect to s. 88, its language speaks of continuing the constitution of the legislature of the province of Nova Scotia. However, the continuance of a Provincial constitution as contemplated by s. 88 is something quite different from giving it status as part of the Constitution of Canada. Glube C.J.T.D. has held that the Constitution of Nova Scotia is not part of the Constitution of Canada within the meaning of s. 52(2) of the Constitution Act, 1982: MacLean v. Attorney-General of Nova Scotia (1987), 35 D.L.R. (4th) 306 (N.S.S.C.T.D.), at p. 312.

All of this goes to point out the difficulty of deciding whether the constitution of the province of Nova Scotia is part of the Constitution of Canada. Given the importance of that question and my conclusion concerning s. 32 of the Charter, below, I do not need to finally determine this aspect of the case. […]”.

“[…] It is argued that the right to exclude strangers from the legislative assembly is constitutional by virtue of s. 88 of the Constitution Act, 1867, which is said to make the Provincial constitution of Nova Scotia part of the Constitution of Canada. It is also argued that the right is constitutional because the preamble of the Constitution Act, 1867, incorporates art. 9 of the English Bill of Rights of 1689. Finally, it is argued that the right to exclude strangers is a constitutional privilege inherent in the legislative assembly by virtue of the fact that the preamble to the Constitution Act, 1867 proclaims an intention to put in place “a Constitution similar in Principle to that of the United Kingdom”.

I have concluded that the first two arguments do not establish the constitutionality of the privilege claimed. The first argument is beside the point. The appellant here seeks to establish the constitutional status of the inherent privileges of the Nova Scotia House of Assembly. Only presuming that this Court finds that the privileges of the Nova Scotia House of Assembly are statutory, does the appellant argue that privilege is incorporated into the Constitution of Canada by virtue of s. 88 of the Constitution Act, 1867, and s. 52 of the Constitution Act, 1982. I argue below that inherent privileges can enjoy constitutional status regardless of whether there exists a power to legislate in respect of privilege in the Provincial constitution, and regardless of whether provisions relating to privilege have in fact been enacted. Were it necessary to consider the matter, I would also be concerned about a reading of the word “continue” in s. 88 of the Constitution Act, 1867 as “be entrenched”; since this section concerns only the Provincial constitutions of Nova Scotia and New Brunswick, such a reading would raise questions regarding the other Provincial constitutions. […]”.

“[…] The following are the reasons delivered by:

Sopinka J. — I have had the benefit of reading the reasons of the Chief Justice and Justices Cory and McLachlin, but regrettably, while I agree with much that is said in each of the reasons, I cannot agree with the conclusion reached. Both the Chief Justice and McLachlin J. find that the impugned rule or practice of the legislative assembly is immune from scrutiny under the Canadian Charter of Rights and Freedoms but on different grounds. I find their respective reasons for disagreeing with the ground of immunity selected by the other equally compelling. As a result, I have concluded that no such immunity exists. I have only a few comments to add to what they have said.

With respect to the application of s. 32, I find the words “within the authority of the legislature” to be of significance. This was a large factor in the reasoning in Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, in which this Court held that decisions of Cabinet were subject to the Charter. At pages 463-64, Wilson J. stated:

. . . those words of limitation [“within the authority of Parliament”], like the corresponding words “within the authority of the legislature of each province” in s. 32(1)(b), are merely a reference to the division of powers in ss. 91 and 92 of the Constitution Act, 1867. They describe the subject-matters in relation to which the Parliament of Canada may legislate or the government of Canada may take executive action. As Le Dain J. points out, the royal prerogative is “within the authority of Parliament” in the sense that Parliament is competent to legislate with respect to matters falling within its scope. Since there is no reason in principle to distinguish between cabinet decisions made pursuant to statutory authority and those made in the exercise of the royal prerogative, and since the former clearly fall within the ambit of the Charter, I conclude that the latter do so also.

Similarly, the privileges of the members of the legislative assembly are subject to legislation by the province as part of the constitution of the province. In Fielding v. Thomas, [1896] A.C. 600 (P.C.), at pp. 610-11, Lord Halsbury L.C. stated:

The exercise of those privileges, whether by legislation or by rules or practices of the legislative assembly, are matters “within the authority of the legislature” and therefore subject to s. 32. This conclusion would apply unless, as suggested in the reasons of McLachlin J., the rights and privileges are part of the Constitution of Canada and therefore not subject to provincial legislation. I turn to consider this proposition.

The difficulty I have with the approach of my colleague, McLachlin J., is that in order to immunize certain privileges from Charter review, she finds that they are part of the Constitution of Canada. This occurs because they are referred to in the preamble to the Constitution Act, 1867. I would find it unusual that the framers of the Constitution Act, 1867 intended to entrench certain privileges by a general reference in the preamble but not the constitution of the province as a whole, which is specifically continued in force by s. 88 of that Act. As a result, contrary to Fielding v. Thomas, these privileges would arguably not be subject to provincial legislation and any change would require an amendment to the Constitution of Canada pursuant to s. 43, or indeed s. 38, of the Constitution Act, 1982. Except for these privileges, the rest of the constitution of the province would remain subject to provincial legislation. It seems to me that the prospect of losing legislative control over its rights and privileges would be a high price for the appellant to pay in order to escape the Charter. One would expect something more than a general reference to “a Constitution similar in Principle” in a preamble in order to have this effect. In R. v. Mercure, [1988] 1 S.C.R. 234, La Forest J., for the majority, held that s. 110 of The North-West Territories Act, R.S.C. 1886, c. 50 (as am. by 1891, c. 22, s. 18), was not entrenched by the terms of the Saskatchewan Act, S.C. 1905, c. 42. He stated, at p. 271:

Not only is the province empowered to legislate respecting procedure in the courts under s. 92(14) of the Constitution Act, 1867; it is also given power under s. 45 of the Constitution Act, 1982 to amend the constitution of the province. But that is not all. Parliament knew full well how to entrench a provision if it wished to do so, namely, by expressly providing for language rights in the Saskatchewan Act as it did in the case of s. 23 of the Manitoba Act, 1870. Such provisions, in common with s. 133 of the Constitution Act, 1867, are constitutionally protected and do not fall within the province’s legislative capacity to amend its constitution or otherwise; see Attorney General of Quebec v. Blaikie, [[1979] 2 S.C.R. 1016], at pp. 1023-25.

No. 5. Eurig Estate (Re), [1998] 2 S.C.R. 565 (HERE)

“[…] 35. By virtue of s. 45 of the Constitution Act, 1982, the legislature of each province retains the discretion to exclusively make laws amending the constitution of the province. That power must be read in association with s. 52(1) of the Constitution Act, 1982, which stipulates that any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. Subsection 52(1) effectively requires any provincial legislation that seeks to amend the constitution of the province to do so expressly: see J. Small in “Money Bills and the Use of the Royal Recommendation in Canada: Practice versus Principle?” (1995), 27 Ottawa L. Rev. 33, at p. 50. Otherwise, the legislation is liable to being struck down on the basis that it is inconsistent with the Constitution. […]”.

(iii.) The Problem

If we turn to the case law Hogg and his secondary sources cite, they in fact do turn out to be helpful in providing an outline what is meant by provincial constitution. The problem is that relative to “the constitution of Canada” there are no definitions provided in any of the constitution acts on what this is meant. While provincial constitutions have some “obscurity” and “imprecision”,^[5] the case law helps identify general framework. And it is my claim that the historical record largely supports this framework.

Features of Provincial Constitutions based on Hogg & Sources (2014)

A provincial constitution includes:

1. the operation of any and all “organs of government of the province”.

a. Ex. Legislative Council (upper chamber), the public service of the province, the powers and privileges of the legislative assembly, the term of the legislative assembly; and tenure of offices.

Excluding:

- the office of Lieutenant Governor (i.e., a provincial organ);
- language rights;
- any “matter pertaining to the division of powers” accreting or diminishing “either provincial or federal jurisdiction”.
- the abrogation of “a fundamental term or condition of the union” but not their entrenchment.
- anything that would be “a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”.

In short, there are three areas that can further flesh out this outline. The first is to trace itself the development of the power to amend colonial constitutions in each of its iterations. This area would focus what part of their constitution and when provinces obtained an amending power over their constitutions. The history of this power is clearly traceable. And I attempt to provide it below in part (iii.), and provided in more detail in Part I.

The second is to compile materials that trace the development of the notion of “constitution” in British North America. Such a compilation would trace the significant contexts in which the phrase “constitution” is used to deduce how provincial (including colonial and local) constitutions are spoken at different periods in time and what they mean. I provide that compilation (more so for the Province of Canada) below in Part 1.

The third is to recover the documentary basis that reconstructs each of the different provincial constitutions in British North American to shed light on the differences of the constitutions in each province. The framework is missing these crucial details of local circumstance. In this compilation I forgo the third path for another time.

(iv.) The Record: The History of the Power to Alter or Amend a ‘Provincial Constitution’

A possible way of understanding what is meant by the English expression “constitution of the province” in the Section 45 of the Constitution Act, 1982 (in “Part V: Procedure for Amending Constitution of Canada”), is to document the history of the power to alter or amend provincial (or local and colonial) constitutions. This can be reasonably reconstructed in the case of the British North American colonies, and I attempt to provide this history below.

Section 45 of the Constitution Act, 1982 (in “Part V: Procedure for Amending Constitution of Canada”), reads as follows:

45. Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province (my emphasis).^[6]

Section 45 of the Constitution Act, 1982 repealed section 92 (“Subjects of exclusive Provincial Legislation”), class 1, of the Constitution Act, 1867, which read as follows:

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. (my emphasis) [Repealed]

Before the Constitution Act, 1867, the power to amend colonial constitutions can be found in the An Act to remove Doubts as to the Validity of Colonial Laws, UK, 1865, c 63. (i.e., “Colonial Validities Act, 1865”) in section 5, which reads:

5. Colonial Legislature may establish, &c. Courts of Law.

Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and. every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony (my emphasis).

This language of this power can also be traced back to the Colonial Acts Confirmation Act, 1863. 26 & 27 Vic. c. 84 (Imperial), which reads:

2. Confirmation of certain Acts of colonial Legislatures.

All laws heretofore passed or purporting to have been passed by any colonial Legislature with the object of declaring or altering the constitution of such Legislature, or of any branch thereof, or the mode of appointing or electing the members of the same, shall have and be deemed to have had, from the date at which the same shall have received the assent of Her Majesty or of the Governor of the colony on behalf of Her Majesty, the same force and effect for all purposes whatever as if the Legislature had possessed full powers of enacting laws for the objects aforesaid, and as if all formalities and conditions by Act of Parliament or otherwise prescribed in respect of the passing of such laws had been duly observed (my emphasis).

This form of provincial power altering the colonial or provincial constitution cannot be found in any previous Acts of Parliament before the two instances in 1865 and 1863. A limited power of amending the Province of Canada’s constitution was provided in An Act to change the Constitution of the Legislative Council by rendering the same Elective, 1856, derived from The Union Act Amendment Act, 1854, (17 & 18 Victoria, c. 118).

An Act to empower the Legislature of Canada to alter the Constitution of the Legislative Council for that Province, and for other purposes.

An earlier limited power of amendment can be found in the Union Act, 1840, in regard to forming constituencies, and courts, salaries of Governor and judges. But it is fair to say that the overarching understanding prior the period pre-1863 lied with the Imperial Parliament, as captured by the language found in a draft for the Union Act 1840 – A Bill to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada [2nd April 1840 Draft] which read:

65. And be it Enacted, That this Act may be amended or repealed by any Act to be passed in the present Session of Parliament (my emphasis).

Two concluding points might be made. First, when compared with the primary record of the Quebec Conference, 1864, it is this fuller provincial power of amendment found in the 1863/1865 Colonial Validities Acts that is promoted at the Quebec Conference, 1864, and carried forward into the drafts and the Constitution Act, 1867 (see Part I below). It may be at Quebec in 1864 that we truly find the modern articulation of what is a provincial constitution, later developed in 1866 with the provincial resolutions, submitted and debated in the Legislative Assembly of the Province of Canada (see again the excerpts provided in Part I below).

Second, as the 1866 debate on the Provincial Constitutions state, the general principles of the provincial constitutions are derived from the then-current provincial constitution – the Union Act, 1840. It is after all this constitution that the Colonial Validities Acts not only validated. As demonstrated in 1848 and again in 1854/1856, the British North American provinces had already acquired a substantial amount of power to amend their constitutions. If one takes the structure of the Union Act, 1840, as a general basis for the constitutions of Ontario and Quebec, one finds an interesting model for thinking about provincial constitutions. It is this model, as modified in 1866 resolutions, that may have been implied in “the constitution of the province” in the Constitution Act, 1867.

Features of Provincial Constitutions (Informed by Union Act, 1840, et al.)

A provincial constitution includes:

1. The Name of the Province (s.1, Union Act, 1840)
2. The Name and constitution of the Legislative Chambers (s.3, Union Act, 1840)
3. Composition, summoning, qualification of members of the Legislative Chambers; Tenure of members; conditions for resignation; (s.4, Union Act, 1840)
4. Oaths, Rights, Privileges, and Immunities of members. (s.7, Union Act, 1840)
5. Composition of the Provincial Privy Council (s.8, Union Act, 1840)
6. Appointment, Removal of Speakers of each legislative chamber. (s.9, Union Act, 1840)
7. Quorum in the legislature (s.10, Union Act, 1840)
8. Mode and Number of Representation in each chamber. (s.12, Union Act, 1840)
9. Elections and dis/qualifications of electors and candidates (s.22, Union Act, 1840)
10. Prorogation and dissolution of legislature. (s.30, Union Act, 1840)
11. Summoning of the legislature. (s.31, Union Act, 1840)
12. Organs of the province (s.50, Union Act, 1840)
a. the public service of the province

Excluding:

- the office of Lieutenant Governor (i.e., a provincial organ);
- language and Religious rights;
- any “matter pertaining to the division of powers” accreting or diminishing “either provincial or federal jurisdiction”.
- the abrogation of “a fundamental term or condition of the union” but not their entrenchment.
- anything that would be “a profound constitutional upheaval by the introduction of political institutions foreign to and incompatible with the Canadian system”.

List of Contents

Royal Proclamation, 1763 (HERE) 33

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Halifax to Lords of Trade, Sept. 19, 1763. (HERE) 34

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Lords of Trade to Halifax, Oct. 4, 1763. (HERE) 34

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Proceedings in Privy Council, Oct. 5, 1763 (HERE) 34

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Report on Commissions for Governors, Oct. 6, 1763 (HERE) 34

Instructions to Governor Murray, Dec. 7, 1763 (HERE) 35

Report of Committee’ for Plantation Affairs re Ordinances and Constitutions by the Governor of Quebec, Sept. 2, 1765 (HERE) 36

Report of Attorney and Solicitor General (Yorke and DeGrey), regarding the Civil Government of Quebec, April 4^th, 1766 (HERE) 38

Lieut.-Governor Carleton’s reply to Remonstrance of Members of Council, 1766 (HERE) 38

Earl of Shelburne to Lieut.-Governor Carleton, June 20, 1767 (HERE) 39

Lieut.-Governor Carleton to Earl of Shelburne, Nov. 25, 1767 (HERE) 39

Instructions to Governor Carleton, 1768 (HERE) 40

Draught of an Intended Report of the Honourable the Governor in Chief and the Council of the Province of Quebec, to the King Concerning the State of the Laws and the Administration of Justice in that Province, by Francis Maseres 1768/1769? (HERE) 41

Attorney General Maseres’ Criticism of Governor Carleton’s Report on the Laws of the Province, 1769 (HERE) 41

Report of Lords Commissioners for Trade and Plantations Relative to the State of the Province of Quebec, July 10, 1769 (HERE) 41

Report of Solicitor General Alex. Wedderburn, Dec. 6, 1772 (HERE) 43

Report of Attorney General Edward Thurlow, Jan. 22,1773 (HERE) 44

Plan of a Code of Laws for the Province of Quebec, Reported by the Advocate General, James Marriott, 1774 (HERE) 44

Lord Mansfield’s Judgment in Campbell vs. Hall, 1774 (HERE) 45

Memoranda And Draughts Of Bills Relating To The Subject Of The Quebec Act, 1774: Third Draught Of The Quebec Bill (HERE) 46

Memoranda and Draughts of Bills Relating to the Subject of the Quebec Act, 1774: The Quebec Bill, as Returned from the Commons (HERE) 46

George R. to Governor James Murray, Royal Commission, 28 November 1763 (HERE) 47

George R. to Governor James Murray, Royal Instructions, 7 December 1763 (HERE) 48

The Massachusetts Government Act, UK, 1774 (HERE) 49

Quebec Act, 1774 (HERE) 50

Instructions To Governor Carleton, 1775. (HERE) 51

Plan For The Future Management Of Indian Affairs, Referred To In The Thirty-Second Article Of The Foregoing Instructions. (HERE) 51

Carleton To Gage. 4th Feby. 1775. 51

Additional Instruction to Our Trusty & Well beloved Frederick Haldimand Esquire Our Captain General & Governor in 0 Chief in and over Our Province of Quebec in America, and of S all our Territories dependent thereupon. Given at our Court at S* James’s the Twenty Ninth day of March 1779 In the Nineteenth Year of Our Reign. (HERE) 52

Memorial Of British Merchants Trading To Quebec. (HERE) 53

Letter From Merchants Of Quebec. Quebec 9 Nov 1785. (HERE) 53

Sydney To Hope. Whitehall 6th April 1786. (HERE) 53

Plan Of General Directions For Sir Guy Carleton. (HERE) 54

Memorial Of Merchants Trading To Quebec. (HERE) 54

Grenville To Dorchester. (Private And Secret.) Whitehall 20th Oct 1789. (HERE) 54

Discussion Of Petitions And Counter Petitions Re Change Of Government In Canada. (HERE) 55

Additional Instruction to Our Trusty & Welbeloved Frederick Haldimand Esqr Our Captain General and Governor in Chief in & over Our Province of Quebec in America, & of all Our Territories dependent thereupon.—Given at Our Court at St James’s the Twenty Ninth day of March 1779. In the Nineteenth Year of Our Reign. (HERE) 58

Constitutional Act, 1791 (HERE) 58

Proceedings of the Legislative Assembly, Lower Canada, on the question of privilege: Journal of Assembly, November 27th, 1793 (HERE) 60

Proceedings of the Legislative Assembly, Lower Canada, on the question of privilege: Journal of Assembly, January 9th, 1794 (HERE) 60

Right to originate legislation inflicting pecuniary penalties, Lower Canada: Journal of The Legislative Council. Saturday, 27th April, 1793. (HERE) 60

Dorchester to Dundas, December 31, 1793 (HERE) 61

Simcoe to Portland, February 17, 1795 (HERE) 61

Simcoe to Dorchester, March 9, 1795 (HERE) 61

Observations On The Government Of Canada By John Black. 1806 (HERE) 63

Craig to Liverpool Quebec 1st May 1810. (HERE) 63

Proceedings in the Court of King’s Bench relating to the imprisonment of Pierre Bedard, April 17, 1810. (HERE) 64

Opinion of Sir V. Gibbs on The Proposed Change in the Constitution, August 22, 1810. (HERE) 65

Liverpool To Craig, Downing, Street 12th Sept. 1810 (HERE) 65

Proceedings in the House of Assembly relative to the exercise of the power of imprisonment by the Executive Council, Lower Canada. Journal of the House of Assembly, May 11^th, 1812 (HERE) 66

Journal of the House of Assembly, May 16^th, 1812 (HERE) 67

Heads of Impeachment of Jonathan Sewell. (HERE) 68

Heads of Impeachment of James Monk. (HERE) 68

Address of The House of Assembly To The Prince Regent. To His Royal Highness The Prince Regent. From The Journals of The House Of Assembly Of Lower-Canada, 1814, Appendix H. Address of the House of Assembly to the Prince Regent, February 25, 1814 (HERE) 69

Proceedings in the Provincial Parliament on the Articles of Impeachment March 3^rd, 1814 (HERE) 69

Journals of The House Of Assembly. Thursday, 17th March, 1814 (HERE) 70

Resolutions of the Legislative Council of Lower Canada on the Right of the House of Assembly to appoint a special agent for the Province, February 28, 1814. (HERE) 70

Prévost to Bathurst, September 4^th, 1814 (HERE) 71

Proceedings relative to the appointment of a Provincial Agent, Lower Canada Journal of the House of Assembly, March 20^th 1815. (HERE) 72

Separate Opinion of The Advocate General. (HERE) 72

Report of The Judges of The Court of King’s Bench on The Trial of Justice Foucher, Montreal.(Copy) Montreal 29^th Dec—1817 (HERE) 73

Report of the Justices of the Court of King’s Bench, Quebec, January, 1818. (HERE) 74

Address of the Legislative Council on the Powers of the House of Assembly, February 26 1819 From the Canadian Archives, Duplicate Despatches, Lower Canada, 1819. (HERE) 74

Act Respecting Eligibility of Persons to be Returned to the Legislative Assembly. (HERE) 75

Journal of House of Assembly, Upper Canada, March 23rd March, 1818. (HERE) 75

Journals of House of Assembly, Upper Canada, March 12, 1818 (HERE) 76

Journal of the Legislative Council, Upper Canada, March 20^th, 1818 (HERE) 77

Proceedings In The House Of Assembly Relating To The Convention Of 1818. Journals of The House of Assembly, Upper Canada. 22nd October, 1818. (HERE) 78

Petition of Inhabitants of Kingston, Prom the Journals of the House of Assembly, Upper Canada, 1818 (HERE) 79

Copy of a Despatch from Lord Glenelg to the Earl of Gosford, the Right Hon. Sir C. E. Grey and Sir G. Gipps, His Majesty’s Commissioners of Inquiry in Lower Canada. 17 July 1835. 80

Her Majesty’s High Commissioner, Report on the Affairs of British North America (Durham Report), by Earl of Durham (1839) (HERE) 80

A Bill For re-uniting the Provinces of Upper and Lower Canada, and for the Government of the United Province. [20^th June 1839] HERE. 84

A Bill to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada (prepared and brought in by Lord John Russell, Lord Viscount Palmerston, Mr. Macaulay, Mr. Labouchere, and Mr. Chancellor of the Exchequer.) [2^nd April 1839 Draft of the Union Act, 1840] (HERE) 85

Act of Union, 1840 (HERE) 85

Amendment of 1848 to the Union Act of 1840, A.D. 1848, 11° & 12° Victoriæ, Ch.56. (HERE) 87

The Union Act Amendment Act, 1854, (17 & 18 Victoria, c. 118.) (HERE) 87

Province of Canada, Journals of the Legislative Assembly of the Province of Canada [Bill to Change the Constitution of the Legislative Council], (14 March 1856) (HERE) 89

Province of Canada, Journals of the Legislative Assembly of the Province of Canada [Bill to Change the Constitution of the Legislative Council], (27 March 1856) (HERE) 91

An Act to change the Constitution of the Legislative Council by rendering the same Elective, Prov C, 1856 (HERE) 94

[I.] John A. Macdonald, Working Draft No. 1, October 26^th, 1864. (HERE) 97

[II.] John A. Macdonald, Working Draft No. 2, October 26-27^th, 1864. (HERE) 97

[III.] John A. Macdonald, Working Draft No. 3, October 27^th, 1864. (HERE) 97

[IV.] John A. Macdonald, Working Draft No. 4, October 27^th, 1864. (HERE) 97

[V.] Quebec Resolutions, 1864 (Journals of the Province of Canada, Legislative Assembly, March 14th, 1865 97

Secretary Bernard Hewitt’s “Report of Discussions”, Quebec Conference, 1864. (HERE) 98

Secretary Bernard Hewitt’s “Minutes of the Proceedings”, Quebec Conference, 1864. (HERE) 99

Colonial Acts Confirmation Act, 1863. 26 & 27 Vic. c. 84 (Imperial) (HERE) 100

“Confederation Debates”, 1865 – The Province of Canada (HERE) 100

Colonial Laws Validity Act, UK, 1865 (HERE) 110

Province of Canada, Legislative Assembly, Scrapbook Debates [Local Constitutions], 8th Parl, 5th Sess, (13 July 1866) (HERE) 112

Province of Canada, Legislative Assembly, Scrapbook Debates [Local Constitutions], 8th Parl, 5th Sess, (27 July 1866) (HERE) 114

Province of Canada, Legislative Assembly, Scrapbook Debates [Composition of Senate & Local Constitutions], 8th Parl, 5th Sess, (2 August 1866) (HERE) 119

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 1 (4 December 1866) (HERE) 129

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 2 (4-6 December 1866) (HERE) 129

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1 (13-14 December 1866) (HERE) 129

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 3, Copy 1 (14 December 1866) 130

London Resolutions, Final Version (28 December 1866) 130

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package, n.d. (MG 26, A, Vol. 49/2, pp. 19451-19461). 130

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, n.d. (MG 26, A, Vol. 48, pp. 18768-18793). 130

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). 130

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package with Reilly’s Notes, n.d. (MG 26, A, Vol. 49/2, pp. 19462-19480). 131

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, n.d. (MG 26, A, Vol. 49/2, pp. 19500-19518). 131

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 2, n.d. (MG 26, A, Vol. 49/2, pp. 19519-19537). 131

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 3, n.d. (MG 26, A, Vol. 49/2, pp. 19538-19556). 132

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 4, n.d. (MG 26, A, Vol. 49/2, pp. 19576-19594). 132

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package with W.S. Henry’s Notes, n.d. (MG 26, A, Vol. 49/2, pp. 19481-19499). 132

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, H.B. Morse’s Copy, n.d. (MG 26, A, Vol. 49/2, pp. 19595-19613). 133

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Alexander Galt’s Copy, n.d. (MG 26, A, Vol. 49/2, pp. 19557-19575). 133

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). 133

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Duplicate Copy 2, n.d. (MG 26, A, Vol. 54, pp. 21623-21646). 133

John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, Revised Copy, n.d. (MG 26, A, Vol. 49/1, pp. 19399-19450). 134

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). 134

PART 1:

**The Historical Record re: Provincial Constitutions: Excerpts From the Royal Proclamation 1763 to Constitution Act, 1867 (including Drafts, Correspondences, and Other Papers).**

———-o0o———-

Royal Proclamation, 1763 (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. […]”

———-o0o———-

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Halifax to Lords of Trade, Sept. 19, 1763. (HERE)

“To declare the Constitution of the new Governments, as established for the present, & intended in future, and the general Powers which the Governors will have of granting Lands within Them.”

———-o0o———-

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Lords of Trade to Halifax, Oct. 4, 1763. (HERE)

“[…] We beg leave further to add, That as it appears to us, upon a Revision of the Report of this Board of the 8th of June last, That, it will be expedient for His Majesty’s Service, and give Confidence and Encouragement to such Persons as are inclined to become Settlers in the new Colonies, That an immediate and public Declaration should be made of the intended permanent Constitution and that the power of calling Assemblies should be inserted in the first Commissions, We have therefore drawn the Proclamation agreeable to this Opinion, and have prepared the Commissions accordingly; […]”

———-o0o———-

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Proceedings in Privy Council, Oct. 5, 1763 (HERE)

“[…] Whereas there was this day read at the Board a Draught a Proclamation prepared by the Lords Commissioners for Trade and Plantations relative to the erecting within the Approved Countries and Islands ceded and confirmed to His Majesty by the late Definitive Treaty, four distinct and separate Governments by the Names of Quebec, East Florida, West Florida Grenada, and declaratory of the Constitution of the said New Colonys, of the encouragements to be given to reduced Officers and Soldiers and the Regulations to be observed in respect to the Indian Commerce and Country […]”

———-o0o———-

Papers relating to the Establishing of Civil Government in the Territories ceded to Britain by the Treaty of 1763: Report on Commissions for Governors, Oct. 6, 1763 (HERE)

“[…] That in the Description of the Governments of Quebec, East Florida, and West Florida they have conformed to the Limits and Bounds which your Majesty has been pleased to direct and approve, and as they conceived it to be Your Majesty’s Royal Intention, that the Form and Constitution of Government in these new Colonies, should be as near as may be similar to what has been established in those Colonies, which are under Your Majesty’s immediate Government, they have therefore prepared these Commissions accordingly, by which the Governors are impower’d and directed “so soon as the Circumstances of the Colonies will admit thereof, “to summon and call General Assemblys of the Freeholders “in their respective Governments in such Manner as is practised “in Your Majesty’s other Colonies; That they have omitted “in these Commissions any Power that it may be necessary “to grant to the Governors and Councils of Your Majestys “said new Colonies to make Temporary Regulations until “Assemblys can be called, because they were of Opinion that an “immediate and publick Declaration of the intended permanent “Constitution, and an Insertion in the first Commissions of the “Power of calling Assemblys so soon as the Circumstances will “admit, is expedient for Your Majesty’s Service, and will give “Confidence and Encouragement to such of Your Majesty’s “Subjects, as shall incline to settle in your said new Colonies, “and because such Power of making temporary Regulations may “be given in the General Instructions which they shall prepare “and lay before Your Majesty with all possible Dispatch. […]”

[…] And whereas it will greatly contribute to the speedy settling 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 Assemblies2 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. […]”

———-o0o———-

Instructions to Governor Murray, Dec. 7, 1763 (HERE)

“72. And You are to report to Us, by Our Commissioners for Trade and Plantations,—

- What is the Nature of the Soil and Climate of the Province under your Government. If it differs in these Circumstances from Our other Northern Colonies, in what that Difference consists?
- And what beneficial Articles of Commerce the different Parts of it are capable of producing?
- What Rivers there are, and of what Extent and Convenience to the Planters?
- What are the principal Harbours; how situated, of what Extent?
- And what is the Depth of Water, and Nature of the Anchorage in each of them?
- What Quantity of Land is now under actual Improvement and Settlement?
- What are the chief Articles of Produce and Culture; the annual amount of the Quantity of each; and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation, Rent, or Personal Service?
- What is the Quantity, Nature and Property of the Land uncultivated; how much of it is capable of Culture; and what part thereof is private Property?
- What is the Number of Inhabitants, Whites and Blacks, distinguishing each?
- What Number of the Former is capable of bearing Arms, and what Number of the Latter is annually necessary to be supply’d in proportion to the Land cultivated?
- What was the Nature, Form and Constitution of the Civil Government; what Judicatures were there established, and under what Regulations did the French Inhabitants carry on their Commerce? […]”

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Report of Committee’ for Plantation Affairs re Ordinances and Constitutions by the Governor of Quebec, Sept. 2, 1765 (HERE)

“[…] His Majesty having been pleased by an Order in His Privy Council to direct this Bd to consider and report to your Lordship’s our Opinion upon several Papers, which were humbly laid before His Majesty, relative to the Ordinances and Constitutions made and established by His Majesty’s Governor of the Colony of Quebec in consequence of the Powers vested in Him by His Majesty’s Commission and Instructions, We have, in Obedience to His Majesty’s Commands taken these Papers into our Consideration, but before we enter into a particular Examination of them, and of the Ordinances and Constitutions to which they refer, it may not be improper for the better understanding thereof, to state to your Lordship’s, what was the Mode and Form under which the several Governments in Canada were Administered from the Time of the Conquest to the publication of the present Commission, and also what is in general the form of Government approved of and Established, since it has been erected into one entire Colony by the name of Quebec […]”.

“[…] Before the Establishment of the present Constitution, His Majesty’s new Subjects in Canada, consisting of upwards of 80,000 Inhabitants, professing the Religion of the Romish Church, were entirely under military Government, the civil Government and Courts of Justice, which existed under the French Dominion were laid aside, & Justice was administered by Courts consisting of military Officers, which His Majesty’s Governors had established by their own Authority for the Trial and Decision of all Matters of a civil as well as criminal Nature & which Establishments are stated to have been approved by one of His Majesty s Secretary s of State, but whether these military Courts were governed in their proceedings by the Laws of England, or by the Laws and Customs that subsisted in Canada before the Conquest, or by what other Rules, does not appear from any Papers before us […]”.

“[…] By the Form of Government now established the civil Constitution of Quebec, like all other Colonies under His Majesty’s immediate Government, and which do not depend upon particular Charters, arises out of, and is regulated by His Majesty’s Commission & Instructions to His Governor, by which Commission and Instructions the Governor is authorized to appoint a Council, consisting of the Officers of Government, (who by their Offices are usually Members of the Councils in other Colonies) together with Eight other of the principal Inhabitants of the Province, which Council is to assist the Govr with their Advice in. all matters of State, and is also constituted a distinct branch of Legislature, and impowered jointly with the Governor and an Assembly of Freeholders, which he is directed to summon and call together, so soon as the Circumstances of the Colony will permitt, to frame and enact Laws for the Welfare & good Government of the said Colony, under the like Regulations & Restrictions prescribed in other Colonies; & untill such complete Legislature can be formed, the Governor is authorized, with the Advice & Consent of the Council, to make and pass such temporary Ordinances as shall be necessary & proper for the good Governmb of the Colony; Provided the said Ordinances are not repugnant, but as near as may be agreeable to the Laws of England, and do not extend to affect the Life, Limb or Property of His Majesty’s Subjects, or to the levying any Duties or Taxes (His Majesty’s Governor Is further impowered by a particular Clause in his Commission to erect, constitute & establish, with the Advice and Consent of the Council, such & so many Courts of Judicature & publick Justice, with all reasonable Powers, Authorities, Fees & Privileges, as he and they shall think necessary for the hearing & determining all Causes as well criminal as civil, according to Law, & Equity, & for awarding Execution thereupon and by an Article in His Instructions he is Directed, in forming these Establishments, to consider, what has been approved and settled in other Colonies; and more particularly in that of Nova Scotia, the situation & Circumstances of which did, at the time of Establishing Courts of Justice therein, bear a near Resemblance to the situation & circumstances of Quebec […]”.

“[…] Immediately after the Appointment of the Council, the Governor with their Advice and Consent, issued Commissions of the Peace, a Measure that appears to us to have been necessary, and that the Commissions themselves are proper and constitutional. […]”

“[…] The Objections stated to the Constitution & Jurisdiction of the Superior Court or Court of King’s Bench, are,

First—That there is no Qualification prescribed for the Jurors.

Secondly—That there is no Provision made in respect to Bail in matters bailable by the Laws of England, or for securing to the Subject the Right he has to a Writ of Habeas Corpus.

Thirdly That as by this Ordinance all Persons are to serve as Jurors indiscriminately, an entire Jury of Canadians may be impannelled, in Cases where the matter in Question is between a British-born Subject and a Canadian […]”

“[…] With respect to the second Objection we cannot but be of Opinion, that the Laws of this Kingdom relative to Bail and Writs of Habeas Corpus, which we conceive have been adopted in all the other British Colonies, ought to be made a part of the fundamental Constitutions of the Colony of Quebec […]”.

“[…] We shall now beg leave to lay before Your Lordships a general Sketch or outline of such a System of Judicature, as we conceive may be reasonable and proper for the Colony of Quebec, in case His Majesty shall think it advisable to abrogate the Constitution framed by the Governor and Council: and, if our Lordships shall upon mature consideration approve of this Sketch, as a Ground of a more complete Plan, we conceive such Plan may be carried into Execution, either by Instruction to His Majesty’s Governor to frame an Ordinance agreeable thereto, or by directing His Majesty’s Servants in the Law Departments here to prepare the Draught of an Ordinance for that Purpose, to be transmitted to the Governor, and finally ratified and passed by him, agreeable to the Powers contained in his Commission under the Great Seal […]”.

“[…] As to the peculiar Jurisdiction of such Courts as we have recommended, the nature of their Process and the Rules of their Proceedings, it would ill become us to attempt to suggest either what they should be, or by what Authority established: Whoever His Majesty shall think proper to entrust with the framing those acts or Ordinances, by which these Constitutions, if approved, are to be established, will be the best Judges of what will be necessary and proper in these Respects, and therefore we have Only to add, that we hope that, by such a Form of Constitution and Judicature, the Peace and Happiness of that Colony, which has been unfortunately interrupted, will be restored, His Majesty’s natural born Subjects assured of the Enjoyment of their Rights and Privileges to their full Extent, and the minds of the new Canadian Subjects relieved from that anxiety and uneasiness, so strongly yet so Dutifully expressed in their Address to His Majesty; and which Anxiety and uneasiness appears to us to have been entirely excited by the extraordinary Proceedings of the Grand Jury of the District of Quebec, whose conduct in publickly arrainging in an irregular Presentment, the Justice and Policy of Acts of Government passed under His Majesty’s Authority, and submitted to His Decision, and the Assuming Powers belonging only to Legislature, does appear to us to have been indecent, unprecedented and unconstitutional. […]”.

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Report of Attorney and Solicitor General (Yorke and DeGrey), regarding the Civil Government of Quebec, April 4^th, 1766 (HERE)

“[…] My Lords,—In humble obedience to your Order of the 19th of November last wherein it is recited, that his Majesty having been pleased, to refer to your Lordships several memorials and Petitions from His Majesty’s Subjects in Canada as well British as French, complaining of several of the Ordinances and proceedings of the Governor and Council of Quebec, and of the present Establishment of Courts of Judicature, and other Civil Constitutions; Your Lordships had on that Day, taken the said paper into your Consideration, together with a Report made thereupon by the Lords Commrs for Trade and plantations dated the 2d Septr last and finding that the said Lords Commrs had proposed another System of Judicature to be substituted in lieu of that which is now subsisting You thought it proper to Order, […]”

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Lieut.-Governor Carleton’s reply to Remonstrance of Members of Council, 1766 (HERE)

“[…] We would be wanting to ourselves, & Others in the same Circumstances if we did not remonstrate against an opinion lately insinuated, as if Mandamus’s from Brittain suspended Appointments to the Council made by Govr Murray. We apprehend his Commission & Instructions, by which he was authorized to constitute a Council & to make choice of the Persons, to be to all Intents & purposes, a Mandamus to each of Us, provided His Majesty did not disapprove of Us, when reported to Him by the Governour: The many Difficulties which for Two Years we had to encounter in a new Establishment for a Province under very peculiar circumstances, perhaps entitle us to some Reguard: At any Rate tho’ His Majesty may have an undoubted Right to encrease the number of his Council by granting Mandamus’s to whom He pleases, it is to be presumed that by so doing there is no Intention to deprive Us either of our Right to Precedence, or to a Seat in Council: A late event on the Departure of Govr Murray is a proof of the contrary.

If by the Constitution or Custom of the Colonys the number of the Council is restricted, Mandamus’s are in that Case to be regarded only as an Order for the Admission of the Persons named therein, Provided there is a Vacancy. […]”

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Earl of Shelburne to Lieut.-Governor Carleton, June 20, 1767 (HERE)

“[…] Since my Letter of 26th May, I have received yours of 28th March, which I have had the Honor to lay before the King, & I have the Pleasure of confirming to you, His Majesty’s gracious Approbation of your Conduct. The Rectitude of those Principles by which you have governed yourself, & your firm tho’ dispassionate manner of Proceeding, if persevered in, cannot fail of giving due weight to your Administration, of allaying any remains of Faction which may not yet have subsided, & of putting an End to those Impediments which too often arise from private Views & personal Jealousies…. As the right Administration of Government in Quebec is a matter of the greatest Importance to that Province, the Improvement of its Civil Constitution is under the most serious & deliberate consideration of His Majesty’s Servants & principally of His Majesty’s Privy Council. Every light which can be procured on this Subject, will be material as well as every Information which can tend to elucidate how far it is practicable and Expedient to blend the English with the french Laws in order to form such a System as shall at once be Equitable & convenient, both for His Majesty’s Old and New Subjects, in order to the whole being confirmed & finally established by Authority of Parliament […]”.

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Lieut.-Governor Carleton to Earl of Shelburne, Nov. 25, 1767 (HERE)

“[…] My Lord! As Your Lordship informs me, that the Improvement of the Civil Constitution of Quebec is under the most serious and deliberate Consideration of His Majesty’s Servants, and that any Light, which can be procured on that Subject, will be material, I shall endeavour to represent the true Situation of the Province, and add such Observations, as have occurred to me, with that Candor, which, I think, the King’s Service requires, in Compliance with what your Lordship seems to desire, and least His Majesty s Servants, Employed in a Work of so great Importance, tho’ of profound Knowledge and Judgment, for Want of having truly represented, to them, Objects at so great a Distance, and in themselves so different from what is to be found in any other of His Dominions, I say, least without a true Representation of Things, the Kings Service should not profit, as much as possible, of the great Abilities of His Servants—

I take for granted, that the natural Rights of Men, the British Interests on this Continent, and the securing the Kings Dominions over this Province, must ever be the principal Points in View, in forming it’s Civil Constitution, and Body of Laws; And that the last, is the Foundation of all, without which, other schemes can be little better than meer Castles in the Air; it will naturally follow, I should first shew, How far this Foundation is, or is not firmly laid […]”

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Instructions to Governor Carleton, 1768 (HERE)

“[…] 60. And You are to Inform yourself with the greatest Exactness of the Number, Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of their Lives, and the Rules and Constitutions by which they are governed and regulated, and You are upon no Account to molest or disturb them in the possession of the said province as they at present Occupy, or Possess, but to Use the best means You can for Conciliating their Affections and Uniting them to Our Government, reporting to Us, by One of Our principal Secretaries of State, and to Our Commissioners for Trade and Plantations whatever Information You can collect with respect to these people, and the whole of Your proceedings with them […]”

“[…] 70. And You are to Report to Us, by one of Our principal Secretaries of State; What is the Nature of the Soil and Climate of the province under your Government, if it differs in those Circumstances from Our other Northern Colonies, in what that Difference consists, and what beneficial Articles of Commerce the different parts of it are capable of producing?—

- What Rivers there are, and of what extent and convenience to the planters?
- What are the principal Harbours, how situated, of what extent, and what is the Depth of Water and Nature of the Anchorage in each of them?
- What Quantity of Land is now under actual Improvement and Settlement? what are the chief Articles of produce and Culture, the annual amount of the Quantity of each, and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation Rent, or personal Service?—
- What is the Quantity, Nature and property of the Land uncultivated, how much of it is capable of Culture, and what part thereof is private property?—
- What is the number of Inhabitants, Whites and Blacks distinguishing each; what number of the former is capable of bearing Arms, and what number of the latter is annually necessary to be supplied in proportion to the Land Cultivated.
- What was the nature, form and Constitution of the Civil Government; what Judicatures were there Established, and under the Regulations did the French Inhabitants carry on their Commerce; and You are to transmit a Duplicate of such Account to Our Commissioners for Trade and plantations for their Information […]”

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“[…] The most ancient act of parliament of the first kind that we have met with is that of the 1st of Queen Elizabeth, chap. I, by which the pretended authority of the bishop of Rome was abolished throughout all the dominions of the crown of England. The 16th section of this statute is of the following tenor : “And “to the intent that all usurped and foreign power and authority, “spiritual and temporal, may forever be clearly extinguished, “and never to be used or obeyed within this realm, or any other “your Majesty’s dominions or countries, may it please your “Highness that it may be further enacted, by the authority “aforesaid, that no foreign prince, person, prelate, state, or “potentate, spiritual or temporal, shall, at any time after the last day of this session of parliament, use, enjoy, or exercise “any manner of power, jurisdiction, superiority, authority, “pre-eminence, or privilege, spiritual or ecclesiastical, within “this realm, or within any other your Majesty’s dominions and “countries that now be, or hereafter shall be; but from thenceforth “the same shall be clearly abolished out of this realm and all other “your Majesty’s dominions for ever; any statute, ordinance, “custom, constitutions, or any other matter or cause whatsoever “to the contrary in any wise notwithstanding.” […]”

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Attorney General Maseres’ Criticism of Governor Carleton’s Report on the Laws of the Province, 1769 (HERE)

“Your Majesty’s attorney general of this province approves that part of the foregoing report which gives an account of the constitution of the government of this province during it’s subjection to the French king, and believes the said account to be true in most particulars; but he cannot assent to that part of the said report which suggests to your Majesty the expediency of reviving the whole of the French laws in civil matters, for the following reasons.[…]”

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Report of Lords Commissioners for Trade and Plantations Relative to the State of the Province of Quebec, July 10, 1769 (HERE)

“[…] That the Objects of examination and discussion, pointed out in your Lordships Order of reference, and upon which we are directed to report our opinion, appear to us to be of the greatest importance to the present and future Welfare of that Colony; and therefore, though the unsettled State of it’s Government, the Jealousies and apprehensions on all hands represented to exist in the minds of the new Subjects on this Account, and the obstruction and embarrassment arising therefrom to the administration of public Affairs there, were circumstances, that did all concur to evince the necessity of some speedy reform; yet on the other hand, when we viewed the proposition of the Merchants in it’s full extent, and saw the difficulties, that in the present peculiar State of this Colony would attend the making of such a reform in it’s civil constitution, as would give full satisfaction to the new Subjects, without violating those principles, upon which the British Government is fundamentally established; we did not think ourselves justified in making any report to your Lordships, or giving any opinion upon a matter, that His Majesty’s former Councils had not thought fit in their great wisdom, even upon the fullest consideration, to take any resolution upon, without proceeding with the greatest circumspection, nor without the fullest information, that could be collected, as well from the correspondence of His Majesty’s Servants there, as from the examination of persons here, who have been resident in, and are well acquainted with the affairs of Quebec. […]”

“The time, that has elapsed since the date of your Lordships order, has made it necessary for us to say thus much, lest your Lordships should impute to us a delay, which, if unnecessarily created, would not fail to subject us to your censure, in the case of an important part of His Majesty’s Dominions suffering every inconvenience and disadvantage, that can arise out of a very imperfect, inadequate and defective Constitution, where the Inhabitants of it, consisting of above eighty thousand brave and loyal Subjects, do, by the nature and form of such Constitution, and the most unwarrantable Doctrines and Opinion founded thereon, Stand prescribed from every privilege, and denied every right, the possession of which can alone ensure their affection, and fix their attachment to the British Government.

How this comes to be the case in Quebec will be more fully seen by the following narrative of what has been established in respect to the Civil Concerns of that Colony, since it passed under His Majesty’s Dominion; and from thence your Lordships will be enabled the better to judge of the propositions we shall submit to you, as the ground for such a reform in the Constitution of this Colony, as may consist with Justice and Equity, and we hope, be the means of for ever securing the possession of it to the Crown of Great Britain.”

“[…] By these Letters Patent, and by the Instructions from His Majesty, which accompanied them, the Governor is authorised and impowered,

First. To appoint a Council to assist him in the administration of Government, consisting (according to the usage and constitution of other Colonies) of twelve persons, eight of which to be chosen from amongst the most considerable of the Inhabitants and Persons of property in the said Province, and the remainder to be composed of the principal Officers of Government. […]”

“[…] On the seventh of October 1763 His Majesty’s Proclamation2 was published, declaring the limits and extent of the four new Governments of Quebec, East Florida, West Florida, and Grenada, reciting the powers, given to the Governors by their Commissions under the Great Seal, of Summoning Assemblies, and of passing Laws with the advice and consent of the said Councils and Assemblies; and containing His Majesty’s Royal Assurance, that, in the mean time, and until such Assemblies could be called, all persons inhabiting in, or resorting to the said colonies might confide in His Majesty’s Royal Protection for the enjoyment of the benefit of the Laws of England.

By these Constitutions the form of Government established in this Colony by the Crown of France, and adopted with some Variations after the conquest of it, though not entirely abolished, as some persons have contended, was yet, in many parts of it, materially altered, and made to correspond with that form of Government, which has been established in His Majesty s other American Colonies. The having a complete Legislature competent to those regulations, which a Colony under such Circumstances must necessarily require, appears to have been one of the first Objects; and there can be no doubt, but that His Majesty’s Commission and Proclamation, in the provision they make for this purpose, had in view to extend to his Majesty’s new Subjects those Privileges, which exist in the principles of a British Constitution. But the exercise and operation of this Legislative Power having been rendered impracticable by inserting in the Commission, without sufficiently adverting to the state of the Colony the restriction,1 that no person should sit in the Assembly, who had not subscribed the Test, required in this Kingdom by the Act of the twenty fifth of Charles the second, the powers of Government became confined to the Governor and Council, whose authority not extending to cases, which might affect either the life, limb, or liberty of the Subject, or to the imposing Duties and Taxes, was incompetent to those regulations, which the situation of the Colony required; and consequently no provision has been made for establishing such a reasonable Revenue, as may be adequate to the necessary expences of Government, the whole of which is now a burthen upon His Majesty’s Treasury here. The Roman Catholic Religion, though barely tolerated by the Treaty, remains without any regulation, reform, or control whatever, and that of the Mother Country without any provision or support.

Besides these capital objects, there are many other constitutional establishments, and necessary services, for which no provision either has been, or can be made in the present state of the Colony; and it has even been found necessary to disallow several Ordinances of the Governor and Council, in Matters merely of local regulation, and internal economy, from a consideration of the Want of a due authority to enact them. […]”

“[…] Having thus fully answered the first and most material part of your Lordships Order, by which we are directed to report our opinion, whether it may be adviseable for His Majesty to direct an Assembly to be convened, according to what the merchants propose; we shall proceed in the next place to consider, under what regulations and limitations such Assembly should be constituted.

And first, with regard to the Council, which will, under its present form and constitution, as established by His Majesty’s Commission, become a branch of the Legislature, whenever a House of Representatives is convened, it only remains for us to advise, That, in order to admit into it a reasonable proportion of His Majesty’s New Subjects, the number of the said Council, which is now fixed to twelve persons, should be enlarged to fifteen; That a number of His Majesty’s New Roman Catholic Subjects, not exceeding five, should be appointed members thereof, at such times as His Majesty shall think proper; and that they should be exempted from the obligation of subscribing the Declaration against Transubstantiation, which is by His Majesty’s Commission and Instructions required to be taken and subscribed by the members of the Council in general. […]”

“As to His Majesty’s Supremacy in Ecclesiastical Cases, in absolute exclusion of all foreign power or jurisdiction whatever, it is, we humbly apprehend, a Right, and Prerogative, which, by the principles of this Government, as by Law declared, is inherent in, and inseparable from the Crown in all parts of the British Dominions; and therefore is already a part of the Constitution of this Colony: it may not however be improper, in order to remove all doubts or mistakes in a matter of so much importance, to refer to it as such in the preamble of the Law, that shall be passed for the reform above-mentioned; which will, we apprehend, be a very sufficient, and not an improper promulgation to His Majesty’s New subjects of this fundamental part of the constitution of that Government, to which they are now become subject, and will be a full and sufficient warning to them of the illegality and inadmissibility as well of any appeals to any foreign Church, Tribunal, or Jurisdiction, as of any order or regulation whatever in Ecclesiastical Matters, other than such as proceed immediately from His Majesty, or from those acting under His Royal Authority. […]”

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Report of Solicitor General Alex. Wedderburn, Dec. 6, 1772 (HERE)

“[…] The first consideration, in forming the political constitution of a country is, in what manner the power of making laws shall be exercised. If it were possible to provide every necessary regulation for a distant province, by orders from England, it might, perhaps, be the most eligible measure to reserve that authority entirely to the British legislature. But there must be many local interests of police, of commerce, and of political economy, which require the interposition of a legislative power, acquainted with the affairs, and immediately interested in the prosperity of a colony. In all the British colonies, that legislative power has been entrusted to an Assembly, in analogy to the constitution of the mother country. The most obvious method would then be, to pursue the same idea in Canada; but the situation of that country is peculiar. The Assembly must either be composed of British subjects, or of British and Canadians. […]”

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Report of Attorney General Edward Thurlow, Jan. 22, 1773 (HERE)

“[…] Canada had been holden by the French king, in the form of a province, upwards of two hundred years; and considerably peopled near one hundred and fifty years, by the establishment of a trading company, with great privileges and extensive jurisdictions, seconded by the zeal of the age, to propagate the gospel in foreign parts.—Parishes, convents of men and women, seminaries, and even a bishoprick were established there. The supreme power, however, remained with the king, and was exercised by his governor and lieutenant-general with the assistance of a council. About one hundred years ago, Louis the fourteenth resumed the country, and gave it the constitution which was found at the conquest.

He gave them a body of laws, namely, those of the Prevote, and Vicompte de Paris. The sovereign power remained with the king. But because the immense distance made it impossible to provide them with local regulations so speedily as the occasion might demand, he gave them a council, with authority to order the expenditure of public money, trade with the savages, and all the affairs of police, to appoint courts and judges at Quebec, Trois Rivieres and Montreal, and to be judges themselves in the last resort.

This council consisted of the governor, representing the king’s person; and the bishop and five notable inhabitants, named by the two first. To this establishment in a few years were added two more councillors, all seven named by the king; and an intendant of justice, police and revenue, who held the third place in council, and acted as president, collecting voices, &c., and who had, by a separate commission, very large power, particularly in police, wherein he could, if he thought fit, make laws without the council; and in the ordering of the revenue, in which he was absolute; and judge without appeal, of all causes relative to it, as he was, indeed, in all criminal cases. […]”

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Plan of a Code of Laws for the Province of Quebec, Reported by the Advocate General, James Marriott, 1774 (HERE)

“[…] From all the facts stated as above, upon the evidence of informations, of too high authority to be doubted, follow two consequences; that after certain new regulations have been submitted to with patience .by his Majesty’s new Canadian subjects, for a space of thirteen years, though with some such complaining as is natural upon a change of masters, the foundation which has been laid for an approximation to the manners and government of the new sovereign country must either continue to be built upon, or otherwise the whole that has been done must be thrown down, and the Canadians must be restored in integrum to all their ancient laws and usages; a manner of proceeding as inconsistent with the progressive state of human affairs, as with the policy of any possible civil government, which cannot revert, but must necessarily take up things, and go on the state of existing circumstances at the time it intervenes; for it can as little stand still at an given point, as it can decide that the flood of times shall go no further. As men move forward, the laws must move with them, and every constitution of government upon earth, like the shores of the sea from the agitation of the element, is daily losing or gaining something on one side or the other […]”

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Lord Mansfield’s Judgment in Campbell vs. Hall, 1774 (HERE)

“[…] Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and subordinate to the constitution and parliament. It is left by the constitution to the King’s authority to grant or refuse a capitulation. If he refuses, and puts the inhabitants to the sword, or exterminates them, all the lands belong to him; and if he plants a colony, the new settlers share the land between them, subject to the prerogative of the conqueror. If he receives the inhabitants under his protection and grants them their property, he has power to fix such terms and conditions as he thinks proper. He is entrusted with making peace at his discretion; and he may retain the conquest, or yield it up, in such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a conquered nation. […]”

“[…] The King, I mean Charles the Second, after the Restoration invited settlers by proclamation, promising them his protection. He made grants of land. He appointed at first a governor and council only; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immediately under the King has arisen in the same manner; not by the grants, but by commissions, to call assemblies […]”

“[…] The first and material instrument is the proclamation of the 7th of October, 1763. See what it is that the King there says, and with what view he says it; how and to what he engages himself and pledges his word : “Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty 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” (and then follow the directions for that purpose). And to what end? “To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies,” of which this of Grenada is one, “and of the people and inhabitants thereof, as near as may be agreeable to the laws of England.” With what view is the promise given? To invite settlers; to invite subjects. Why? The reason is given. They may think their liberties and properties more secure when they have a legislative assembly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and properties, and with a view to invite them to go and settle there after this proclamation that assured them of the constitution under which they were to live […]”

“[…] The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken established with a view to permanent colonization and the increase and cultivation of the new settlement. For further confirmation of all this, on the 9th of April 1764, three months before the impost in question was imposed, there is an actual commission to Governor Melville, to call an assembly as soon as the state and circumstances of the island should admit.

You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called : the promise imports the contrary; for whatever construction is to be put upon it, (which perhaps it may be somewhat difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice; not an imposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called; it must have been in about the year at farthest from the governor’s arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly […]”

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Memoranda And Draughts Of Bills Relating To The Subject Of The Quebec Act, 1774: Third Draught Of The Quebec Bill (HERE)

“[…] An Act for making more effectual Provision for the Government of the Province of Quebec in North America; and for removing Doubts which have arisen relative to the Laws and Constitution of the said Province since His Majesty’s Royal Proclamation of the 7th of October 1763 […]”.

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Memoranda and Draughts of Bills Relating to the Subject of the Quebec Act, 1774: The Quebec Bill, as Returned from the Commons (HERE)

“[…] And whereas the Provisions made by the said Proclamation, in respect to the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province, by the Grants and Commissions issued in consequence thereof, have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the Inhabitants whereof [amounting] (amounted) at the Conquest, to above [One hundred] (sixty-five) thousand Persons, professing the Religion of the Church of Rome, and enjoying an established form of Constitution, and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada; be it therefore further enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof be, and the same are hereby revoked, annulled, and made void, from and after the First Day of May, One thousand seven hundred and seventy five […]”.

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George R. to Governor James Murray, Royal Commission, 28 November 1763 (HERE)

The following commission does not contain the exact phrase “Provincial Constitution” but again has numerous uses of the word “constitute”.

“[…] We, reposing especial trust and Confidence in the prudence, Courage and loyalty of you the said James Murray, of our especial grace, Certain Knowledge and meer motion, have thought fit to Constitute and appoint, and by these presents, do Constitute and appoint you, the said James Murray to be our Captain General and Governor in Chief in and over our Province of Quebec in America. […]”

“[…] And we do hereby declare 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, and such others as shall resort thereunto and for the benefit of us our heirs & successors: which said Laws Statutes and Ordinances are not to be repugnant, but as near as may be agreeable, to the laws & Statutes of this our Kingdom of Great Britain. […]”

“[…] And We, do by these presents give and grant unto you, the said James Murray, full power and authority, with the advice & Consent of our said Council, to Erect, Constitute and Establish, such and so many Courts of Judicature and publick Justice within our said province under your Government as you & they shall think fit and necessary, for the hearing & determining of all causes as well Criminal as Civil according to Law and Equity and for awarding execution thereupon, with all reasonable & necessary powers, authorities, Fees, and privileges belonging thereunto: as also to appoint and commissionate fit persons in the several parts of your Government to administer the oaths mentioned in the aforesaid act Intitled (an act for the further security of His Majesty’s person & Government, and the succession of the Crown in the Heirs of the late Princess Sophia being protestants and for extinguishing the hopes of the pretended Prince of Wales, and his open and secret abettors) as also to Tender & administer the aforesaid declaration to such persons belonging to the said Courts as shall be obliged to take the same.”

“And We do hereby grant unto you full power and authority to constitute and appoint point Judges, judges, and in Cases requisite Commissioners of Oyer & Terminer, Justices of the peace, Sherriffs and other necessary ,Officers and ministers in our said Province for the better administration of Justice, and putting the Laws in Execution;, and to administer or cause to be administered unto them such oath or Oaths as are usually given for the due Execution and performance of Offices & places and for clearing the truth in Judicial Causes. […]”

“[…] And for as much as divers Mutinies & Disorders may happen by persons Shipped and Employed at sea during the time of War: And to the end, that such as shall be shipped and Employed at sea during the time of War may be better governed and ordered: We hereby give and grant unto to grant unto you the said James Murray, full power and authority to Constitute and appoint Captains, Lieutenants, Masters of Ships, and other Commanders & officers, Commissions to execute the Law Martial during the time of War, according to the Directions of an act passed in the Twenty Second year of our late Royal Grand Father, intitled (an act for amending Explaining and Reducing into an act of Parliament, the Laws relating to the Government of His Majesty’s Ships, Vessels, and Forces by Sea) and to use such proceedings, authorities, punishments, Corrections and Executions upon every Offender or Offenders, who shall be mutinous, Seditious, Disorderly, or any way’unruly either at Sea or during the time of their abode or residence in any of the ports, Harbours, or Bays in our said Province, as the Case shall be found to require, according to Martial Law and the said Directions during the time of War as aforesaid.— […]”

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George R. to Governor James Murray, Royal Instructions, 7 December 1763 (HERE)

“[…] 1. With these Our Instructions You will receive Our Commission under Our Great Seal of Great Britain, constituting You Our Captain General and Governor in Chief in and over Our Province of Quebec in America, bounded on the Labrador Coast by the River St John, and from thence by a Line drawn from the Head of that River through the Lake St John to the South End of the Lake Nipissing from whence the said Line crossing the River St Lawrence and the Lake Champlain in forty five Degrees of North Latitude, passes along the High Lands, which divide the Rivers that empty themselves into the said River St Lawrence, from those which fall into the Sea; and also along the North Coast of the Baye des Chaleurs and the Coast of the Gulph of St Lawrence to Cape Rosieres, and from thence crossing the Mouth of the River St Lawrence by the West End of the Island of Anticosti, terminates at the aforesaid River of St John: You are therefore to take upon You the Execution of the Office and Trust We have reposed in You, and the Administration of Government, and to do and execute all Things in due manner that shall belong to your Command, according to the several Powers and Authorities of Our said Commission under Our Great Seal of Great Britain, and these Our Instructions to You, or according to such further Powers and Instructions as shall at any Time hereafter be granted or appointed You under Our Signet and Sign Manual, or by Our Order in Our Privy Council. […]”

“[…] 5. And if it shall at any time happen, that, by the Death, Departure out of Our said Province, Suspension of any of Our said Councillors, or otherwise, there shall be a Vacancy in Our said Council, Our Will and Pleasure is, that You signify the same to Our Commissioners for Trade and Plantations by the first Opportunity, that We may, under Our Sign Manual, constitute and appoint Others in their Stead; to which End, You are, whenever such Vacancy happens, to transmit to Our said Commissioners, in order to be laid before Us, the Names of three or more Persons, Inhabitants of Our said Province, whom You shall esteem best qualified for such Trust. […]”

[…] 16. And whereas by Our aforesaid Commission under Our Great Seal of Great Britain, You are authorized and impowered, with the Advice and Consent of Our Council, to constitute and appoint Courts of Judicature and Justice; it is therefore Our Will and Pleasure, that You do, as soon as possible, apply your Attention to these great and important Objects; and that, in forming the necessary Establishments for this purpose, You do consider what has taken place in this respect in Our other Colonies in America, more particularly in Our Colony of Nova Scotia. […]”

“[…] 31. You are as soon as possible to transmit to Us, by Our Commissioners for Trade and Plantations, an exact and particular Account of the Nature and Constitution of the several Religious Communities of the Romish Church, their Rights, Claims, Privileges and Property, and also the Number, Situation and Revenue of the several Churches heretofore established in Our said Province, together with the Number of Priests or Curates officiating in such Churches. […]”

“61. And you are to inform yourself with the greatest Exactness of the Number, Nature and Disposition of the several Bodies or Tribes of Indians, of the manner of their Lives, and the Rules and Constitutions, by which they are governed or regulated. And You are upon no Account to molest or disturb them in the Possession of such Parts of the said Province, as they at present occupy or possess; but to use the best means You can for conciliating their Affections, and uniting them to Our Government, reporting to Us, by Our Commissioners for Trade and Plantations, whatever Information you can collect with respect to these People, and the whole of your Proceedings with them. […]”

“[…] 67. And whereas you will receive from Our Commissioners for executing the Office of High Admiral of Great Britain and of Our Plantations, a Commission constituting you Vice Admiral of Our said Province; You are hereby required and directed carefully to put into Execution the several Powers thereby granted to you. […]”

“[…] 72. And You are to report to Us, by Our Commissioners for Trade and Plantations,-

- What is the Nature of the Soil and Climate of the Province under your Government. If it differs in these Circumstances from Our other Northern Colonies, in what that Difference consists? And what beneficial Articles of Commerce the different Parts of it are capable of producing?
- What Rivers there are, and of what Extent and Convenience to the Planters?
- What are the principal Harbours; how situated, of what Extent; and what is the Depth of Water, and Nature of the Anchorage in each of them?
- What Quantity of Land is now under actual Improvement. and Settlement? What are the chief Articles of Produce and Culture; the annual amount of the Quantity of each; and upon what Terms and Conditions the Inhabitants hold their Lands, either of Cultivation, Rent, or Personal Service? –
- What is the Quantity, Nature and Property of the Land uncultivated; how much of it is capable of Culture; and what part thereof is private Property?
- What is the Number of Inhabitants, Whites and Blacks, distinguishing each? What Number of the Former is capable of bearing Arms, and what Number of the Latter is annually necessary to be supply’d in proportion to the Land cultivated?
- What was the Nature, Form and Constitution of the Civil Government; what Judicatures were there established, and under what Regulations did the French Inhabitants carry on their Commerce? […]”

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The Massachusetts Government Act, UK, 1774 (HERE)

“[…] II. And it is hereby further enacted, That the said assistants or counsellors, so to be appointed as aforesaid, shall hold their offices respectively, for and during the pleasure of his Majesty, his heirs or successors; and shall have and enjoy all the powers, privileges, and immunities, at present held, exercised, and enjoyed, by the assistants or counsellors of the said province, constituted and elected, from time to time, under the said charter, (except as herein-after excepted); and shall also, upon their admission into the said council, and before they enter upon the execution of their offices respectively, take the oaths, and make, repeat, and subscribe, the declarations required, as well by the said charter as by any law or laws of the said province now in force, to be taken by the assistants or counsellors who have been so elected and constituted as aforesaid. […]”

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Quebec Act, 1774 (HERE)

“An Act for making more effectual Provision for the Government of the Province of Quebec in North America.”

“[…] IV. And whereas the Provisions, made by the said Proclamation, in respect to the Civil Government of the said Province of Quebec, and the Powers and Authorities given to the Governor and other Civil Officers of the said Province, by the Grants and Commissions issued in consequence thereof, have been found, upon Experience, to be inapplicable to the State and Circumstances of the said Province, the lnhabitants whereof amounted, at the Conquest, to above sixty-five thousand Persons professing the Religion of the Church of Rome, and enjoying an established Form of Constitution and System of Laws, by which their Persons and Property had been protected, governed, and ordered, for a long Series of Years, from the first Establishment of the said Province of Canada;” be it therefore further enacted by the Authority aforesaid, That the said Proclamation, so far as the same relates to the said Province of Quebec, and the Commission under the Authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for the Time being, relative to the Civil Government and Administration of Justice in the said Province, and all Commissions to Judges and other Officers thereof, be, and the same are hereby revoked, annulled, and made void, from and after the first Day of May, one thousand seven hundred and seventy-five. […]”

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Instructions To Governor Carleton, 1775. (HERE)

“[…] On Dec. 5, 1774, the Board of Trade submitted to the King the draught of a new Commission for Governor Carleton with such formal changes only, as compared with the last, as were required by the terms of the Quebec Act. On Dec. 22nd the Board of Trade laid before the King the draught of the General Instructions for Governor Carleton. “This draught,” they say, “contains not only such Instructions as are usually given to other governors, so far as the same are applicable to this Province under its New Constitution of Government; but also such other directions for the establishment of Judicature; the reform and regulation of Ecclesiastical matters; and the arrangements proper to be made in respect to the Coast of Labrador, and the interior Country, as appear to us to be necessary in consequence of the Act passed in the last Session of the late Parliament; it also contains an appointment of the Council conformable to that Act, and directs the provisions to be made for the support of the Civil Establishment of Government. […]”

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Plan For The Future Management Of Indian Affairs, Referred To In The Thirty-Second Article Of The Foregoing Instructions. (HERE)

“19. That the like Establishments be made for the Northern District, as far as the Nature of the Civil Constitution of the Indians in this District, and the Manner of Administering civil affairs will admit.”

Carleton To Gage. 4th Feby. 1775.

“[…] It may be further observed, that the Act is no more than the Foundation of future Establishments ; that the new Commissions and Instructions, expected out, are not yet arrived, and that the Dissolution of the present Constitution, if it deserves the Name, and Establishment of the new one, are still at some Distance ; at that Period, upon the first of May, every Civil Regulation, at present existing, is annihilated, and the whole to be cast into a new Form, a Work that must necessarily be attended with some Difficulty, and will require Time, Consideration, and great Prudence, for which it is not in our Power to prepare, until the final Determination of the Ministry upon all these Matters is known; had the present Settlement taken Place, when first recommended, it would not have aroused the Jealousy of the other Colonies, and had the appearance of more disinterested favor to the Canadians; many Advantages might have resulted therefrom at this Juncture, which must now be deferred to a more distant occasion— […]”.

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Carleton’s Dismissal Of Chief Justice Livius. Whitehall, March 2^nd, 1779. (HERE)

“[…] This Motion conveyed in words, to which no exception seems to lye, is in effect a Call upon the governor to comply with Your Majesty’s commands, by imparting to the Council such and so many of your Majesty’s Royal Instructions, as he may have been directed to communicate, or may find convenient so to do; and it is our duty on this occasion to observe, that, if none of your Majesty’s said Instructions had at that time been laid before the Council Board, the Motion appears fully warranted by the 7th Article of your Majesty’s said Royal Instructions, by which Article your said Governor is directed forthwith to communicate such and so many of those your Majesty’s Instructions to your said Council, wherein their advice and consent are mentioned to be requisite, as likewise all such others from time to time as he should find convenient for your Majesty’s Service to be imparted to them: By a Communication of these Instructions, particularly the 10th, 11th, 12th and 13th your Majesty’s Gracious ends and designs in the constitution proposed for the Province of Quebec, and the effectual Security to personal liberty, held forth to all men under the Common Law of this Realm, would have been fully manifested; neither do we see how the said Council, empowered as they are by Act of Parliament to all purposes of Legislation jointly with the Governor, could, without this communication be so well instructed either in their own duty, or in your Majesty’s gracious Will and Pleasure, as to what might be fitting to be provided for by Law within the Province agreeable to the Act of Parliament, intituled, “An “Act for making more effectual provision for the government of the Province “of Quebec in North America.”

Wherefore lest your Majesty’s present Governor should not in due time advert to this part of his duty; and lest a constitution, calculated to promote the welfare and happiness of your Majesty’s Subjects there, and adapted to the peculiar circumstances of that province, should be mistaken or withheld, we are humbly of opinion, that it should be given in Instruction to the governor forthwith to comply with your Majesty’s Royal Will and Pleasure signified in the Seventh Article of your Majesty’s Instructions above recited, by communicating to the Council such and so many of your Majesty’s Instructions, wherein their Advice and consent are made requisite, with such others from time to time, as he should judge for your Majesty’s Service to be imparted. […]”.

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Additional Instruction to Our Trusty & Well beloved Frederick Haldimand Esquire Our Captain General & Governor in Chief in and over Our Province of Quebec in America, and of all our Territories dependent thereupon. Given at our Court at St James’s the Twenty Ninth day of March 1779 In the Nineteenth Year of Our Reign. (HERE)

“[…] Whereas it is fitting, and Our Royal Purpose, that Our Council for the Province of Quebec under your Government, should be fully informed of Our Gracious Intentions in the Constitution proposed for Our said Province, to the end, that they may jointly with You Our Governor and agreably to the Powers vested in them by Act of Parliament carry Our said Intentions effectually into execution to the benefit of Our Service, & to the ease and security of all Our Subjects, Inhabitants of the said Province. It is Our Will & Pleasure and you are hereby strictly directed and required if you shall not have carried Our Royal Instructions for that purpose given already, into effect ; upon receipt hereof, by the first opportunity & without delay, to communicate to Our said Council, such and so many of Our said Instructions wherein their Advice and Consent are made requisite, with such others from time to time, as you shall judge for Our Service to be imparted to them. […]”

“[…] Additional Instruction to Our Trusty and Welbeloved Frederick Haldimand Esquire, Our Captain General and Governor, in Chief in and over Our Province of Quebec in America, or to the Commander in Chief of Our said Province for the Time being. Given at Our Court at S* James’s the Sixteenth day of July 1779. In the Nineteenth year of Our Reign. […]”.

“[…] Whereas it is expedient and agreeable to Our Royal Will and Pleasure that Our Subjects Inhabitants of Our Province of Quebec, under your Government, should have, and enjoy every Benefit and Security resulting to them from a speedy and effectual Distribution of Law and Justice, according to the principles of the British Constitution, as far as the same can be adapted to their peculiar Circumstances and Situation. And Whereas according to the practice of the Courts of Civil and Criminal Judicature, as constituted by the Ordinances now in force, the Official Duty of the Chief Justice of Our said Province is confined to Causes of a Criminal Nature only except in Cases of Appeal, where he sits in common with the rest of Our Council. […]”.

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Memorial Of British Merchants Trading To Quebec. (HERE)

“[…] From the Petitions delivered last Year to the Right Honorable Lord Sydney signed by upwards of 1800 of the principal Inhabitants from the Letters lately addressed to us from the Committees of Quebec and Montreal on this Subject (Copy’s of which are hereto annexed)2 And moreover from our own Knowledge and the particular Information our Connections in that Country afford us, we are clearly and unanimously of opinion that for the Relief and Redress of these evils and the many other Defects of the present Constitution of that Government a provincial Legislature or House of Assembly Established on the principle as in every other British Colony in America will be effectual. […]”.

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Letter From Merchants Of Quebec. Quebec 9 Nov 1785. (HERE)

“[…] It is likely the Constitution of the Province will be absolutely fixed in the Course of this Winter—every exertion therefore on your part will be necessary to procure for us that freedom we so earnestly desire, which is the birth-right of every British Subject and which is so essential to the welfare and prosperity of the Country. The people here look up to you for Support and they hope you will be able to procure the Aid and Assistance of the City of London and of the other great Commercial Towns of the Kingdom to preserve this province, now the most valuable on the Continent of America belonging to the British Empire, from being kept in ignominious. […]”.

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Sydney To Hope. Whitehall 6th April 1786. (HERE)

“[…] His Majesty’s Ministers are well aware of the Efforts that have been made by a certain description of People to raise Discontents in the Province of Quebec, and to bring forward Petitions to the Throne against the present constitution of the Colony, But notwithstanding these proceedings, no measures whatever are intended to be taken for a change of the System of Government, until Sir Guy Carleton shall have consulted the Opinion of the Province thereupon, and clearly ascertained that such a Change will be attended with material advantage to its general Interests and Happiness.—His Majesty feels the strongest disposition to give His Canadian Subjects every proof of His Confidence, and will forthwith take under His Royal Consideration the Measure you recommend of increasing their Numbers in the Legislative Council, which indeed had been in contemplation previous to the receipt of your Letter upon that head. […]”.

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Plan Of General Directions For Sir Guy Carleton. (HERE)

“[…] To fix the province in which His Constant Residence is to be to direct his reporting as soon as possible, the real state of the opinion of the people in general, with respect to the applications that have been made to alter the present Constitution of Quebec, & whether the old [Canadian] subjects wish any and what alteration. […]”

“[…] to send the Numbers of Old and New Subjects, and of those in particular, who have taken refuge from the United States to give an opinion whether there should be any division of the province, where the division is to be made—what Number of refugees reside beyond the proposed division—what the Constitution of the proposed province should be and whether, if it is expedient to put it upon a different footing from that of Quebec and more analagous to that of the other British possessions, The Loyalists and disbanded Corps should not J)e settled there preferably to Quebec. […]”.

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Memorial Of Merchants Trading To Quebec. (HERE)

“[…] To the Right Honorable Lord Sydney one of his Majesty’s principal Secretaries of State &° &c. The Memorial of the Merchants Trading to the Province of Quebec. Humbly Sheweth

That your Memorialists had the Honor in May 1785 of presenting to your Lordship Petitions from the Inhabitants of the Province of Quebec, praying for a reform of the Civil Constitution of that Colony.

Your Memorialists were sensible that those Petitions deserved the most serious consideration, and therefore in Compliance with the wishes of his Majesty’s Ministers recommended to their Constituents, to defer bringing them forward in Parliament, untill the necessary information could be received on the Allegations contain’d therein.

That your Memorialists by Letters and other Papers received from their Constituents last Fall have been urged in the strongest Terms to bring forward their Petitions Presuming that Government is now possessed of sufficient proof, that their Complaints against the present Constitution of the Province, and the mode of administering justice in the Courts of Law are well founded. […]”.

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Grenville To Dorchester. (Private And Secret.) Whitehall 20th Oct 1789. (HERE)

“[…] The public dispatches of this date will inform your Lordship of the intention of His Majesty’s Servants, with respect to the plan to be proposed in Parliament for altering the present Constitution of Canada.—I feel that it is due to your Lordship, that I should inform you of the grounds on which this resolution has been adopted, in a more particular manner than the nature of a public dispatch appears to admit ; and, for that purpose, I inclose to your Lordship in confidence, a paper containing the heads of those suggestions, on which the present measures are founded. I am persuaded that it is a point of true Policy to make these Concessions at a time when they may be received as matter of favour, and when it is in Our own power to regulate and direct the manner of applying them, rather than to wait ’till they shall be extorted from Us by a necessity which shall neither leave Us any discretion in the form, nor any merit in the substance of what We give. […]”.

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Discussion Of Petitions And Counter Petitions Re Change Of Government In Canada. (HERE)

“[…] House of Assembly.

1st The first point prayed for in the Petitions is, a House of Assembly, which it is proposed should be triennial, & should be composed, of Old & New Subjects, in such manner as the King may think proper. Besides the general & obvious topics which result from a comparison of the present form of Government in Canada, with the Constitution of Great Britain, & from a consideration of the probable increase of the province, & particularly, of the British inhabitants there, the principal arguments urged in favor of this measure, are the following,

1st The King’s Promise as conveyed by his Proclamation of 1763, by which the benefits of the British Constitution are stated to have been offered to such of his Subjects as should settle in Canada.

2dly The natural wish which the Loyalists must be supposed to feel, for the enjoyment of a constitution similar to that under which they were bred, & for which they have sacrificed so much; altho’ they do not appear as yet to have joined in any of the petitions which have hitherto been presented on this subject. […]”.

“[…] Objections.

The objections of the Counter Petitioners fall under the following heads, viz: […]

[…] Whatever form of Constitution therefore is to be adopted for this province, it appears evident, that there must exist somewhere, a power competent to the exercise of these Functions. Such a power cannot any longer be stated to reside in the Parliament of Great Britain; altho’ at the time of passing the Quebec bill this was clearly the mode of taxation to which it was intended to resort whenever occasion should require it. But, whatever difference of opinions may formerly have prevailed with respect to the right of the Mother Country to impose on the Colonies contributions for the purposes of general defence or of internal regulation & improvement, the exercise of any such right is now by an express & formal declaration on the part of Great Britain, abandoned for ever. […]”

“[…] On examining this Question, it will perhaps be found, that a power of this nature cannot, without the greatest difficulties, be supposed to reside, in any other man, or body of Men, than in a Legislature, formed nearly on the Model of the Constitution of Great Britain, & of the British Provinces. Such Authority can be conferred only by Parliament, and, even if it should be thought in itself a desirable measure, it would be difficult to prevail upon Parliament to vest this power in a body constituted upon different principles, from those, which are recognized, as the basis of our Constitution. […]

Existing Laws. […]

It is certainly very material to examine the constitution of our former Colonies with a view to this Question; in order that we may profit by our experience there, & avoid, if possible in the Government of Canada, those defects which hastened the independence of our antient possessions in America. And the result of such an enquiry will perhaps shew, that the revolt of those provinces is not justly to be ascribed to a communication of the British Constitution, which, in fact they never enjoyed; but that, as their form of Government differed essentially from that of Great Britain, so the points in which that difference consisted, were those which operated most to produce their separation from the Mother Country, & which are avoided in the plan now suggested for the Constitution of Canada.

Such an examination does indeed assume a point which is liable to be much questioned, & which it would perhaps be very difficult to maintain by any grounds of general reasoning or speculation. The Establishment of a separate & local Legislature in a distant province, under any form or model which can be adopted for the purpose, leads so evidently to habitual Notions of a distinct interest, & to the existence of a virtual independence as to many of the most important points of Government, that it seems naturally to prepare the way for an entire separation, whenever other circumstances shall bring it forward. If therefore the subject were entirely new, & if the preservation of the dependance of a colony on its Mother Country were the only object to be considered, it should seem that this would best be attained by reserving at home the whole right & exercise of the power of Legislation; and that this System, tho certainly less adapted to promote the prosperity of the province would probably be effectual to maintain for a very considerable time, the union of the Empire.

But it has happened, either from accident or necessity, that a different principle has been adopted, in the formation of all the British Colonies, & even in the constitution which has already been given to Canada. We have established there, tho’ in a different manner, from what was done in the other Colonies, a distant local Legislature, competent to all the powers of Government, except Taxation. […]”

“[…] There is another point of obvious, & striking difference, between the Constitution of the former Colonies, & that of this Kingdom, and it is, in some degree, connected with this part of the subject.

In Great Britain, & in Ireland, altho’ it is necessary, annually to have recourse to Parliament, for the support, & maintenance of the military force, yet, for the purposes of his Civil Government, the King possesses a large, hereditary Revenue; and this, altho’ it is here given up, by a temporary exchange for the Civil List, is considered as a subsisting fund, and revives, at every demise of the Crown, so as to be applicable to the Expences of the Civil Government.

In America, nothing of this sort has been established; The expences of Government, there, have, either been borne by this Country, or they have been defrayed by Taxes, imposed by the Provincial Legislatures. […]”.

“[…] These are the several ideas which have occurred, on a consideration of this subject, as holding out the best grounds of establishing, in Canada, a form of Government well adapted to promote the prosperity of that province, & free from the errors which have prevail’d in the Constitution of the antient Colonies. And, if they can, in any sufficient degree, be carried into Effect, it may perhaps be thought that they would afford a juster, & more effectual security against the growth of a republican or independent spirit, than any which could be derived from a Government more arbitrary in its form or principles. But even if the advantages which appear to result from these measures were visionary & chimerical & if it were agreed, that the danger of separation would be increased by giving to Canada a Constitution, assimilated, as is here proposed, to that of Great Britain, it may still be asked, whether this Plan is not become a point of almost inevitable necessity. The neighbourhood of the American States, & even of the remaining British Colonies seems to make it impossible that the people of Canada should acquiesce, for any considerable length of time, in the continuance of a system at all resembling that under which they are now governed. The discontents which have already arisen there on this subject, have now brought the question forward to the public View; If, in the discussions which will arise upon it, in the next Session of Parliament, the present form of Government in Canada is to be supported, it can be done only by speaking out, & avowing fairly, that the Object is, to retain the dependence of the province, by establishing, in it, a Constitution less free, than that which existed in the antient Colonies, or than that, which has been established, in those provinces, which still remain to Great Britain. […]”.

“[…] And, considering the general temper of the present moment, it may well be doubted, whether it would be possible, to maintain with success, (supposing even, that it were desireable to do so,) either that these means are well calculated for attaining the object in question, or, that the object itself ought to be aimed at, by denying, to so large a body of British Subjects, the benefits of the British Constitution; particularly, in those points which are considered so essential as those which are here in question. […]”.

Endorsed:—View of Petitions &c

Your Lordship will observe that the general object of this plan is to assimilate the Constitution of that Province to that of Great Britain, as nearly as the difference arising from the manners of the People and from the present situation of the Province will admit.

In doing this a considerable degree of attention is due to the prejudices and habits of the French Inhabitants who compose so large a proportion of the community, and every degree of caution should be passed to continue to them the enjoyment of those civil and religious Rights which were secured to them by the Capitulation of the Province, or have since been granted by the liberal and enlightened spirit of the British Government.

This consideration has had a great degree of weight in the adoption of the plan of dividing the Province of Quebec into two Districts which are to remain as at present under the administration of a Governor General, but are each to have a Lieut. Governor and a separate Legislature.

The King’s Servants have not overlooked the reasons urged by your Lordship against such a separation,* 1 and they feel that while Canada remained under its present form of Government great weight would have been due to those suggestions ; but when the resolution was taken of establishing a Provincial Legislature, to be constituted in the manner now proposed, and to be chosen in part by the People every consideration of policy seemed to render it desirable that the great preponderance possessed in the Upper Districts by the King’s antient Subjects, and in the lower by the French Canadians should have their effect and operation in separate Legislatures ; rather than that these two bodies of People should be blended together in the first formation of the new Constitution, and before sufficient time has been allowed for the removal of antient prejudices, by the habit of obedience to the same Government, and by the sense of a common interest. […]”.

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“[…] On the contrary that you do take especial Care to preserve the Constitution of Our said Province free from Innovation in this respect, to which intent you shall communicate this Our Royal Will & Pleasure to our said Council, that so the Trusts, Powers & Privileges which We have thought fit to vest in them by Our General Instructions may by this express Signification of Our Purpose, be in future ascertained & confirmed. […]”.

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Constitutional Act, 1791 (HERE)

“[…] “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.

III. And be it further enacted by the Authority aforesaid, That for the Purpose of constituting such Legislative Council as aforesaid in each of the said Provinces respectively, it shall and may be lawful for his Majesty, his Heirs or Successors, by an Instrument under his or their Sign Manual, to authorize and direct the Governor or Lieutenant Governor, or Person administering the Government in each of the said Provinces respectively, within the Time herein-after mentioned, in his Majesty’s Name, and by an Instrument under the Great Seal of such Province, to summon to the said Legislative Council, to be established in each of the said Provinces respectively, a sufficient Number of discreet and proper Persons, being not fewer than seven to the Legislative Council for the Province of Upper Canada, and not fewer than fifteen to the Legislative Council for the Province of Lower Canada; and that it shall also be lawful for his Majesty, his Heirs or Successors, from Time to Time, by an Instrument under his or their Sign Manual, to authorize and direct the Governor or Lieutenant Governor, or Person administering the Government in each of the said Provinces respectively, to summon to the Legislative Council of such Province, in like Manner, such other Person or Persons as his Majesty, his Heirs or Successors, shall think fit; and that every Person who shall be so summoned to the Legislative Council of either of the said Provinces respectively, shall thereby become a Member of such Legislative Council to which he shall have been so summoned. […]”

“[…] “XXXIV. And whereas by an Ordinance passed in the Province of Quebec, the Governor and Council of the said Province were constituted a Court of Civil jurisdiction, for hearing and determining Appeals in certain Cases therein specified;” be it further enacted by the Authority aforesaid, That the Governor, or Lieutenant Governor, or Person administering the Government of each of the said Provinces respectively, together with such Executive Council as shall be appointed by his Majesty for the Affairs of such Province, shall be a Court of Civil Jurisdiction within each of the said Provinces respectively, for hearing and determining Appeals within the same, in the like Cases, and in the like Manner and Form, and subject to such Appeal therefrom, as such Appeals might before the passing of this Act have been heard and determined by the Governor and Council of the Province of Quebec; but subject nevertheless to such further or other Provisions as may be made in this Behalf, by any Act of the Legislative Council and Assembly of either of the said Provinces respectively, assented to by his Majesty, his Heirs or Successors. […]”

“[…] XXXVIII. And be it further enacted by the Authority aforesaid, That it shall and may be lawful for his Majesty, his Heirs or Successors, to authorize the Governor or Lieutenant Governor of each of the said Provinces respectively, or the Person administering the Government therein, from Time to Time, with the Advice of such Executive Council as shall have been appointed by his Majesty, his Heirs or Successors, within such Province, for the Affairs thereof, to constitute and erect, within every Township or Paris which is now is or hereafter may be formed, constituted, or erected within such Province, one or more Parsonage or Rectory, or Parsonages or Rectories, according to the Establishment of the Church of England; and, from Time to Time, by an Instrument under the Great Seal of such Province, to endow or such Part of the Lands so allotted and appropriated as aforesaid, in respect of any Lands within such Township or Parish, which shall have been granted subsequent to the Commencement of this Act, or of such Lands as may have been allotted and appropriated for the same Purpose, by or in virtue of any Instruction which may be given by his Majesty, in respect of any Lands granted by his Majesty before the Commencement of this Act, as such Governor, Lieutenant Governor, or Person administering the Government, shall, with the Advice of the said Executive Council, judge to be expedient under the then existing Circumstances of such Township or Parish. […]”

“[…] 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. […]”

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Proceedings of the Legislative Assembly, Lower Canada, on the question of privilege: Journal of Assembly, November 27th, 1793 (HERE)

“[…] As a private individual and a Merchant it is of no moment to me, who they are, that shall think proper in that way to bring an action at Law on any of my transactions, and as was my duty I submitted to the arrest and gave bail, but in my public character as a Member of the House of Assembly, it is also my duty to inform the House of this contempt and infraction of their privileges. The immediate departure of the ship in which I have taken my passage under leave from the House, prevents me from doing so in my place, as was my intention; and I have therefore to request of you to lay this information before the House, in whose hands according to the Constitution is lodged the vindication of their own rights, that the House may have a knowledge of the insult offered to them through me, and be enabled to take such measures as they shall see expedient to punish such a violation of their Constitutional privileges. […]”.

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Proceedings of the Legislative Assembly, Lower Canada, on the question of privilege: Journal of Assembly, January 9th, 1794 (HERE)

“[…] As the Honorable House have judged necessary to resolve, that I am guilty of a breach of its privileges in regard to the arrest of John Young, Esquire, one of its Members, I consider it to be my duty to submit personally to the resolution of the majority of this House; and at same time to express with candour, what I have voluntarily said and repeated in the Committee and in the House, that I had not any intention in the charge I undertook as Advocate for James Hunt, in the action which he instituted against John Young, Esquire, to infringe or violate the privileges of this House, but that I conceived in the month of November last that the Laws of this Country authorised the arrest. I yesterday offered to explain myself to this House more clearly on what then induced me to act as an Advocate, but that being dispensed with, I hope this Honorable House will accept this apology and excuse me, if in the commencement of such a Constitution as ours, my opinions in Law as an Advocate have not had the good fortune to meet those of the majority of this Honorable House; […]”

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Right to originate legislation inflicting pecuniary penalties, Lower Canada: Journal of The Legislative Council. Saturday, 27th April, 1793. (HERE)

“[…] The Committee are nevertheless against retarding the present Bill in commitment and for reserving the claims of this House to a future occasion, if that ever shall occur and this on the ground of the urgent necessity of the Provision this Bill is to make the novelty of the Constitution happily erected here and the advanced Season of the year leaving upon our Journals a Protestation to estop all pretext for any conclusion of a cession by us of the right of this House to imitate the Lords in Parliament in all eases essential to a safe and effectual Legislation and which our local circumstances will permit or require for the common good of this Branch’ of the British Empire. The House concurred with the Committee in their Report. […]”

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Dorchester to Dundas, December 31, 1793 (HERE)

“[…] It was not therefore surprising that this Phantom of an Executive Power should be swept away at the first outset of a Political Storm. Vices there were in the Constitution of their Governments, and frequent Errors in the administration; but notwithstanding all these Errors and Defects, it was impossible but that, out of so many, one Governor at least might have been found capable of making a struggle to preserve his Province for the Crown, if all Power and Influenee had not been previously taken away, and the unbridled Multitude abandoned to Leaders of Rebellion who inflamed their Passions and played with our Credulity till they acquired strength sufficient to stand forth in their proper Shape. The Policy which lost those great Provinces cannot preserve these scattered and broken Fragments which remain. They had many additional Dangers to apprehend. For the present I shall conclude with this observation that whatever tends to enfeeble the Executive Power on this Continent, tends to sever it for ever from the Crown of Great Britain. […]”

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Simcoe to Portland, February 17, 1795 (HERE)

“[…] In this Country, My Lord Duke, it will be more easy to create an Aristocracy than to give due and constitutional weight to the Kings Representative; in the first instance the passions of Men range themselves on the side of many competitors for distinction, in the ¡latter they unite against the Authority of a Single Person. The influence from the disposal of Offices is of no moment; Those which in older Countries derive their value from fees are unknown in these new Settlements and are in fact so burthensome as scarcely to be applied for by the Inhabitants reluctantly and frequently abandoned at an improper moment. It seems therefore necessary, that the appearance of Power over all inferior Military employments, (which Generals in Chief rarely condescend to notice) ought with peculiar propriety to be vested in the Person administering the Government of the Province ; at least no new Power, no interfering Arrangement should be admitted, such as the Indian department to circumscribe his Influence, and the British Constitution, being granted to this Province, Your Grace will depend upon it that its Inhabitants will naturally desire to obtain all its qualities & properties.—the real and apparent Independancy of their first Magistrate, is considered by them, by no means less necessary to promote the Authority of the Crown, than to prove their own Emancipation from the Province of Lower Canada, and Military Government; which has always been opposite to the Inclinations of the American English. Such is the language which I have frequently heard from the leading Men of the Province; from those who are best affected to the Kings interests. […]”

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Simcoe to Dorchester, March 9, 1795 (HERE)

“[…] In compliance with my intimation of the 30th of January, I take the opportunity of stating some of the many Reasons to Your Lordship which induce me to maintain, that the present Department for the Superintendency of the Indian Nations is insufficient, and inexpedient; and that it requires, without loss of time, the most complete Reformation.

The Alteration recently made on great, and wise, and necessary Principles, in the nature of the Government of Upper Canada, establishing the British Constitution in all its forms and faculties in the Province, seems of course to imply that suitable Provisions must take place to give due countenance and influence in the administration of Public Affairs to the several Branches of the Legislature into which British Wisdom has constitutionally and distinctly separated British Power. The Representative of the Sovereign must be endued with sufficient means to uphold the Executive part of the Government; and those Bodies, who represent themselves and the People, ought not to admit, and will not, Your Lordship may be assured, a greater share of Military power to narrow their duties and interfere in their Operations, than what the British Constitution allows, or the necessity of the case may for the present justify.

To apply these Facts to the existing state of the Province of Upper Canada—It is obvious, that the Representative of the Sovereign, id particular, cannot be deprived of any power naturally incident to his Station, under any pretext whatsoever, without a proportional diminution in the Eyes of those who are entrusted to his Government of that Ascendancy and Weight which is most necessary for their own preservation, not less so to the support of the Kings Authority, and, probably, requisite to strengthen the connexion of the Province with the Empire of which it forms a part;—and it is apparent in the infant state of this Province, that this necessary influence, weight, or ascendancy, is not at present to be obtained by the Lieutenant Governor of Upper Canada, thro’ any of those means of Patronage, or offices of interest or emolument, which formerly abounded in the British Provinces of America, and in the natural progress of Society, will hereafter strengthen the Executive Government of this Province; but the sole means by which He can maintain the Authority necessary for his Constitutional Station, must depend at this most critical Period, on the intrinsic merits of the duties He has to execute or result from the plain and unsupported Semblance, of his being the Representative of the Royal Authority.

If it has been thought expedient, that the Person who is appointed by his Majesty for the important purpose of Governing this infant Province, should also be the Commandant of his Forces therein, it must doubtless be thereby intended among other Reasons, which now most happily seem of less importance, to support and to increase his influence; and of consequence, it appears to be unnecessary, that any Establishment administered by Military Authority, under the pretext of being solely amenable to the Commander in Chief, should be withdrawn from every degree of intermediate Responsibility to Him, either as commanding in Upper Canada or as the King’s Representative in the province; but when the magnitude of the Indian Affairs are duly weighed, their various relations and connexions, their new and menacing Aspect, and that Peace may be preserved, or War accelerated, by the due management or mismanagement of those Nations. The simple Consideration of such important Objects demands, and would alone make me, My Lord, require as administering the Government of Upper Canada, Those alterations to be made in the Constitution of the Indian department which Mr. Secretary Dundas in his letter to Your Lordship, N°. 1, mentions to be determined upon in the new Commission to be issued to Sir John Johnson; and which I presume has taken place—It is not the Genius of the British Constitution, nor can it be the wish of his Majesty’s Confidential Servants, that in my responsible Station I should stand upon unsure and unsafe grounds—To talk of Your Lordship’s personally directing the Indian Affairs beyond general and common regulations, when you reside at Quebec, is out of the question; The most important Concerns must be transacted through the interposition of some Officer upon the Spot, subordinate to Your Lordship, or not, as may be just and effectual — And I must be, that intermediate Person, whether in a Military or civil Capacity it matters not to me—But it is obvious, that the Lieutenant Governor, must have from some source or other a Power, commensurate with his Responsibility, and that may enable Him to carry into effect such measures as may be necessary for the publick Service, whether they be confined to the interior management of the Government, or relate to any intercourse with foreign Nations. […]”

“[…] In order to carry into effect the essential guidance which the Kings Lieutenant Governor and the Council, who are constitutionally responsible for the protection and welfare of the Kings Subjects in this Province, must have, and must exercise in all Indian Affairs, now about to be so materially interwoven and connected with the United States, and which under the pressure of particular circumstances calls for all their vigilance and attention on the Spot, and to erect a system, not fluctuating, but permanent, and which may suffer as little as possible from the changes of Men, It has been proposed that the Lieutenant Governor and Council of the Country to whom his Majesty has confided its Government, and not in the inferior office of Superintendent General, should be entrusted the total supervision of the Indian Nations, as far as concerns that management and those relations, which are necessary to prevent or provide against their “Hostility, or alienation from his Majesty’s Interests—and in order to acquire a due knowledge of the Policy, the inclinations and prejudices of the Indian Nations, It appears most requisite that the Superintendant General, or Deputy best acquainted with the various Indian Nations, should be added to his Majesty’s Councils and have a seat at the Board; presiding in the absence of the Lieutenant Governor, in all transactions in which the Indian Nations shall be concerned. […]”

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Observations On The Government Of Canada By John Black. 1806 (HERE)

“[…] The following observations are humbly submitted to your Royal Highness for the Information of His Majesty’s Ministers which I trust will shew that the existing laws and Constitution of His Majesty’s two Provinces of Upper & Lower Canada are unequal to the promoting of those subjects so necessary for the good of this Kingdom to which the Canadians are so well calculated essentially to contribute. By the Legislature of Lower Canada, the goods bound through that Province to Upper Canada are subjected to a Duty, notwithstanding they have each a separate Government, an Upper and a Lower House of Parliament to Legislate for themselves—this will ultimately Lead to mischief although Lower Canada accounts to Upper Canada for their proportion. […]”.

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Craig to Liverpool Quebec 1st May 1810. (HERE)

“[…] Of the Party who hid the House, I have already had occasion to speak in a former dispatch, and have been induced to enter into the Characters of a few of them; They consist mostly of a set of unprincipled Avocats, and Notaries, totally uninformed as to the Principles of the British Constitution or parliamentary proceedings, which they profess to take for their Model; with no property of any sort, having everything to gain, and nothing to lose by any change they can bring about, only any state of Confusion into which they may throw the Province:—That these People have gradually advanced in audacity, in proportion as they have considered the power of France as more firmly established by the Successes of Bonaparte in Europe is obvious to every one, and that they are using every endeavour to pave the way for a change of Dominion, and a Return under that Government, is the general opinion of all ranks with whom it is possible to converse on the Subject; Even the very few of the better sort of Canadians themselves who have sufficient information to be aware of the misery that would ensue on such an event, while the present Government exists in that Country, and who notwithstanding their natural affection towards what they still consider as their Mother Country, would shrink from a Return under its rule at the moment, nevertheless confess the obvious tendency of the proceedings that are going on here; Unfortunately the great Mass of the people are completely infected, they look forward to the event, they whisper it among themselves, an I am assured that they have even a song among them, which points out Napoleon as the person who is to expel the English: with them the expectation is checked by no sort of apprehension, They are completely ignorant of the nature of the French System, they have not an idea that a change of Rulers would produce any alteration in their situation, and tho’ if you argue with them they are ready to admit that they are happy, and in a State of prosperity as they are, they do not conceive that they would not have been equally so had they remained Subjects of France. […]”.

“[…] The common people as may be supposed understand nothing of the nature of the constitution that has been given them, or of that, of the House of Assembly for which they elect Members, except inasmuch as they begin to look up to them as the Governors of the Country; It is a fact, that in one part of the Province whole Parishes have hitherto constantly declined giving any votes at all, they say, they do not understand it, but they suppose it is to tax them in the End; the cry of many of them now is, they wish La Chambre (the usual expression) at the Devil, they were very well before, and they have never had a moment’s peace since that took place. […]”.

“[…] The first and most obvious remedy that presents itself, is to deprive them of the constitution, as they term it, that is of that representative part of the Government which was unquestionably prematurely given them—neither from habits, information or assimilation, with the Government of England, were they prepared for it, nor was this circumstance of their unprepared state unforeseen by many of the best informed of the Canadians themselves, who opposed its being granted to them. It was in fact brought about by the English part of the Inhabitants, who in their Enthusiasm for the Constitution which they so justly Esteemed as it exists in their own Country, could not conceive that any inconvenience, or any thing but happiness, and prosperity, could result from its establishment elsewhere. The since Catholic Bishop Denaud, a very worthy Man, observed at the time to an English Gentleman who was very warm on the subject, (tho’ now quite the reverse) ” You do not know my Countrymen, they ” are not at all prepared for the Constitution you wish to give them, once let the rein ” loose, and be assured they will never know when to stop.” […]”.

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Proceedings in the Court of King’s Bench relating to the imprisonment of Pierre Bedard, April 17, 1810. (HERE)

On a motion for a Writ of Habeas in the case of Pierre Bedard.

“[…] But the decision of the Court, in that case, has long ceased to be recognized as law; and was set aside by the Parliament itself. The privilege of a Member of the House of Commons commences only at his election; ” but if he be arrested, or taken in execution, before his election, he shall not have privilege.” But, even here, the reference is only to civil suits: how then can it be contended that privilege exists, previous to election, in criminal cases? In England Members of Parliament are privileged from arrest in all cases, treason, felony, or breach of the peace only excepted. The 6th Clause of the Statute 43, Geo. III, says, that “nothing in this Act shall invalidate or restrain the lawful rights and privileges of “either branch of the Provincial Parliament;” and the question necessarily arises, What are the lawful rights and privileges of the third branch of the Legislature of Lower Canada?—Are they, in every respect, the same with those immemorially enjoyed by the House of Commons in England?—Most assuredly not. Where then shall we find them enumerated, or by what means can we trace them out? The Act of the 31st Geo. III. c. 37, by which the Legislature of Lower Canada was created, and by which our constitution is given to us, defines and limits that constitution. Will the Court admit that the Provincial Legislature is entitled, under that Act, to all the privileges of the Imperial Parliament? It is impossible. A Member of the Provincial House of Assembly can claim no privileges, but such as are there given him. In that statute is comprised our whole constitution; that statute forms our only charter. […]”.

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Opinion of Sir V. Gibbs on The Proposed Change in the Constitution, August 22, 1810. (HERE)

“[…] 1. Whether after the 31st of the King Cap: 31st entitled “An Act for making for more effectual Provision for the Government of the Province of Quebec in North America “—The Parliament of the United Kingdom would be Warranted in making toy Alteration in the Constitution of that Province, or of Upper Canada, as established by the said above recited Act? […]”

“[…] 2. Whether it would be competent to the Parliament of the United Kingdom, to Unite the Two Provinces of Lower. & Upper Canada into One Government, with One Council & Assembly, and to make in that Case such further Regulations for the Government of the said Provinces as might appear to be expedient? […]”

“[…] 3. Whether, the Governor having in consequence of the 14th Sect; of the above recited Act, issued a Proclamation for dividing the Province of Lower Canada into Districts, Counties, Townships &—and appointing the Limits thereof, and declaring and appointing the Number of Representatives to be chosen by each, of such District, County, Townships, &c. It would be lawful for the said or any future Governor, with or without the Authority of His Majesty, to make any new Division of the Districts, Counties, Township’s &e—& appoint new limits thereof, -& declare —Appoint the Number of Representatives otherwise than first proclaimed, without an Act of the Legislature of the Province & Assembly for that Purpose. […]”.

“[…] Endorsed: B Canada Answered on another Paper marked C.

1. I think that the Parliament of the United Kingdom would be warranted in making such alterations in the Constitution of the two Provinces of Upper & Lower Canada, established under the 31^st G. 3d c. 31 as the necessity of the Case, evidenced by the experience which we have had of that Constitution, may require, but it is to be expected that the ground of this necessity will be scrupulously enquired into & discussed by the Parliament here, & that any change which is effected, however necessary it may be, will create great dissatisfaction in the Provinces among those whose Power & Influence is controuled by it. […]”.

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Liverpool To Craig, Downing, Street 12th Sept. 1810 (HERE)

“[…] Your dispatches have received all the consideration to which they are entitled from the very important Information contained in them—And from the very clear and able manner in which you have discussed the different Topics connected with it. I proceed now to communicate to you the Sentiments of His Majesty’s Government, upon the Points which you have brought under their consideration, in the order ill which they appear to arise.

It is much to be regretted that the Constitution established for the Province of Lower Canada, by the Act of the British Parliament of the year 1791. should appear to have so entirely disappointed the expectations of those who introduced it, & that the Conduct of the Assembly should afford such strong ground for concluding that the Constitution was not only repugnant to the established habits & prejudices of the Canadians, but likewise ill-calculated to produce those benefits to the English Settlers which they were led at the time to suppose would result from it.

But even supposing that His Majesty’s Government should feel the objections to the Constitution of Lower Canada, as established at present—and the Inconveniences which you describe to arise from it, as strongly as you do, yet it would be a question of great delicacy & difficulty, how far, under the present Circumstances it would be justifiable to interpose by the Authority of Parliament for the purpose of abolishing or even of altering it.

The Act of the 31st of the King does not profess itself to be temporary or experimental— It contains in it no Clause, by which the Right of Parliament to alter the Constitution is specially reserved. It appears clearly from the 14th Clause, that it was the intention of Parliament that in ordinary cases at least, such alterations as Circumstances might render necessary should be made by the Assembly of the Province, in concurrence with the Council & Governor—And tho’ the Parliament of the United Kingdom under its right of general legislation for all parts of the Empire, must be considered as unquestionably possessing within itself, the inherent Right of altering the Constitution of any of its Colonies or Settlements, if it shall be found necessary for the safety or prosperity of the Empire, it would probably be thought by Parliament to require a very strong practical case, to justify the exercise of such a right in the case of Canada, after such an Act as that of 1791—And notwithstanding the Evil Spirit which has made its appearance, & is too evidently gaining ground in the Province notwithstanding the intemperate Proceedings of the Assembly on more than one occasion, His Majesty’s Government doubt very much whether upon the Information they at present possess, such a Special Case could at this time be laid before Parliament as would induce Parliament after having so recently established the Constitution, to interfere by its Authority for the purpose of altering it. […]”.

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Proceedings in the House of Assembly relative to the exercise of the power of imprisonment by the Executive Council, Lower Canada. Journal of the House of Assembly, May 11^th, 1812 (HERE)

“[…] Because, these amendments vest the power of accusation, of commitment, and of trial, and the dispensation of mercy in one and the same hand, contrary to the first principles of the Constitution, which is that of a limited Monarchy, and in further diminution of the security of the subject.

Because, these amendments take from His Majesty’s Executive Council, the ,powers which by the several Acts f o r t h e better preservation of His Majesty’s Government, have been annually, and exclusively, entrusted to them, from the year 1797, until this day; no enquiry into their conduct having been instituted, no evidence whatsoever of the facts upon which that conduct was founded being before the Legislature, and no opportunity or means of defence being afforded them; thereby, in the opinion of the Legislative Council, implying a censure upon the Executive Council, collectively, for their conduct in the execution of the high trust committed to them by those Acts, and tending to diminish the confidence of His Majesty’s Subjects in a body of men who are appointed to be the advisers of the Crown by the King himself, and who constitute the first Court of Judicature within the Province.

Because, the amendments, in their consequences, are dangerous to His Majesty’s Government, under all circumstances, in a moment of special danger; for if by reason of any consideration, the Bill when passed should not be executed when its execution is necessary, that security which it provides for, cannot be attained, while on the contrary, if it be executed, the odium which invariably attends the execution of such Acts, will attach exclusively to the King’s Representative, to the prejudice of his constitutional influence in the Government.

Because, as in the Parent State, that which is supposed to be exceptionable in the conduct of public affairs, cannot be imputed to the King, so in a Colony it ought not to be imputable to the Governor; such imputations tend equally in both cases, to destroy the constitutional independence of the Executive Power, and, in the latter, have a further tendency to bring into disrepute that authority of which the Governor is the immediate representative, and of which the bulk of the Colonists have no knowledge but through the medium of his acts.

And because, these amendments go to impute all that may be thought exceptionable in the execution of the Bill to the Governor exclusively, contrary to sound policy, as they respect the Province, to the interests of the Mother Country as they relate to the Empire, and to the tenor of the great constitutional maxim, ” The King can do no wrong. […]”.

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Journal of the House of Assembly, May 16^th, 1812 (HERE)

“[…] Because, in the mother Country, what is conceived reproachable in the conduct of public affairs, cannot be attributed to the King, because it would tend to destroy that Constitutional Independence of the Crown, necessary to the balance of power in her free and liberal Constitution, it does not follow, that these principles are equally applicable, and they ought not to be so to Governors of Colonies. The inviolability guaranteed to the King should belong to him, because the Constitution, for the preservation of tranquility and the public good, not having made him personally responsible for his conduct, it seems, therefore, the Law will presume no wrong where it has provided no remedy. From that, it may be inferred, that a Governor may be accused before his superiors, that he is not vested with the same inviolable power as the King, to whom he is always responsible.—The responsibility under which persons are held, to whom the Sovereign delegates the exercise of a part of his authority, does not destroy the independence of the Crown, according to that great Constitutional Maxim, the King can do no wrong, is true and salutary, applied to him alone, as it would be false and dangerous if applied to his servants, however elevated their stations may be.

The House, in vesting solely in the Governor the execution of the Act in question, and in giving him a proof of the opinion they entertain, that he will exercise with prudence, the powers vested in him, if it should become necessary to use the same, which, after all, only tends to admit the principle, that the Imperial Parliament has given, when it invested the Lord Lieutenant of Ireland as full authority as the present Act gives the Governor of this Province; the House therefore conceives they can persist in their amendments, without affecting the principles of the Constitution. It is true, that the loyalty of the Inhabitants of this country, and their submission to the laws, render unnecessary such strong and coercive measures as those adopted in Ireland: also the House, in confiding the execution of the Act to the Governor alone, conceives they have provided, as far as is necessary, for the security of the Government, and at the same time it lessens the fears which the public would have, if they saw so e x t e n s o an authority left to individuals whom they would find in all the tribunals of the Province, and with which individuals a thousand daily occurrences may connect them, or place them at a distance more frequently than it would happen with the Governor. […]”.

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Heads of Impeachment of Jonathan Sewell. (HERE)

“[…] Heads of Impeachment of Jonathan Sewell, Esquire, Chief Justice of The Province Of Lower-Canada, by the commons of Lower-Canada, in this present provincial parliament assembled, in their own name, and in the name of all the commons of the said province.

FIRST.—That the said Jonathan Sewell, Chief Justice of the Province of Lower Canada, hath traitorously and wickedly endeavoured to subvert the Constitution and established Government of the said Province, and instead thereof, to introduce an. arbitrary tyrannical Government against Law, which he hath declared by traitorous and wicked opinions, counsel, conduct, judgments, practices and actions.

SECONDLY.—That, in pursuance of those traitorous and wicked purposes, the said Jonathan Sewell, hath disregarded the authority of the Legislature of this Province, and in the Courts of Justice wherein he hath presided and sat, hath usurped powers and authority which belong to the Legislature alone, and made regulations subversive of the Constitution and Laws of this Province. […]”

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Heads of Impeachment of James Monk. (HERE)

“[…] Heads of Impeachment of James Monk„ Esquire, Chief Justice of His Majesty’s Court of King’s Bench for the District of Montreal, in The Province of Lower-Canada, by the Commons of Lower-Canada, in this present provincial parliament assembled, in their own name, and in the name of all the commons of the said province.

FIRST.—That the said James Monk, Chief Justice of His Majesty’s Court of King’s Bench for the District of Montreal, in the Province of Lower-Canada, hath traitorously and wickedly endeavoured to subvert the Constitution and established Government of the said Province, and instead thereof to introduce an arbitrary tyrannical Government, against Law, which he hath declared by traitorous and wicked opinions^ counsels, conduct, judgments, practices and actions.

SECONDLY.—That in pursuance of those, traitorous and wicked purposes, the said James Monk hath disregarded the authority of the Legislature of this Province, and in the Courts of Justice wherein he hath presided and sat, hath usurped powers and authority which belong to the Legislature alone, and made regulations subversive of the Constitution and Laws of this Province. […]”.

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“[…] May it please Your Royal Highness,

WE His Majesty’s most dutiful and Loyal Subjects, the Commons of Lower Canada, in Provincial Parliament assembled, do acknowledge with gratitude the many and great advantages which have been conferred on this Province by His Majesty’s wise and just Government. Among these, we have reason to assign the first place to the Excellent Constitution, which has been imparted to His Majesty’s Canadian Subjects, whereby their civil and political rights have been secured, and constitutional means provided for the investigation of abuses and grievances, which might, if permitted to continue without remedy, prove not less injurious to His Majesty’s Government, than to the interests of His Subjects.

During the present Session of the Provincial Parliament, the attention of His Majesty’s faithful Commons has been directed to the exercise of an authority assumed by the Courts of Justice, under the denomination of “Rules of Practice,” and we have been alarmed to find, that under that name the Courts of Justice have arrogated to themselves powers which belong exclusively to the Legislature, and have made regulations repugnant and contrary to law. These powers have been so extensively ana injuriously exercised as to affect the civil rights of His Majesty’s subjects in the most important points, and in some instances in the most oppressive manner; and would, if continued, deprive His Majesty’s subjects in this province of their constitution and Laws, and subject them to the arbitrary will and pleasure of the Judges. We His Majesty’s Faithful Commons have found that these abuses of authority have, since the appointment of Jonathan Sewell, Esquire, to be Chief Justice of this Province, originated in the Provincial Court of Appeals, in which (such is its vicious and defective Constitution) that Gentleman and James Monk, Esquire, Chief Justice of the Court of King’s Bench for the District of Montreal, respectively preside on appeals from the judgments of each other, in the Courts of Original Jurisdiction. In January 1809, those Gentlemen concurred in framing Rules of Practice for the Court of Appeals, in which the illegal assumption of authority complained of was exercised, and having thus pledged the Court of last resort for the maintenance of that assumption, they afterwards in the Courts of original Jurisdiction, in which they respectively preside, assumed like authority, and made unconstitutional, illegal and oppressive regulations in those Courts, which they concur in maintaining, and to which their united influence gives entire effect, to the subversion of the Constitution and of the Laws of the Land. […]”.

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Proceedings in the Provincial Parliament on the Articles of Impeachment March 3^rd, 1814 (HERE)

“[…] On motion of Mr. Stuart, seconded by Mr. Lee,

RESOLVED, That it is the unquestionable constitutional right of this House, to offer its humble advice to His Excellency the Governor in Chief, upon matters affecting “the welfare of His Majesty’s subjects, in this Province, without the concurrence of the Legislative Council.

RESOLVED, That it is peculiarly incumbent on this House to investigate abuses, calculated to deprive His Majesty’s Subjects of the benefit of their constitution and laws, and of the pure administration of Justice, and that in bringing under .the view of His Excellency the Governor in Chief, the gross abuses and high offences referred to in the Address to His Excellency, this House hath performed the first and most essential of its duties, to the people of this Province.

RESOLVED, That it is the indubitable right of this House, to exhibit accusations, to which it is constitutionally competent, without consulting or asking the concurrence of the Legislative Council, and that in framing and exhibiting the Heads of Impeachment referred to in the Address to His Excellency the Governor in Chief, this House hath exercised a necessary and salutary power, vested in it by the constitution.

RESOLVED, That His Excellency the Governor in Chief, by His said answer to the Address of this House, hath violated the constitutional rights and privileges of this House. […]”

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Journals of The House Of Assembly. Thursday, 17th March, 1814 (HERE)

“[…] On motion of Mr. Lee, seconded by Mr. Gauvreau,

RESOLVED, That the claim of the Legislative Council, to alter or amend money Bills, is contrary to parliamentary usage in this¡ Province and in England.

RESOLVED, That the exercise of the said claim, during the late and present Sessions, tends to render the Constitution of this Province ineffectual, for the purposes for which that Constitution was granted, and to deprive His Majesty’s Canadian Subjects of the benefits thereof.

RESOLVED, That the claims of the Legislative Council, touching the Heads of Impeachment against Jonathan Sewell and James Monk, Esquires, are not founded on the Constitutional Law, or any analogy thereto; tend to prevent notorious offenders belonging to that body, from being brought to Justice, and to maintain, perpetuate and encourage an arbitrary, illegal, tyrannical and oppressive power over the people of this Province.

RESOLVED, That while the people of this Province continue to make every exertion to repulse the enemy, they ought also to bestow their attention, through their representatives, upon any plots which may be framed, by criminal and interested individuals, for depriving them of their rights and liberties, and for overthrowing the Constitution and Government, as they are by law happily established in this Province. […]”

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Resolutions of the Legislative Council of Lower Canada on the Right of the House of Assembly to appoint a special agent for the Province, February 28, 1814. (HERE)

“[…] That the said Address does not contain nor consist with the sentiments’ of this House upon the several matters to which it relates; That the application of any sum or sums of money under the pretext of defraying the expences of the person or persons who shall be the bearer or bearers of the said Address to England, without the concurrence of this House would be a manifest and alarming violation of one of its most important rights, calculated to effect it’s total extinction as a constituent branch of the Legislature of this Province; and utterly subversive of that grand principle of the constitution—that the Collective body of the Legislature alone can dispose of the public money of the Province; That this House will not concur with the Assembly in making provision for the reimbursement of any sum or sums of money that may be applied out of the Public Revenue of this Province for defraying the expences of the Bearer or Bearers of the said Address, because, in the Judgment of this House, there is no necessity for a special Messenger for the purpose of conveying that Address; because applications to His Majesty’s Government which are of a public import can only be properly and constitutionally conveyed through the medium of the Governour of this Province; and because the House has had no intercommunity with the Assembly, in their Address ;—

That this House views, with equal astonishment and concern, the acquiescence of His Excellency the Governour in Chief in the vote of the Assembly which requests him to appoint a Messenger for the purposes above mentioned. An Acquiescence which they cannot but consider to be an unequivocal abandonment of the rights of this House and a fatal dereliction of the first principles of the constitution;— The Question of concurrence being put upon each of the above resolutions, severally, and a debate having ensued upon the last,—they were all passed in the Affirmative. […]”

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Prévost to Bathurst, September 4^th, 1814 (HERE)

“[…] I am however free to confess to Your Lordship that a continuance for any great length of time of similar contests between the two Houses, to those which have lately embroiled them, marked by the same unyielding dispositions, as have been manifested on both sides, might by preventing their agreement on any subject, materially impede the Public Service very much, embarrass the Government in accomplishing those objects which would require Legislative interference, and finally weaken the loyalty and attachment of the people,— For the prevention of these evils I see no other means more effectual than a perseverance in the conciliatory course I have already adopted with regard to the Canadians, together with an encrease to the numbers of the Legislative Council : By introducing into it men of firmness and moderation who at the same time that they would not give way to any open and marked infringement of the constitution, would occasionally yield to the reasonable wishes and views of the Lower House, the present heat and animosity subsisting between the two Branches might perhaps be in a great measure allayed and more cordiality and agreement take place in their future proceedings.— But I do not think that the exercise of the power given to His Majesty of the 31st., Geo : 3d.1 of making the Office of Councillor hereditary and conferring upon them titles of honor would in the present state of the Country be attended with any good effect— An hereditary and ennobled Legislative Council would be viewed by the Assembly with more jealousy and distrust than even the present one,—particularly as it would be extremely difficult to find amongst the Canadians characters sufficiently respectable upon whom that distinction might be conferred. To add to the present Council is however absolutely necessary and it is therefore my intention shortly to propose to Your Lordship the names of such persons as I think may be safely called to that House and who would form not only an accession of strength to it, but give it a character more likely to obtain the confidence of the Assembly than the present one.— […]”.

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Proceedings relative to the appointment of a Provincial Agent, Lower Canada Journal of the House of Assembly, March 20^th 1815. (HERE)

“[…] Mr. Lee, from the Committee to whom was referred the Written Message from the Legislative Council, of the second instant, upon the Resolution of this House, communicated to them, relative to an Agent for this Province, to be appointed to reside in the United Kingdom of Great Britain and Ireland, in order to solicit the passing of Laws, and attend to the interests of this Province, reported, that the Committee had enquired into the object of the said Message, and had come to an opinion thereon, which ha was directed to submit to the House, whenever it shall be pleased to receive the same: and he read the Report in his place, and afterwards delivered it in at the Clerk’s Table, where the said Report was again read, as follows: Your Committee took into its serious consideration the contents of the Message from the Legislative Council, delivered to this House on the third instant. Your Committee is of opinion, that the Governor is the proper ana constitutional channel of communication between the Legislative Bodies in this Province, and His Majesty’s Government in the United Kingdom of Great Britain and Ireland, but that it does not follow that the Province ought to be deprived of an Agent resident in Great Britain to solicit the passing of Laws, and attend to the interests of the province at the seat of the Imperial Government. […]”.

“[…] But a peculiar and pressing necessity exists that the Province of Lower-Canada Should have an Agent resident in Great Britain, to allay the uneasiness of its Inhabitants; more especially at the present moment, inasmuch as they fear that endeavors are now making to prejudice against them the Imperial Government and the British Nation, and to effect a change in the free Constitution which British wisdom has conferred upon them, by means of an union of the two Canadas, of which the Language, Laws and Usages, totally differ.—That uneasiness will cease whenever they shall have an Agent resident in England. The obstacles encountered by this House, in the prosecution of the Impeachments against Jonathan Sewell and James Monk, Esquires, afford additional reason for the nomination of an Agent for the Province. […]”.

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Separate Opinion of The Advocate General. (HERE)

“[…] The two Branches of the Legislature will no doubt receive Your Excellency’s Communication with the respect due to the high Source from which it proceeds and will enter upon the Investigation with a proper regard to the rank and privileges they respectively hold and possess under the constitution of the Colony; nor can I at this moment anticipate any difficulty that can arise in the prosecution of the authorized investigation which may not be obviated by an act of the two Houses sanctioned by your Excellency.

I would beg leave to state to your Excellency that under the constitutional act [31 : Geo. 3. c. 31.] neither the Legislative Council, or the House of Assembly is vested with any Judicial Powers;—Articles of Impeachment cannot therefore be preferred and tried in this Country as before the King in the Imperial Parliament,—The House of Lords having the Inherent and immemorial right to try all persons impeached by the House of Commons and proceeding therein according to the law and custom of Parliament;’— no such inherent or immemorial right being possessed by the Legislative Council nothing but an act of the Imperial Parliament could give them such a right;— Indeed it would appear to have been omitted in the constitutional act as not being necessary and as inconsistent with the dependence of the Colony upon the Mother Country which it is so much the interest of both to preserve,—and as calculated to secure to the Officers of His Majesty’s Government a protection from the possibility of Colonial Persecution;—Those Officers hold their situations in the Colony during pleasure; they are appointed by and are the servants of the Crown, and may be suspended or removed from office whenever the Crown may think proper;—Such is the situation of Mr Foucher who might at the present moment be removed from office by an exertion of the prerogative;—it would therefore seem to be the undoubted right of the Crown to use this Prerogative in such way as to His Majesty may seem best conducive to the Public good and at the same time give security and every just protection to his servants.

Aware, may it please Your Excellency, of the importance of the subject I have endeavoured to discharge my duty to your Excellency by avoiding a hasty consideration and opinion,—and I cannot view the dispatch of Earl Bathurst in any other light consistent with my ideas of the principles of constitutional Law, than in the manner before submitted to your Excellency;—nor does it appear to me that the Crown can issue a Commission for the trial of persons impeached;—Such an accusation is purely parliamentary and cannot take any other than a Parliamentary course; the right of accusation in the one Branch is founded upon the right of trial in-the other; they are so united that they cannot constitutionally be separated;—the strict right of Impeachment does not therefore in my humble apprehension exist in the Colonial Assembly; this privilege alone exists in the Commons of the United Kingdom, and through that body the accused Individual might be impeached before the King in Parliament;—I do not conceive the charges of the Provincial Assembly to be strictly and legally articles of Impeachment, but to have been considered by His Royal Highness merely as a complaint où the part of the Assembly to the Crown, of an improper exercise and abuse of the duties of Office in one of its servants and praying for redress by his removal from office;—and thereupon His Royal Highness with that sense of justice so strongly marked in every line of the dispatch of Earl Bathurst has been anxious to devise a mode of investigation of the charges against Mr Foucher and has in his wisdom adopted that, which, while it affords relief to all parties, is eminently calculated to preserve as much as possible and as constitutionally he could the honour of the Provincial Parliament by directing that the investigation of the charges or complaint should be left to the Legislative Council,—not as a Court for the trial and punishment of the accused but as a body entitled to participate in all matters agitated in the Provincial Parliament and as the .Branch best calculated from its rank in the constitutional scale to inform the conscience of His Majesty of the truth of the charges or complaint of the Assembly.— […]”

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Report of The Judges of The Court of King’s Bench on The Trial of Justice Foucher, Montreal.(Copy) Montreal 29^th Dec—1817 (HERE)

“[…] That the Legislative Council of this Province of Lower Canada is not by the Constitution thereof vested with the power or authority of trying and determining the impeachment made by the House of Assembly against Mr Justice Foucher—And as it has been directed by the Crown, that in this and all similar cases of impeachment by the Legislative Assembly, the adjudication of the charges preferred against the party shall be left to the said Legislative Council, We are of opinion, that this power may and ought to be communicated and transferred in this instance to that Body, by Commission under the Great Seal of the Province— […]”.

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Report of the Justices of the Court of King’s Bench, Quebec, January, 1818. (HERE)

“[…] We proceed now to show “That the legislative Council are not possessed of the” peculiar inherent and Exclusive Jurisdiction of the House of Lords under which that “House takes cognizance of Impeachments without a Commission,” and as this is a point upon which his Majesty’s Attorney and Solicitor General and all the Judges agree. We shall state our reasons for our opinion on this head, more succinctly Than we otherwise should have done. We hold this opinion,

1st Because the Judicial Authority of the House of Lords, is derived from the Aula Regis— and not from its Legislative Character.

2d Because by the Letter of the Statute 31. Geo. III. 31. The Legislative Council is constituted a Legislative Body solely and is not invested with any Judicial Authority.

3d. Because according to the principles of the Constitution, The Legislative and Judicial Powers are distinct and inconsistent with each other, and as such should be vested in different hands ; so that Judicial power or Jurisdiction in either House of the Provincial Legislature cannot be -inferred by Implication, from the Statute (31 Geo. IH. c. 31.) […]”.

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Address of the Legislative Council on the Powers of the House of Assembly, February 26 1819 From the Canadian Archives, Duplicate Despatches, Lower Canada, 1819. (HERE)

“[…] The Assembly have for some years exercised the undisputed right of impeachment and having of late been permitted to make the appropriations required for the payment of the Civil List of the Province, that Body is now in the full enjoyment and exercise of the two most important privileges of the House of Commons of the Imperial Parliament while in the scale opposed to influence and power so preponderating, the Legislative Council have no other weight than the negative upon the taxes and appropriations originating in the Assembly and even this passive privilege cannot be exercised without closing the sources of those supplies which the Crown has demanded. Thus the Balance so essential to the very existence of the Constitution is destroyed. We beg leave also to represent the situation of Mr Justice Foucher who has now been two years under a suspension of his Judicial functions; unheard in his own Justification ; and the measure of suspension not having been disapproved by His Royal Highness the Prince Regent the term of it must now unavoidably be still protracted to a period very indefinite which will bear with peculiar hardship upon the Individual and cause delay in the Administration of Justice in the District of Montreal. These consequences were anticipated by the Legislative Council in the last Session of the Provincial Legislature, but they were then deterred from proceeding in the case of Mr Justice Foucher under the decision of His Royal Highness the Prince Regent communicated in the Message of the late Governor in Chief of the 2nd March 1818/ by the positive assurance that His Excellency’s health would thereby be affected and that even his life might be endangered.

We therefore now most earnestly entreat Your Grace to intercede with His Royal Highness the Prince Regent that the Legislative Council may enter upon the exercise of the acknowledged privilege of adjudicating in the case of Mr Justice Foucher and in all similar cases of impeachment by the Assembly the charges preferred against the party accused, according to the Rules, Usage and custom of Parliament, and further we humbly submit for His Royal Highness’s Consideration that the Act of Parliament of Great Britain passed in the 31st year of His Majesty’s Reign cap. 31, affords to His Royal Highness the means of giving to the Legislative Council the additional weight in the political scale so indispensible to restore the Balance between the different branches of the Provincial Legislature, and so well calculated to bind them and their descendants by the strongest ties of Gratitude and affection to the Crown of Great Britain and to assimilate as far as circumstances will permit, the Constitution of this important Colony to that of the Parent state. […]”

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Act Respecting Eligibility of Persons to be Returned to the Legislative Assembly. (HERE)

“[…] As Act to repeal an Act passed in the thirty-fifth year of His Majesty’s Reign, entitled, ” An Act to ascertain the ELIGIBILITY of PERSONS to be Returned to the HOUSE of ASSEMBLY,” and also to repeal an Act passed in the fifty fourth year of His Majesty’s Reign, entitled ” An Act to repeal and amend part of an Act passed in the thirty-fifth year of His Majesty’s Reign, entitled ‘An Act to ascertain the eligibility of persons to be Returned to the House of Assembly,” and to make further and more effectual provision for securing the freedom and constitution of the Parliament of this Province. [Passed 1st April, 1818.] […]”.

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Journal of House of Assembly, Upper Canada, March 23rd March, 1818. (HERE)

“[…] Resolved, that the Commons have never questioned the principle either of constitutional right of necessity of the concurrence of the Legislative Council in passing Bills, but do insist that the exercise of its judgment and discretion on all Bills granting aids and supplies to His Majesty, or imposing burthens upon the people is by uniformly acknowledged precedent confined to assent without making any amendments, or to the rejecting totally such Bills; and that the admission of a contrary principle upon the part of the Commons would be surrendering a constitutional right always exercised by this House, and from time immemorial by the Commons of Great Britain, which this House will never consent to.

Resolved, that the foregoing resolution is equally applicable to meet the reasoning of the first part of the second resolution of the Legislative Council, and that in all cases when this House have rejected amendments of the Legislative Council without notice, and re-enacted the matter so as to receive the concurrence of the other branches of the Legislature, this House have done so from the most conciliatory disposition and regard for the interests of the Province, wherever the same could by strained construction be admitted; but in no instance where the amendments have been made to a Bill the direct object of which has been the raising, levying, or appropriating money.

Resolved, that the first part of the third resolution of the Legislative Council, avowing that they do not consider the necessary amendments to a money as a breach of the privilege of the Commons House of Assembly, cannot be considered by this House without weakening that right which, in the true spirit of our constitution, solely and exclusively appertain to this branch of the Legislature.

Resolved, that it is the opinion of this House that the collected consideration of the three resolutions of the Legislative Council require the following avowal. That this House consider it as their constitutional right to commence all money Bills, either granting aids and supplies to His Majesty or imposing any charge or burthen whatsoever upon the people, and to direct, limit, and appoint in such Bills the ends and purposes, considerations, limitations, and qualifications thereof, and that such grants, limitations and dispositions ought not to be interfered with by amendments in the Legislative Council, because such has never been permitted by the Commons of this Province, nor is it the usage and practice of the British Parliament. […]”

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Journals of House of Assembly, Upper Canada, March 12, 1818 (HERE)

“[…] The House resumed. Mr. Burnham reported that the Committee had adopted the Report, and agreed to some Resolutions, which he was directed to recommend for the adoption of the House.

Ordered that the Report be received, and the Resolutions adopted as follows:— Report of the Committee on the Resolutions of the Hon. the Legislative Council, of the 24th March in answer to the Resolutions of the Commons House of Assembly on the subject of Privilege.

To the Honorable the Commons House of Assembly of Upper Canada, in Provincial Parliament assembled. Your Committee, in obedience to Your Honorable House, having maturely considered the Resolutions referred to them, most respectfully submit to Your Honorable House the following report.

That the Resolutions of the Legislative Council, dated 24th March, and delivered by their Officer to the Speaker of the Commons House of Assembly, excite in Your Committee emotions of the highest interest, and being in their essence pregnant with principles subversive of the exercise of the functions of the Representative Body of the People. Your Committee would feel criminally neglectful of their duty to Your Honorable House, and to their Country, were they not to express their indignant feelings oh this most important occasion, and particularly as the Legislative Council, by ordering their Resolutions, together with those of Your House, to which they are purposely annexed, as an intended refutation to be printed, submit to the Public the justice and propriety of their proceeding.

That the Constitutional ground assumed by the Resolutions of Your House, of the 19th and 23rd instants, is justified by the act of the 31st year of His Present Majesty, giving to each branch of the Legislature the constitutional privileges of the Mother Country and reserving only a parental right to interfere in establishing prohibitions or imposing duties for the regulation of navigation and external commerce That the assertion of the Legislative Council that the House of Assembly, in adopting as its type the Commons House of Parliament, and claiming all the powers, immunities and privileges thereof, is not justified by the words or spirit of its constitution more than the Legislative Council would be justified to assume for itself and its Members the powers, immunities and privileges of the Upper House, may safely be admitted and appreciated, as Your Committee do the gift to this Colony of the glorious unmutilated boon of the British Constitution in all its plenitude of power and privileges, avowed by the Lords and Commons in Parliament, and confirmed by the speech from the Throne, of His Excellency John Graves Simcoe, at the opening of the first Parliament in this Province. Your Committee cannot yield to the impression that Your House will ever be induced by weak example to compromise its undoubted and invaluable rights.

Your Committee have only further respectfully to submit to Your Honorable House the gracious Speech of His Majesty’s representative, John Graves Simcoe, Esquire, at the opening and prorogation of the first Parliament of the Province, and the propriety of having them entered on the Journals of Your House, that part of Your Journals having been destroyed by the enemy. […]”

“[…] Resolved, nem. con. that this House, in persisting in their right to reject all amendments made by the Legislative Council to Bills for raising and appropriating moneys, and to decline all conferences thereon, are assuming to themselves no new privilege; but are only adhering to the form of proceeding which has been maintained from the first establishment of the Provincial Legislature, and in which they have taken for their guide the representative form of constitution in the Mother Country, by which that of this country is modelled, and by which the Legislative Council have in all their proceedings equally governed themselves; whatever it may suit their present purpose to disclaim. […]”

“[…] Resolved, nem- Con., that as this House desire to make no innovation, so they are determined to suffer none, but will persist in maintaining in all their deliberations those rules which they have found established, and which, being coeval with their constitution, they consider it would be as inconsistent with their duty as it is repugnant to their inclinations to abandon. […]”

“[…] 1. The Constitutional Act did not expressly confer any ‘ privileges ‘ on either the House of Assembly or the Legislative Council. It did, however, according to the opinion of the Law Officers of the Crown, inferentially confer such Privileges as are incidental to, and necessary to enable them to perform their functions in deliberating and advising upon, and consenting to laws for the peace, welfare and good government of the Province. […]”

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Journal of the Legislative Council, Upper Canada, March 20^th, 1818 (HERE)

“[…] May it please Your Royal Highness:— We, His Majesty’s dutiful and loyal subjects, the Commons House of Assembly of Upper Canada, in Parliament assembled, humbly beg leave to address Your Royal Highness with feelings of the most unfeigned duty and respect, and to express in the name of the People of this Province their grateful sense of the blessings entailed upon them and their posterity by Your Royal House in giving to them in the plenitude of its power and privileges the very image and transcript of the glorious Constitution of Great Britain, which has withstood the shock of Empires, the test of ages, and stands toweringly elevated to the highest pitch of glory under the auspices of Your Illustrious Race.

Had not the people of this Colony the best of all proofs to offer to Your Royal Highness of the sincerity of their professions of personal attachment, had not the blood of their youth flowed freely on the very land given to their loyal and patriotic fathers; had they not at the hazard of life and property made good beyond dispute the solemn pledge of faith and loyalty to the Parent Country, they might have shrunk back assertion, doubtful because untried. The objection, however, does not exist, and they claim the high considerations, privileges and immunities of British Subjects. Having thus humbly laid open to Your Royal Highness the undisguised effusion of our hearts, we beseech Your Royal Highness’ attention to the declaration of His Excellency John Graves Simcoe, in his Speech from the Throne at the opening of the first Session of the Legislature of this Province, at which important crisis, in language the most emphatical and enthusiastic, he promulgated the Constitution given to Canada by the wisdom and beneficence of the Parliament of Great Britain, which was as fully and exultingly recognized in the answer to his Speech by the Legislative Council through their enlightened Speaker, the late Chief Justice Osgoode. The expression of public sentiment upon that occasion characterized the people on whom the gracious boon was bestowed, and we, the Representatives of that people, jealous of the treasure, and unwilling to yield up the slightest particle of the sacred trust, or to disgrace by pusillanimity the public spirit of the country, humbly submit to Your Royal Highness an Abstract of the Proceedings of the present Session of the Legislature of this Province, wherein his Majesty’s Faithful Commons conceive their constitutional rights and privileges have been vitally assailed by the Resolutions of the Honorable the Legislative Council, delivered to the Speaker of the Commons House of Assembly, and evidently intended to limit and depreciate in Public estimation its functions, by the avowal of their consideration of its powers, as resolved by them, and to be printed, with a view no doubt, of being blazoned to the world. The consequent interruption of harmonious intercourse indicated by the Legislative Council, could not otherwise but tend to put an end to public business, and to prevent the Commons House of Assembly from providing by Bill a supply to meet the excess of the Civil expenditure of the Administration of the Government of this Province, as required of them by a message during their present Session, communicated by His Majesty’s Representative; nor could any other means be adopted on the part of the Commons to meet the exigency without recourse to a practice not unfrequent in their Parliamentary usage, of voting the amount by Address. The answer received by His Majesty’s Faithful Commons in reply from the Administrator of the Government, as recorded on their Journals, they do not hesitate to consider ill advised, as the service for which the vote was provided was that of the actual subject of the Message from the Crown, to which no possible doubt of approbation of the Legislature could have been contemplated. It, however, strongly marks in a national and constitutional point of view the evil that must ever result from the Legislative and Executive functions being materially vested in the same persons, as its unfortunately the case in this Province, where His Majesty’s Executive Council is almost wholly composed of the Legislative body, and consisting only of the Deputy Superintendent of the Indian Department, the Receiver General, and Inspector General, the Chief Justice, the Speaker of the Legislative Council, and the Hon. and Rev. Chaplain to that House.

His Majesty’s Faithful Commons of Upper Canada having thus performed the imperious duty which their peculiar circumstances called for, have only further to implore of Your Royal Highness, to give their representation the mature reflection that is due to its importance, as His Majesty’s Faithful Commons are sanguine in the hope that the voice of Your Royal Highness will approbate their Resolution, and firm determination to preserve inviolate their Civil and Constitutional Rights in their fullest amplification. […]”.

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Proceedings In The House Of Assembly Relating To The Convention Of 1818. Journals of The House of Assembly, Upper Canada. 22nd October, 1818. (HERE)

“[…] Resolved, That the right of the people of this Province, individually or collectively, to petition our Gracious Sovereign for a redress of any public or private grievance is their birthright as British subjects, preserved to them by that free Constitution which they have received, and which, by the generous exertions of Our Mother Country, has, through an arduous contest, been maintained unimpaired. Resolved, That the Commons House of Assembly are the only constitutional representatives of the people of this Province. […]”

“[…] Resolved, That the electing, assembling, sitting and proceedings of certain persons calling themselves representatives or Delegates from the different Districts of this Province, and met in general convention at Tork, for the purpose of deliberating upon matters of Public concern, is highly derogatory and repugnant to the spirit of the Constitution of this Province, and tends greatly to disturb the public tranquility. […]”

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Petition of Inhabitants of Kingston, Prom the Journals of the House of Assembly, Upper Canada, 1818 (HERE)

“[…] To the Honorable the Legislative Council and House of Representatives of the Province of Upper Canada, in Provincial Parliament assembled. The Petition of the undersigned, Inhabitants of the said Province, residing in the Township and Town of Kingston, Humbly Shews:—

That from the Speech of His Excellency the Lieutenant Governor to both Houses of the Legislature at the opening of the present Session, and from the answer of the two Houses thereto, we understand it is in contemplation to frame a law for preventing a Convention of Delegates, as dangerous to the Constitution. The occasion of this contemplated measure appears to be taken from a Convention holden at Tork last Summer, for the purpose of petitioning the proper authority for an inquiry into the state of the Province, with a view to the redress of grievances believed to exist in some departments of the administration of Government in this Province. The sole object was to apply by petition, although there was a difference of opinion respecting the most suitable manner of directing and transmitting the application. The intention was certainly fair—it was laudable. The Proceedings were open, peaceable, lawful. To seek redress by petition is the right of British Subjects. When occasion requires it is their duty, an unpleasant one at all times, and frequently attended with offence; because it supposes the existence of evil requiring a remedy. These evils must be more or less tangibly stated, and the statement of them generally imputes blame to somebody. They who are thus complained of for errors or abuses are often offended, and naturally feel an interest to stigmatize as factitious and seditious every effort to obtain relief. If they can succeed in fixing such a stigma upon those who petition for redress, they prevent investigation, screen themselves from censure, and may continue in their errors or abuses with impunity. Unpleasant, however, as the act of petitioning is, the right is nevertheless dear to British Subjects. It is second in political importance to none but that of electing their representatives in Parliament. But if they are to be restrained in its exercise, to petitioning singly, without consent or communication with their Fellow Subjects, this boasted privilege will become little more than a name. To render it effectual they must be allowed to unite .in their petitions, and the necessary means of framing such union. If two persons may meet and confer together on the subject of a petition in which they have a common interest, why may not ten do the same? Why not all the inhabitants of a Township? Upon the same principle, why not the Inhabitants of two or more townships or districts? Where is the line to be drawn? And instead of assembling personally in large meetings which are inconvenient, and apt to be tumultuous, if they meet by Committees or Delegates, where is the danger to the Constitution, provided they confine themselves to the object of petitioning. We see none. On the contrary we apprehend very serious danger to Public Liberty from any law preventing such meetings. As Loyal Subjects, therefore, interested alike in the preservation of liberty and the support of order and government, we humbly pray that no such law of prevention may be passed. […]”

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Copy of a Despatch from Lord Glenelg to the Earl of Gosford, the Right Hon. Sir C. E. Grey and Sir G. Gipps, His Majesty’s Commissioners of Inquiry in Lower Canada. 17 July 1835.

“[…] 27. The security which the Governor and his principal officers would derive from the grant of a civil list, would strengthen the connexion subsisting between Canada and the other members of the British empire. It would be a distinct recognition of the principle, that the administration of the affairs of the province, by a Governor and officers appointed by the King, is a substantive and essential part of the provincial constitution. To debate from year to year whether grants shall or shall not be made for the support of such functionaries, might almost seem to involve a tacit assumption, that the existence of such offices was itself a question open to annual revision. In so remote a part of His Majesty’s dominions, it is especially necessary that the Royal Authority, as represented by His Majesty’s officers, should be most distinctly admitted as one of the component and inseparable principles of the social system. […]”

“[…] 69. It must be recollected that the form of provincial constitution in question is no modern experiment nor plan of government, in favour of which nothing better than doubtful theory can be urged. A Council nominated by the King, and possessing a coordinate right of legislation with the representatives of the people, is an invariable part of the British colonial constitution in all the Trans-Atlantic possessions of the Crown, with the exception of those which still remain liable to the Legislative authority of the King in Council. In some of these colonies it has existed for nearly two centuries. Before the recognition of the United States as an independent nation, it prevailed over every part of the British possessions in the North American continent, not comprised within the limits of colonies founded by charters of incorporation. The considerations ought indeed to be weighty which should induce a departure from a system recommended by so long and successful a course of historical precedent. […]”

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Her Majesty’s High Commissioner, Report on the Affairs of British North America (Durham Report), by Earl of Durham (1839) (HERE)

[…] That contest has arisen by degrees. The scanty number of the English who settled in Lower Canada, during the earlier period of our possession, put out of the question any ideas of rivalry between the races. Indeed, until the popular principles of English institutions were brought effectually into operation, the paramount authority of the Government left little room for dispute among any but the few who contended for its favours. It was not until the English had established a vast trade, and accumulated considerable wealth—until a great part of the landed property of the province was vested in their hands—until a large English population was found in the cities, had scattered itself over large portions of the country, and had formed considerable communities in the townships—and not until the development of representative government had placed substantial power in the hands of the people—that that people divided itself into races, arrayed against each other in intense and enduring animosity.

The errors of the government did not cease with that to which I have attributed the origin of this animosity. The defects of the Colonial Constitution necessarily brought the executive government into collision with the people; and the disputes of the government and the people called into action the animosities of race; nor has the policy of the government obviated the evils inherent in the constitution of the colony, and the composition of society. It has done nothing to repair its original error, by making the province English. Occupied in a continual conflict with the Assembly, successive Governors and their councils have overlooked, in great measure, the real importance of the feud of origin; and the Imperial Government, far removed from opportunities of personal observation of the peculiar state of society, has […]

[…] It was upon this question of the responsibility of the Executive Council, that the great struggle bas, for a long time, been carried on between the. official party and the reformers; for the official party, like all parties long in power, was naturally unwilling to submit itself to any such responsibility as would abridge its tenure, or cramp its exercise of authority.— Reluctant to acknowledge any responsibility to the people of the colony, this party appears to have paid a somewhat refractory and nominal submission to the Imperial Government—relying, in fact, on securing a virtual independence, by this nominal submission to the distant authority of the colonial department, or to the powers of a Governor, over whose policy they were certain, by their facilities of access, to obtain a paramount influence.

The views of the great body of reformers appear to have been limited, according to their favourite expression, to the making the Colonial Constitution “an exact transcript of that of Great Britain”; and they only desired that the Crown should, in Upper Canada, as at home; intrust the administration of affairs to men possessing the confidence of the, Assembly. It cannot be doubted, however, that there were many of the party who wished to assimilate the institutions of the province rather to those of the United States than to those of the mother country. A few persons, chiefly of American origin, appear to have entertained these designs from the outset; but the number had at last been very much increased by the despair which many of those who started with more limited views, conceived of their being ever carried into effect, under the existing form of government. […]

[…] THOUGH I have stated my opinion that my inquiries would have been very incomplete had they been confined to the two Canadas, the information which I am enabled to communicate, with respect to the other North American colonies is necessarily very limited. As, however, in these provinces, with the exception of Newfoundland, there are no such discontents as threaten the disturbance of the public tranquillity, I did not think it necessary to institute any minute inquiries into the details of the various departments of government. It is only necessary that I should state my impression of the general working of the government in these colonies, in order that if institutions similar to those of the disturbed provinces should here appear to. be tending to similar results, a common remedy may be devised for the impending as well as for existing disorders. On this head I have obtained much useful information from the communications which I had with the Lieutenant Governors of these colonies, as well as with , individuals connected with them, but above ail, from the lengthened discussions which passed, between me and the gentlemen who composed the deputations sent to me last autumn from each of the three Eastern Provinces, for the purpose of discussing the principles as well as details of a plan of general government for the whole of the British North American colonies. It was most unfortunate that the events of temporary, but pressing importance, which compelled my return to England, interrupted these discussions; but the delegates with whom I had the good fortune to carry them on, were gentlemen of so much ability, so high in station, and so patriotic in their views, that their information could not fail to give me a very fair view of the working of the Colonial Constitution under somewhat different circumstances in each. I insert in the appendix a communication which I received from one of the gentlemen, Mr. Young, a leading and very active member of the House of Assembly of Nova Scotia, respecting that province. […]

[…] I am far from presenting this risk in a manner calculated to irritate the just pride which would shrink from the thoughts of yielding to the menaces of a rival nation. Because, important as I consider the foreign relations of this question, I do not believe that there is now any very proximate danger of a collision with the United States, in consequence of that power desiring to take advantage of the disturbed state of the Canadas. In the despatch of the 9th of August I have described my impression of the state of feeling with respect to the Lower Canadian insurrection, which had existed, and was then in existence in the United States.—Besides the causes of hostile feeling which originate in the mere juxtaposition of that power to our North American provinces, I described the influence which had been undoubtedly exercised by that mistaken political sympathy with the insurgents of Lower Canada, which the inhabitants of the United States were induced to entertain. There is no people in the world so little likely as that of the United States to sympathize with the real feelings and policy of the French Canadians; no people so little likely to share in their anxiety to preserve ancient and barbarous laws, and to check the industry and improvement of their country, in order to gratify some idle and narrow notion of a petty and visionary nationality. The Americans who have visited Lower Canada, perfectly understand the real truth of the case; they see that the quarrel is a quarrel of races; and they certainly show very little inclination to take part with the French Canadians and their institutions. Of the great number of American travellers, coming from all parts of the union, who visited Quebec during my residence there, and whose society I, together with the gentlemen attached to my mission, had the advantage of enjoying, not one ever expressed to any of us any approbation of what may be termed the national objects of the French Canadians, while many did not conceal a strong aversion to them. There is no people in the world to whom the French Canadian institutions are more intolerable, when circumstances compel submission to them. But the mass of the American people had judged of the quarrel from a distance; they had been obliged to form their judgment on the apparent grounds of the controversy; and were thus deceived, as all those are apt to be who judge under such circumstances and on such grounds. The contest bore some resemblance to that great struggle of their own forefathers, which they regard with the highest pride. Like that, they believed it to be a contest of a colony against the empire whose misconduct alienated their own country; they considered it to be a contest undertaken by a people—professing to seek independence of distant control and extension of popular privileges; and finally, a contest of which the first blow was struck in consequence of a violation of a Colonial Constitution, and the appropriation of the colonial revenues without the consent of the colonists. It need not surprise us that such apparently probable and sufficient causes were generally taken by the people of the United States as completely accounting for the whole dispute; that the analogy between the Canadian insurrection and the war of independence was considered to be satisfactorily made out; and that a free and high—spirited people eagerly demonstrated its sympathy with those whom it regarded as gallantly attempting, with unequal means, to assert that glorious cause which its own fathers had triumphantly upheld. […]

[…] The establishment of a good system of municipal institutions throughout these provinces, is a matter of vital importance. A general legislature, which manages the private business of every parish, in addition to the common business of the country, wields a power which no single body, however popular in its constitution, ought to have—a power which must be destructive of any constitutional balance. The true principle of limiting popular power is that aportionment [sic] of it in many different depositaries, which has been adopted in all the most free and stable states of the Union. Instead of confiding the whole collection and distribution of all the revenues raised in any country for all general and local purposes to a single representative body, the power of local assessment; and the application of the funds arising from it, should be intrusted to local management. It is in vain to expect that this sacrifice of power will be voluntarily made by any representative body. The establishment of municipal institutions for the whole country should be made a part of every Colonial Constitution, and the prerogative of the crown should be constantly interposed to check any encroachment on the functions of the local bodies, until the people should become alive, as most assuredly they almost immediately would be, to the necessity of protecting their local privileges.

The establishment of a sound and general system for the management of the lands and the settlement of the colonies, is a necessary part of any good and durable system of government. In a report contained in the appendix to the present, the plan which I recommend for this purpose will be fully developed. […]

[…] The collision with the executive government necessarily brought on one with the Legislative Council. The composition of this body, which has been so much the subject of discussion, both here and in the colony, must certainly be admitted to have been such as could give it no weight with the people, or with the representative body, on which it was meant to be a check. The majority was always composed of members of the party which conducted the executive government; the clerks of each council were members of the other; and in fact, the Legislative Council was practically hardly anything but a veto in the hands of public functionaries on all the acts of that popular branch of the legislature, in which they were always in a minority. This veto they used without much scruple. I am far from concurring in the censure which the Assembly and its advocates have attempted to cast on. the acts of the Legislative Council. I have no hesitation in saying that many of the bills which it is most severely blamed for rejecting, were bills which it could not have passed without a dereliction of its duty to the constitution, the connection with Great Britain, and the whole English population of the colony. If there is any censure to be passed on its general conduct, it is for having confined itself to the merely negative and defensive duties of a legislative body; for having too, frequently contented itself with merely defeating objectionable methods of obtaining desirable ends, without completi.ng its duty by proposing measures, which would have achieved the good. in view without the mixture of evil. The national animosities which pervaded the legislation of the Assembly, and its thorough want of legislative skill or respect for constitutional principles, rendered almost all its bills obnoxious to. the objections made by the Legislative Council; and the serious evil which their enactment would have occasioned, convinces me that the colony has reason to congratulate itself on the existence of an institution which possessed and used the power of stopping a course of legislation that, if successful, would have sacrificed every British interest, and overthrown every guarantee of order and national liberty. It is not difficult for us to judge thus calmly of the respective merits of these distant parties; but it must have been a great and deep-rooted respect for the constitution and composition of the Legislative Council, that could have induced the representatives of a great majority to submit with patience to the impediment thus placed. in their way by a few individuals. But the Legislative Council was neither theoretically unobjectionable, nor personally esteemed by the Assembly, its opposition appeared to that body but another form of official hostility, and it was inevitable that the Assembly should, sooner or later, make those assaults on the constitution of the Legislative Council which, by the singular want of judgment and temper with which they were conducted, ended in the destruction of the Provincial Constitution.

From the commencement, therefore, to the end of the disputes which mark the whole parliamentary history of Lower Canada, I look on the conduct of the Assembly as a constant warfare with the executive, for the purpose of obtaining the powers inherent in a representative body by the very nature of representative government. It was .to accomplish this purpose, that it used every means in its power; but it must be censured for having, in pursuit of this object, perverted its powers of legislation, and disturbed the whole working of the constitution. It made the business of legislation, and the practical improvement of the country, subordinate to its struggle for power; and being denied its legitimate privileges, it endeavoured to extend its authority in modes totally incompatible with the principles of constitutional liberty. […]

[…] I have now brought under review, the most prominent features of the condition and institutions of the British Colonies in North America. It has been my painful task to exhibit a state of things which cannot be contemplated without grief, by all who value the well-being of our colonial fellow-countrymen, and the integrity of the British empire. I have described the operation of those causes of division which unhappily exist in the very composition of society; the disorder produced by the working of an ill-contrived constitutional system, and the practical mis-management which these fundamental defects have generated in every department of government.

It is not necessary that I should [sic] take any pains to prove, that this is a state of things which should not, which cannot, continue. Neither the political nor the social existence of any community, can bear much longer the operation of these causes which have, in Lower Canada, already produced a long practical cessation of the regular course of constitutional government; which have occasioned the violation, and necessitated the absolute suspension, of the Provincial Constitution—and which have resulted in two insurrections—two substitutions of martial for civil law—and two periods of a general abeyance of every guarantee that is considered essential for the protection of a British subject’s rights. I have already described the state of feeling which prevails among each of the contending parties, or rather their races; their all-pervading and irreconcilable enmity to each other; the entire and irremediable disaffection of the whole French population, as well as the suspicion with which the English regard the imperial government; and the determination of the French, together with the tendency of the English to seek for a redress of their intolerable present evils in the chances of a separation from Great Britain. The disorders of Lower Canada admit of no delay; the existing form of government is but a temporary and forcible subjugation. The recent constitution is one of which neither party would tolerate the re—establishment, and of which the bad working has been such that no friend to liberty or to order could desire to see the province again subjected to its mischievous influence. Whatever may be the difficulty of discovering a remedy, its urgency is certain and obvious. […]”.

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A Bill For re-uniting the Provinces of Upper and Lower Canada, and for the Government of the United Province. [20^th June 1839] HERE.

“[…] An Act to repeal certain parts of an Act passed in the fourth year of his Majesty’s reign, intituled, An Act for making more effectual Provision for the Government of the Province of Quebec in North America,’ and to make further Provision for the Government of the said Province,” as constitutes or provides for the constitution or calling together of a Legislative Council or a Legislative Assembly in either of the said Provinces of Upper Canada and Lower Canada respectively, or as confers any powers or functions upon any such Legislative Council or Legislative Assembly, or either of them, or any Member thereby respectively, or as confers any powers or functions on the Governor or Lieutenant Governor or person administering the Government of the said Provinces and the Executive Council of the said Provinces respectively, […]”.

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“[…] And be it Enacted, That, subject to the provisions herein contained, it shall be lawful for the said Governor to specify in and by the said several charters of incorporation, the metes and bounds of the said several districts, and the., number of Councillors which shall be for every district, and the tine and manner of their election, and to fix the qualification of the Councillors, and to nominate from among the persons so qualified, the Councillors who shall form the first Council in every such district, and to appoint the order and manner in which they shall go out of office, and to fix penalties for qualified persons refusing to take office in the Council, and to make all other necessary provisions for establishing such District. Councils, for defining their powers, and enabling them to exercise their functions: Provided always, That notwithstanding any such Charter, it shall be lawful for the Legislature of the Province of Canada to make further or other provisions respecting the constitution of the said Councils which are not repugnant to this Act, and to extend or limit the powers of such Councils in any way which may be found expedient, and to alter the number and boundaries of the districts, and to establish a Council in each of such new districts, subject to the provisions herein contained concerning the constitution thereof. […]”.

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Act of Union, 1840 (HERE)

“[…] XXVI. And be it enacted, That it shall be lawful for the Legislature of the Province of Canada, by any Act or Acts to be hereafter passed, to alter the Divisions and Extent of the several Counties, Ridings, Cities, and Towns which shall be represented in the Legislative Assembly of the Province of Canada, and to establish new and other Divisions of the same, and to alter the Apportionment of Representatives to be chosen by the said Counties, Ridings, Cities, and Towns respectively, and make a new and different Apportionment of the Number of Representatives to be chosen in and for those Parts or the Province of Canada which now constitute the said Provinces of Upper and Lower Canada respectively, and in and for the several Districts, Counties, Ridings, and Towns in the same, and to alter and regulate the Appointment of Returning Officers in and for the same, and make Provision, in such Manner as they may deem expedient, for the issuing and Return of Writs for the Election of Members to serve in the said Legislative Assembly, and the Time and Place of holding such Elections: Provided always, that it shall not be lawful to present to the Governor of the Province of Canada for Her Majesty’s Assent any Bill of the Legislative Council and Assembly of the said Province by which the Number of Representatives in the Legislative Assembly may be altered, unless the Second and Third Reading of such Bill in the Legislative Council and the Legislative Assembly shall have been passed with the Concurrence of Two Thirds of the Members for the Time being of the said Legislative Council, and of Two Thirds of the Members for the Time being of the said Legislative Assembly respectively, and the Assent of Her Majesty shall not be given to any such Bill unless Addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively to the Governor, stating that such Bill has been so passed. […]”.

“[…] XL. Provided always, and be it enacted, That nothing herein contained shall be construed to limit or restrain the Exercise of Her Majesty’s Prerogative in authorizing, and that not withstanding this Act, and any other Act or Acts passed in the Parliament of Great Britain, or in the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of the Province of Quebec, or of the Provinces of Upper or Lower Canada respectively, it shall be lawful for Her Majesty to authorize the Lieutenant Governor of the Province of Canada to exercise and execute, within such Parts of the said Province as Her Majesty shall think fit, notwithstanding the Presence of the Governor within the Province, such of the Powers, Functions, and Authority, as well judicial as other, which before and at the Time of passing of this Act were and are vested in the Governor, Lieutenant Governor, or Person administering the Government of the Provinces of Upper Canada and Lower Canada respectively, or of either of them, and which from and after the said Reunion of the said Two Provinces shall become vested in the Governor of the Province of Canada; and to authorize the Governor of the Province of Canada to assign, depute, substitute, and appoint any Person or Persons, jointly or severally, to be his Deputy or Deputies within any Part or Parts of the Province of Canada, and in that Capacity to exercise, perform, and execute during the Pleasure of the said Governor such of the Powers, Functions, and Authorities, as well judicial as other, as before and at the Time of the passing of this Act were and are vested in the Governor, Lieutenant Governor, or Person administering the Government of the Provinces of Upper and Lower Canada respectively, and which from and after the Union of the said Provinces shall become vested in the Governor of the Province of Canada, as the Governor of the Province of Canada shall deem to be necessary or expedient: Provided always, that by the Appointment of a Deputy or Deputies as aforesaid the Power and Authority of the Governor of the Province of Canada shall not be abridged, altered, or in any way affected otherwise than as Her Majesty shall think proper to direct. […]”

“[…] XLVII. And be it enacted, That all the Courts of Civil and Criminal Jurisdiction within the Provinces of Upper and Lower Canada at the Time of the Union of the said Provinces, and all legal Commissions, Powers, and Authorities, and all Officers, judicial, administrative, or ministerial, within the said Provinces respectively, except in so far as the same may be abolished, altered, or varied by or may be inconsistent with the Provisions of this Act, or shall be abolished, altered, or varied by any Act or Acts of the Legislature of the Province of Canada, shall continue to subsist within those Parts of the Province of Canada which now constitute the said Two Provinces respectively, in the same Form and with the same Effect as if this Act had not been made, and as if the said Two Provinces had not been reunited as aforesaid. […]”.

“[…] LIII. And be it enacted, That, until altered by any Act of the Legislature of the Province of Canada, the Salaries of the Governor and of the Judges shall be those respectively set against their several Offices in the said Schedule A.; but that it shall be lawful for the Governor to abolish any of the Offices named in the said Schedule B., or to vary the Sums appropriated to any of the Services or Purposes named in the said Schedule B.; and that the Amount of Saving which may accrue from any such Alteration in either of the said Schedules shall be appropriated to such Purposes connected with the Administration of the Government of the said Province as to Her Majesty shall seem fit; and that Accounts in detail of the Expenditure of the several Sums of Forty-five thousand Pounds and Thirty thousand Pounds herein-before granted, and of every Part thereof, shall be laid before the Legislative Council and Legislative Assembly of the said Province within Thirty Days next after the Beginning of the Session after such Expenditure shall have been made: Provided always, that not more than Two thousand Pounds shall be payable at the same Time for Pensions to the Judges out of the said Sum of Forty-five thousand Pounds, and that not more than Five thousand Pounds shall be payable at the same Time for Pensions out of the said Sum of Thirty thousand Pounds; and that a List of all such Pensions, and of the Persons to whom the same shall have been granted, shall be laid in every Year before the said Legislative Council and Legislative Assembly. […]”.

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Amendment of 1848 to the Union Act of 1840, A.D. 1848, 11° & 12° Victoriæ, Ch.56. (HERE)

An Act to repeal so much of an Act of the Third and Fourth Years of Her present Majesty, to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada, as relates to the Use of the English Language in Instruments relating to the Legislative Council and Legislative Assembly of the Province of Canada. [14th August 1848.]

Whereas by an Act passed in the Session of Parliament held in the Third and Fourth Years of Her present Majesty, intituled An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada, it is amongst other Things enacted, that from and after the said Re-union of the said Two Provinces, all Writs, Proclamations, Instruments for summoning and calling together the Legislative Council and Legislative Assembly of the Province of Canada, and for proroguing and dissolving the same, and all Writs of Summons and Elections, and all Writs and Public Instruments whatsoever relating to the said Legislative Council and Legislative Assembly, or either of them, and all Returns to such Writs and Instruments, and all Journals, Entries and written or printed Proceedings of what Nature soever, of the said Legislative Council and Legislative Assembly, and of each of them respectively, and all written or printed Proceedings and Reports of Committees of the said Legislative Council and Legislative Assembly respectively, shall be in the English Language only: Provided always, that the said Enactment should not be construed to prevent translated Copies of any such Documents being made, but no such Copy should be kept among the Records of the Legislative Council or Legislative Assembly, or be deemed in any Case to have the Force of an original Record: And whereas it is expedient to alter the Law in this respect, in order that the Legislature of the Province of Canada, or the said Legislative Council and Legislative Assembly respectively, may have Power to make such Regulations herein as to them may seem advisable: Be it therefore enacted by the Queen’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 from and after the passing of this Act so much of the said recited Act as is herein-before recited shall be repealed.

II And be it enacted, That this Act, or any Part thereof, may be repealed, altered, or varied at any Time during the present Session of Parliament.

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The Union Act Amendment Act, 1854, (17 & 18 Victoria, c. 118.) (HERE)

An Act to empower the Legislature of Canada to alter the Constitution of the Legislative Council for that Province, and for other purposes.

11th August, 1854.

Whereas an Act of the session of Parliament holden in the third and fourth years of her Majesty, chapter thirty-five, “to reunite the Provinces of Upper and Lower Canada, and for the Government of Canada,” provides amongst other things for the establishment of a Legislative Council in the Province of Canada, consisting of members summoned thereto by the Governor, under the authority of her Majesty as therein specified: And whereas it is expedient that the Legislature of the said Province should be empowered to alter the constitution of the said Legislative Council: And whereas the said Act requires amendment in other respects: Be it enacted by the Queen’s most excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

I. It shall be lawful for the Legislature of Canada, by any Act or Acts to be hereinafter for that purpose passed, to alter the manner of composing the Legislative Council of the said Province, and to make it consist of such number of members appointed or to be appointed or elected by such persons and in such manner as to the said Legislature may seem fit, and to fix the qualifications of the persons capable of being so appointed or elected, and by such Act or Acts to make provision, if they shall think fit, for the separate dissolution, by the Governor of the said Legislative Council and Legislative Assembly respectively, and for the purposes aforesaid to vary and repeal in such manner as to them may seem fit all or any of the sections of the said recited Act, and of any other Act of Parliament now in force, which relate to the constitution of the Legislative Council of Canada: Provided always that any bill or bills which shall be passed by the present Legislative Council and Assembly of Canada for all or any of the purposes aforesaid shall be reserved by the said Governor, unless he think fit to withhold her Majesty’s assent thereto, for the signification of her Majesty’s pleasure, and shall be subject to the enactments of the said recited Act of the third and fourth years of her Majesty, chapter thirty-five, section thirty-nine, which relate to bills so reserved for the signification of her Majesty’s pleasure.

II. As soon as the constitution of the Legislative Council of the Province of Canada shall have been altered under such Act or Acts so assented to by her Majesty as aforesaid, all provisions of the said recited Act of Parliament of the third and fourth years of her Majesty, chapter thirty-five, and of any other Act of Parliament now in force relating to the Legislative Council of Canada, shall be held to apply to the Legislative Council of Canada so altered, except so far as such provisions may have been varied or repealed by such Act or Acts of the Legislature of Canada so assented to as aforesaid.

III. It shall be lawful for the Legislature of Canada from time to time to vary and repeal all or any of the provisions of the Act or Acts altering the constitution of the said Legislative Council: Provided always, that any bill for any such purpose, which shall vary the qualification of councillors, or the duration of office of such councillors, or the power of the Governor to dissolve the Council or Assembly, shall be reserved by the Governor for the signification of her Majesty’s pleasure in manner aforesaid.

IV. It shall be lawful for the Legislature of Canada, by any Act or Acts reserved for the signification of her Majesty’s pleasure, and whereto her Majesty shall have assented as hereinbefore provided, to vary or repeal any of the provisions of the recited Act of Parliament of the third and fourth years of her Majesty, which relate to the property qualification of members of the Legislative Assembly.

V. So much of the twenty-sixth section of the said recited Act of Parliament as provides that it shall not be lawful to present to the Governor of the Province of Canada, for her Majesty’s assent, any bill of the Legislative Council and Assembly of the said Province by which the number of representatives in the Legislative Assembly may be altered unless the second and third readings of such bill in the Legislative Council and Legislative Assembly shall have been passed with the concurrence of two-thirds of the members for the time being of the said Legislative Council, and of two-thirds of the members for the time being of the said Legislative Assembly respectively, and that the assent of her Majesty shall not be given to any such bill unless addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively to the Governor stating that such bill has been so passed, is hereby repealed.[ Proviso in section 26 of 3 & 4 Vict., c. 35 repealed.]

VI. The forty-second section of the said recited Act of Parliament, providing that in certain cases Bills of the Legislative Council and Assembly of Canada shall be laid before both Houses of Parliament of the United Kingdom, is hereby repealed; and notwithstanding anything in the said Act of Parliament, or in any other Act of Parliament contained, it shall be lawful for the Governor to declare that he assents in her Majesty’s name to any bill of the Legislature of Canada, or for her Majesty to assent to any such bill if reserved for the signification of her pleasure thereon although such bill shall not have been laid before the said Houses of Parliament; and no Act heretofore passed, or to be passed by the Legislature of Canada shall be held invalid or ineffectual by reason of the same not having been laid before the said Houses, or by reason of the Legislative Council and Assembly not having presented to the Governor such address as by the said Act of Parliament is required. [Section 42 of 3 & 4 Vict., c. 35 repealed.]

VII. That in this Act the word “Governor” is to be understood as comprehending the Governor and in his absence the Lieutenant-Governor, or person authorized to execute the office or the functions of the Governor of Canada.

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Province of Canada, Journals of the Legislative Assembly of the Province of Canada [Bill to Change the Constitution of the Legislative Council], (14 March 1856) (HERE)

The Order of the day for the second reading of the Bill to change the Constitution of the Legislative Council, by rendering the same Elective, being read;

The Honorable Mr. Cauchon moved, seconded by the Honorable Mr. Spence, and the Question being put, That the Bill be now read a second time; the House divided: and the names being called for, they were taken down, as follow: —

YEAS.

Messieurs.

[…] 83.

NAYS

Messieurs.

[…] 6.

So it was resolved in the Affirmative

The Bill was accordingly read a second time.

The Honorable Mr. Cauchon moved, seconded by the Honorable Mr. Spence, and the Question being proposed, That the Bill be now committed to a Committee of the whole House;

Mr. Brown moved in amendment to the Question, seconded by Mr. Foley, That the words “and that it be an Instruction to the Committee to amend the Bill, by providing that the Members of the Legislative Council shall be elected for four years, one-half retiring every second year; and that the Members of the Legislative Assembly shall be elected for two years” be added at the end 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.

Messieurs.

[…] 25.

NAYS

Messieurs.

[…] 72.

So it passed in the Negative.

And the Question being again proposed, That the Bill be now committed to a Committee of the whole House;

Mr. Patrick moved in amendment to the Question, seconded by the Honorable John Sandfield Macdonald, That the words “and that it be an Instruction to the Committee to amend the Bill, by providing that the term of years for which the Members of the Legislative Council shall serve, shall be six; one-third to retire every second year” be added at the end 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.

Messieurs.

[…] 36.

NAYS

Messieurs.

[…] 62.

So it passed in the Negative

And the Question being again proposed, That the Bill be now committed to a Committee of the whole House;

Mr. Gould moved in amendment to the Question, seconded by Mr. Wright, That the words “and that it be an Instruction to the Committee to amend the Bill, by providing that the Constituencies shall be based and arranged according to Population, without any regard to the Division line between Upper and Lower Canada” be added at the end thereof;

And a Debate arising thereupon;

Mr. Loranger moved, seconded by Mr. Sidney Smith, and the Question being put, That the Debate by now adjourned; the House divided:—And it passed in the Negative.

And the Question being put, That the words “and that it be an Instruction to the Committee to amend the Bill, by providing that the Constituencies shall be based and arranged according to Population, without any regard to the Division line between Upper and Lower Canada” be added at the end of the original Question; the House divided: and the names being called for, they were taken down, as follow:—

YEAS.

Messieurs.

[…] 23.

NAYS

Messieurs.

[…] 75.

So it passed in the Negative

And the Question being again proposed, That the Bill be now committed to a Committee of the whole House;

Mr. Foley moved in amendment to the Question, seconded by Mr. Frazer, That the words “and that it be an Instruction to the Committee to amend the Bill, by providing that the Speaker of the Legislative Council be elected by a majority of its Members” be added at the end 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.

Messieurs.

[…] 40.

NAYS

Messieurs.

[…] 56.

So it passed in the Negative.

Then the main Question being put;

Ordered, That the Bill be now committed to a Committee of the whole House.

The House accordingly resolved itself into the said Committee; and after some time spent therein, Mr. Speaker resumed the Chair; and Mr. Felton reported, That the Committee had made some progress, and directed him to move for leave to sit again.

Ordered, That the Committee have leave to sit again on Tuesday next.

———-o0o———-

Province of Canada, Journals of the Legislative Assembly of the Province of Canada [Bill to Change the Constitution of the Legislative Council], (27 March 1856) (HERE)

The Order of the day for the third reading of the Bill to change the Constitution of the Legislative Council by rendering the same elective, being read;

The Honorable Mr.Cauchon moved, seconded by the Honorable Mr. Attorney General Macdonald, and the Question being proposed, That the Bill be now read the third time;

Mr. Felton moved in amendment to the Question, seconded by Mr. Terrill, That all the words after “now” to the end of the Question be left out, and the words “recommitted to a Committee of the whole House, for the purpose of amending the Schedule A, in such manner as to increase the representation in the Legislative Council of the population of Lower Canada of British origin, in proportion to the representation now enjoyed by it in the House” inserted 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.

Messieurs.

[…] 23.

NAYS.

Messieurs.

[…] 64.

So it passed in the Negative.

And the Question being again proposed, That the Bill be now read the third time;

Mr. Felton moved in amendment to the Question, seconded by Mr. Terrill, That all the words after “now” to the end of the Question be left out, and the words “recommitted to a Committee of the whole House, for the purpose of amending the Schedule A, by assigning an additional Legislative Councillor to the Constituencies of Drummond, Arthabaska, Richmond and Wolfe, Compton, Stanstead, and Sherbrooke Town, now represented by five Members in this House” inserted 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 Bill be now read the third time;

Mr. Somerville moved in amendment to the Question, seconded by Mr. Sanborn, That all the words after “now” to the end of the Question be left out, and the words “recommitted to a Committee of the whole House, for the purposes of amending Schedule A, by providing that the Electoral Division DeSalaberry, shall comprise the Counties of Huntingdon and Beauharnois, and the Parishes of Russelltown, and St. Malachi d’Ormstown, in the County of Chateauguay; and that DeLorimier shall be composed of the Counties of St. Johns and Napierville, and the remainder of the County of Chateauguay” inserted 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 Bill be now read the third time;

Mr. Jean Baptiste Eric Dorion moved in amendment to the Question, seconded by Mr. Papin, That all the words after “now” to the end of the Question be left out, and the words “recommitted to a Committee of the whole House, with an instruction to amend the Schedule A, as follows: —Kenebec shall comprise of the Counties Megantic, Arthabaska, Drummond, and Wolfe; Wellington shall comprise the Counties of Richmond, Compton, Stanstead, and the Town of Sherbrooke; De la Vallière shall comprise the Counties of Lotbinière, Nicolet, and Yamaska, excepting the Parishes of St. Michel d’Yamaska, and St. David, which shall be included in the Electoral Division of Saurel” inserted 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.

Messieurs.

[…] 25.

NAYS.

Messieurs.

[…] 62.

So it passed in the Negative.

And the Question being again proposed, That the Bill be now read the third time;

Mr. Hartman moved in amendment to the Question, seconded by Mr. Christie, That all the words after “now” to the end of the Question be left out, and the words “recommitted to a Committee of the whole House, with a view to arrange the Electoral Divisions so as to embrace within each, as nearly as practicable, an equal population, and without regard to a dividing line between Upper and Lower Canada” inserted 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.

Messieurs.

[…] 22.

NAYS.

Messieurs.

[…] 71.

So it passed in the Negative.

Then the main Question being put: the House divided: and the names being called for, they were taken down, as follow: —

YEAS.

Messieurs.

[…] 81.

NAYS.

Messieurs.

[…] 12.

So it was resolved in the Affirmative.

The Bill was accordingly read the third time.

Resolved, That the Bill do pass.

Ordered, That the Honorable Mr. Cauchon do carry the Bill to the Legislative Council, and desire their concurrence.

The Honorable Mr. Attorney General Drummond moved, seconded by Mr. Solicitor General Smith, and the Question being put, That this House do now adjourn; the House divided: and the names being called for, they were taken down, as follow: —

YEAS.

Messieurs.

[…] 47.

NAYS.

Messieurs.

[…] 38.

So it was resolved in the Affirmative.

And the House adjourned accordingly.

———-o0o———-

An Act to change the Constitution of the Legislative Council by rendering the same Elective, Prov C, 1856 (HERE)

Reserved for the signification of Her Majesty’s pleasure 16th May, 1856. The Royal Assent given by Her Majesty in Council on the 24th June, 1856; and Proclamation thereof made by His Excellency Sir Edmund Walker Head, Governor General, in the Canada Gazette of the 14th July, 1856.

WHEREAS by an Act of the Parliament of the United Kingdom passed in the seventeenth and eighteenth years of the Reign of Her Most Gracious Majesty, chaptered one hundred and eighteen “ to empower the Legislature of Canada “ to alter the Constitution of the Legislative Council for that Province, and for other purposes,” it is enacted, That the Legislature of this Province may change the Constitution of the Legislative Council of the said Province, and make other provisions relative to the same subject and to other subjects therein mentioned: Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:

I. The Legislative Council shall hereafter be composed of the present Members thereof, and of forty-eight Members to be elected, in the proportion and at the times and in the manner hereinafter provided; and to this end, the Province shall be divided into forty-eight Electoral Divisions, twenty-four in Upper Canada and twenty-four in Lower Canada, in the manner set forth in Schedule A.

II. The present Councillors shall continue to hold their seats as heretofore, subject to the conditions contained in the Imperial Act of the third and fourth Victoria, chapter thirty-five, “to reunite the Provinces of Upper and Lower Canada and for the Government of Canada.”

III. The Elective Members shall be elected for eight years.

IV. No person shall be eligible or shall sit or vote as a Legislative Councillor unless he be a British Subject by birth or naturalization, resident in Canada, of the full age of thirty-years, and be legally or equitably seized as of freehold, for his own use and benefit, of lands or tenements held in free and common soccage, or seized or possessed, for his own use and benefit, of lands or tenements held in fief, franc-aleu or roture in this Province, of the value of two thousand pounds currency over and above all debts, charges and dues, nor unless his residence or his lands or tenements as aforesaid to the value aforesaid be within the limits of the Electoral Division for which he shall seek to be, or shall have been, elected.

V. No person shall be elected a Legislative Councillor who is a public defaulter, or shall have been convicted of felony, or of any infamous crime.

VI. No Member of one House shall be elected a member of the other.

VII. The seal of an Elective Legislative Councillor shall be forfeited in any of the following cases: if he be a public defaulter, or become a Bankrupt, or insolvent, or take the benefit of any law whatsoever in relation to insolvent debtors, or be convicted of felony or of any infamous crime, or shall cease to hold a property qualification required by the fourth clause.

VIII. Upon or before the first day of September next following the day on which this Act shall receive the Royal Assent, the Governor shall issue Writs for the election of twelve Legislative Councillors to represent the twelve Electoral Divisions first entitled to return Members to the Legislative Council as hereinafter provided; and the said Writs shall be transmitted to the Returning Officers by the Clerk of the Crown in Chancery, and be returnable on the first Tuesday of November following: and in every second year thereafter Writs for the periodical elections shall be issued on or before the first day of September, and returnable the first Tuesday of November.

IX. The Writs of Election shall be in the form of Schedule B.

X. The Governor shall appoint the Returning Officers for the Electoral Divisions, from among those persons who might by law be Returning Officers at Elections of Members of the Legislative Assembly for places within the limits of such Divisions.

XI. The Returning Officer for any Electoral Divisions shall fix a place as nearly as may be in the centre of such Division, for the nomination of Candidates and the proclamation of the Candidate elected.

XII. The electors of Legislative Councillors shall, as regards their qualification, be the same as those of Members of the Legislative Assembly, and shall vote at the places at which they ordinarily vote at the election of the latter: The boundaries and extent of the Electoral Divisions are defined by Schedule A.

XIII. The laws relating to the election of Members of the Legislative Assembly, as regards the qualification of Electors, — the issue and return of Writs of Election, — Returning Officers, — the powers and duties of Returning Officers and of Deputy Returning Officers, and of Election and Poll Clerks, — the prevention or punishment of offences committed at elections or with respect to elections, — to controverted elections, — and to all matters connected with or incidental to elections, — shall, except where such laws may be inconsistent with this Act, apply in analogous cases to elections of Legislative Councillors.

XIV. Every candidate for election to the Legislative Council shall, if thereunto required by another candidate, or by an elector, or by the Returning Officer, make in person a written declaration in the form of Schedule C; and the provisions of the election laws which prior to the passing of this Act related to the declaration of qualification of candidates for election to the Legislative Assembly, shall, with the exception of the amount of property qualification, apply in a precisely similar manner to the declaration of qualification of the candidate for election to the Legislative Council.

XV. The period for which the Legislative Councillors shall serve shall commence on the day of, the return of the Writs, and shall end upon the day next preceding the return day of the Writs for the election of their successors.

XVI. Every Legislative Councillor shall, before taking his seat, take the oath in the Schedule D. before the Clerk of the said Council.

XVII. The order in which the Electoral Divisions shall be entitled to return Members to the Legislative Council shall be determined by lot, as soon as possible after the commencement of this Act, in the manner provided in the Schedule E, and shall forthwith be made known by Proclamation.

XVIII. For the purpose of such determination by lot, the electoral divisions shall be united in groups of four each, as in Schedule F.

XIX. Periodical Elections of Legislative Councillors to re-present the several electoral divisions shall take place in the order determined by lot and made known by Proclamation as aforesaid; the twelve Electoral Divisions named in the List of the “First Drawing” being those first entitled to return Members to the said Council, those named in the List of the “Second Drawing” being those next entitled to return Members to the said Council, and so on.

XX. An Elective Councillor may resign his seat in the same manner and under the same circumstances as a member of the Legislative Assembly; and he may hold his seat until the day next preceding that of the return of the Writ of Election of his successor. In case of his resigning or going out at the expiration of the period for which he is elected, he may be re-elected subject to the conditions contained in this Act.

XXI. Elective Legislative Councillors shall, under the same circumstances as Members of the Legislative Assembly, be subject to the laws for securing the independence of the Legislative Assembly of this Province.

XXII. The acceptance by a Councillor of the Office of the Speaker of the Legislative Council shall not, however, vacate his seat.

XXIII. In cases of accidental vacancy provided for by Sections twenty and twenty-one the Speaker of the Legislative Council, the Legislative Council and the several Members thereof, shall have the same powers and duties as the Speaker of the Legislative Assembly, the Legislative Assembly and the several Members thereof; and the Writs shall be made returnable within fifty days at furthest from the issue thereof.

XXIV. An accidental vacancy of the seat for any Electoral Division happening within the three months next before the regular periodical vacancy of such seat, shall not be filled until the time appointed for filling such periodical vacancy.

XXV. In case of any accidental vacancy of the seat for any electoral division, not provided for by the next preceding section, the period of service of the Councillor elected to fill such vacancy shall be that at which his predecessor would regularly have gone out.

XXVI. The Speaker of the Legislative Council shall, as heretofore, be appointed by the Governor, and shall be selected from amongst the Members of the said Council.

XXVII. The Councillor who shall be Speaker at the time of the passing of this Act shall continue to be so until he be replaced by another.

XXVIII. Each General Election of Members of the Legislative Assembly shall make a new Parliament, as heretofore.

———-o0o———-

* See Charles Dumais’ The Quebec Resolutions. Including Several Never-Published Preliminary Drafts by George Brown and John A. Macdonald, and a Collection of all Previously-Published Primary Documents Relating to the Conference, October 10, 1864-October 29^th, 1864 (CCF, 2021). (HERE)

———-o0o———-

[I.] John A. Macdonald, Working Draft No. 1, October 26^th, 1864. (HERE)

“That with a view of reducing the expenses of the Local Governments, it shall be left to each Province to recommend the reconstruction of its Local Constitution, in such a way as shall be most acceptable to its own Legislature; Provided that in such reconstruction, nothing be contained inconsistent with the Constitution of Federal Government.”

———-o0o———-

[II.] John A. Macdonald, Working Draft No. 2, October 26-27^th, 1864. (HERE)

^“[37] The Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of each Province shall provide in the Act assenting to the Union.”

“38. After the Union the Local Legislatures shall have power to alter or amend their Constitution from time to time.”

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[III.] John A. Macdonald, Working Draft No. 3, October 27^th, 1864. (HERE)

“That the Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of such Province shall provide in the Act consenting to the Union.”

“After the Union the Local Legislatures shall have power to alter or amend their constitution from time to time.”

———-o0o———-

[IV.] John A. Macdonald, Working Draft No. 4, October 27^th, 1864. (HERE)

^“[41.] That the Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of such Province shall provide in the Act assenting to the Union.”

^“[42.] That for the Union the Local Legislatures shall have power to alter or amend their constitution from time to time.”

———-o0o———-

[V.] Quebec Resolutions, 1864 (Journals of the Province of Canada, Legislative Assembly, March 14th, 1865) (HERE)

“41. The Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of such Province shall provide.”

“42. The Local Legislatures shall have power to alter or amend their constitution from time to time.”

———-o0o———-

Secretary Bernard Hewitt’s “Report of Discussions”, Quebec Conference, 1864. (HERE)

Thursday, 20^th October 1864.

“Mr. Brown—As to Local Governments, we desire in Upper Canada that they should not be expensive, and should not take up political matters. We ought not to have two electoral bodies. Only one body, members to be elected once in every three years. Should have whole legislative power—subject to Lieutenant- Governor. I would have Lieutenant-Governor appointed by the General Government. It would thus bring these bodies into harmony with the General Government. In Upper Canada executive officers would be Attorney-General, Treasurer, Secretary, Commissioner of Crown Lands, and Commissioner of Public Works. These would form the Council of the Lieutenant- Governor. I would give Lieutenant-Governor veto without advice, but under a certain vote he should be obliged to assent. During recess, the Lieutenant-Governor could have power to suspend executive officers. They might be elected for three years or otherwise. You might safely allow County Councils to appoint other officers than those they now do. One Legislative Chamber for three years, no power of dissolution, elected on one day in each third year. Lieutenant-Governor appointed by the Federal Government. Departmental officers to be elected during pleasure, or for three years. To be allowed to speak but not to vote.

Mr. Cartier—I entirely differ with Mr. Brown. It introduces in our local bodies republican institutions.

Mr. Brown moved:—

That in the Local Government there shall be but one Legislative Chamber.

Sir E. Taché—This motion is made merely to elicit the opinion of the conference.

Mr. Tilley—New Brunswick differs with Mr. Brown. They propose to keep the existing things as they are, so far as consistent with expense. They propose Lieutenant-Governor, five departmental officers, with seats in the House.

Mr. Dickey—Before details, settle principles. Will the conference take present Local Governments as models?

Mr. Fisher—I am opposed to Mr. Brown’s views. I approve of the present system of Local Legislatures. I agree with Mr. Brown that the Lieutenant-Governor should be appointed by the Federal Government.

Mr. Carter—In 1842, we had one Chamber in Newfoundland, partly appointed by the Crown and partly by the people. It worked well. An object to reduce expense.

Mr. Henry—I think uniformity is very desirable. But you should first consider what is to be left to the Local Legislatures before you proceed to discuss their constitutions.

Mr. McGee—No. Institute your body, then assign its powers.

Mr. Chandler— We are here to form a constitution for the Federal Government. Let the Provinces otherwise remain as they are, so far as possible.

Mr. Tupper—I agree with general principles laid down by Mr. Brown that The Governments should be as simple and inexpensive as possible. We should diminish the powers of the Local Governments, but we must not shock too largely the prejudices of the people in that respect.

Mr. McCully—We must have miniature responsible Governments.

Adjourned at two o’clock p.m.

Evening Session.

Mr. Archibald proposed a resolution to the effect that Lieutenant-Governors should be appointed by the Federal Government for five years; each Legislature to continue until altered. He said: If the Imperial Act authorizes this, you have then the several governments shorn, however, of such, powers as are taken from them by the central authority.

Mr. Chandler—I think we should form only a federal constitution, and we should pass no resolutions or act relative to the Local Governments. Let them retain what they have, and have power to manage their own local concerns. The Imperial Government will never consent to put in an Imperial Act of Parliament that the Crown shall appoint Lieutenant-Governors on the recommendation of the Federal Government. It is perfectly understood that as in the case of Legislative Councillors the Crown take the recommendation of the Government and appoint a suitable person.”

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Secretary Bernard Hewitt’s “Minutes of the Proceedings”, Quebec Conference, 1864. (HERE)

Thursday, 20^th October 1864.

“It was moved by the Honourable Mr. McCully:—

That with a view of reducing the expenses of the Local Governments, it shall be left to each Province to recommend the reconstruction of its local constitution in such a way as shall be most acceptable to its own Legislature; provided that in such reconstruction nothing be contained inconsistent with the constitution of the Federal Government.

And the question of concurrence being put on the motion of the Honourable Mr. McCully, the same was unanimously resolved in the affirmative.”

———-o0o———-

Colonial Acts Confirmation Act, 1863. 26 & 27 Vic. c. 84 (Imperial) (HERE)

2. Confirmation of certain Acts of colonial Legislatures.

———-o0o———-

“Confederation Debates”, 1865 – The Province of Canada (HERE)

Luther Holton [Chateauguay] said the first question had a reference to the subject to which the Attorney General [John A. Macdonald] had alluded in the course of his remarks just now. It was, whether it was the intention of the Government to bring down their projects for local constitutions for the two sections of Canada before inviting the House to proceed with the discussion of this question of Confederation. The honorable gentleman had already answered that question by saying it was not the intention of the Government to introduce this measure, and had given reasons for this course. Upon these reasons he (Hon. Mr. Holton) desired to say one word. He maintained that the question now before the House was, should they revolutionize the country, should they revolutionize the government of the country?

Some Hon. Members—Hear, hear.

Luther Holton [Chateauguay]—That was undoubtedly the question, and he would like to know distinctly whether the form of the proposed new government, local as well as general, formed part of the same scheme? He felt that the House could not be in a position to consider the proposed forms of the Constitution until they had before them, at least in a general way, the forms of government which were to obtain between the two sections of the province, of the union of which a dissolution was to be wrought by the measure before the House. (p. 17) […]

John A. Macdonald [Kingston, Attorney-General West] said the Government would cheerfully give an answer to Hon. Mr. Holton’s questions. As to the local constitutions of Upper and Lower Canada, when subordinate provinces of the Confederation, Government proposed to submit to the House a scheme or schemes to be considered by members of Upper and Lower Canada, respecting the constitutions, of their respective governments. But the action with regard to them must be the action of Parliament. That action would only be asked after the Confederation scheme was adopted, for until it was settled that there was to be Confederation, it was idle to discuss what should be the constitutions of the several provinces. (p. 18) […]

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Luc Letellier de Saint Just [Grandville, elected 1860] […] It is said because the plan was distributed throughout the country, that therefore it must be known. But how could it be so, especially in its details, when we every day see the Government greatly embarrassed at giving explanations, or refusing to give them, on certain points?—when, for instance, we see a minister in one House state that the seigniorial indemnity will be paid by Lower Canada alone, whilst it is declared in another House that that debt will be divided between the two provinces?— when we see ministers asking for time to reply to each of the questions put to them respecting this scheme? How can the people be acquainted with the local constitutions and the legislatures, when the ministers themselves would appear to know nothing about them? How can the people know in what matter this five million dollars balance of debt, to be laid upon Canada, will be divided, since those who prepared the scheme themselves do not know? (p. 187)

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Antoine-Aimé Dorion [Hochelaga]—Is this House, sir, going to vote a Constitution with the Upper House as proposed, without knowing what sort of local legislatures we are to have to govern us? Suppose, after we have adopted the main scheme, the Government come down with a plan for settling the local legislatures upon which great differences of opinion will arise, may it not happen then that the majority from Lower Canada will unite with a minority from Upper Canada and impose upon that section a local Constitution distasteful to a large majority of the people of Upper Canada.

The whole scheme, sir, is absurd from beginning to end. It is but natural that gentlemen with the views of honorable gentlemen opposite want to keep as much power as possible in the hands of the Government—that is the doctrine of the Conservative party everywhere— that is the line which distinguishes the Tories from the Whigs—the Tories always side with the Crown, and the liberals always want to give more power and influence to the people. The instincts of honorable gentlemen opposite, whether you take the Hon. Attorney General East [George-Étienne Cartier] or the Hon. Attorney General West [John A. Macdonald], lead them to this—they think the hands of the Crown should be strengthened and the influence of the people, if possible, diminished— and this Constitution is a specimen of their handiwork, with a Governor-General appointed by the Crown; with local governors also, appointed by the Crown; with legislative councils, in the General Legislature, and in all the provinces, nominated by the Crown; we shall have the most illiberal Constitution ever heard have in any country where constitutional government prevails. (pp. 255-256). […]

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Antoine-Aimé Dorion [Hochelaga]—It is for the security of the majority, as well as of the minority, I make this demand. Honorable gentlemen who cry “hear! hear!” may find themselves very much disappointed, if, after this portion of the scheme is passed, the local constitutions proposed were quite unsatisfactory. I contend that the local constitutions are as much an essential part of the whole as the general Constitution, and that they both should have been laid at the same time before the House.

Some Hon. Members—Hear, hear.

Antoine-Aimé Dorion [Hochelaga]—We ought, besides, to have a clear statement of what are the liabilities specially assigned to Upper and Lower Canada. (p. 267).

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James Currie [Niagara, elected 1862]—Hon. gentlemen, when I left my constituency, I had little idea that this measure was going to be pressed upon the country in the manner in which I see the Government of the day are attempting to press it. I think we should pause before adopting these resolutions. I think we want some more information before we adopt them. Before we vote away our local constitutions— before we vote away in fact our whole Constitution—we should know something of what we are going to get in place of what we are giving away. (p. 272) […]

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Alexander Campbell [Cataraqui, elected 1858, Commissioner of Crown Lands]—After these resolutions have been passed. We thought it was unnecessary for us to give our attention to the local constitutions for Upper and Lower Canada until we had ascertained whether Parliament was in favor of Federation. That ascertained, we shall feel it our duty to give our minds to the preparation of the scheme for the constitutions of the two provinces; and these constitutions will be laid before Parliament.

John Ross [Canada West, appointed 1848]—I do not know what the views of the Government may be upon this point, but it seems to me that it would have been an extraordinary proceeding had they brought down at this juncture the proposed constitutions for Upper and Lower Canada. There may a great difference of opinion arise as to the constitutions proper to be proposed for these provinces; and it is quite possible that these differences may occasion the withdrawal of some members of the Government. (p. 300) […]

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Thomas McConkey [Simcoe North]—I find, from conversation with several hour. Members from the west that I differ from them with reference to the composition of the Legislative Council. I hardly approved of the preposition of the Government when an innovation was made on the constitution of the Legislative Council in 1855 I felt it was a wrong step, and fully sympathized with the opposition given to it at that time by the present Hon. President of the Council (Hon Mr. Brown) and the honorable member for Peel (Honorable J. H. Cameron). Had I then been in a position to give effect to my views, I should have joined those honorable gentlemen in protesting against that encroachment upon the Constitution. I approve entirely of the proposition contained in the resolutions now before the House, with reference to this matter. If a necessity exists at all for a check upon hasty and ill digested legislation of the popular branch, that check should not derive its power from the same source, and in the same manner. I have, however, for some time inclined to the opinion that the Legislative Council might, with safety, be abolished altogether, and that thereby there would be effected an immense saving to the country. In carrying out this scheme, very much, of course, will depend upon the character of the local constitutions. If such a system can be adopted as will render the working of the local governments simple and inexpensive, it will conduce very much to the prosperity of this whole Confederation. I must say, sir, that if I am permitted to have a voice in the framing of a Constitution for Upper Canada, I shall insist upon it being of the most inexpensive kind, dispensing with a great deal of the paraphernalia that we see so much of here. (p.892)

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Henri Taschereau [Beauce]—We should have an Intercolonial Railway at least five or six years before thinking of Confederation. At present we are as much strangers to New Brunswick and Nova Scotia as we were previous to last autumn. We may perhaps know them a little better than we did before we began to discuss Confederation; and we ought, in the first place, to establish easy methods of communication between those provinces and ourselves, as a means of bringing about Confederation at some future day, if it be practicable. I say that the Intercolonial Railway ought first to be built, and that Confederation might be put off even several years after that.

Some Hon. Members—Hear, hear.

Henri Taschereau [Beauce]—Article 41 of the resolutions before us says as follows:—

The Local Government and Legislature of each province shall be constructed in such manner as the existing Legislature of each such province shall provide.

If I understand that article right, the local constitution of Lower Canada will be settled by the present Legislature; just as in New Brunswick, Nova Scotia, &c, the present legislatures will decide on the constitution of their legislatures under Confederation. Very well; but in that case Upper Canada will give us a constitution, as we may give her one. The effect of that clause will be, that in order to the organization of its local constitution, Lower Canada will stand with 47 French-Canadian votes, against 83 votes of members of other origins. We shall therefore not stand on the same footing as New Brunswick or Nova Scotia in this respect; the difference will be very great.

Some Hon. Members—Hear, hear.

Henri Taschereau [Beauce]—We have only 47 French-Canadian votes out of 130, and we could not count on Upper Canadian members for the safety of our interests—either local or religious—whereas they would have the support of all the English and Protestant members from Lower Canada. (p. 896).

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William Webb [Richmond and Wolfe]—The honorable gentlemen on the Treasury benches, in introducing this scheme and asking our assent to it, have thought proper to take a different course; they merely bring down the resolutions which consent to Confederation, reserving the all-important details for future consideration. It may be the right course, but I doubt it very much.

Some Hon. Members—Hear, hear.

William Webb [Richmond and Wolfe]—Although the Government has not given all the information which I would desire, I do not, however, think that the people of the section of which I am one of the representatives would be justified in opposing a scheme that may prove beneficial generally, merely because some of their interests may possibly be affected by it. I shall, therefore, vote for the resolutions in your hands, reserving to myself the right of voting for or against the details of the scheme for the local constitution as in my judgment may seem advisable.

Some Hon. Members—Hear, hear.

William Webb [Richmond and Wolfe]—I consider that by voting for this measure I do not pledge myself to anything more than the general principle of a union of the Provinces of British North America. I admit, sir, that last summer the political affairs of this country were in a state of extreme difficulty, and I admit, too, that it was necessary something should be done to get rid of that difficulty. I would have thought, however, that the Conference which met here in October last, to consider a subject that has been before the people of this country since 1858, would have proposed, for the consideration of the respective legislatures, a legislative union of the British North American Provinces. It appears to me that a legislative union would be far more effective in binding the provinces together, and far more economical than the Federal union proposed. (p. 931)

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Jean-Baptiste-Éric Dorion [Drummond & Arthabaska]—He says he will not vote for an appeal to the people, because he is not acquainted with the details of the measure; but why, then, does he vote on the main motion without knowing these details? He knows that the Government have told us that we must vote Confederation before they bring down the constitution of the local governments, and that they intended going to England to secure the new Constitution, without submitting to us the plan of the local constitutions. It will be too late when the delegates return, and after England has given us a new Constitution, to submit the present resolutions to the people.

Some Hon. Members—Hear, hear.

Jean-Baptiste-Éric Dorion [Drummond & Arthabaska]—And if we can judge here of this grand scheme of Confederation—as the hon. member says—without having before us the details of the organization of the local governments, why should not the people, in like manner, be afforded an opportunity of recording their opinion of the scheme? The reasons advanced by the honorable member are utterly futile. (p. 987).

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Luther Holton [Chateauguay]—He knew that hon. gentleman, strictly speaking, were not bound to answer this question, but it was one which they find it convenient to respond to on pain of probable unpleasant consequences hereafter. He found this extraordinary statement in a newspaper (Huntington Gleaner)—that just prior to the vote on the Confederation scheme the other day, the Government gave to certain gentleman, representing English constituencies in Lower Canada, a written pledge in regard to the provisions of the local constitutions, in respect to the interests these gentleman were supposed to represent.

Some Hon. Members—Hear, hear.

Luther Holton [Chateauguay]—Now he could imagine nothing more dangerous, more unparliamentary, more unconstitutional than such a pledge beforehand.

George-Étienne Cartier [Montreal East, Attorney-General East]—Undignified, unbecoming, irrelevant.

Some Hon. Members—Roars of laughter.

Luther Holton [Chateauguay] said he could imagine nothing more calculated to sap the foundations of constitutional Government than pledges by a ministry to supporters in regard to any matter, for the purpose of securing their support. When he saw that statement in print he determined to give hon. Gentleman fair play.

George-Étienne Cartier [Montreal East, Attorney-General East]—We all know that.

Some Hon. Members—Laughter.

Luther Holton [Chateauguay] said he desired to give them an opportunity—the only one they would have in three months—to contradict the statement if they could. If such pledges brewer given hon. gentleman from Lower Canada, similar assurances might have bene given to other sections of the representation of the country. It might be equally true that such assurance were given the followers of the hon. member for South Oxford [George Brown], and contrary ones given the supporters of the Hon. Attorney-General East [George-Étienne Cartier].

Some Hon. Members—Ministerial laughter and cheers.

Luther Holton [Chateauguay]—We were entitled, firstly, to know whether such assurances were given, and, secondly, what they were in respect to all the different classes and races represented in the House; because it might turn out that these assurances were slightly in contradiction to each other; so that, in addition to the unconstitutional course pursued there might be a graver charge against ministers.

George Brown [Oxford South, President

Executive Council]—Oh, pshaw, pshaw.

Some Hon. Members—Ironical cheers from the Ministerial benches.

Luther Holton [Chateauguay] said he had not had an opportunity of giving notice of this enquiry, as the matter only came under his notice within a few a minutes.

George-Étienne Cartier [Montreal East, Attorney-

General East]—What paper?

Luther Holton [Chateauguay]—A very respectable paper published in Mr. Somerville’s constituency, and which excused him on the ground that he had obtained a written pledge from the Government in reference to certain portions of the local constitution of Lower Canada, affecting the rights and safety of the English Protestants of Lower Canada. If such assurances were given, he thought they must be considered unconstitutional.

John Cameron [Peel] thought there was enough assurance in this House without giving any extra assurances to particular members.

Some Hon. Members—Laughter.

John Cameron [Peel]—He thought the hon. member for Chateauguay [Luther Holton] ought to move for a special committee to enquire and report upon this important matter. There could not be the least doubt it was of immense importance; had assurance been given, as had been stated, to the representatives of the different races and classes—if everybody had got assurances nobody could complain.

Some Hon. Members—Laughter.

John Cameron [Peel]—The proper course would be to move that the hon. member for Chateauguay [Luther Holton] be appointed a committee of one, to sit and enquire into this matter during the recess, with power to send for persons and papers.

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

John Cameron [Peel]—He should also have all the “cheeks and guarantees” ever heard of, and a vote of credit to pay his expenses.

Some Hon. Members—Renewed laughter.

Luther Holton [Chateauguay] said, that perhaps the hon. gentleman could induce his friends to issue a commission of enquiry into the matter. If so, he would undertake to serve without fear of reward, if authorized to act as a commission of enquiry on the subject, with power to call for persons, papers and records, and examine witnesses on oath; and would be prepared to bring down full information on this matter on the first day of next session.

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George Brown [Oxford South, President Executive Council] said that if the hon. Gentleman would state what he meant we might be able to answer him. As far as he was concerned, he had not the slightest apprehension of what the hon. member was speaking about.

Luther Holton [Chateauguay] said he would endeavor to make himself understood. The statement and question were with reference to this—that, pending, and near the close of the discussion on Confederation, hon. Ministers gave to the hon. gentleman already referred to, and to other hon. members representing British constituencies in Lower Canada, certain written assurances as to the provisions the Government would introduce into the proposed local constitutions to be submitted next session, on the peculiar protection of the class those gentleman represented. That was the point, respecting which there could be no misunderstanding.

George Brown [Oxford South, President

Executive Council] said he was as ignorant now as before, as to the meaning of the assurances spoken about.

Luther Holton [Chateauguay]—I would advise the hon. gentleman to apply to his colleagues for information, and to ask the Hon. Finance Minister [Alexander Galt] whether he knew anything about it; or whether, if he did, it was in his individual capacity or in that of a member of the Government. Perhaps Mr. Wright, of Ottawa, could tell us something of these assurances.

George Brown [Oxford South, President

Executive Council]—Yes, yes, bring him out.

Some Hon. Members—Laughter.

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Christopher Dunkin [Brome]—We are told, too, on the face of this scheme, that the choice is to be made by the present governments of the several provinces; but of course with perfect fairness to the Opposition in each province! Most satisfactory! Each Opposition is to be treated with perfect fairness—”it is so nominated in the bond.” We hear of a minister of the Crown in one place, addressing his neighbors, and telling them they may depend on it, that when Her Majesty comes to make the selection, the utmost respect will be paid to the rights and privileges of the elected members, so that their elected member will have the fairest chance of becoming a life member of the Confederate Legislative Council.

In another place, on the other hand, we hear from another minister of the Crown that those gentlemen who hold patents of appointment for life may feel quite as safe, for certainly their claim to be retained in their present position is sure to have full weight. Further, in Lower Canada, each locality is told that it may rest satisfied it will not be overlooked, for each is to be represented in the Legislative Council by a gentleman residing or holding property in it; and both origins and both creeds alike are thus to have representation and full protection. Another point upon which there has been a like pleasant sort of ambiguity kept up, is as to who are to make the future nominations to this Legislative Council. Viewing this part of the scheme as a matter of principle, one would have thought that these future nominations must be made on the Federal principle. It was not expressly so stated; it is not (as we are at last here told) it is not so meant; but till we were so told, everybody who thought one way said that the resolutions meant it to be that way, and all who thought the other way conveniently found the resolutions to justify their way of thinking.

Well, turning then to matters which affect this House, the same sort of thing is still observable.

Representation by population is given to meet the grand demand of Upper Canada; but the people of Lower Canada are assured, in the same breath, that it will not hurt them; that their institutions and privileges are made perfectly safe; that they will even Lave as many members in the Lower House as before, and that they will, in a variety of ways, be really better off than ever.

A delightful ambiguity is found, too, upon the point as to who will make the future apportionments of the constituencies. The leader of the Government, in explaining the scheme the other night, admitted that the decennial revisions of our representation districts are really not to be left to the local legislatures, but are to be dealt with altogether by the Federal Legislature. Till then most people, I believe, had held the contrary; but all had admitted the text of the resolutions to be equivocal, and each party had of course interpreted them as it wished. The postponement of the local constitutions is of the same character. Everyone is given to understand that the thing will be made to work to the satisfaction of all; each is promised that he shall have it as he wants. Those who hold to the principle of responsible government, as commonly understood, in the local administrations are, of course, told to expect a lieutenant-governor, with a cabinet, and, presumably, two branches of a local legislature. Those who would have two legislative bodies, without a responsible ministry, are told that very well it may be so. Whoever prefers one legislative body, hears that it is beyond a doubt there very well may only be one; and those again who, even with one House, do not wish to see responsible government in the provinces, are assured that the machinery is likely to be very simple; that each province will probably have a lieutenant-governor, with a few heads of needed departments, nod one House, and that so, no doubt, the affairs of each province can be managed most economically and to the entire satisfaction of all. The appointment of lieutenant-governors is again a bait, and perhaps not a small one for more than a few of our public men. The power of disallowance of local bills, and also that of reserving them for the sanction of the General Government, are on the one hand represented as realities— powers that will really be exercised by the General Government to restrain improper local legislation—to make everything safe for those who want a Legislative rather than a Federal union; but on the other hand, to those who do not want a legislative union, it is represented that they mean nothing at all, and will never be exercised. (pp. 489-490).

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Christopher Dunkin [Brome]—Let me first take one feature of the scheme, or, I might say, one absence of a feature from the scheme—the non-provision of anything like provincial constitutions. We are not told about them; they are kept back completely in the dark; it is part of the scheme that we are not to know what it means them to be.

Some Hon. Members—Laughter.

Christopher Dunkin [Brome]—It is part of the scheme, too, from all appearance, that they may not be at all alike. For anything I can see, Nova Scotia will have a right under this scheme to devise a system of responsible government, with a cabinet and two branches of the legislature. New Brunswick, if it pleases, may have only one legislative body, with or without responsible government. So may the Prince Edward Island people have anything they like; and the people of Newfoundland may do what they like, and so may we in Canada. Lower Canada may even have a constitution of one kind, and Upper Canada one of a totally different kind. There may be no two of our six or more local constitutions framed on the same model.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—It seems to be meant that these constitutions shall be as varied as the people of the different provinces may see fit to make them; nay, there are even left to the people of the different provinces the same large powers for amending them afterwards. To be sure there is the grand power of disallowance by the Federal Government, which we are told, in one and the same breath, is to be possessed by it, but never exercised.

George-Étienne Cartier [Montreal East, Attorney-General East]—The presumption is, it will be exercised in case of unjust or unwise legislation.

Christopher Dunkin [Brome]—The hon. gentleman’s presumption reminds me of one, perhaps as conclusive, but which Dickens tells us failed to satisfy his Mr. Bumble. That henpecked beadle is said to have said, on hearing of the legal presumption that a man’s wife acts under his control:—”If the law presumes anything of the sort, the law’s a fool—a natural fool!” (pp. 501-502).

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Christopher Dunkin [Brome]—If this permission of disallowance rests on a presumption that the legislation of our provinces is going to be unjust or unwise, it may be neared; but under that idea, one might have done better either not to allow, or else to restrict within narrower limits, such legislation. If the promised non-exercise of the power to disallow rests on a presumption that all will be done justly and wisely in the provincial legislatures, the legislative power is well given; but the there is no need, on the other hand, for the permission to disallow.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—I repeat, this system, or no-system, aims at nothing like uniformity between the general and local constitutions, or between the local constitutions themselves; and in this respect, it is essentially at variance witch the much wiser system adopted in the United States. It further allows of no real autonomy; in fact, the only trace of uniformity it can be said to have about it, consists in its disallowance of all autonomy to the provinces.

Some Hon. Members—Hear, hear.

Christopher Dunkin [Brome]—Now, let me take up those few features that undoubtedly are given to us, as characterizing our provincial system. Wide as we have seen the latitude is which the provinces may take in framing their constitutions, there are a few matters as to which the system lays down an iron rule. There is the appointment of a lieutenant-governor which is to be vest end in the General Government […] (p. 502).

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Christopher Dunkin [Brome], Turning then to the Executive Council, I had shown that it is a necessary consequence of the proposed system, that we are to have not merely a House of Commons cut up into sections, but also an Executive Council cut up in the same unfortunate way. You can get nothing else in the nature of a real federal check. Your federal problem will have to be worked out around the table of the Executive Council. But this principle, which must enter into the formation of the Executive Council, is clearly inconsistent with the principle of the British Constitution, which holds the whole Cabinet jointly responsible for every act of the Government. In our present union of the Canadas, we have latterly gone upon the plan of having almost two ministries. The plan urged upon our acceptance purposes the experiment of six or more sections in the Executive Council, instead of the two that we have found one too many Among the difficulties that will grow out of that plan is this, the absolute necessity of either having an Executive Council that will be ridiculously too numerous, or else one that will represent the different provinces in sections entirely too small.

From this comparison of these three leading features, I had passed on to consider the relations of the Federal Government with the several provinces, comparing them with the relations subsisting between the United States Government and the governments of the several states of the American Union. The several states of the neighboring republic commenced their existence as states with all their constitutions constructed on the same general plan as that of the United States, and in fact the same republican principles underlie all their governmental institutions, municipal, state and federal. But it is here proposed, that while we are to start with a system of general government, part British, part republican, partly neither, it is to be an open question, left to the decision of each separate province, what kind of local constitution is to be constructed for itself. Each province must, of course, have an elective chamber, but as to a second chamber, that is to be as each local legislature may see fit. Some, probably, will have it elective, while others may dispense with it entirely. Then, looking to the appointment of the Lieutenant Governors, and the tenure by which they are to hold office, it becomes about as clear as day that you cannot carry on responsible government in the provinces, but must have in them all a system that is neither British nor republican, and that, I believe, will be found to be totally unworkable.

Turning to the assignment of powers to the Federal Government on the one hand, and the local or provincial governments on the other, we meet again with the unhappy contrast between the wisdom displayed on that point in the Constitution of the United States, and the lack of wisdom in the arrangement proposed for adoption here. There is, in the United States’ system, a clear and distinct line drawn between the functions of the general and state governments. Some may not like the idea of state sovereignty, and many may wish that more power had been given to the General Government. But this much is plain, that it is not proposed to allow anything approaching to state sovereignty here. We have not even an intelligible statement as to what powers are to be exercised by the general, and what by the local legislatures and governments. Several subjects are specifically given to both; many others are confusedly left in doubt between them; and there is the strange and anomalous provision that not only can the General Government disallow the acts of the provincial legislatures, and control and hamper and fetter provincial action in more ways than one, but that wherever any federal legislation contravenes or in any way clashes with provincial legislation, as to any matter at all common between them, such federal legislation shall override it, and take its place. It is not too much to say that a continuance of such a system for any length of time without serious clashing is absolutely impossible. This is in effect so declared in the despatch of Her Majesty’s Colonial Secretary, and it is clearly pointed out in the London Times and in the Edinburgh Review. It seems as if our statesmen had sought to multiply points of collision at every turn. […] (pp. 513-514).

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Joseph Cauchon [Montmorency]—This is all I feel called upon to say, on this occasion, respecting a question which will again arise in the course of the debate. The hon. member for Lotbinière [Henri Joly] has attacked the scheme as being too federal, and the hon. member for Hochelaga [Antoine-Aimé Dorion] has condemned it as not being sufficiently federal, and as tending too much towards unity. Neither one nor the other is strictly accurate—it is not absolute unity, nor the federal principle in the American sense. In the American Confederation, supreme authority proceeded at the outset from the delegation of the states, which nevertheless divested themselves of it forever—at least according to the opinion of the Northern jurisconsults, who hold that no state is free to break the compact of 1788. In the scheme of the Quebec Conference there was no delegation of the supreme authority, either from above or below, inasmuch as the provinces, not being independent states, received, their political organizations from the Parliament of the Empire. There are only distinct attributes for the one and the others.

Some Hon. Members—Hear, hear.

Joseph Cauchon [Montmorency]—Unity does not obtain in an absolute sense, because local interests and institutions required in the local constitutions, guarantees and protections which they feared they would not find in the united Parliament and Government. But it is as complete as possible, inasmuch as unity gives to institutions chances of duration, and an initiatory force which is not given, which cannot be given, by confederacies in which authority is scattered, and where it is consequently without value and without real existence. Every constitutional mode of existence has its advantages; but assuredly that state of existence which gives permanence and stability to institutions should be preferred to others. Let us bear in mind that the Constitution of the United States has been but a compromise between state sovereignty and the need of a supreme authority to ensure the working of the state machinery, and that it was not perfect even in the opinion of its authors. In order to prove this statement, I shall call to my assistance words of greater weight than my own— those of Joseph Storey, probably the greatest constitutional authority of the United States:— (pp. 563-564).

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Colonial Laws Validity Act, UK, 1865 (HERE)

“[…] 5. Colonial Legislature may establish, &c. Courts of Law: Every Colonial Legislature shall have, and be deemed at all Times to have had, full Power within its Jurisdiction to establish Courts of Judicature, and to abolish and reconstitute the same, and to alter the Constitution thereof, and to make Provision for the Administration of Justice therein; and every Representative Legislature shall, in respect to the Colony under its Jurisdiction, have, and be deemed at all Times to have had, full Power to make Laws respecting the Constitution, Powers, and Procedure of such Legislature; provided that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony. […]”.^[7]

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Province of Canada, Legislative Assembly, Scrapbook Debates [Local Constitutions], 8th Parl, 5th Sess, (13 July 1866) (HERE)

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said that was a mere question of appraisal and settlement of account, with which the Local Constitutions had nothing to do. It was, however, the intention of the Government to submit a mode of arrangement to this Parliament, but his honourable friend would see that the giving effect in this, as to the Confederate and Local Legislatures, must be by act of the Imperial Parliament.

George Brown [South Oxford] was very glad to have heard at the Attorney-General’s [John A. Macdonald] views on the subject.

John Sandfield Macdonald [Cornwall] wish to know the course the government intended to pursue towards providing for the first meeting of the Upper Canada Parliament.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said the functions of this Government when cease the moment the Confederate Constitution came in force.

George Brown [South Oxford] wished to urge on the Attorney-General the importance of the point put by the hon. member for Cornwall [John Sandfield Macdonald]. It would be necessary for this Parliament to arrange the way in which the Local Constitutions where do we put in force, and he hoped the Government would at once bring down resolutions upon the subject before the debate on the Local Constitutions was resumed.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] hoped his hon. friend with see that they should first determine the principle before they went into details. The principle of the Lower Constitutions was now before them, and when that was affirmed, the means of organising them would be duly considered. The organization of the General Government, with the approbation of the people as expressed by a general election, should precede the organization of the Local Governments.

George-Étienne Cartier [Montreal East, Attorney-General East] addressed the House in French explaining at considerable length the provisions of the Local Constitution for Lower Canada.

Antoine-Aimé Dorion [Hochelaga] followed, stating that he designed to propose an amendment in favour of a single chamber in Lower Canada, the same as in Upper Canada.

Joseph Cauchon [Montmorency] replied to Mr. Dorion, speaking until a quarter to twelve o’clock.

The resolutions were then read the first time, and the House adjourned.

[Provincial Resolutions:]

1. That by the 38th paragraph of the Resolution of this House passed on the third day of February, 1865, for presenting an humble Address to Her Majesty, praying that She may be graciously pleased to cause a measure to be submitted to the Imperial Parliament, for the purpose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward island, in one Government, with provisions based on the Resolutions which were adopted at a Conference of Delegates from the said Colonies, held at the City of Quebec, on the 10th of October, 1864, it is provided that “for each of the Provinces there shall be an Executive Officer, styled the Lieutenant Governor, who shall be appointed by the Governor General in Council, under the Great Seal of the ‘Federated Provinces, during pleasure; such pleasure, not to be exercised before the expiration of the first five years, except for cause; such cause to be communicated in writing to the Lieutenant Governor immediately after the exercise of the pleasure as aforesaid, and also by Message to both Houses of Parliament, within the first week of the first Session afterwards;” and that by the 41st paragraph of the same Resolution it is provided that “the Local Government and Legislature of each Province shall be constructed in such manner as the existing Legislature of each such Province shall provide.”

2. That under and subject to the Constitution of the Federated Provinces, the executive authority of the Lieutenant Governor of Lower Canada and Upper Canada respectively shall be administered by each of such Officers according to the well understood principles of the British Constitution.

3. The Great Seal of each Province of Lower Canada and Upper Canada, shall be the same or of the same design, in each of the said Provinces, as that used in the said Provinces respectively, at the time of the existing Union, until altered by the Local Government.

4. That there shall be a Local Legislature for Lower Canada, composed of Two Chambers, to be called the Legislative Council and the Legislative Assembly of Lower Canada.

5. That there shall be a Local Legislature for Upper Canada, which shall consist of One Chamber, to be, called the Legislative Assembly of Upper Canada.

6. That the Legislative Council of Lower Canada shall be composed of twenty-four Members, to be appointed by the Crown, under the Great Seal of the Local Government, who shall hold office during life; but if any Legislative Councillor shall, for two consecutive Sessions of Parliament, fail to give his attendance in the said Council, his seat shall thereby become vacant.

7. That the Members of the Legislative Council of Lower Canada shall be British Subjects by birth or naturalization, of the full age of thirty years; shall possess a continuous real property qualification, in Lower Canada, of four thousand dollars over and above ait incumbrances, and shall continue worth that sum over and above their debts and liabilities.

8. That if any question shall arise as to the qualification of a Legislative Councillor in Lower Canada, the same shall be determined by the Council.

9. That the Speaker of the Legislative Council of Lower Canada (unless otherwise provided by the Local Parliament) shall be appointed by the Crown, from among the Members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes.

10. That each of the twenty-four Legislative Councillors of Lower Canada shall be appointed to represent one of the twenty-four Electoral Divisions thereof, mentioned in Schedule A of the first chapter of the Consolidated Statutes of Canada, and such Councillor shall reside or possess his qualification in the Division he is appointed to represent.

11. That the Legislative Assembly of Lower Canada shall be composed of the sixty-five Members to be elected to represent the sixty-five Electoral Divisions into which Lower Canada is now divided, under chapter two of the Consolidated Statutes of Canada, chapter seventy-five of the Consolidated Statutes for Lower Canada, and the Act 23 Victoria, chapter 1, or of any other Act, amending the same, in force at the time when the Local Government shall be constituted, as well for representation in the Local Legislature thereof, as in the House of Commons of the Federated Provinces; Provided that it shall not be lawful to present to the Lieutenant Governor for assent any Bill of the Legislative Council and Assembly of Lower Canada by which the number of the Representatives in the Legislative Assembly or the limits of the Electoral Divisions may be altered, unless the second and third readings of such Bill in the Legislative Assembly shall have been passed with the concurrence of three-fourths of the Members for the time being of the said Legislative Assembly, and the assent shall not be given to such Bill unless an Address has been presented by the Legislative Assembly to the Lieutenant Governor that such Bill has been so passed.

12. That the Legislative Assembly of Upper Canada shall be composed of eighty-two Members, to be elected to represent the eighty-two constituencies in Upper Canada, such constituencies being identical, whether for representation in the Local Legislative Assembly or for representation in the House of Commons of the Federated Provinces, and which constituencies shall consist of the divisions and be bounded as is provided in the schedule hereto annexed, marked A.

13. That until other provisions are made by the Local Legislature of Lower and Upper Canada respectively, changing the same in either of the said Provinces, all the Laws which at the date of the Proclamation, constituting the separate Provinces of Lower Canada and of Upper Canada, shall be in force in each of the said Provinces respectively, relating to the qualification and disqualification of any person to be elected or to sit or vote as a Member of the Assembly of the Province of Canada, and relating to the qualification and disqualification of voters and to the oaths to be taken by voters, and to Returning Officers and their powers and duties, and relating to the proceedings at elections and to the period during which such elections may be continued, and relating to the trial of controverted elections and the proceedings incident thereto, and relating to the vacating of the seats of Members and to the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution, shall respectively apply to elections of Members to serve in the said Legislative Assembly of Lower Canada and in the said the Legislative Assembly of Upper Canada.

14. That the Legislative Assembly of Lower Canada and the Legislative Assembly of Upper Canada respectively, shall continue for four years from the day of the return of the Writs for choosing the same, and no longer, subject, nevertheless, to either the said the Legislative Assembly of Lower Canada, or the said the Legislative Assembly of Upper Canada, being sooner prorogued or dissolved by the Lieutenant Governor of either of the said Provinces respectively.

15. That there shall be a Session of the Legislature of each of the said Provinces once at least every year, so that a period of twelve months shall not intervene between the last sitting of the Local Legislature in one Session, and the first sitting thereof in the next Session.

———-o0o———-

Province of Canada, Legislative Assembly, Scrapbook Debates [Local Constitutions], 8th Parl, 5th Sess, (27 July 1866) (HERE)

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] resumed the debate on the resolutions providing for the Local Constitutions. He moved the adoption of the first resolution, with the following addition, “and it is further now resolved, that in the opinion of this House, the appointment of the first Lieutenant-Governor should be provisional, and that he should hold office strictly during pleasure.” He proposed this amendment to meet the objection raised by the member for South Oxford [George Brown], when the question was formerly before the House, that the first Lieutenant-Governor, who of necessity would be appointed by a Government, not then having received the confidence of Parliament, should hold office five years.

This amendment rendered the office merely provisional, as he could be removed at anytime and without assigning any cause. The first government would of necessity have to be a provisional one. The Governor-General [Viscount Monck] must select his advisers from among the people of these provinces, and continue to administer the affairs of the Confederation, until by a general election, under the Constitution, and Parliament can be convened, and give effect to the Constitutional system of administration.

George Brown [South Oxford] expressed his satisfaction with the manner in which the Attorney-General [John A. Macdonald] had considered the point to which you had called attention on a former occasion. In fact the whole course of the Attorney-General [John A. Macdonald] in treating this question, had been exceedingly satisfactory. He had expressed his willingness to accept changes or amendments where they might be deemed necessary, and he (Mr. Brown) would be exceedingly glad to see the discussion carried on and the same good spirit to the end. He hoped the members from Upper and Lower Canada would each abstain from interfering with the provisions which only applied to the other section. For his part he would have a great reluctance and interfering in anyway with the Local Constitution of Lower Canada; he thought they ought to make it to suit themselves.

With regard to the amendment proposed, he (Mr. B.) thought the difficulty might better be got over, making the Governor-General [Viscount Monck], also the Governor of the Provinces, until the Lieutenant-Governor could be constitutionally appointed.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] had not the slightest doubt but that the whole machinery of both General and Local Governments could be set in motion without difficulty. But, it was not desirable that they should attempt to provide for too many small details. They must provide for a General Government and a Local Government, to take effect at once, though there was no reason why the present Governors in the other Provinces should not administer the affairs of these Provinces, until an appointment could be made by General Government, enjoying the confidence of Parliament.

John Sandfield Macdonald [Cornwall] thought the amendment in the right direction, but the time will come when the people of the country would demand a voice in the appointment of Lieutenant-Governors, as it might be tasteful in the future to see it in the hands of the General Government. And difficulty might arise from his not being removable without a cause being assigned, as is the case of difference with his cabinet the General Government might retain him in the position.

Antoine-Aimé Dorion [Hochelaga] spoke briefly on the point, and was replied to by Hon. Mr. Brown, when it being within a few minutes of the dinner hour, six o’clock was called.

Luther Holton [Chateauguay]—If they called this 6, he would like to know at what time it would be 7:30, as members did not desire to be kept waiting. (A laugh.)

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said, as he had previously informed the House in reply to the hon. member for South Oxford [George Brown], that a plan would be proposed for the adjustment of accounts between Upper and Lower Canada, he would state before the House rose that he would, after the resolutions were disposed of, move a resolution providing for the division of assets , and a general settlement between Upper and Lower Canada. It was a very difficult question to deal with, and in his judgment could not properly be entered upon until it had first been settled as to what amount of the common property of Canada would be assumed by the general government. It could not therefore take place until after Confederation had been accomplished, and he proposed to provide for it by moving a resolution to the effect that in any act, which the Imperial Parliament may pass for the purpose of uniting the several Provinces of British North America under one Confederate government, it is the opinion of this House that there should be provision made for the adjustment of the debts, credits, liabilities, property and assets of Canada, between Upper and Lower Canada, by arbitration, that one arbitrator shall be appointed by Upper Canada, another by Lower Canada, and the third by the general government, but that said arbitrators shall not be appointed until after the Local Constitution still have gone into effect, nor shall the third arbitrator be a resident of Upper or Lower Canada.

Evening sitting.

The Speaker took the chair at 7:30 o’clock.

The bills which passed through Committee in the afternoon were read a third time and passed.

The debate on the resolutions was resumed.

In reply to a question,

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] explained that it would be necessary to embody these resolutions as passed by Parliament, in an address to Her Majesty.

Luther Holton [Chateauguay] contended that according to the fair meaning of the Quebec resolutions, it was provided that the existing government should frame the Local Constitutions; and that the resolutions before the House, presenting but a mere skeleton, did not fulfill that condition.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] replied that the general principles upon which the Confederation of the Provinces was to take place, had been agreed to, and embodied in the form of resolutions, and it was well understood that the general principles of the Local Constitutions should be presented in the same way. The Government has strictly follow the well understood terms of the Quebec resolutions, with regard to the Local Constitutions. Were we to undertake to make an act for the Imperial Parliament to pass? The hon. gentleman day after day had reproached the government for not going on with these measures; now, when they were going on with them here, he was throwing every obstruction in their way, determined if possible to defeat Confederation.

John Sandfield Macdonald [Cornwall] contended that the government should elaborate as many of the details of the Local Constitutions as possible, and submit them for the consideration of this House, and not go home with these resolutions so indefinitely framed, and construct whatever sort of constitution they chose. The people should have some guarantee that within a few months after the abolition of our present form of government, they would be permitted to meet in the Confederate and Local Parliaments.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said as he had remarked before, they must deal with only one case at a time. They should look to the question before them, and settle that before raising other issues. Already the general principles of the Confederate Constitution had been determined; now, they were called upon to settle the general principles of the Local Constitutions. With regard to Lower Canada, the matter was very simple, as the present constitution of Canada had been adopted in its entirety, with a single exception of a nominated, instead of an elective Upper House.

In Upper Canada they had aimed at a greater change—yet it was only a change in one particular, the adoption of one chamber instead of two. This, then, was the great question to discuss in these resolutions, and the other was whether they should or should not have Responsible Government in conjunction with a single chamber. As to the general course of proceeding, the first step after the passing of the Imperial Act would be the sending out of a Viceroy or Governor-General, under whatever title Her Majesty may be pleased to give him. And his first duty would be to issue the writs for a general election for the Confederate Parliament, and to appoint provisional Lieutenant-Governors that they might issue writs for an election for the Local Parliaments. Of course it was well known that it would be quite impossible to submit this measure to the Imperial Parliament before the next session, which would be in January, or early in February next.

Joseph Cauchon [Montmorency] contended that there was no danger of any changes being made from the principles laid down in the resolutions because they had not given their own government any authority to change them, and the Imperial Government would not introduce such changes without their consent. It must follow therefore that if any changes are proposed, our Government must bring them before the Parliament of this country, and have its sanction before they can be introduced into the Imperial Act. He also referred to the provisions of the Quebec resolutions regarding the formation of the Local Constitutions, saying that the meaning evidently was that well existing government should settle the general principles of the Local Constitutions, separate Provinces would be empowered to amend them here after within the provisions of the general Constitution.

James O’Halloran [Missisquoi] said when the Quebec resolutions were before the House Ministers had promised details on the bringing down of the Local Constitutions, but now they had only laid a ghastly skeleton before the House.

Matthew Cameron [Ontario North] found no provision made in those resolutions for a Local Executive Council. He should like to know whether the government intended to make any change, so that this might be remedied. The resolutions did not actually provide for Local Government, only for a Local Governor.

Now a government, as he understood it, consisted of Governor and Executive Council.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] explained that the general terms of the well understood principles of the British Constitution were sufficiently explicit to define the necessity for a constitutional Ministry. But the number of departments had been left to be determined by the Local Parliaments.

George Brown [South Oxford] thought that with the experience, an ability which the House possessed it ought to prepare as many of the details of the Local Constitutions as possible. The union act of ’41 had provided that the heads of the Departments, should form the executive, and we thought that some provision should be made for a Local Executive. If the point were left to the Local Parliaments, there would be a great temptation to multiply offices to too great an extent.

George-Étienne Cartier [Montreal East, Attorney-General East] defended the resolutions as framed and argued that the Local Executive was sufficiently provided for by the general declaration of the principle of government. The resolutions upon which the Union Act had been founded, did not make any exact definition as to the Executive Council.

Maurice Laframboise [Bagot] addressed the House in opposition to the resolutions, saying that England would not regard the feelings of French Canadians. She would do again what she did in 1840, impose it up on the people.

Arthur Rankin [Essex] thought the discussion had hitherto been conducted in a most irregular manner. They had already made known, in a constitutional way, their views as to Confederation, in the resolutions embodying what was called the Quebec scheme, which would, no doubt, be adopted without change, and the only thing that remained for us was to settle our Local Constitution. He thought the course pursued by the Government, in regard to these, had been a proper one.

After most irregular discussion, it was suggested that the debate be adjourned.

John Sandfield Macdonald [Cornwall] said the vote should take place tonight.

Christopher Dunkin [Brome] and John Scoble [Elgin West] said the resolutions had not yet been properly discussed, and then debate ought to be adjourned.

Joseph Perrault [Richelieu] said the discussion was useless. Members dare not change their votes for fear of an appeal to the country.

Antoine-Aimé Dorion [Hochelaga] said that many members had already left, and in a few days more would be going, and he wished to see the vote taken that the business of the country might be proceeded with.

George Brown [South Oxford] desired to see these resolutions discussed fully and gravely, and if any amendments were found necessary, they should be made. He submitted that honourable gentleman opposed to these resolutions put themselves in an awkward position, by insisting on the vote being taken to-night. They forgot that the important subject of the distribution of the seventeen new seats in Upper Canada had not yet been even referred to in the debate.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said the government had only one view in framing these resolutions: to leave behind them as perfect a measure as possible. They would not comment therefore, be hurried, nor with the majority of the House be hurried, in coming to a decision upon them. It was not a question of a day, but a question that would affect Upper and Lower Canada, perhaps for all time to come. It should therefore be carefully considered. The hon. member for South Oxford [George Brown] had said there were improvements to be suggested, and it was the intention of the Government to give the fullest opportunity to consider them. But hon. gentlemen opposite who are opposed Confederation, who said it was going to bring ruin upon Canada now desire to hurry it on. They would rush into the danger to avoid the apprehension.

William McDougall [Lanark North, Provincial Secretary] said the subject was a very important one. The Government had laid it before the House, without professing that it was altogether perfect, that it might be fully and fairly discussed, and that, if need be, its imperfections remedied. The Government would be very glad to consider any suggestions to that end from any side of the House. The gentleman opposite had, after all their anxiety to find fault, been unable to discover anything in these resolutions, upon which they could base a reasonable objection.

Antoine-Aimé Dorion [Hochelaga] again charged the government with improperly delaying business.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] replied, dwelling on the importance of the subject, and saying that the member for Hochelaga [Antoine-Aimé Dorion] had a number of amendments in his desk, which he desired to bring up on the House as a surprise, and perhaps create some embarrassment to the Government.

Antoine-Aimé Dorion [Hochelaga] said he had already informed the House that he had several amendments to move, and had not attempted to surprise the House.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] —Then why does not the honourable gentleman have his amendments published? It was most unfair to ask members to vote upon such a serious question as an amendment to the Constitution, without giving some time to consider it. He (Mr. McD.) explained that he would press the motion for the adjournment of the debate which would be resumed on Tuesday, though the final vote which would bind the House to the resolutions would not be taken until Thursday.

Alexander Mackenzie [Lambton] approve the course of the government, and thought the suggestion to print important amendments ought to be followed.

Matthew Cameron [Ontario North], though opposed to Confederation from the first, and though he had not seen anything to make him regarded more favourably, considered now that it had become a fixed fact, it was the duty of all to endeavour to make it work as well as possible. The Provincial Secretary [William McDougall] had said it was a grave subject, but he thought the grave part would be when we buried Canada; still he did not wish to have too much crying at the funeral. He thought the course of the government in adjourning the debate the proper one.

The members were then called in and the House divided on the motion to adjourn, which was carried. —Yeas, 70. Nays, 18.

———-o0o———-

Province of Canada, Legislative Assembly, Scrapbook Debates [Composition of Senate & Local Constitutions], 8th Parl, 5th Sess, (2 August 1866) (HERE)

The debate on the Local Constitutions was then resumed, the question being on the concurrence or third reading of the resolutions providing for the same.

George Brown [South Oxford] opened the discussion. His own idea had been that some scheme could have been devised to bring the Executive into direct responsibility to the people, which would have been more economical and more perfect than the one now before the House. The period chosen for the duration of Parliament, four years, was too long. A period of Parliament elected for three years, with an Executive, composed of heads of Department, without seats in the House, would better tend to avoid the difficulties which had to be set the Government of Canada, then the plan proposed. He should have liked to have seen the Local Executive placed under the law, instead of controlling the Legislature. Then with regard to the distribution of seats—was it the intention of the government to place its control in the hands of the Local or the General Government?

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] stated that the General Parliament would determine the distribution of any future increase of representation in the General Legislature. But the Local Parliament of Upper Canada would be fully empowered to limit the number of its own members, without reference to its representation in the General Parliament.

George Brown [South Oxford] said the 12th resolution bore an entirely different construction. On reading at the inference was playing that the Constituencies would continue to be identical, both for the Local and General Governments. Some provisions ought to be made restricting the identity of the constituencies to the first general election, or until the next census. Another point was the limit as to the time when the Parliament should be called after the issue of the proclamation putting the new constitution in force.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] —Had already stated that the issue of the proclamation would be immediately followed by the issue of the writs for the general election. But the question was not now one regarding the general government, but only as to principles of the Local Constitutions. He would assure the hon. member that so far as the government would have any influence in the matter they would use it in favor of having the Parliament called at once.

John Sandfield Macdonald [Cornwall] stated that by the terms of the Quebec resolutions, the Legislative Councillors would be nominated by the Provisional Governor and his advisers, before a single election could be held under the Local Constitution. It was clear that the Local Parliaments could have no control under these important appointments by the plan proposed.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] said the Provisional-Governor, on his appointment, would at once choose his Secretary, and issue the writs under the Great Seal, for the general election. The Local Parliament would then meet and he must have his responsible advisors before he can assume the discharge of any of those duties depending on the advice of the Executive.

Joseph Cauchon [Montmorency] said the Legislative Council of the General Government would be appointed before the Local Governors were appointed at all; their nomination would be made by the existing government. (Hear, hear.)

This point was made clear by the clause in the Quebec resolutions, providing the first members of the Council should be chosen from the existing Local Legislative Councils. It was well understood that the Government of Canada stood in the place of the Local Governments of Upper and Lower Canada at the present time, and must make the first selection which would afterwards fall upon the Local Governments.

Christopher Dunkin [Brome] said if the hon. member for South Oxford [George Brown] had not reopened the discussion on the Quebec Resolutions then this debate was very much misplaced. He proceeded to read them, to elucidate the point whether the existing Legislature could be construed as the Local Legislature, according to the meaning of the resolutions. He said he might congratulate himself now, since he had frequently complained of their ambiguity, that the member for South Oxford [George Brown], who had been one of their authors, and who had insisted on their being accepted without a word being changed, appeared now not to be able to understand them. He had been of the opinion that it would be the duty of the existing Legislatures to appoint the members of the Legislative Council of the general Government, but upon the construction now put on the 14th clause the Local Parliament would have to meet before the nominations to the Confederate Legislative Council could take place.

Alexander T. Galt [Sherbrooke, Minister of Finance] said the point was quite clear, and had been fully explained by the member for South Oxford [George Brown], during the debate.

George Brown [South Oxford]—Hear, hear.

Alexander T. Galt [Sherbrooke, Minister of Finance]— The understanding of the fourteenth clause had been explained then precisely in the meaning now given to it by the member for Montmorenci [Joseph Cauchon].

George Brown [South Oxford]— Quite so.

Alexander T. Galt [Sherbrooke, Minister of Finance] then read from the speech of the hon. member for South Oxford [George Brown], to the effect that the meaning of it was that the existing Government should select the first members of the Legislative Council, and that he (Mr. B.) had every confidence that in that selection justice would be done to parties on both sides of the House.

George Brown [South Oxford]— The point had always been well understood, and he had never heard of any misconception, until the member for Brome [Christopher Dunkin] had undertaken to lecture him, as he did other members of this House. The very mode of selection of the Councillors had been decided on, and with the permission of the Attorney-General West [John A. Macdonald] he would state it to the House.

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] — Certainly.

George Brown [South Oxford]— The mode was a very simple and in his mind a very fair one, simply that the Reform members of the Cabinet should consult their supporters, the Conservatives theirs, and having had a fair understanding as to who were acceptable on each side, then to nominate alternately from both the parties. He still believed that every justice would be done to all parties in that selection. With regard to the Local Executives, he regretted very much that the amendment submitted by the member for North Ontario [Matthew Cameron] had not been accepted, because he considered it exceedingly desirable that the number of the Executive should be limited.

Alexander T. Galt [Sherbrooke, Minister of Finance] said these resolutions only provided the machinery of the Local Constitution by which the Local Governments might be set in order, and it was desirable to frame them with as few restrictions as possible, for the very reason that, according to the Quebec resolutions, the Local Parliaments would have power to alter or amend them as they might see fit.

John Sandfield Macdonald [Cornwall] addressed the house, but his remarks were imperfectly heard in the Gallery.

William McDougall [Lanark North, Provincial Secretary] express the gratification of the government with the debate, that as yet no very strong point has been made against the outline of the Local Constitution now before the House. He thought the member for South Oxford [George Brown] might have put his suggestions in a more definite shape; he might have submitted them by way of amendment, that the house might have had an opportunity of considering. He had suggested the framing of some possible system, with an executive appointed for three years, would have been better for Upper Canada then the plan submitted, but he had not put it in any very definite way. The reply of the government to that point was that after due consideration it had been deemed proper that the system should be retained, with the working of which the people of these provinces had become familiar. He objected to the hon. member for South Oxford [George Brown] sending it fourth before the country that a better scheme might have been devised if more talent and patriotism had been devoted to its consideration.

George Brown [South Oxford]—Said the Provincial Secretary [William McDougall] had no right to have put such a construction upon his (Mr. B.’s) remarks. He contemplated nothing of the kind, and he was sure his words would bear no such construction. He asked him why he did not introduce his own plan to this House. His reason for so doing was that since it was the general feeling of this house to give the constitutions provided by these resolutions a fair trial, there was no need of putting two schemes before the country to create useless discussion. The Provincial Secretary [William McDougall] ought to be the last man to object to his (Mr. B.’s) views, as up to this time he had been their warm advocate.

The first resolution was carried, and the debate adjourned until the second sitting of the House to-day.

Hon. Mr. Galt said he had consulted the Speaker on the point of order, brought up early in the afternoon, and his opinion was that the Committee of Ways and Means was not strictly the correct mode of proceeding. He (Mr. Galt) therefore gave notice that he would move that the House go into Committee on the currency resolutions to-morrow.

Hon. J. A. MacDonald gave notice that he would move that during the remainder of the Session the House sit from 11 to 3 o’clock to consider, first, Government orders; 2^nd public bills, third private and local bills.

Hon. Mr. Cauchon desired to know when members would be permitted to go home.

Hon. J. A. MacDonald said the only satisfaction he could give was that the hon. member would be expected to remain until the afternoon of the last day of the Session (laughter.)

Several bills were introduced from the Legislative Council.

The House rose at six o’clock.

Second Sitting.

The Speaker took the chair at half-past seven o’clock.

Mr. Bell introduced a bill to extend to the Roman Catholic minority in Upper Canada, similar and equal privileges, with which those which are, or shall be granted by the Legislature to the Protestant minority in Lower Canada.

Hon. Mr. Brown desired to know if this was a Government measure.

Hon. Mr. Galt said the Government had no objection to the introduction of the bill.

Hon. Mr. Brown said that no bill ought to be introduced on a government day, but a government bill. If it was introduced now, the discussion must take place at once. It was a most extraordinary thing to attempt at the end of the session, and before the people of Upper Canada would have time to hear it, to change their whole system of education.

Mr. Bell assured him nothing of the kind was contemplated. He merely wished to confer upon the Catholics of Upper Canada, the same rights and privileges as the Catholics of Lower Canada gave the Protestants, a proposition so fair that no man, whether Catholic or Protestant, should object to it.

Mr. Scatcherd objected to the introduction of the bill, and moved the three months’ hoist.

Mr. M.C. Cameron recommended Mr. Scatcherd to withdraw his amendment, the discussion of which would only lead to a useless waste of time.

Hon. Mr. McGee said the proper course would be to allow the introduction of the bill, and submit his amendment to the motion on the second reading.

Mr. Scatcherd consented to this, and withdrew his amendment.

Mr. Parker said it was quite impossible that this bill should become law at such a late period of the session unless it had the support of the Government and he wished them to state distinctly the course they intended to pursue towards it. There was no use in discussing the bill if it was not to be pushed through this session.

Hon. J. A. MacDonald said the government had no measure on the subject. The bill would be left to be treated on its merits.

The bill was read a first time.

On the question for the second reading to-morrow,

Mr. Scatcherd moved the three months’ hoist.

Hon. J. A. MacDonald then moved the adjournment of the debate, as there was government business to be considered by the House. (Hear, hear.)

Hon. Mr. Brown came forward to the Clerk’s table and picked up the bill which was in blank and said “Mr. Speaker, there is no bill here, I object.”

Mr. Bell said he would have the bill printed within twenty-four hours.

Hon. J. A. MacDonald said it was not advisable at this time, in the present state of the country to show to the Irish Roman Catholics of Upper Canada that they cannot have a measure introduced before this House in the usual way. He asked the member for South Oxford to withdraw his objection.

Hon. Mr. Brown said it was wrong for the leader of the government and the special representative of Upper Canada to give a partisan character to this debate. He denied that he was actuated by any partisan feeling in the course he had taken, but he had no other way of protecting the interests of the country than to oppose it.

Mr. Bell was then called upon to “send in the bill” and the matter dropped.

Hon. Mr. Cartier introduced a bill respecting works connected with the defence of the Province.

Hon J. A. MacDonald said in accordance with the announcement he made at the first sitting, he would now move that a telegram be sent to the colonial office, acknowledging the message to the Governor-General. He proposed that it should be sent jointly by both branches of the Legislative Council and the Legislative Assembly of Canada. He therefore moved, seconded by the hon. member for Cornwall, that a telegram be sent to the colonial office, in acknowledgment of the despatch received by the Governor-General, in the following words.

“To the Right Hon. Earl Carnarvon.

“We the Legislative Council and Assembly of Canada humbly thank Her Majesty for her gracious message to the Governor-General.

“We feel warmly that by this great enterprise we are drawn nearer to the heart of the mother country.”

The motion was carried by acclamation.

The debate on the Local Constitutions was resumed. The first, second and third resolutions were carried on division.

On the fourth resolution,

Antoine-Aimé Dorion [Hochelaga] recited the arguments of the Attorney-General West [John A. Macdonald] in favor of a single chamber in Upper Canada, and continue that all questions are important relating to commerce, currency, banking and public works, generally, were transferred to the General Government. If the duties of the Local Government were only to be municipal, it appeared to him that one chamber would be sufficient for Lower Canada. He then viewed the subject from this financial point, contending that in the interests of economy there should be no Legislative Council in Lower Canada. The object of the motion he would lay before the House was to do away with the second chamber in Lower Canada, adopting the same principle as was to be applied to Upper Canada.

After further remarks he moved an amendment in accordance with the above.

Maurice Laframboise [Bagot] seconded the amendment.

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics] said it was now nearly two years since the great scheme of Confederation had been placed before the public in a coherent shape. During these two years the hon. gentleman and his friends had taken every means—secret and open, to defeat its accomplishment. They had to express themselves favorable to some plan of union, but they had never yet proposed it, and it was now on the detail of a detail that they had taken their stand; the hon. gentleman favors the proposal of a single Chamber for the Lower Canada Legislature, and upon that point he (Mr. McG.) would say a few words.

The principles of the British Constitution he desired to see carried out in its integrity, in the Local Governments as well as in the General, and if these could be carried out successfully in Upper Canada by a single chamber, it would be the first time. The people of Lower Canada, by adopting two chambers, were accepting the system which they knew would work well; those of Upper Canada were adopting an experiment, which they might have to abandon, and which, even if it succeeded there, it would not necessarily be applicable to Lower Canada. The people of Upper Canada were one people, speaking one language, strongly imbued with one general class of principles, and they might succeed in their experiment.

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

But let him consider some of the great questions with which they would have to deal. There was the subject of agriculture which surely was not an insignificant one. The subject of Education was also interested to them, and it was certainly a question of importance, and during as the population itself. While on this question, he would save them and attempt had been made to-night, to throw out a bill on a point of order. He (Mr. McG.) had no responsibility for that bill, but he would say this, as he had said in 1863, that if any special grants or guarantees were given to the minority of Lower Canada, he should insist, weather in the Government or out of the Government, that equal privileges neither more nor less, be granted to the minority of Upper Canada, and he should like to see the man who could put forward a reasonable objection to the stand he took up on that question.

George Brown [South Oxford]—Does he wish to raise at the point now?

Thomas D’Arcy McGee [Montreal West, Minister of Agriculture and Statistics] merely alluded to it because, on a former occasion, the member for Lambton [Alexander Mackenzie] had said that he (Mr. McGee) had accepted the bill of 1863 as a finality. (He then read from his speech in ’63, containing a similar declaration as to equal privileges and continued) this question of education would increase in importance as the country progressed, and he considered it one which should engage the serious attention of the Local Legislature.

He went over the matters within the jurisdiction of the Local Legislatures, and contended that their duties would in some degree be of more important than that of the General Legislatures, and hoped that a seat in them would be esteemed as a position of honor and responsibility.

The hon. gentleman must know that the Confederation of British North America was a foregone conclusion. It had been decided by this House and by the country. It was in pursuance of the policy of the empire; ever since the American war the question had been urged upon the country, by the necessities of its position, by the councils of the Imperial Government, and by every consideration of sound policy. The hon. member had now come forward at the eleventh hour, and catching the giant union by his shoe string was trying to trip him up. Mr. McGee reiterated that his argument that experience had hitherto shown the two chambers were inseparable from the successful working of the British constitution.

Maurice Laframboise [Bagot] said he rose with great diffidence to address the House in a language with which he was imperfectly acquainted, in reply to the hon. Minister of Agriculture [Thomas D’Arcy McGee], who is eloquence was so well known. He had given the House and most eloquent speech, but there was no argument in it, and no doubt he could be as eloquent on one side as the other. He (Mr. L.) then proceeded to argue against a nominated Upper Chamber, which would produce a dead lock in the government. The gentleman opposite wanted a Legislative Union, but they know very well they cannot get it, and so they provide an Upper House that they may bring about a dead lock, and so lead to a Legislative Union.

If Upper Canada can do with one chamber, why cannot Lower Canada? He had her no reason to prove that one Chamber was good for Upper Canada, and yet not good for Lower Canada. The hon. gentleman had spoken of the good feeling existing between the two races, but if there was so much good feeling, why all these precautions on the part of the British population? Why give them a school bill which the Lower Canadians would not touch? Why guarantee them so many constituencies that the parliament could not change? It was because they had no faith in that feeling. The good feeling was not stronger now than it was twenty years ago. He would like to hear one good reason why one House was good for Upper, but not good for Lower Canada.

Joseph Cauchon [Montmorency] regretted that the hon. gentleman had become the spokesman of those antipathies which had existed before the union. He thought every man ought to forget these distinctions of nationality. He was as good a French Canadian as the hon. member himself, but he denied that anyone had ever heard him (Mr. C.) utter a word against a man for his religion, or for his nationality. A great deal has been said about dead locks. Now there were dead locks every where had they not seen dead locks between the House of Lords but everyone knew that these dead locks were revolutionary, because they always lead to revolutionary measures to overcome them.

The reason why Upper Canada had not the two chambers, was because Upper Canada did not want to. That was a very good reason—they wish to try the experiment, but it was an experiment that had always failed wherever it had been tried. Mr. Cauchon then referred to the various governments which either had abandoned, or had never tried the single chamber system, and regret it exceedingly that Upper Canada was to try it, since it had failed everywhere else. Regarding the preservation of the French Canadian nationality, Mr. C. contended that as the larger body would absorb the smaller, the lower Canadians of French Canadian origin had a better guarantee for their preservation of their language and institutions under Confederation then under any other system.

Christopher Dunkin [Brome] said there never had been a time since the Union when the great majority of the British population had not been on the same side of politics, and work with the great majority of the French Canadians—a fact that spoke strongly in favor of the good feeling which had been called in question period then as to the question of guarantees, why not guarantee that British minority in Lower Canada, when the Lower Canada majority was guaranteed in its institutions against the aggression of the whole British population of the country?

With regard to the question before the House, he was exceedingly glad that no new experiment was to be tried upon Lower Canada. He regarded a single chamber as inconsistent with the principles, or at all events, with the usages of the British constitution, and not in harmony with Responsible Government. The Republican sagacity of the United States had confined the single chamber system to the Territories, but whenever the Territories were raised to States, then the two chambers were introduced. Then the Local Government of Lower Canada would have more important functions to perform than that of any other of the Provinces.

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

John Scoble [Elgin West] hoped the argument of the member for Brome [Christopher Dunkin] would not influence Upper Canadians against the single chamber.

Matthew Cameron [Ontario North] wished to understand the position of the members upon the question before casting his vote. He could not hold for one scheme for Upper Canada and an entirely different one for Lower Canada. If members were devoted up on this question, there were two others—the Lower Canada education bill, and the Upper Canada bill, should also be voted on in the same way. He hoped that some understanding would be arrived at, as he felt the position to be a very difficult one.

John Cameron [Peel] said it was perfectly impossible for them as members of one Legislature to leave questions to one section or the other, members must vote up on every question that comes before the House. It would be impossible to come to an agreement on the particular questions upon which they ought to abstain from voting.

He (Mr. C.) was in favor of two Chambers for Upper Canada, and he should support the same principle as applied to Lower Canada. He contended they ought to carry out the old constitution which had worked so well heretofore. The only argument he had heard in favor of a single Chamber was that Upper Canada had not twenty-four additional men to devote their attention to the duties of Legislative Councillors. With a population and intelligence of Upper Canada this argument was quite absurd, and when the question came up he meant to vote for two Chambers.

Richard Cartwright [Lennox & Addington] thought there ought to be means for revising the judgments of the single Chamber. He suggested that the Confederate Parliament be empowered to disallow any act of the Local Parliament of Upper Canada. If the House insisted on having only one Chamber, he believed his suggestion would have a good effect in acting as a check on hasty Legislation, but he would himself record his vote in favor of two Chambers for Upper Canada.

Joseph Blanchet [Lévis] opposed, and Joseph Perrault [Richelieu] supported the amendment.

Arthur Rankin [Essex] contended that the establishment of Confederation was altogether un-British, and therefore any argument drawn from that source had no proper bearing on the questions before the House. He approved of one Chamber for Upper Canada, but would rather have seen no Local Government at all. They were laying the foundation of a system which might lead to consequences similar to those that have been witnessed in the United States, growing out of the agitation of State rights. He opposed the application of two Chambers to the Legislature of Lower Canada, and holding views entirely differing from the member for Peel [John Cameron], he would vote against the government scheme for Lower Canada, and in favor of the Government scheme for Upper Canada.

James Cowan [Waterloo] could not consent to impose an expensive and mischievous system upon Lower Canada, and would vote for the amendment.

George-Étienne Cartier [Montreal East, Attorney-General East] said the Local Constitution for Upper Canada having a frame to suit the views of the people of that section, and the Lower Canada Constitution was framed to meet the views of the majority of the people of Lower Canada. It would be unfair of the Upper Canada members to force their system upon Lower Canada. He stated his opinion, that Upper Canada was trying a very dangerous experiment. (Hear, hear.)

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

George Brown [South Oxford] would be glad to accept the arrangement if members from one section were excused from voting on resolutions affecting the other.

Several members—Oh! no members must vote!

Thomas Gibbs [Ontario South] said he saw no impropriety in members following the example of ministers, and supporting the schemes which had been framed to suit each Province. He could see no inconsistency in the course.

Thomas Ferguson [Simcoe South], said he thought the day of the double majority was over, and was very much surprised to hear the hon. member for South Oxford [George Brown] appealing to that principle. He held it to be the duty and privilege of members to vote upon any questions that came before the House. He regretted very much that Upper Canada was not to have the second chamber. He had always looked upon the Attorney General East [George-Étienne Cartier] as a man of generous principles, but what he had done tonight was the crowning active his generosity, for the second chamber had been given to Lower Canada, to protect the British population from the unjust action of his own countrymen, should they ever attempted. It would ill become Upper Canada members to deprive the British population of Lower Canada of that protection. For himself he was opposed to double majority ideas in this House, and would vote for two chambers for Lower Canada and for Upper Canada, too, if the question came to a vote.

Thomas Parker [Wellington North] said he should vote up on this question according to his own convictions, without considering the views of the members for Lower Canada. They had not always abstained from imposing measures up an Upper Canada.

John White [Halton] thought a good deal of forbearance should be exercised in this manner. It was something more important than an ordinary question, and believing it to be the desire of a large majority of the people of Lower Canada to have two chambers, he should vote against the amendment.

The members were then called in and the house divided on the amendment, which was lost.— Yeas, 31. Nays, 69.

YEAS—Bigger, Bourassa, Brown, Burwell, Cameron, (North Ontario), Caron, Coupal, Cowan, Dorion, (Drummond and Arthabaska), Dorion, (Hochelaga), Dufresne, (Iberville), Fortier, Gagnon, Geoffrion, Holton, Houde, Labreche-Viger, Laframboise, Lajoie, Macdonald, (Cornwall), O’Halloran, Paquet, Parker, Perrault, Pope, Pouliot, Rankin, Ross, (Prince Edward), Rymal, Tremblay, Webb.—31.

NAYS,—Abbot, Alleyn, Archambeault, Beaubien, Bellerose, Blanchet, Bowman, Brousseau, Cameron, (Peel), Carling, Cartier, (Atty-General), Cartwright, Cauchon, Chapais, Cockburn, Cornellier, Currier, De Boucherville, De Niverville, Dickson, Duckett, Dufresne, (Montcalm), Dunkin, Dunsford, Ferguson, (Frontenac), Ferguson, (South Simcoe), Galt, Gaucher, Gaudet, Gibbs, Harwood, Higginson, Huot, Irvine, Jones, (South Leeds), Langevin, Le Boutillier, Macdonald, (Attorney-General), Macdonald, (Glengarry), Magill, McConkey, McDougall, McGee, McIntyre, Morris, Morrison, Oliver, Pinsonneault, Poulin, Poupore, Raymond, Remillard, Robitaille, Ross, (Champlain), Ross, (Dundas), Sctatcherd, Shanley, Smith, (Toronto East), Somerville, Stirton, Street, Taschereau, Thompson, Wallbridge, (North Hastings), Walsh, White, Wood, Wright, (Ottawa county), Wright, (East York.)—69.

The 4th resolution was then concurrent in.

On the 5th resolution being put,

John Cameron [Peel] moved in amendment, at the Local Legislature of Upper Canada be composed of two chambers, to be called the Legislative Council and the Legislative Assembly of Upper Canada.

John Cameron [Peel] argued powerfully in favor of the continuance of the present system, and against the experiment of a single chamber, urging that the Legislative Council was necessary to the proper working of the system of responsible government.

Matthew Cameron [Ontario North], as a Conservative, desired to state his reasons for opposing the amendment of the member for Peel [John Cameron]. What argument had been urged by the Attorney General West [John A. Macdonald] in favor of a single chamber, which appeared to have escaped that hon. gentleman’s attention, the consideration of expense. The cost of an Upper Chamber to Upper Canada would be serious, after all the ordinary sources of revenue had been handed over to the General Government. He [text missing] it as a farce, a mere mockery of the British Constitution, to give an Upper Chamber to a Legislature which would be nothing better than a large municipal body.

John Sandfield Macdonald [Cornwall] spoke in reply to the member for Peel [John Cameron], and in opposition to the principle of a nominated Upper House.

The members were then called in and the House was divided, when the amendment was lost. Yeas, 13; nays, 86.

YEAS.—Messrs. J.H. Cameron, Morris, Cartwright, Street, Currier, Dunkin, Fergusson, (South Simcoe), Gaucher, Gibbs, Huot, Poulin, Smith (Toronto East), Wright (East York.)—13. Nays.—The rest of the House.

The fifth resolution was then concurred in.

Antoine-Aimé Dorion [Hochelaga] moved, in amendment to the 6th resolution, that the Legislative Councillors be elected by the people.—Lost— yeas, 31; nays, 63.

The 6th resolution was concurred in.

Antoine-Aimé Dorion [Hochelaga] moved, in amendment to the 7th resolution, that the Legislative Councillors of Lower Canada should not hold any office of emolument in the Federal or Local governments, and that they should receive no salaries for their services.—Lost—yeas, 27; nays, 67.

The 7th and 8th resolutions were concurred in.

Antoine-Aimé Dorion [Hochelaga] moved that the 9th resolution be amended, by providing that the Speaker of the Legislative Council be elected by the House at the opening of each Parliament.—Lost—yeas, 24; nays, 63.

The 9th and 10th resolutions were concurred in.

Joseph Cauchon [Montmorency] moved an amendment to the 11th resolution, striking out that part of it which guarantees the existing limits the constituencies of Pontiac, Ottawa, Argentueil, Huntingdon, Missisquoi, Brome, Shefford, Stanstead, Compton, Wolfe, Richmond, Megantic, and the Town of Sherbrooke, against any future alterations, without the consent of a majority of the representatives of these constituencies.

Antoine-Aimé Dorion [Hochelaga] supported the amendment.

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

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

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

The amendment was lost.—Yeas, 24; Nays, 68.

The remaining Resolutions were carried, and

John A. Macdonald [Kingston, Attorney-General West and Minister of Militia] moved the adjournment of the debate.—Carried.

The House then adjourned at twenty minutes past 2 o’clock.

———-o0o———-

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 1 (4 December 1866) (HERE)

42. The Local Legislatures shall have power to alter or amend their constitution from time to time.

———-o0o———-

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 2 (4-6 December 1866) (HERE)

42. The Local Legislatures shall have power to alter or amend their constitution from time to time.

———-o0o———-

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1 (13-14 December 1866) (HERE)

42. The Local Legislatures shall have power to alter or amend their constitution from time to time.

———-o0o———-

John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 3, Copy 1 (14 December 1866)

42. The Local Legislatures shall have power to alter or amend the constitution from time to time.

———-o0o———-

London Resolutions, Final Version (28 December 1866)

41. The Local Legislatures shall have power to make laws respecting the following subjects:—

1. The altering or amending their Constitution from time to time.

———-o0o———-

1867 Act – Draft 1 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package, n.d. (MG 26, A, Vol. 49/2, pp. 19451-19461).

“[7.] The Local Legislatures shall have power to make laws respecting the following subjects:

(1.) The altering or amending their Constitution from time to time.”

———-o0o———-

Earliest Rough draft of 1867 Act (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, n.d. (MG 26, A, Vol. 48, pp. 18768-18793).

“42. The Legislature shall have exclusive power to make laws respecting the following subjects, with the exception of Agriculture and Immigration, in regard to which Parliament shall have concurrent jurisdiction.

1. The altering and amending their constitution from time to time.”

———-o0o———-

Early Draft of 1867 Act – January 23^rd 1867 (HERE)
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).

“37. In each Province the Superintendent may, by and with the Advice and Consent of the Provincial Assembly, make Ordinances in relation to Matters coming within the Classes of Subjects next herein-after enumerated, which Ordinances exclusively (subject to the Provisions of this Act) shall in relation to those Matters have the Force of Law in and for the Province, that is to say,—

(1.) The Amendment from Time to Time of the Constitution of the House or Houses of the Provincial Assembly”

———-o0o———-

1867 Act – Draft 2 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Early Package with Reilly’s Notes, n.d. (MG 26, A, Vol. 49/2, pp. 19462-19480).

“106. In each Province, the Lieutenant Governor may, by and with the advice and consent of the Legislature, may make laws in relation to matters coming within the classes of subjects next hereinafter enumerated: —

1. The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 3 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, n.d. (MG 26, A, Vol. 49/2, pp. 19500-19518).

“106.—In each Province, the Lieutenant-Governor may, by and with the advice and consent of the Legislature [may] make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 4 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 2, n.d. (MG 26, A, Vol. 49/2, pp. 19519-19537).

Note: Same provisions as above but without amendments.

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 5 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 3, n.d. (MG 26, A, Vol. 49/2, pp. 19538-19556).

Note: Same provisions as above.

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 6 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Copy 4, n.d. (MG 26, A, Vol. 49/2, pp. 19576-19594).

Note: same as document 3 above with slight variation (provision numbered 128)

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 7 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package with W.S. Henry’s Notes, n.d. (MG 26, A, Vol. 49/2, pp. 19481-19499).

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 8 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, H.B. Morse’s Copy, n.d. (MG 26, A, Vol. 49/2, pp. 19595-19613).

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1867 Act – Draft 9 – Provincial Constitutions (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Local Constitutions Drafts Revised Package, Alexander Galt’s Copy, n.d. (MG 26, A, Vol. 49/2, pp. 19557-19575).

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

1^st draft of 1867 Act – nothing relevant on these topics.

———-o0o———-

2^nd Draft of 1867 Act (HERE)
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).

“54.—In each Province, the Lieutenant-Governor may, by and with the advice and consent of the Legislature, make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant Governor”

———-o0o———-

3^rd Draft of 1867 Act (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Duplicate Copy 2, n.d. (MG 26, A, Vol. 54, pp. 21623-21646).

“66.—In each Province, the Lieutenant-Governor may, by and with the advice and consent of the Legislature, make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant Governor”

———-o0o———-

4^th Later Version Draft of 1867 Act (HERE)
John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, Revised Copy, n.d. (MG 26, A, Vol. 49/1, pp. 19399-19450).

“[90] 93.—In each Province, the Legislature may make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

4^th Final Draft of 1867 Act (HERE)
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).

“90.—In each Province, the Legislature may make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—

(1.) The amendment from time to time of their Constitutions except as relates to the office of Lieutenant-Governor”

———-o0o———-

Footnotes

^[1] Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 45. For the section referenced above, Section 41, it reads:

41. An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

(a) the office of the Queen, the Governor General and the Lieutenant Governor of a province;

(b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force;

(d) the composition of the Supreme Court of Canada; and

(e) an amendment to this Part.

^[2] At this point, Hogg cites Ontario (Attorney General) v. OPSEU, [1987] 2 S.C.R. 2. (HERE).

^[3] Peter Hogg, Constitutional Law of Canada (Carswell, 2014), heading 4.7 “Provincial Legislature Alone (s.45)”.

[4] The Wiseman and Newman sources cited here were not accessible for the writing of this report.

^[5] See N. Wiseman, “In Search of Quebec’s Constitution” (2008), p. 136.

^[6] Supra no. 1.

^[7] According to Peter C. Oliver in “The Imperial Dominions” in The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (Oxford University Press, 2005), pp. 41-42.

“[…] As the nineteenth century wore on, each of the Australian colonies acquired bicameral legislatures along New Zealand, Canadian, and indeed, British lines. Although these institutions were created, directly or indirectly, by the sovereign Imperial Parliament at Westminster, and were therefore hierarchically inferior to it, they came to be seen as omnicompetent legislatures in their own right, in the image of the body that created them.^[56^] ‘Omnicompetent’, that is, within the limits set out by Imperial law. (p.42) What were the limits set out by Imperial law? In the middle of the nineteenth century, a particularly single-minded judge in South Australia, Benjamin Boothby, had insisted that the laws of a colonial legislature had to be consistent not only with Imperial statute law, but also with English common law. Relief from Boothby’s reign of legal uncertainty came in the form of the Colonial Laws Validity Act, 1865 (Imp.) which was noted in the briefest terms earlier. To repeat and elaborate, the 1865 Act made it clear that statutes passed by colonial legislatures could override received British statutes and common law. However, it also made it clear that such legislatures could not enact laws which were repugnant to (i.e. inconsistent with) Imperial statutes, defined in section 2 of the Act as those ‘made applicable to such Colony by … express Words or necessary Intendment’. Examples of such Imperial statutes were the New Zealand Constitution Act, 1852, the Canadian Constitution Act, 1867, and the Commonwealth of Australia Constitution Act, 1900.

It must be said that the hierarchical picture painted above is the formal, legal version. The way that it worked in practice became steadily more respectful of local concerns. While it remained true that the Westminster Parliament could pass any sort of statute it wished, the emerging convention was that it would only legislate for the self-governing Dominions if they requested and consented to the legislation in question. It was the governments of Australian colonies, then, having produced a constitutional compromise for a new nation in Convention and having presented it to the people in these colonies for approval, that requested that the Commonwealth of Australia Constitution Act 1900 be enacted as a statute of the Imperial Parliament, thereby granting it supreme status in Australia. […]”.

[Footnote 56] “For instance, as confirmed by the Privy Council in R v Burah (1878) 3 AC 889, though they were clearly creations of the Imperial Parliament, colonial legislatures were not to be viewed in any sense as ‘delegates.’ Had this not been the case, the frequent legislative practice of delegating to a Minister (or in the Burah case, the Lieutenant-Governor) the precise application of a particular legislative policy, would not have been possible, given that it would violate the principle delegatus non potest delegare. The Burah doctrine was repeated by the Privy Council in the Canadian case, Hodge v The Queen (1883) 9 AC 117. Sir Barnes Peacock, for the Board, stated unequivocally that provincial legislatures ‘are in no sense delegates of or acting under any mandate from the Imperial Parliament.’ He went on to state that, within the limits set out by Westminster in the British North America Act, 1867, ‘the local legislature is supreme, and has the same authority as the Imperial Parliament’ (Hodge, 132.).”

It is difficult to believe that there was no formal consultation with the colonies in drafting the Colonial Laws Validities Act 1865. It seems very plausible that some private communications with the Governor would have been undertaken at some point. For additional materials on Justice Boothby, see John McLaren, Dewigged, Bothered, & Bewildered: British Colonial Judges on Trial, 1800–1900 (Toronto: University of Toronto Press, 2011) at 193–216, and John M Williams, “Justice Boothby: A Disaster That Happened” in George Winterton, ed, State Constitutional Landmarks (Annandale, NSW: Federation Press, 2006) 21–52. Both sources are found quoted in Brian Bird “The Unbroken Supremacy of the Canadian Constitution”, in Alberta Law Review, Vol. 55, No. 3 (2018).

Archival Materials, Reports, Secondary Sources and Other Materials, Section 45 [Constitution Act, 1867], Section 92 (1) [Constitution Act, 1867] Report, Section 45, Section 92, Section 92(1)

PrimaryDocuments.ca

REPORT: Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”

Constitution Act, 1867: Section 92 & Constitution Act, 1982: Section 45

Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”.

Contents

Introduction:

An Interpretation of the phrase “Provincial Constitution” and its other Variations.

List of Contents

PART 1:

**The Historical Record re: Provincial Constitutions: Excerpts From the Royal Proclamation 1763 to Constitution Act, 1867 (including Drafts, Correspondences, and Other Papers).**

Footnotes

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REPORT: Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”

Constitution Act, 1867: Section 92 & Constitution Act, 1982: Section 45

Compilation of primary documents to assist in interpreting the English phrases: “Provincial Constitutions” or “Constitution of the Province” or “Local Constitutions”.

Contents

Introduction:

An Interpretation of the phrase “Provincial Constitution” and its other Variations.

List of Contents

PART 1:

The Historical Record re: Provincial Constitutions: Excerpts From the Royal Proclamation 1763 to Constitution Act, 1867 (including Drafts, Correspondences, and Other Papers).

Footnotes

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**The Historical Record re: Provincial Constitutions: Excerpts From the Royal Proclamation 1763 to Constitution Act, 1867 (including Drafts, Correspondences, and Other Papers).**