Report: Language Rights, Section 133 of the Constitution Act, 1867

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Date: 2022-08-16
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Constitution Act, 1867:

Section 133

Compilation of primary documents to assist in interpreting the Language Rights in Section 133 of the Constitution Act, 1867

Part 1
Language Rights Prior to 1867

Part 2
Language Rights in Successive Drafts of Section 133 from the Quebec Resolutions, 1864 to the Constitution Act, 1867

Part 3
Debates on Language Rights in the Confederation Debates in the Province of Canada, 1865-67

Part 4
Post-Confederation Debates & Statutes on Language Rights

Endnotes

“133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; 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 this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.”

PART 1:

Language Rights Prior to 1867

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George R, Proclamation, 7 October 1763 (Royal Proclamation)

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.[1]

(Source: George R, Proclamation, 7 October 1763, reprinted in RSC 1985, App II, No. 1. Click HERE.)

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Quebec Act, 1774 (UK)

[…] VIII. And be it further enacted by the Authority aforesaid, That all his Majesty’s Canadian Subjects within the Province of Quebec, the religious Orders and Communities only excepted, may also hold and enjoy their Property and Possessions, together with all Customs and Usages relative thereto, and all other their Civil Rights, in as large, ample, and beneficial Manner, as if the said Proclamation, Commissions, Ordinances, and other Acts and Instruments, had not been made, and as may consist with their Allegiance to his Majesty, and Subjection to the Crown and Parliament of Great Britain; and that in all Matters of Controversy, relative to Property and Civil Rights, Resort shall be had to the Laws of Canada, as the Rule for the Decision of the same; and all Causes that shall hereafter be instituted in any of the Courts of Justice, to be appointed within and for the said Province by his Majesty, his Heirs and Successors, shall, with respect to such Property and Rights, be determined agreeably to the said Laws and Customs of Canada, until they shall be varied or altered by any Ordinances that shall, from Time to Time, be passed in the said Province by the Governor, Lieutenant Governor, or Commander in Chief, for the Time being, by and with the Advice and Consent of the Legislative Council of the same, to be appointed in Manner herein-after mentioned. […]

(Source: Quebec Act (UK), 14 Geo III, c 83, reprinted in RSC 1985, App II, No. 2. Click HERE.)

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Report of Attorney and Solicitor General Regarding the Civil Government of Quebec, 1776

My Lords, it is evident that Two very principal sources of the Disorders in the province have been. 1st The attempt to carry on the Administration of Justice without the aid of the natives, not merely in new forms, but totally in an unknown tongue, by which means the partys Understood Nothing of what was pleaded or determined having neither Canadian Advocates or Sollicitors to Conduct their Causes, nor Canadian jurors to give Verdicts, even in Causes between Canadians only. Nor Judges Conversant in the French Language to declare the Law, and to pronounce Judgment; This must cause the Real Mischiefs of Ignorance, oppression and Corruption, or else what is almost equal in Government to the mischiefs themselves, the suspicion and Imputation of them.

[…]

The Second Article proposes a Superior Court of Ordinary Jurisdiction, uniting all the proper powers in Criminal and Civil Cases and matters of Revenue, in this Court, it is recommended that a Chief Justice should preside, Assisted by three puisne Judges; These are required to be conversant in the French Language, and that one of them particularly should be knowing in the French usages.

This proposition appears to us well conceived, and we submit to your Lordships, whether it may not be adviseable, that they should be instructed to confer sometimes with the Canadian Lawyers most respected for Learning, Integrity and Conduct, who may prove of the greatest assistance to English Judges. Competent Salarys for the Encouragement of Able and Worthy men seem absolutely necessary in this Establishment, with a due distinction between the Chief Justice and his Brethren. The new Judge of Vice Admiralty for America has appointments of £800 per Annum.

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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Constitutional Act, 1791 (UK)

[…] XXIV. Provided also, and be it further enacted by the Authority aforesaid, That every Voter, before he is admitted to give his Vote at any such Election, shall, if required by any of the Candidates, or by the Returning Officer, take the following Oath, which shall be administered in the English or French Language, as the Case may require:

“I A.B. do declare and testify, in the Presence of Almighty God, That I am, to the best of my Knowledge and Belief, of the full Age of twenty-one Years, and that I have not voted before at this Election.” […]

[…]

XXIX. Provided always, and be it enacted by the Authority aforesaid, That no Member, either of the Legislative Council or Assembly, in either of the said Provinces, shall be permitted to sit or to vote therein until he shall have taken and subscribed the following Oath, either before the Governor or Lieutenant Governor of such Province, or Person administering the Government therein, or before some Person or Persons authorized by the said Governor, or Lieutenant Governor, or other Person aforesaid, to administer such Oath, and that the same shall be administered in the English or French Language, as the Case shall require:

”I A.B. do sincerely promise and swear, That I will be faithful, and bear true Allegiance to his Majesty, King George, as lawful Sovereign of the Kingdom of Great Britain, and of these Provinces dependant on and belonging to the said Kingdom; and that I will defend him to the utmost of my Power against all traitorous Conspiracies and Attempts whatever which shall be made against his Person, Crown, and Dignity; and that I will do my utmost Endeavour to disclose and make known to his Majesty, his Heirs or Successors, all Treasons, and traitorous Conspiracies and Attempts which I shall know to be against him, or any of them: and all this I do swear without any Equivocation, mental Evasion, or secret Reservation, and renouncing all Pardons and Dispensations from any Person or Power whatever to the contrary. So help me GOD. “

(Source: Constitutional Act (UK), 31 Geo III, c 31, reprinted in RSC 1985, App II, No. 3. Click HERE.)

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EXTRACTS FROM THE RULES AND REGULATIONS OF THE HOUSE OF ASSEMBLY, LOWER CANADA (Quebec, Neilson, 1793)

III. That Bills relative to the criminal laws of England in force in this province, and to the rights of the Protestant clergy, as specified in the act of the 31st year of his Majesty chap. 31,” shall be introduced in the English language; and the Bills relative to the Laws, customs, usages and civil rights of this Province, shall be introduced in the French language, in order to preserve the unity of the texts.

IV. That such Bills as are presented shall be put into both languages, that those in English be put into French, and those presented in French be put into English by the clerk of the House or his Assistants, according to the directions they may receive, before they be read the first time—and when so put shall also be read each time in both languages—well understood that each Member has a right to bring in any Bill in his own language, but that after the same shall be translated, the text shall be considered to be that of the language of the law to which said Bill hath reference.

[…]

IX. And be it further Enacted by the Authority aforesaid, That upon every copy of such process, to be served upon any defendant, shall be written a notice in the English tongue, to such defendant of the intent and meaning of such service to the effect following:

” A. B. You are served with this process, to the intent that you may, either in person or by your attorney, appear in his Majesty’s court of King’s Bench, at the return thereof, being the day of in order to your defence in this action.”

And when any party, defendant, is a Canadian subject by treaty, or the son or daughter of such Canadian subject, the like notice shall be written in the French language.

(Source: Dominion of Canada, “Documents Relating to the Constitutional History of Canada 1791-1818”, Sessional Papers [No. 29c] (1914), Click HERE)

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Extracts from the Rules and Regulations of the House of Assembly, Lower Canada, 1793

Resolved:

III. That Bills relative to the criminal laws of England in force in this province, and to the rights of the Protestant clergy, as specified in the Act of the 31st year of his Majesty, chap. 31, shall be introduced in the English language; and the Bills relative to the Laws, customs, usages and civil rights of this Province, shall be introduced in the French language, m order to preserve the unity of the texts.

IV. That such Bills as are presented shall be put into both languages, that those in English be put into French, and those presented in French be put into English by the clerk of the House or his Assistants, according to the directions they may receive, before they be read the first time — and when so put shall also be read each time in both languages — well under stood that each Member has a right to bring in any Bill in his own language, but that after the same shall be translated, the text shall be considered to be that of the language of the law to which said Bill hath reference.

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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Rules Relative to the Introduction of Private Bills, Passed in the House the 19th April, 1793

[…] VIII. That all aids and supplies granted to his Majesty by the Legislation of Lower Canada are the sole gift of the Assembly of this Province, and all Bills for granting such aids and supplies, ought to begin with the Assembly, as it is the undoubted right of the Assembly to direct, limit, and appoint in all such Bills, the ends, purposes, considerations, conditions, limitations and qualifications of such grants, which are not alterable by the Legislative Council.

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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Observations of Chief Justice Sewell on the Union of the Provinces, 1810

May it please your Excellency.

You have been pleased to call for my sentiments upon the present situation of Canada, and I have now the honor to submit them to your consideration and superior Judgment.

The Political Evils which we labour under arise in my apprehension from two principal causes, 1st From French predilections in the great Mass of the Inhabitants, and 2dly From want of Influence and power in the Executive Government, from the former, arises that distinction between the Government and the People, which is daily and too visibly productive of mutual distrust, jealousies, and even enmity, and from the latter a total inability to produce the means by which the effects of that distinction may be counteracted. What must be the result, if things remain as they are is obvious. No hopes can be entertained, that French predilections can be obliterated from the minds of His Majesty’s Canadian Subjects, and if they be not counteracted, they will continue to augment until by some crisis, force will be required and the future state and condition of Canada will then be decided by a recourse to arms.

The great links of connection between a Government and its subjects are religious (religion) Laws, and Language, and when Conquerors possess the same religion, and use the same Laws and the same Language as the Conquered, the incorporation of both into one political body is easily effected : But when they are at variance on these points, experience seems to have demonstrated in Canada, that it cannot at all be effected while this variance subsists. Obedience may be rendered by conquered subjects under such circumstances, but it is the obedience of a Foreigner to a Government which in his estimation is not his own, and as he views it as an alien power, there is no attachment, no affection in his mind towards it, and consequently no disposition to unite with those who constitute the Government or its natural subjects. Every favor conferred is considered to be no more than what is due to them, or as a matter obtained from persons who would not have conceded so much if it had been possible for them to retain it. No Confidence exists, and he is in a continual belief. That more is meditated by the Government, in every of its measures, than meets his Eye. At the conquest of Canada, the conquerors were Englishmen and Protestants. They spoke the English Language and no other, they were attached to the English Laws, and fostered in their minds a natural antipathy against Frenchmen. The English Subjects of the present day who are settled in Canada, having no cause to be dissatisfied with the religion the Language or the Laws of their Mother Country, and having no cause to be better pleased with France than their Forefathers, are now precisely what the conquerors of Canada were ; on the other hand the People of Canada at the Conquest were Frenchmen, and Roman Catholics, They spoke the French Language, and no other, they were attached to French Laws, and fostered in their minds a National antipathy against Englishmen, since that period. By the Statute 14, Geo. III. c. 83^ the Laws of France have been enacted, and declared to be the Laws of Canada. And the Roman Catholic Religion has been established in the Province, and as it has not been thought adviseable, by any Act of Parliament or other means to attempt the general introduction of the English Language, The French Tongue universally prevails, even in the Courts of Justice and in the Legislature, the Canadians therefore in those several Respects, are also precisely what they were at the conquest. They are still Frenchmen, their habits (the fruits of their Religion, and their Laws) are still the habits of Frenchmen, and so much in opposition to the habits of our own people, tho’ there is no intercourse between them; I fear I may add with truth that the antipathy of Canadians, and English Subjects against each other, is mutually as great as ever.

It seems, Sir, to me, impossible that the incorporation of two such Extremes can ever be effected, and to this I add, that no change in the Laws or religion of the Country can be even expected until the Majority of its inhabitants are Englishmen, in principle, and that while the number of English settlers remains so small in comparison to that of the Canadians, a change in Language, cannot be looked for. Yet the Province must be converted into an English Colony, or, it will ultimately be lost to England.

I am led from these considerations in the first instance to conceive it indispensably necessary to overwhelm and sink the Canadian population of (Sic) English Protestants, and this I believe to be practicable; I do not mean that subjects can or ought to be procured from England to the extent required for this purpose, but they may, and I think ought to be procured from the neighbouring States, For although it may be feared by some that they would not be good Subjects, I have myself no such fears; I believe that once settled in the Province they would have no wish to return to their former system of Government, an expectation justified by the conduct of those who are already settled in the country. It is besides only in the case of a War with the Northern States of America that the disaffection of such settlers is to be dreaded, and this is an event to be contemplated probably as a remote contingency. We should also remember that the great fear of the Northern States is the Existence of a nation of Frenchmen upon their Borders, and that in all probability the introduction of other settlers by appeasing this apprehension, by increasing our connections with them, and particularly our commercial intercourse, would have a tendency to pursue the good understanding which subsists at present for a longer course of years than otherwise might be expected, and possibly until the original Settlers shall be succeeded by a new Generation of British Born Subjects; But let the weight of these observances be what it may, such settlers it is certain would be the descendants of Englishmen, profess the same religion, and speak the same language, and would therefore be more easily assimilated, and become better subjects than those which we now possess, and if to people the Country with such Characters is to incur a risk, the risk incurred will be less than that which we must incur by suffering the Province to remain in its present state.

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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Governor Sir James Craig to Lord Liverpool (Quebec, 1^st May, 1810)

In considering the probability of these people having in view their return to their own Government, it may be urged that they have been hitherto quiet & faithful subjects, during the long lapse of 50 years, in which it would rather be to be supposed that their old attachment should have gradually decreased, so that there should be the less likelihood of their assuming now a disposition, of which they have hitherto shown no indication; to all this however it may be replied, that no circumstance whatever has occurred to awaken their attachment to their Mother Country, nor have any pains ever been taken to produce such a change, their habits, language and religion, have remained as distinct from ours as they were before the Conquest. Indeed it seems to be a favourite object with them to be considered as [a] separate Nation; La Nation Canadienne is their constant expression, and with regard to their having been hitherto quiet & faithful subjects, it need only be observed that no opportunity has presented them an encouragement to shew themselves otherwise. From 1764 to 75 the Country was in a state of poverty and Misery, that would not for a moment admit of a thought of revolt in which they could expect no assistance, but even during that period there was a constant intercourse with France; Young Men who sought to advance themselves went to France, not to England, and some are now in the Province who during that period served in the French Army : during the American Rebellion it was a contest whether they should remain attached to the Crown of England, or become a part of the American Republic, and to say the best for them, their conduct did not manifest a very strong affection for the former, to the force the Americans had in the Province was never such as to encourage them in an open display of any prediliction for the latter, which however, I do not believe they entertained: their object was to remain quiet; The French never turned their views this way; In 1794 a strong Jacobin party shewed itself, and was with difficulty kept under, but during all this period to which I have hitherto alluded they had no foreign assistance to look to, nor any head to direct them, to France they now direct their view for the former, and I am pointing out those who I fear are preparing to offer themselves for the latter, and certainly under the most formidable shape under which a head could be found.

(Source: Dominion of Canada, “Documents Relating to the Constitutional History of Canada 1791-1818”, Sessional Papers [No. 29c] (1914), Click HERE)

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Governor Sir James Craig to Lord Liverpool (1^st June) cited in Governor Sir James Craig to Lord Liverpool (Quebec, 1^st May, 1810)

In reply to the observations in the note above on the prosperity of Upper Canada, Sir James Craig says:— “it is precisely the want of Specie to which I alluded, when I used the expression a man may have a very good farm, and property exactly in the state my friend describes, and he will be very comfortable, and may be said to be rich while he stays at home, but such a state will not enable him to leave that home, and to go three or four hundred miles, to reside in a strange place, when the very circumstance of the Assembly to which he is going will tend to increase his expenses for the common necessaries of Life. Another observation occurs in the fame paper, that the Inhabitants of Upper Canada, do not differ more from the Canadians, than the Inhabitants of the Townships, this is certainly just, and I am far from thinking that the bringing a number of the latter into the House will not on that very account of their difference in language, manners and indeed every other circumstance, be very inconvenient and create precisely that heterogeneous mixture that I have described, but still residing in the same Province, and their Interests being less apparently distinct from, and opposite to, those of the Canadians, I think their introduction would be less objectionable, than the other, indeed in either case, how a debate is to be carried on, or business to be done, when one-half the House does not understand the Language of the other half, I cannot well conceive; at present all the English that are in the House speak French, and all their debates, under every disadvantage to these, if debates were of any consequence, are carried on in the Language

(Source: Dominion of Canada, “Documents Relating to the Constitutional History of Canada 1791-1818”, Sessional Papers [No. 29c] (1914), Click HERE)

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Observations of Chief Justice Sewell on the Union of the Provinces, enclosed in Governor Sir James Craig to Lord Liverpool (Quebec 1^st May, 1810).

The great links of connection between a Government and its subjects are religious [religion,] Laws, and Language, & when Conquerors possess the same religion, and use the same Laws and the same Language as the Conquered, the incorporation of both into one political body is easily effected: But when they are at variance on these points, experience seems to have demonstrated in Canada, that it cannot at all be effected while this variance subsists. Obedience may be rendered by conquered subjects under such circumstances, but it is the obedience of a Foreigner to a Government which in his estimation is not his own, and as he views it as an alien power, there is no attachment, no affection in his mind towards it, and consequently no disposition to unite with those who constitute the Government or its natural subjects. Every favor conferred is considered to be no more than what is due to them, or as a matter obtained from persons who would not have conceded so much if it had been possible for them to retain it. No Confidence exists, and he is in a continual belief, That more is meditated by the Government, in every of its measures, than meets his Eye. At the conquest of Canada, the conquerors were Englishmen & Protestants. They spoke the English Language & no other, they were attached to the English Laws, and fostered in their minds a natural antipathy against Frenchmen. The English Subjects of the present day who are settled in Canada, having no cause to be dissatisfied with the religion the Language or the Laws of their Mother Country, & having no cause to be better pleased with France than their Forefathers, are now precisely what the conquerors of Canada were; on the other hand the People of Canada at the Conquest were Frenchmen, and Roman Catholics, They spoke the French Language, and no other, they were attached to French Laws, & fostered in their minds a National antipathy against Englishmen, since that period. By the Statute 14, Geo. TIL c. 831 the Laws of France have been enacted, and declared to be the Laws of Canada. And the Roman Catholic Religion has been established in the Province, and as it has not been thought adviseable, by any Act of Parliament or other means to attempt the general introduction of the English Language, The French Tongue universally prevails, even in the Courts of Justice & in the Legislature, the Canadians therefore in those several Respects, are also precisely what they were at the conquest. They are still Frenchmen, their habits (the fruits of their Religion, & their Laws) are still the habits of Frenchmen, and so much in opposition to the habits of our own people, tho’ there is no intercourse between them; I fear I may add with truth that the antipathy of Canadians, and English Subjects against each other, is mutually as great as ever.

(Source: Dominion of Canada, “Documents Relating to the Constitutional History of Canada 1791-1818”, Sessional Papers [No. 29c] (1914), Click HERE)

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Report of Select Committee of House of Assembly, Upper Canada, February 1838

[…] The objections that the inhabitants of Lower Canada, of French origin, might raise to this change in their form of Government, ought not to be considered of very great weight. In the first place, it is well known, that they violently opposed the introduction of the representative system at the time it was adopted, as being unsuited to their habits and opinions; in the same manner, and probably for the same reasons, that they now oppose the introduction of Free and Common Soccage, instead of the Feudal Tenure; and secondly, because they have abused this invaluable privilege of British Subjects, and have employed the power it gave them, to bring about revolt, and the entire overthrow of the Government. If however our fellow Subjects of British descent, should seriously oppose themselves to this change, the question would then be, whether such modifications might not be introduced into the measure, as would gain their acquiescence. Your Committee venture to suggest the following: — Let the number of Legislative Councillors be considerably encreased beyond the number authorized by the 14th Geo. 3rd: let these be taken in equal numbers from the inhabitants of British, and Irish, and of French descent: and let the English language be the only language used in legal and legislative proceedings.

If however the union should be that measure which the Imperial Parliament may ultimately determine upon, care must be taken that British ascendancy is securely established in both branches of the Legislature: upon no other terms can the measure be sanctioned by this Province; and this should be most clearly and positively stated to Her Majesty.

[…] In what manner this ascendancy can be secured, your Committee abstain from offering any positive opinion. A variety of modes, however, may be suggested, founded on a division of territory, and the tenure by which lands are held in the two Provinces, and by restraining Freeholders in Lower Canada, holding lands by conveyance, from voting, until their titles are registered, as in the Upper Province. The introduction of the laws of England, and the use of the English language in all Legislative and Judicial proceedings should also be insisted upon; and lastly, it should be stipulated as a sine qua non on the part of this Province, that the place selected for the seat of Government should be within its limits.

Your Committee are sensible that there are many serious difficulties in the way of carrying the measure of the union into effect, in a satisfactory manner, arising from difference of religion, laws, language and general habits, in the two Provinces, but they believe these may be overcome, and general satisfaction in the end attained, by rendering them truly British Colonies, by the gradual influence of the changes necessary in the Institutions of Lower Canada, and the more general diffusion of education among the inhabitants.

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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

[…] Not only, however, did the government adopt the unwise course of dividing Canada, and forming in one of its divisions a French community, speaking the French language, and retaining French institutions, but it did not even carry this consistently into effect; for at the same time provision was made for encouraging the emigration of English into the very province which was said to be assigned to the French. Even the French institutions were not extended over the whole of Lower Canada. The civil law of France, as a whole, and the legal provision for the catholic clergy, were limited to the portion of the country then settled by the French, and comprised in the seigniories; though some provision was made for the formation of new seigniories, almost the whole of the then unsettled portion of the province was formed into townships, in which the law of England was partially established, and the protestant religion alone endowed. Thus two populations of hostile origin and different characters were brought into juxtaposition under a common government, but under different institutions; each was taught to cherish its own language, laws and habits, and each, at the sane time, if it moved beyond its original limits, was brought under different institutions, and associated with a different people. The unenterprising character of the French population, and, above all, its attachment to its church (for the enlargement of which, in proportion to the increase and diffusion of the catholic population, very inadequate provision was made,) have produced the effect of confining it within its ancient limits. But the English were attracted into the seigneuries, and especially into the cities, by the facilities of commerce afforded by the great rivers. To have effectually given the policy of retaining French institutions and a French population in Lower Canada a fair chance of success, no other institutions should have been allowed, and no other race should have received any encouragement to settle therein: The province should have been set apart to be wholly French, if it was not to be rendered completely English. The attempt to encourage English emigration into a community, of which the French character was still to be preserved, was an error which planted the seeds of a contest of races in the very constitution of the colony; this was an error, I mean, even on the assumption that it was possible to exclude the English race from French Canada. But it was quite impossible to exclude the English race from any part of the North American continent. It will be acknowledged by every one who has observed the progress of Anglo-Saxon colonization in America, that sooner or later the English race was sure to predominate even numerically in Lower Canada, as they predominate already, by their superior knowledge, energy, enterprise, and wealth. The error, therefore, to which the present contest must be attributed is the vain endeavour to preserve a French Canadian nationality in the midst of Anglo-American colonies and states.

[…] The two races, thus distinct, have been brought into the same community, under circumstances which rendered their contact inevitably productive of collision. The difference of language, from the first, kept them asunder. It is not anywhere a virtue of the English race to look with complacency on any manners, customs or laws, which appear strange to them; accustomed to form a high estimate of their own superiority, they take no pains to conceal from others their contempt and intolerance of their usages. They found the French Canadians filled with an equal amount of national pride; a sensitive, but inactive pride, which disposes that people not to resent insult, but rather to keep aloof from those who would keep them under. The French could not but feel the superiority of English enterprise; they could not shut their eyes to their success in every undertaking in which they came into contact, and to the constant superiority which they were acquiring. They looked upon their rivals with alarm—with jealousy—and finally with hatred. The English repaid them with a scorn, which soon also assumed the same form of hatred. The French complained of the arrogance and injustice of the English; the English accused the French of the vices of a weak and conquered people, and charged them with meanness and perfidy. The entire mistrust which the two races have thus learned to conceive of each other’s intentions, induces them to put the worst construction on the most innocent conduct—to judge every word, every act, and every intention unfairly—to attribute the most odious designs, and reject every overture of kindness or fairness, as covering secret designs of treachery and malignity.

Religion formed no bond of intercourse and union. It is, indeed, an admirable feature of Canadian society, that it is entirely devoid of any religious dissensions. Sectarian intolerance is not merely not avowed, but it hardly seems to influence mens’ feelings. But though the prudence and liberality of both parties has prevented this fruitful source of animosity from embittering their quarrels, the difference of religion has in fact tended to keep them asunder. Their priests have been distinct—they have not even met in the same church.

No common education has served to remove and soften the differences of origin and language. The associations of youth—the sports of childhood—and the studies by which the character of manhood is modified, are distinct and totally different. In Montreal and Quebec there are English schools and French schools; the children in these are accustomed to fight nation against nation—and the quarrels that arise among boys in the streets, usually exhibit a division into English on one side, and French on the other.

As they are taught apart, so are their studies different. The literature with which each is the most conversant, is that of the peculiar language of each; and all the ideas which men derive from books, come to each of them from perfectly different sources. The difference of language in this respect produces effects quite apart from those which it has on the mere intercourse of the two races. Those who have reflected on the powerful influence of language on thought, will perceive in how different a manner people who speak in different languages are apt to think; and those who are familiar with the literature of France, know that the same opinion will be expressed by an English and French writer of the present day, not merely in different words, but in a style so different as to mark utterly different habits of thought. This difference is very striking in Lower Canada: it exists, not merely in the books of most influence and repute, which are, of course, those of the great writers of France and England, and by which the minds of the respective races are formed, but it is observable in, the writings which now issue from the colonial press. The articles in the newspapers of each race, are written in a style as widely different as those of France and England at present—and the arguments which convince the one, are calculated to appear utterly unintelligible to the other.

The difference of language produces misconceptions yet more fatal even than those which it occasions with respect to opinions: it aggravates the national animosities, by representing all the events of the day in utterly different lights. The political misrepresentation of facts is one of the incidents of a free press in every free country; but in nations in which all speak the same language, those who receive a misrepresentation from one side, have generally some means of learning the truth from the other. In Lower Canada, however, where the French and English papers represent adverse opinions, and where no large portion of the community can read both languages with ease, those who receive the misrepresentation are rarely able to avail themselves of the means of correction. It is difficult to conceive the perversity with which misrepresentations are habitually made, and the gross delusions which find currency among the people; they thus live in a world of misconceptions—in which each party is set against the other, not only by diversity of feelings and opinions, but by an actual belief in an utterly different set of facts.

And is this French Canadian nationality one which, for the good merely of that people, we ought to strive to perpetuate, even if it were possible? I know of no national distinctions marking and continuing a more hopeless inferiority. The language, the laws, the character of the North American continent are English; and every race but the English (I apply this to all who speak the English language) appears there in a condition of inferiority. It is to elevate then from that inferiority that I desire to give to the Canadians our English character. I desire it for the sake of the educated classes, whom the distinction of language and manners keeps apart from the great empire to which they belong. At the best, the fate of the educated and aspiring colonist is, at present, one of little hope, and little activity; but the French Canadian is cast still further into the shade by a language and habits foreign to those of the Imperial government. A spirit of exclusion has closed the higher professions on the educated classes of the French Canadians, more perhaps than was absolutely necessary; but it is impossible for the utmost liberality on the part of the British government, to give an equal position in the general competition of its vast population to those who speak a foreign language. I desire the amalgamation still more for the sake of the humbler classes. Their present state of rude and equal plenty is fast deteriorating under the pressure of population in the narrow limits to which they are confined. If they attempt to better their condition, by extending themselves over the neighbouring country, they, will necessarily get more and more mingled with an English population; if they prefer remaining stationary, the greater part of then must be labourers, in the employ of English capitalists. In either case it would appear, that the great mass of the French Canadians are doomed, in some measure, to occupy an inferior position, and to be dependent on the English for employment. The evils of poverty and dependence would merely be aggravated in a ten-fold degree, by a spirit of jealous and resentful nationality, which should separate the working class of the community, from the possessors of wealth, and employers of labour.

[…] In these circumstances I should be indeed surprised, if the more reflecting part of the French Canadians entertained at present any hope of continuing to preserve their nationality. Much as they struggle against it, it is obvious that the process of assimilation to English habits is already commencing. The English language is gaining ground, as the language of the rich and of the employers of labour naturally will. It appeared by some of the few returns which bad been received by the commissioner of inquiry into the state of education, that there are about ten times the number of French children in Quebec learning English, as compared with English children who learn French. A considerable time must, of course elapse, before the change of a language can spread over a whole people; and justice and policy alike require that while the people continue to use the French language their government should take no such means to force the English language upon them as would, in fact, deprive the great mass of the community of the protection of the laws. But I repeat, that the alteration of the character of the province ought to be immediately entered on, and firmly, though cautiously, followed up; that in any plan which may be adopted for the future management of Lower Canada, the first object ought to be that of making it an English province; and that, with this end in view, the ascendancy should never again be placed in any hands but those of an English population. Indeed, at the present moment this is obviously necessary; in the state of mind in which I have described the French Canadian population, as not only now being, but as likely for a long while to remain, the trusting them with an entire control over this province would be, in fact, only facilitating a rebellion. Lower Canada must be governed now, as it must be he 4 after, by an English population; and thus the policy which the necessities of the moment force on us is in accordance with that suggested by, a comprehensive view of the future and permanent improvement of the province.

[…] The English of Lower Canada, who seem to infer the means from the result, entertain and circulate the most extraordinary conceptions of the course really pursued in this instance. On the single fact, that in the constitution of Louisiana it is specified, that. the public acts of the state shall be “in the language in which the constitution of the United States is written;” it has been inferred that the federal-government, in the most violent manner, swept away the use of the French language and laws, and subjected the French population to some peculiar disabilities, which deprived them, in fact, of an equal voice in the government of their state. Nothing can be more contrary to the fact Louisiana, on its first session, was governed as a “district”; its public officers were appointed by the federal government, and, as was natural under the circumstances of the case, they were natives of the old states of the union, In 1812, the district, having the requisite population, was admitted into the union as a state, and admitted on precisely the same terms that any other population have, or has been. The constitution was framed so as to give precisely the same power to the majority as is enjoyed. In the other states of the union. No alteration was then made in the laws. The proof of this is afforded by a fact familiar to every person moderately acquainted with the jurisprudence of the age. The code, which is the glory of Louisiana, and Mr. Livingstone, was subsequently undertaken under the auspices of the legislature, in consequence of the confusion daily arising in the administration of the English and French system of law in the same courts. This change of laws, effected in the manner most consonant to the largest views of legislation, was not forced on the legislature and people of the state by an external authority, but was the suggestion of their own political wisdom. Louisiana is not the only state in the union which has been troubled by the existence of conflicting systems of law. The state of New York, till within a few years, suffered under the same evil, which it remedied in the same way, by employing a commission of its ablest lawyers to digest both systems of law into a common code. The contending populations of Lower Canada may well imitate these examples: and if, instead of endeavouring to force their respective laws upon each other, they would attempt an amalgamation of the two systems into one, adopting what is really best in both, the result would be creditable to the province.

Every provision was made in Louisiana for securing to both races a perfectly equal participation in all the benefits of the government. It is true that the intention of the federal government to encourage the use of the English language, was evinced by the provision of the constitution with respect to the language of the records; but those who will reflect how very few people ever read such documents, and how very recently it is that the English language has become the language of the law in this country, will see that such a provision could have little practical effect. In all cases in which convenience requires it, the different parties use their respective languages in the courts of justice, and in both branches of the legislature. In every judicial proceeding, all documents which pass between the parties are required to be in both languages, and the laws are published in both languages. Indeed, the equality of the two languages is preserved in the legislature by a very singular contrivance: the French and English members speak their respective languages, and an interpreter, as I was informed, after every speech, explains its purport in the other language.

For a long time, the distinction between the two races was the cause of great jealousy. The Americans crowded into the state, in order to avail themselves of its great natural resources, and its unequalled commercial advantages; there, as everywhere else on that continent, their energy and habits of business gradually drew the greater part of the commercial business of the country into their hands; and though, I believe, a few of the richest merchants, and most of the owners of plantations, are French, the English form the bulk of the wealthier classes. Year after year their numbers have become greater, and it is now generally supposed that they constitute the numerical majority. It may be imagined that the French have borne this with a good deal of dissatisfaction; but as the advantages gained by the English were entirely the result, not of favour, but of their superiority in a perfectly free competition, this jealousy could excite no murmurs against the government. The competition made the two races enemies at first, but it has gradually stirred the emulation of the less active race, and made them rivals. The jealousies in the city of New Orleans were so great at one time, that the legislature of the state, at the desire of the English, who complained of the inertness of the French, formed separate municipalities for the French and English parts of the city. These two municipalities are now actuated by a spirit of rivalry, and each undertakes great public works for the ornament and convenience of their respective quarters.

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

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Report of the Committee of the Legislative Council of Upper Canada on Lord Durham’s Report [Trans.: Journals of Legislative Council of Upper Canada, App. G.G.], May 11, 1839.

The Select Committee to whom was referred the Report of the Right Honourable the Earl of Durham, Her Majesty’s late Governor-in-Chief of British North America,

Respectfully Submit the Following Report:

[…] It must be supposed that had the system proposed by the Earl of Durham been long since adopted, the popular will would have prevailed to a far greater extent than heretofore, and yet most of the practical evils found in the colonies have arisen from measures popular at the time of their enactment.

The preservation of the French language, laws, and institutions, and the consequent perpetuation of the contest between the races, so strongly deprecated by the Earl of Durham, was a popular measure, and must have prevailed even more injuriously, and even destructively, under a responsible government. […]

(Source: W.P.M. Kennedy’s Documents of the Canadian Constitution: 1759-1915 (Oxford University Press, 1918). Click HERE)

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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]

And be it Enacted, That from and after the said re-union of the said two Provinces, all writs, proclamations, instruments fur 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 election, 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 end 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.

Source: 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]. Click HERE)

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Union Act, 1840 (UK)

XLI. And be it 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 Election, 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:[2] Provided always, that this Enactment shall not be construed to prevent translated Copies of any such Documents being made, but no such Copy shall 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.[3]

(Source: Union Act (UK), 3-4 Vict, c 35, reprinted in RSC 1985, App II, No. 4. Click HERE)

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Amendment to the 1840 Union Act (1848) – An Act to repeal to re-unite the Provinces of Upper and Lower 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.

1. 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.[4]

2. 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

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

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PART 2:

Language Rights in Successive Drafts of Section 133 from the Quebec Resolutions, 1864 to the Constitution Act, 1867

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The Quebec Resolutions (1864)[5]

26 October 1864: Working Draft No. 1

No mention of language clause.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 1, October 26th, 1864, MG 26 A, Vol. 46, pp. 18164-18168. Click HERE.)

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26-27 October 1864: Working Draft No. 2

[41 ½] That both the English and French languages may be employed in the General Legislature and in its proceedings, and [illegible] in the Local Legislature of Lower Canada, and in the Federal and Local Courts of Lower Canada.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 2, October 26th-27th, 1864, MG 26 A, Vol. 46, pp. 18142-18155. This text is found on p. 18154. Click HERE.)

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27 October 1864: Working Draft No. 3

That both the English and French languages may be employed in the General Legislature and in its proceedings, and also in the Local Legislature of Lower Canada, and in the Federal and Local Courts of Lower Canada

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 3, October 27th, 1864, MG 26 A, Vol. 46, pp. 18156-18158. This text is found on p. 18158. Click HERE.)

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27 October 1864: Working Draft No. 4

[46.] That both the English and French languages may be employed in the General Legislature [Parliament] and in its proceedings, and in the Local Legislature of Lower Canada, and [also] in the Federal [Courts] and Local [in the] Courts of Lower Canada.

(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 4, October 27th, 1864, MG 26 A, Vol. 46, pp. 18136-18138. This text is found on p. 18138. Click HERE.)

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14 March 1865: Quebec Resolutions as adopted in the Legislature of the Province of Canada

46. Both the English and French languages may be employed in the General Parliament and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada.

(Source: John A. Macdonald, The Quebec Resolutions, 1864 as Adopted in the Legislature of the Province of Canada, Vol. 46, pp. 18210-18216. This text is found on p. 18214. Click HERE.)

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The London Resolutions (1866)

4 December 1866: Version No. 1, Copy 1

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 1, Copy 1, December 4th, 1866 (MG 26 A, Vol. 46, pp. 18184-18190). This text is found on p. 18188. Click HERE.)

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13-14 December 1866: Version No. 2, Copy 1

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 1, December 13-14th (MG 26 A, Vol. 46, pp.18176-18183). This text is found on p. 18180. Click HERE.)

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13-14 December 1866: Version No. 2, Copy 2

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 2, Copy 2, December 13-14th, 1866 (MG 26 A, Vol. 46, pp. 18191-18196). This text is found on p. 18195. Click HERE.)

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14 December 1866: Version No. 3, Copy 1

46. Both the English and French languages may be employed in the General Parliament and in its proceeding, and in the Local Legislature of Lower Canada, and also in the Federal Courts and in the Courts of Lower Canada. [added in margin: carried]

(Source: John A. Macdonald Fonds, Drafts of the London Resolutions – Version No. 3, Copy 1, December 14th, 1866 (MG 26 A, Vol. 46, pp. 18197-18209). This text is found on p. 18205. Click HERE.)

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28 December 1866: Final Version

45. Both the English and French languages may be employed in the General Parliament, and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts, and in the Courts of Lower Canada.

(Source: London Resolutions as found in Joseph Pope (ed), Confederation: Being a Series of Hitherto Unpublished Documents Bearing on the British North America Act (Toronto: Carswell Co. Ltd., 1895) at 98-110. This text is found on p. 107. Click HERE.)

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Constitution Act, 1867

n.d. (probably early January, 1867): Rough Draft, John A. Macdonald’s Copy[6]

44. The English and French language may both be employed in Parliament, and in its proceedings, and in the Legislature and Courts of Lower Canada, and also in the Courts of the Confederation which may be established under this Act.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, John A. Macdonald’s Copy, n.d. (MG 26, A, Vol. 48, pp. 18845-18870). This text is found on p. 18862. Click HERE.)

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23 January 1867: 23rd January Draft, Copy 2

43. Either the English or the French Language may be used by any Person in the Debates of the Houses of Parliament of the United Colony, and of the Houses of the Provincial Assembly of Lower Canada, and either or both of those Languages may be used in the respective Records and Journals of those Houses, and either of those Languages [shall] may be used by any Person or in any Pleading or Process in or issuing from any Court of the United Colony, and in or from all or any of the Provincial Courts of Lower Canada.

[Qu. whether, as to Courts of the United Colony, this should not be confined to such of those Courts as sit in Lower Canada.]

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, Copy 2, January 23rd, 1867 (MG 26, A, Vol. 48, pp. 18989-19000). This text is found on pp. 18997-18998. Click HERE.)

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31 January 1867: 2nd Draft[7]

66.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament of Canada, and of the Houses of Parliament of Lower Canada, and both of these 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, and in or from all or any of the Provincial Courts of Lower Canada.

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

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n.d. (between Jan. 31 & Feb. 2, 1867): 3^rd Draft, Early Copy[8]

81.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament of Canada, and of the Houses of Parliament of Lower Canada, and both of these 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, and in or from all or any of the Provincial Courts of Lower Canada.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Early Copy, n.d. (MG 26, A, Vol. 48, pp. 19101-19124). This text is found on pp. 19123-19124. Click HERE.)

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n.d. (1867): 4th Draft, Later Version, Revised Copy

127 [124].—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the Legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the Legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, 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, created under this Act, and in or from all or any of the Courts of Quebec.[9]

(Source: 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). This text is found on p. 19446. Click HERE.)

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n.d. (1867): 4th Draft, Final Version

127.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, and either of those languages may be used by any person or in any pleader or process in or issuing from any Court of Canada, created under this Act, and in or from all or any of the Courts of Quebec.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Final Version, n.d. (MG 26, A, Vol. 49/2, pp. 19614-19664). This text is found on p. 19661. Click HERE.)

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n.d. (1867): H.L. Bill (Floor)

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; 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 this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.

(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – H.L. Bill (Floor), n.d. (MG 26, A, Vol. 49/2, pp. 19665-19711). This text is found on p. 19697. Click HERE.)

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Local Constitutions Drafts Package (1866-1867)

n.d.: Early Package [n.d.]

36. Both the English and French languages may be employed in the General Parliament, and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal Courts, and in the Courts of Lower Canada.

(Source: 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). This text is found on p. 19460. Click HERE.)

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n.d.: Early Package with Reilly’s Notes

128. 128. [32] [126]—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the Legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the Legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, 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 [created under this act] and in or from all or any of the Courts of Quebec.

(Source: 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). This text is found on p. 19476. Click HERE.)

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n.d.: Revised Package

128.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the Legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the Legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, 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 [created under this act] and in or from all or any of the Courts of Quebec.

(Source: 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). This text is found on pp. 19515-19516. Click HERE.)

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n.d.: Revised Package, Copy 4

128.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the Legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the Legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, 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 [of Canada created under the provisions of this act] and in or from all or any of the Courts of Quebec.

(Source: 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). This text is found on pp. 19591-19592. Click HERE.)

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n.d.: Revised Package, H.B. Morse’s Copy

(Source: 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). This text is found on pp. 19610-19611. Click HERE.)

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n.d.: Revised Package, Alexander Galt’s Copy

128.—Either the English or the French language may be used by any person in the Debates of the Houses of Parliament, and of the Houses of the Legislature of Quebec, and both of these languages shall be used in the respective records and journals of Parliament, and of the Legislature of Quebec, and the Laws and Statutes of Parliament, and of the Legislature of Quebec, shall be printed and published in separate volumes of the English and French languages respectively, 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 [created under the provision[s] of this act] and in or from all or any of the Courts of Quebec.

(Source: 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). This text is found on pp. 19572-19573. Click HERE.)

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PART 3:

Debates on language rights in the Confederation Debates in the Province of Canada

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Province of Canada (1865)

March 8, 1865: Félix Geoffrion, speaking in the Legislative Assembly of Canada (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 779)

I will now call the attention of the House, and particularly of the French-Canadian members, to the forty-sixth resolution, which relates to the use of the French language in the Federal Legislature. It is as follows:—”The English and French languages may be used simultaneously in the proceedings of the Federal Legislature as well as in the Legislature of Lower Canada, and also in the Federal courts and in the courts of Lower Canada.”

A close examination of this resolution shows at once that it does not declare that the French language is to be on the same footing as the English language in the Federal and Local Legislatures; in place of the word “shall,” which ought to have been inserted in the resolution, the word used is “may,” so that if the British majority decide that the Votes and Proceedings and Bills of the House shall be printed only in English, nothing can prevent the enactment taking effect.

Of course we shall be allowed to use the French language in debate, but on the other hand, it is evident that the majority may, whenever they choose, enact that the bills and proceedings of the House shall not be printed in French, and consequently the clause affords no security whatever to us French-Canadians. I take it for granted that as regards all the bills or resolutions of this House, the meaning to

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be given to words is that given to them by the law of the country, and I am therefore justified, when explaining the resolutions before us, in holding to the very letter of their resolutions, and it needs no effort of the imagination to discover the intention of those who prepared them.

The provincial statute 22 Victoria, chap. 29, relative to the interpretation of the statutes, says:—”Whenever by any act it is provided that a thing shall be done, the obligation to do it is to be inferred; but when it is said that a thing may be done, the power of doing it is permissive.” In the resolutions submitted us, the word used in the English version is “may,” which is translated into French by the word “pourront” and it is said that the English and French languages may be used simultaneously in the proceedings of the Federal Parliament as well as in the Legislature of Lower Canada, and also in the Federal courts and the courts of Lower Canada.

It is easy to see, then, that the use of the French language is rendered extremely precarious, and that the majority may proscribe it in our Votes and Proceedings, and in our Legislature. The Lower Canada members who have always supported the Ministry ought to urge them to insert a clause in the resolutions declaring that the French language shall be on the same footing as the English language; the guarantee afforded us by the resolutions, as they now stand, amounts to nothing.

I am not the first to point out the danger to our institutions and our laws; the Canadien of this city has enumerated them over and over again, and the honorable member for Montmorency [Joseph Cauchon] himself, who quite recently admitted in this House that he was the editor in chief of the Journal de Québec, wrote as follows in that paper on the 18th January, 1865. After having spoken of the past conduct of the Upper Canadians, and more particularly of the Honorable President of the Council (Hon. Mr. Brown), he says:—

For Lower Canada there are other questions still besides the question of money; there are the religious, social and national questions. Here it is that the greatest difficulties exist in the way to the success of the scheme, for a few slight changes in the letter of the scheme—changes which will in no way affect the interests of the other provinces—will cause the project to be accepted by the immense majority of the population of the country. We do not hesitate to say that it is astounding that the Conference should have approximated so closely to equity, after a few days only of work, and in the midst of innumerable obstacles.

It seems to me, Mr. Speaker, that if the honorable member for Montmorency [Joseph Cauchon] was right in telling the Ministry that our nationality and our institutions were in danger, and that changes were required, we French-Canadian members are bound to see that the resolutions submitted to us afford sufficient protection to those institutions, and that the resolutions are not written in such a way as to be susceptible of two interpretations.

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Hector-Louis Langevin, p. 781

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

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

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

Well,

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

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

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Edouard Rémillard & Maurice Laframboise, p. 786

Edouard Rémillard [Bellechasse]—Mention is also made of the use of the French language; it is said that it cannot be used in the Federal Parliament. But, for my part, I am of opinion that if the scheme is adopted, the French language will be more used and will be held in higher estimation in the Federal Parliament, than it has been in this Legislature for same years. It is feared that the laws, the documents and the proceedings of the Federal Parliament are not to be printed in the French language. But what does the 46th clause of the resolutions say? It says:—

Both the English and French languages may be employed in the General Parliament, and in its proceedings, and in the Local Legislature of Lower Canada, and also in the Federal courts, and in the courts of Lower Canada.

Thus, if the use of the French language can be excluded, so also may the use of the English language be excluded, for both are on an equal footing. Because it is not stated that the laws and the proceedings of the Federal Parliament shall be printed in the French language, the conclusion is drawn that they will be so in English; but the same thing might be said of the English language, as it is not stated that they will be printed in that language.

The hon. member for Verchères (Mr. Geoffrion) would have something more; instead of the resolutions setting forth that the French language may be used, he would have them declare that it shall be used; in that case the members from Lower Canada might be compelled to speak French; but are the Upper Canadian members also to be forced to speak that language, they who do not understand a word of it? I should be with the hon. member for Verchères [Félix Geoffrion] if we could compel Lower Canadian members to speak French, and Upper Canadian members to speak English, as in that case each would learn the language of the other.

I am really of opinion that if the Hon. Attorney General

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for Lower Canada [George-Étienne Cartier] had never spoken anything but French in this House, the members from Upper Canada would have learned that language in order to understand him; but as he wishes to make them understand him without putting them to that trouble, he most frequently speaks English.