REPORT: Public Lands (Provincial), Section 92(5) of the Constitution Act, 1867
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Date: 2023-04-10
By: PrimaryDocuments.ca
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Constitution Act, 1867:
Section 92(5)
Compilation of primary documents to assist in interpreting the Management and Sale of Public Lands in Section 92(5) of the Constitution Act, 1867
Contents
Part 1
Discussions on Public Lands Prior to 1867
Part 2
Section 92(5) in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867
Part 3
Debates on Section 92(5) in the Confederation Debates in the Province of Canada (1865-1866)
Part 4
Debates on Section 92(5) in Other Provincial Legislatures
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,—
[…]
The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
PART 1:
Discussions on Public Lands Prior to 1867
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September 22, 1864: Lieutenant Governor Arthur H. Gordon’s Despatch to the Secretary of State for the Colonies on the Subject of a Proposed Division of Powers
The Local Legislatures are to be entrusted with the care of—
[a list of powers follows]
Education, (with the exception of Universities,) Inland Fisheries, Control of Public Lands
(Source: New Brunswick, Correspondence Concerning Proposals for Inter-Colonial Union, Legislative & Federal (Fredericton: G.E. Fenety, 1865). The text is found on p. 15. Click HERE.)
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PART 2:
Section 92(5) in Successive Drafts, from the Quebec Resolutions, 1864 to the Constitution Act, 1867
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The Quebec Resolutions (1864)[1]
October 12, 1864: Notes on the Division of Powers[2]
Shall the [illegible] provided items be committed to the general government or to the local?
General
[a list of items follows, including]
Public Lands & Settlement?
[…]
Local
[a list of items follows, including]
Public Lands & Settlement
(Source: George Brown Papers, Drafts of the Quebec Resolutions, Notes on the Division of Powers, October 12th, 1864 (MG 24, B 40, Vol. 21, p. 3764-3766). Click HERE.)
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October 12, 1864: Notes on the Division of Powers with Revisions
(Note: The left column seems to be federal powers, whereas the right column seems to be provincial powers. Neither column, however, is explicitly listed as being federal/local.)
[Right column, a list of items follows, including]
Public Lands & Settlement
(Source: George Brown Papers, Drafts of the Quebec Resolutions, Notes on the Division of Powers, October 12th, 1864 (MG 24, B 40, Vol. 21, p. 3768-3769). Click HERE.)
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October 24, 1864: Amended Provincial Division of Powers
That it shall be competent for the local legislature to make laws respecting:–
[a list of powers follows]
4. The sale and management of public lands, excepting lands held for general purposes by the General Government.
(Source: George Brown Papers, Drafts of the Quebec Resolutions, Amended Provincial Division of Powers, October 24th, 1864 (MG 24, B 40, Vol. 21, p. 3747). Click HERE.)
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October 26, 1864: John A. MacDonald Papers, Working Draft No. 1
That it shall be competent for the Local Legislatures to make Laws respecting: —
[a list of powers follows]
4. The sale and management of Public Lands, excepting Lands belonging to the General Government.
(Source: John A. Macdonald, Drafts of the Quebec Resolutions, Working Draft No. 1, October 26th, 1864, MG 26 A, Vol. 46, pp. 18164-18168. The text is found on p. 18166. Click HERE.)
—–o0o—–
October 26/27, 1864: John A. MacDonald Papers, Working Draft No. 2
That it shall be competent for the Local Legislatures to make Laws respecting:
[a list of powers follows]
[renumbered to 6, the then strikethrough, inserted 7] 4. The sale and management of Public Lands, excepting Lands belonging to General Government.
(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. 18151. Click HERE.)
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October 27, 1864: John A. MacDonald Papers, Working Draft No. 3
The Local Legislatures shall have power to make Laws respecting the following subjects:
[a list of powers follows]
The sale and management of Public Lands, excepting Lands belonging to the General Government.
(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. 18157. Click HERE.)
—–o0o—–
October 27, 1864: John A. MacDonald Papers, Working Draft No. 4
[43.] That the Local Legislatures shall have power to make Laws respecting the following subjects:
[a list of powers follows]
[7.] The sale and management of Public Lands, excepting Lands belonging to the General Government.
(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. 18137. Click HERE.)
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October 29, 1864: Edward Whelan’s (PEI) Draft of Quebec Resolutions, as corrected in Montreal[3]
The Local Legislature shall have power to make laws respecting the following subjects: —
[a list of powers follows]
The sale and management of Public Lands excepting Lands belonging to the General Government.
(Source: [Charlottetown] Examiner, November 14, 1864, Click HERE.[4])
—–o0o—–
March 14, 1865: Quebec Resolutions as adopted in the Legislature of the Province of Canada
43. The Local Legislature shall have power to make laws respecting the following subjects: —
[a list of powers follows]
7. The sale and management of Public Lands excepting Lands belonging to the General Government.
(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 pp. 18213-18214. Click HERE.)
—–o0o—–
The London Resolutions (1866)
December 4, 1866: Version No. 1, Copy 1
43. The Local Legislatures shall have power to make Laws respecting the following subjects:
[a list of powers follows]
7. The sale and management of Public Lands, excepting Lands belonging to the General Government.
(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. 18187. Click HERE.)
—–o0o—–
December 13-14, 1866: Version No. 2, Copy 1
43. The Local Legislatures shall have power to make laws respecting the following subjects:—
[a list of powers follows]
7. The sale and management of Public Lands, excepting Lands belonging to the General Government.
(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). The text is found on p. 18179. Click HERE.)
—–o0o—–
December 14, 1866: Version No. 3, Copy 1
43. The Local Legislatures shall have power to make laws respecting the following subjects:—
[a list of powers follows]
7. The sale and management of Public Lands, excepting Lands belonging to the General Government.
(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). The text is found on p. 18204. Click HERE.)
—–o0o—–
December 28, 1866: Final Version
41. The Local Legislatures shall have power to make laws respecting the following subjects :—
[a list of powers follows]
8. The sale and management of public lands, excepting lands belonging to the General Government.
(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 pp. 105-106. Click HERE.)
—–o0o—–
Constitution Act, 1867
n.d. (probably early January, 1867): Rough Draft
42. The Legislatures 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.
[a list of powers follows]
8. The sale and management of Public Lands, except Lands owned by the General Government.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – Rough Draft, n.d. (MG 26, A, Vol. 48, pp. 18768-18793). This text is found on pp. 18783-18784. Click HERE.)
—–o0o—–
January 23, 1867: 23rd January Draft
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,–
[a list of powers follows]
(5.) The Management and Sale of the Public Lands belonging to the Province:
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 23rd January Draft, J.W. Ritchie’s Copy, January 23rd, 1867 (MG 26, A, Vol. 48, pp. 18971-18988). This text is found on pp. 18980-18981. Click HERE.)
—–o0o—–
January 30, 1867: 1st Draft
Only a partial copy survives of this draft, consisting of the first twenty sections of the draft Bill. Therefore, the wording of the relevant section in this draft is unknown.
(Source: National Archives of Canada. John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 1st Draft, January 30th, 1867 (MG 26 A, Vol. 48, pp. 19017-19021. Click HERE.)
—–o0o—–
January 31, 1867: 2nd Draft
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: —
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province:
(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 pp. 19036-19037. Click HERE.)
—–o0o—–
January 31, 1867: 2nd Draft with Handwritten Provisions and Notes
[66] 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: —
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province:
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 2nd Draft, January 31st, 1867 with Handwritten Provisions and Notes (MG 26, A, Vol. 48, pp. 19040-19082). This text is found on pp. 19068, 19071. Click HERE.)
—–o0o—–
n.d. (between Jan. 31 & Feb. 2, 1867): 3rd Draft, Early Copy
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:–
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province:
(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. 19119-19120. Click HERE.)
—–o0o—–
February 2, 1867: 3rd Draft, Revised Copy
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:–
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province:
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 3rd Draft, Revised, February 2nd, 1867 (MG 26, A, Vol. 48, pp. 19125-19148).This text is found on pp. 19143-19144. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Early Version
No clause relating to the management and sale of public lands exists in this draft.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Early Version, n.d. (MG 26, A, Vol. 49/1, pp. 19150-19181). Click HERE.)
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n.d. (1867): 4th Draft, Later Version
No clause relating to the management and sale of public lands exists in this draft.
(Source: John A. Macdonald Fonds, Drafts of the British North America Act, 1867 – 4th Draft, Later Version, n.d. (MG 26, A, Vol. 49/1, pp. 19337-19367). Click HERE.)
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n.d. (1867): 4th Draft, Later Version, Revised Copy
92[0].—In each Province, the Legislature may make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province, and all Timber and Wood grown thereon:
(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. 19434. Click HERE.)
—–o0o—–
n.d. (1867): 4th Draft, Final Version
90.—In each Province, the Legislature may make Laws in relation to matters coming within the classes of subjects next hereinafter enumerated:—
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province, and all Timber and Wood grown thereon:
(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. 19648. Click HERE.)
—–o0o—–
n.d. (1867): House of Lords Bill
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,—
[a list of powers follows]
5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon.
(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. 19689. Click HERE.)
—–o0o—–
Local Constitutions Drafts Package (1866-1867)
n.d.: Early Package
6. [7] The Local Legislatures shall have power to make laws respecting the following subjects:–
[a list of powers follows]
8. The sale and management of public lands, excepting lands belonging to the General Government.
(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. 19452. Click HERE.)
—–o0o—–
n.d.: Early Package with Reilly’s Notes[5]
[93] 19 106.—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:–
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province [and all Timber and Wood grown thereon].
(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. 19466. Click HERE.)
—–o0o—–
n.d.: Revised Package, H.B. Morse’s Copy
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:–
[a list of powers follows]
(5.) The management and sale of the public lands belonging to the Province [and all Lumber and Wood grown thereon]:
(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 p. 19601. Click HERE.)
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PART 3:
Debates on Section 92(5) in the Confederation Debates in the Province of Canada (1865-1866)
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Province of Canada (1865) [6]
February 28, 1865: Christopher Dunkin, 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. 515)
Christopher Dunkin [Brome]—[…] Certain properties such as penitentiaries, prisons, lunatic asylums, and other public charitable institutions, and other buildings and properties of the kind, which, together with those I have just mentioned, may be characterized as exceptional properties, are to be assigned by the general to the provincial governments. Also, with the exception of Newfoundland, the several provinces are to take the public lands, mines, minerals and royalties in each, and all assets connected with them—in common parlance, their territorial revenues. The General Government is, however, to have the mines, minerals and public lands of Newfoundland, paying for them of course.
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March 2, 1865: Joseph-Octave Beaubien, 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. 553)
Joseph-Octave Beaubien [Montmagny]—[…] It will be said that the national life of Lower Canada is so deeply rooted, that it is impossible to destroy it; but, if we desire to secure its safety, we must accept the present scheme of Confederation, under which all the religious interests of Lower Canada, her educational institutions, her public lands, in fact everything that constitutes a people’s nationality, will find protection and safety. With the control of our public lands in our own hands, we can attract the tide of emigration, retain our own people in the country, and advance in prosperity as rapidly as the other provinces. And all this is secured to us under the plan of Confederation.
—–o0o—–
March 6, 1865: Joseph Cauchon, 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. 702)
Joseph Cauchon [Montmorency]—We do not yet know, it is true, how this debt of four millions and some hundred thousand dollars will be divided between the two Canadas, but we do know, without any possibility of doubt, that the local revenues will belong to the local governments, and that they will amply suffice for all their requirements.
Some Hon. Members—Hear, hear.
Joseph Cauchon [Montmorency]—The honorable member for Hochelaga [Antoine-Aimé Dorion] complains that Upper Canada retains her public lands and what is owing to Government on those lands, and he maintains that Lower Canada ought to have her share of what those lands produce. But did those lands belong to us before the union, and have we not our own public lands, together with the revenue accruing from them? Have we not more lands to settle than Upper Canada? Since the discovery of our gold and copper mines the amount produced by the sale of our public lands has increased fivefold, whilst Upper Canada has hardly any land left to sell. Let our minds be opened, and we shall find that we have no reason to envy Upper Canada.
Some Hon. Members—Hear, hear.
[…]
Joseph Cauchon [Montmorency]—The hon. member would no doubt hand over the public lands to the Confederation so as to be in accordance with his plan of 1859, as set forth in the Montreal manifesto[7]; but I am certain that Lower Canada does not share his opinion.
—–o0o—–
March 8, 1865: Aquila Walsh, 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. 808)
Aquila Walsh [Norfolk]—[…] Another question that I look upon as of very great importance to these colonies, is not dealt with in these resolutions in that manner to which its importance entitles it. I refer to the management and sale of our Crown lands. I am very sorry to observe that they are to be confided to the control of the local legislatures. I believe that if, in any one question more than another, the Government of this province have failed in their duty in times past, it is in the management of our Crown lands.
The complaint I have to make is that they have not made use of those lands in establishing a wise and liberal system of immigration, by offering them free to all who would come and settle upon them. It cannot but be humiliating to every person having a stake in this province to observe the torrents of immigration that pour from the Mother Country into the neighboring republic; and especially so when they see them passing through the whole length of Canada by multitudes to the Western States.
Some Hon. Members—Hear, hear.
Aquila Walsh [Norfolk]—We have, in times past, failed to hold out such inducements as would stop that tide of immigration from flowing past us. I fear that by leaving those lands in the hands of the local legislatures, the immigration question will be dealt with, in future, in the same narrow spirit in which it has been treated in times past. I would have been very highly pleased if I could look forward to the future with the hope that our General Legislature would adopt a large, enlightened, and liberal scheme of immigration, sending their agents to all the European ports from which the largest tide of immigration sets in, for the purpose of explaining to the people the advantages they could derive from settling in these provinces. I am, therefore, very sorry to see that the delegates were obliged to make the arrangement they have made with reference to this important question.
Some Hon. Members—Hear, hear.
—–o0o—–
March 9, 1865: Aquila Walsh, 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. 818)
David Jones [Leeds South]—There are two or three more of the points of the resolutions to which I have objection. The public lands are placed at the disposal of the local legislatures; immigration also is in the hands of the local legislatures, and the seacoast fisheries are in the hands of the local legislatures. These are matters common to the whole, and should, for many reasons, be under the control of the General Government. These various interests, however, are all covered by the 45th resolution of the Conference which I have just read, and which declares that when consistent with the welfare of the General Government, their control will be taken from the local legislatures.
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PART 4:
Debates on Section 92(5) in Other Provincial Legislatures
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April 10, 1865: Charles Tupper, speaking in the House of Assembly of Nova Scotia (click HERE to view a PDF of the 1865 edition of the Confederation Debates, then scroll to p. 208)
Dr. Tupper […] The establishment and tenure of Local Offices, and appointment and payment of Local Officers; Education; Sale and Management of Public Lands; Local Works; The Administration of Justice, Property and Civil Rights.
I have only referred to some of the more important powers that would be given to the local and general governments respectively. The local governments would not interfere with the powers of the general government, or weaken its strength and unity of action, but would be able to deal with such questions as touch the local interests of the country—the construction of roads and bridges, public works, civil jurisdiction, &c.
—–o0o—–
ENDNOTES
[1] All transcriptions, formatting, and footnotes from the Quebec Resolutions are from 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 PrimaryDocuments Relating to the Conference (CCF, 2021).
[2] I would like to highlight two points about the division of powers. The division of power in MG24 B40 3764-3765 surprisingly follows the structure and content of the division of powers that is found in Lieut.-Governor Gordon’s September 22nd despatch (see “post-Charlottetown Division of Powers, 1864”, p. 77, in this volume. The division of powers in MG24 B40 3764 preserves almost everything from that ‘post-Charlottetown’ version except provisions regarding the control of public lands, immigration, and mines and minerals which are missing in this version and found on the “Charlottetown Division of Powers, 1864”. As such, MG24 B40 3764-3765 (along with Lieut.-Governor Gordon’s despatch) provide actual evidence that much of the structure of the division of powers had already been discussed and ‘worked on’ after the close of the Charlottetown Conference September 1864. This is significant because the delegates did not begin drafting resolutions at the Quebec Conference from scratch. Far from it. In fact, we might even need to go earlier to A.T. Galt’s 1858 proposal (see p. 73 in this volume). If we want to understand the origins of the federal division of powers, we might need to turn these earlier sources. As Lieut.-Governor Gordon tellingly observes, what the delegates did need to work out at Quebec was ‘the balance’ of this new division of power. [C.D.]
Note from PrimaryDocuments.ca: The Gordon despatch referred to in the footnote above is also found in this report.
[3] Supra footnote 1. The following footnote from Charles Dumais is attached to this version, “According to Edward Whelan, this is the draft of the Quebec Resolutions as amended at Montreal on October 29th, 1864. It is found published in the Examiner (Charlottetown, PEI) newspaper, November 14th, 1864. This version (above) does not include the amendments and three resolutions added in what we titled Macdonald’s “Working Draft No. 4” in this compilation. This version however does seem to work off the base text of “Macdonald’s “Working Draft No. 4” (without the amendments). Like the base text, this draft above does not feature numbered provisions. The three provisions missing in this draft (above), and found in the final text of the Quebec Resolutions are the following:
“35. The Judges of the Courts of Lower Canada shall be selected from the Bar of Lower Canada.”
“58. All assets connected with such portions of the Public Debt of any Province as are assumed by the Local Governments shall also belong to those Provinces respectively.”
“71. That Her Majesty the Queen be solicited to determine the Rank and Name of the Federated Provinces.”
[4] The relevant newspaper is found on the second to last page of the PDF.
[5] Reilly’s may also be from the revised package. Revised Package, Copy 4 (MG 26 A, Vol. 49/2, pp. 19576-19594) contains the same amendments to it (other than the renumbering of the clause).
[6] Please note that there is a difference between the formatting of the original and that of the text in these reports. That is because the text portion comes from our publication, The Confederation Debates in the Province of Canada (CCF, 2022), which modernized the formatting of the text to current Hansard style. The content remains the same. However, if the user wishes to see the original, the hyperlink will bring them to the 1865 edition. Any footnotes in these passages are also form the book.