Secretary Bernard Hewitt’s Report of Discussions at Quebec (1864)
By: Bernard Hewitt
Citation: Secretary Bernard Hewitt’s Report of Discussions at Quebec (1864) in Joseph Pope, Confederation Being a Series of Hitherto Unpublished Documents Bearing On the British North America Act (Toronto: Carswell Co. Ltd., 1895) at 53-88.
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Report of Discussions in The Quebec Conference
Discussions in Conference of The Delegates from The Provinces of British North America, October 1864.
Conference Chamber, Parliament House, Quebec
Monday, 11th October 1864.
The discussion was resumed on Mr. Palmer’s motion of yesterday:—
That in taking the votes on all questions to be decided by this Conference, except questions of order, each Province or Colony, by whatever number of delegates represented, shall have one vote, and that in voting Canada shall be considered as two Provinces.
Mr. John A. Macdonald proposed that Upper and Lower Canada should be considered as two Provinces for voting purposes.
Mr. Palmer concurred.
Mr. Haviland suggested that it should be in writing. (It is understood that any question of order is to be settled by the poll of each).
Mr. Fisher—In the event of differences arising between the delegates of any one Province, some public notice should be taken of it.
Mr. Coles—I think that unnecessary, as occurring in a confidential conference.
Mr. Palmer’s motion unanimously agreed to.
Mr. John A. Macdonald moved, seconded by Mr. Tilley, the adoption of the following rules regulating the proceedings of the Conference:—
1. That free and individual discussion and suggestion be allowed.
2. That all motions and the discussions and votes thereon be in the first place as if in Committee of the Whole.
3. That after vote put, no discussion be allowed.
4. That each Province may retire for consultation after vote put.
5. That after the scheme is settled in Committee of the Whole, all the resolutions be reconsidered as if with Speaker in the chair.
6. That just before the breaking up of the Conference, the Minutes be carefully gone over and settled, with the view of determining what is to be submitted to the Imperial and Provincial Governments, and what is to be published for general information.
Mr. Chandler—I beg to suggest that in cases where the delegates of one Province disagree, the names of the dissentients should be inserted in the Minutes, and also whether the vote was unanimous or not.
Mr. John A. Macdonald—I am willing provisionally to adopt the suggestion of Mr. Chandler, but I think the whole question should be carefully reconsidered at the eventual revise of the minutes.
Resolutions unanimously agreed to.
The discussion was resumed upon the motion of Mr. John A. Macdonald:—
That the best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be effected on principles just to the several Provinces.
The opening remarks of Mr. Macdonald in speaking to this resolution do not seem to have been recorded. Proceeding, he said:—
The various States of the adjoining Republic had always acted as separate sovereignties. The New England States, New York State and the Southern States had no sympathies in common. They were thirteen individual sovereignties, quite distinct the one from the other. The primary error at the formation of their constitution was that each state reserved to itself all sovereign rights, save the small portion delegated. We must reverse this process by strengthening the General Government and conferring on the Provincial bodies only such powers as may be required for local purposes. All sectional prejudices and interests can be legislated for by local legislatures. Thus we shall have a strong and lasting government under which we can work out constitutional liberty as opposed to democracy, and be able to protect the minority by having a powerful central government. Great caution, however, is necessary. The people of every section must feel that they are protected, and by no overstraining of central authority should such guarantees be overridden. Our constitution must be based on an Act of the Imperial Parliament, and any question as to overriding sectional matters determined by “Is it legal or not?” The judicial tribunals of Great Britain would settle any such difficulties should they occur.
Is this the time for union? Now is the time, or we may abandon the idea in despair. Canada has not (sic) adopted union as a solution of her political difficulties; but, failing any general union, she cannot remain as at present, and if we come to no decision here, we Canadians must address ourselves to the alternative and reconstruct our Government. Once driven to that, it will be too late for a general federation. We cannot, having brought our people to accept a Canadian federation, propose to them the question of a larger union. It is stated that in England federation will be considered as showing a desire for independence. I believe the people of England are strongly bent on keeping up her position as a mighty empire, which can only be done by helping her Colonies, Goldwin Smith, the Manchester school and the Times—the property of Robert Lowe, a recreant colonist—to the contrary notwithstanding. The colonial question has never been fairly represented to the people of England. The English newspapers were alive to the designs of Russia on Australia, a favoured colony of England, for which the Manchester school would fight. The British North American colonies are not so profitable as Australia from a money point of view: but, if organized as a confederacy, our increased importance would soon become manifest. Our present isolated and defenceless position is, no doubt, a source of embarrassment to England. If it were not for the weakness of Canada, Great Britain might have joined France in acknowledging the Southern Confederacy. We must, therefore, become important, not only to England, but in the eyes of foreign states, and especially of the United States, who have found it impossible to conquer four millions of Southern whites. Our united population would reach that number. For the sake of securing peace to ourselves and our posterity we must make ourselves powerful. Our population is increasing in geometrical progression. The burdens of the United States and the re-action after the war will direct the emigrating population of Great Britain to British America and from the United States to a freer country—free from taxation and less likely to be convulsed by war. There must be a new state of things in the United States before matters settle into their normal condition.
A question or objection sometimes raised to the proposed union is that of increased expense. This, I think, will be comparatively small, in fact scarcely appreciable. Take the expenses of the Governments as they exist to-day, five in number. You will find that they aggregate a very considerable amount. With one general Government the expense would be very much less. After the first two or three sessions the General Legislature, unembarrassed by local matters, will take very much less time. The expenses of the subordinate legislatures will be small. Each local government will be relieved of its provincial debts. I hope one of the first things under the new system will be the issue of a commission to enquire into the laws. We should have one statutory law throughout, except in Lower Canada, where the civil law prevails. The great security for peace is to convince the world of our strength by being united.
To Nova Scotia and New Brunswick Canada holds out the Intercolonial road intimately bound up with the question of union. As Mr. Tilley says, it is “absolutely necessary.” When the Intercolonial road was first proposed it was considered as a great commercial work. We had then no Grand Trunk Railway, at least but very slight communication with the seaboard. So long as there is no war Canada can communicate (with the Lower Provinces) through the States. Commercially the value of the Lower Provinces has decreased to Canada, but in military respects they are very essential. The Intercolonial road must be a political consequence of a political union. If it were thought by the Canadian Parliament that this union should not take place, it would be difficult to induce that body to support the plan of an Intercolonial road. I think it should be in any event, and would support and vote for it; but it would be a matter of great difficulty to carry.
It is impossible to have a Zollverein. We must continue to have hostile tariffs unless we have a political union.
A great evil in the United States is that the President is a despot for four years. He is never considered as being the father of his people. It was otherwise with Washington, who did not escape slander. Every President is the leader of a party, and obliged to consider himself as bound to protect the rights of a majority. Under the British Constitution, with the people having always the power in their own hands and with the responsibility of a Ministry to Parliament, we are free from such despotism. These weaknesses in the United States Constitution have not only attracted our attention, but also that of Confederate States, who endeavour to avoid them by having lengthened terms for their President. With them great questions are not settled in committees as in the United States, but they allow Ministers to appear on the floor of the House to defend their measures. They have cut the wings of the President as leader of a party by providing that no Government employee shall be dismissed without cause—that is, that the right shall not be capriciously exercised.
As regards the constitution of our Legislature. In order to have no local jealousies and all things conciliatory, there should be a different system in the two chambers. With the Queen as our Sovereign, we should have an Upper and a Lower House. In the former the principle of equality should obtain. In the Lower House the basis of representation should be population, not by universal suffrage, but according to the principles of the British Constitution. In the Upper House there should be equality in numbers. The population of Upper Canada is 1,400,000; Lower Canada, 1,200,000; Lower Provinces, 750,000. The rate of increase of population in Canada must be greater in future than in the Maritime Provinces. We considered at Charlottetown that Upper Canada should have twenty members, Lower Canada twenty, and the Maritime Provinces twenty. If not politically united they should, still have the same aggregate representation.
With respect to the mode of appointments to the Upper House, some of us are in favour of the elective principle. More are in favour of appointment by the Crown. I will keep my own mind open on that point as if it were a new question to me altogether. At present I am in favour or appointment by the Crown. While I do not admit that the elective principle has been a failure in Canada, I think we had better return to the original principle and in the words of Governor Simcoe endeavour to make ours “an image and transcript of the British Constitution.”
We have to consider what is desirable; and then what is practicable. We cannot ask each Legislature to relinquish its Upper House. It would be hazardous to the project of union. My proposition to Canada is this. In our Legislative Council there are seventy-two members. In the event of its being decided that in the new body Upper Canada shall be represented by twenty members and Lower Canada by twenty members, let the members in each section meet and ballot or elect, as representative peers in Scotland (the latter is perhaps the better plan), the councillors to the new body, who should at once receive their appointment under the Great Seal, for life; those not elected, to be a portion of the Local Legislature. The latter would have their own social position and be active members of the body politic. A large qualification should be necessary for membership of the Upper House, in order to represent the principle of property. The rights of the minority must be protected, and the rich are always fewer in number than the poor.
Each Province shall adjust its own constituencies. We should not embarrass ourselves with the qualification of the voter. Each Province should send its representatives on the present system of each, and the question of the qualification should be reserved for the consideration of the whole Government united.
Mr. Brown—What as to raising the suffrage?
Mr. John A. Macdonald—The system I propose is that which was in the Union Act of Upper and Lower Canada. The preliminary question for us to consider, is what powers should be reserved to the General Legislature and what given to the Local Legislatures. That must be considered before we enter upon the subject of the constitution. We should keep before us the principles of the British Constitution. It (our constitution) should be a mere skeleton and framework that would not bind us down. We have now all the elasticity which has kept England together.
Motion unanimously agreed to.
Sir Etienne Taché stated that he was unavoidably obliged to leave the chair to meet His Excellency the Governor-General, and he requested Colonel Gray, of Prince Edward Island, to take the chair during his absence, which the latter accordingly did.
Mr. Dickey—What authority from the Home Government have we to consider this subject?
Mr. John A. Macdonald quoted despatch from the Duke of Newcastle to the Earl of Mulgrave, Lieutenant-Governor of Nova Scotia, dated 6th July, 1862.[Note ]
Mr. Brown moved, seconded by Mr. Archibald:—
That in the Federation of the British North American Provinces, the system of government best adapted under existing circumstances to protect the diversified interests of the several Provinces and secure efficiency, harmony and permanency in the working of the Union, would be a General Government, charged with matters of common interest to the whole country; and Local Governments for each of the Canadas and for the Maritime Provinces, charged with the control of local matters in their respective sections; provision being made for the admission into the Union on equitable terms of the North-West Territory, British Columbia and Vancouver.
Mr. Fisher—I should have preferred a legislative union if it were feasible.
Mr. Brown—It must be a federal and not a legislative union. That is the main object of my motion, together with the inclusion of the North-West Provinces. The latter opens up a wide question. The population of the Red River Settlement is now 12,000 and we must look forward to the day of settlement and occupation of that country. The inclusion of British Columbia and Vancouver Island is rather an extreme proposition, but it would be wrong to exclude them in the formation of the scheme. The Americans are encroaching. A large portion of the land at Saskatchewan might be formed into a Crown Colony or be in the Union. The people of Upper Canada in going into the Union would feel strongly that that country should be secure focus. To make communication less difficult there should be a winter route.
Mr. Fisher—I think we should lay this matter before each Legislature, but not press it next session.
Mr. McCully—Is it necessary that this question should be submitted to the people? In New Brunswick [Note ] men of large minds approve of it and think it should be proceeded with at once. But there is another class between them and the mass of the people who hesitate and halt and doubt the propriety of taking a step like this. More intelligent people, like delegates, should take the matter into their own hands and not wait to educate their people up to it.
Adjourned at four o’clock p.m.
Wednesday, 12th October 1864.
The discussion on Mr. Brown’s motion of yesterday was resumed.
Mr. Palmer—I do not oppose the motion generally. But our discussion is in advance of the propositions contained therein. I call attention to the acquisition of the North-West. Our powers as delegates are strictly defined, and we should confine our deliberations to our own Provinces. Is it right or politic to embrace a consideration of the Hudson’s Bay Territories, including Mr, Brown’s reference to the American views as to acquiring possession of it. Should we introduce any allusion to it?
Mr. Carter—I should have heartily concurred in the vote of yesterday had I been here, and regret my absence. As regards the motion before the chair, I like the grandeur and magnitude of the scheme. But I do not see that anyone is justified in speaking of taking in the Hudson’s Bay Territories.
Mr. Whelan—I was absent yesterday, but do not desire to withhold my adhesion from the great and glorious principle involved in the motion of yesterday. I do not fear a small colony like Prince Edward Island being involved. We are forming a constitution for a country larger than Europe in extent. There is an apprehension abroad in the Lower Provinces that Canada desires to swamp and extinguish their provincial character. Such ought not to be objected to. It is desirable that our mere provincial character should be lost and that we should form one great country.
Mr. Brown’s motion carried unanimously.
The Honourable Mr. Shea rose and suggested that it would tend to the despatch of business before the Conference if the several resolutions intended to be moved were prepared in advance by a committee composed of the delegates of Canada.
Mr. Shea’s suggestion was agreed to, and the Conference accordingly adjourned for such purpose.
Wednesday, 19th October 1864.
The Conference resumed consideration of the motion of the Hon. Mr. Tupper respecting the selection of members of the Legislative Council, and of the motion of the Hon. Mr. Coles in amendment thereto.
Mr. Fisher—Canada should not prescribe the mode of selection, but leave the matter to the Local Legislatures.
Mr. Tupper—This would be imposing an irritating subject on the Local Legislatures. The Legislatures will say this must be settled before the question of Confederation.
Mr. Chandler concurred.
Mr. McCully—One of the arguments that will be most useful to commend this project of Confederation to the people of the Lower Provinces is that it will not involve additional expenditure, but decrease the expenses of the Local Governments. I agree with Mr. Tupper.
Mr. Coles—I differ from him. We should not dictate the course to be taken. Leave it open to all duly qualified persons in the Province. Excepting Prince Edward Island will not satisfy me; it will place us in difficulty.
Mr. Henry—If we are limited to choose from the present Legislative Councils in the Lower Provinces, we are violating sound principles. It will follow that we cannot have fresh men for ten or twelve years. Each Government should choose its own men in its own way. We should not limit ourselves.
Mr. Tupper—Nova Scotia will be abundantly satisfied by choosing ten Legislative Councillors out of the present men. We can select representative lawyers, merchants, and professors of different creeds out of them. But this should be confined to first selection.
Mr. Coles’ amendment defeated, Prince Edward Island alone voting for it.
Mr. Tupper’s amendment carried, Prince Edward Island voting against it.
Mr. Galt moved:—
That in the first instance the members to be chosen for the Legislative Council of the United Provinces, excepting Prince Edward Island, shall be chosen by lot from the existing members of the Legislative Councils of the several Maritime Provinces, and of those sitting in Canada, from Upper and Lower Canada respectively.
And that as vacancies occur in the representation from any Province, they shall be filled by the persons whose names shall have been drawn next in priority to those first selected until the whole number shall be exhausted.
Mr. Fisher—I object to the motion. I feel we have been overridden by Canada in this. It overrides the Assembly and makes the Legislative Council the greatest power. Why tie down other Provinces, if Prince Edward Island is excepted? Canada should give the Local Legislatures the power to choose. As it is, it will add greatly to the difficulties of New Brunswick. It makes the Legislative Councils the controlling power.
Mr. Tupper—I rise to a question of order. No discussion is allowed after the vote is taken. The point alluded to has already been decided.[Note ]
Mr. Tupper—I agree with Mr. Brown that the Legislative Council should be chosen from all parties. This motion will prevent that.
The Canadian delegates retired. On returning,
Mr. Galt—I have decided to drop the last paragraph of my motion as follows:—
And that as vacancies occur in the representation from any Province, they shall be filled by the persons whose names shall have been drawn next in priority to those first selected until the whole number shall be exhausted.
My motion will therefore read:—
That in the first instance the members to be chosen for the Legislative Council of the United Provinces, excepting Prince Edward Island, shall be chosen by lot from the existing members of the Legislative Councils of the several Maritime Provinces, and of those sitting in Canada, from Upper and Lower Canada respectively.
Mr. Galt’s motion lost. Contents—Canada, two. Non-contents—Nova Scotia, New Brunswick, Newfoundland, three. Prince Edward Island did not vote.
The Hon. Mr. Shea moved:—
That such first selection shall be made by the Local Government of each Province so far as a sufficient number be found as aforesaid, and in ease such sufficient number cannot be found, then the Local Government shall name for appointment other duly qualified parties to make up the deficiency. Provided that the Government of Canada shall select for both sections of Canada, and that the Government of Prince Edward Island shall name for appointment the whole number of the Legislative Councillors allotted to it.
Mr. Brown—Although approved by the Canadian delegates by a majority vote, I think the motion very objectionable. It was carried by nine to three, but I cannot agree to it.[Note ]
Mr. McCully—If a question of delicacy in a coalition government, how much more so must it be in the case of Governments not formed on the coalition principle. Some modification of the principle stated in the motion is necessary. Due regard should be had to the claims of the Opposition so that political parties may be equally represented in the Legislative Council.
Mr. Tupper—Canada has a combination of parties. But in the Lower Provinces it is otherwise, and both parties are entitled to be fairly represented. If Nova Scotia is called on to appoint ten members it shall be done by fair representation of all parties, but that should be the result of conference, though not necessary to publish the fact.
Col. Gray (New Brunswick)—A course to suit one Government will not suit another. Let Canada carry her own plan as she pleases, and let each of the other Provinces do the same. After the first batch is over we fall into the rule prescribed by the Federal constitution. I would leave the first selections to the Local Governments, it would be to their interests to get good men. Local partisanship will not come up in the Legislative Council of the Federal Government, and, therefore, the best men will be chosen. No broad principle can be laid down that is suitable to all. I would propose that mode of first choice shall be settled, and prescribed by the Local Legislatures. The interests of both sides will be regarded. The Canadian Government can thus carry their own plan through their Legislature.
The motion of the Hon. Mr. Shea, was by leave of the Conference withdrawn.
Mr. Archibald moved:—
That in the selection of members of the first Federal Legislative Council, each Province shall be governed by such rules now to be agreed upon as are considered by the Conference most suitable to the circumstances of the particular Provinces.
Mr. McCully—This is the same as my amendment of last night. The Conference exhibits evidence that on fundamental principles the Provinces are not prepared for Federation. My argument is that, if you leave the selection to the Local Legislatures, it will prove a bone of contention and jeopardize the Federation. The Legislatures are under no restraint as to the composition of the Legislative Council. The Executive would not be so. I beg to move in amendment to the motion of Mr. Archibald:—
That the Legislative Council shall in the first instance be chosen hi Canada by ballot, and in the other Provinces, by the Executive Governments.
Mr. Brown—I appealed to the other Provinces to aid my views because Canada has decided by a majority, but contrary to the views of my party. We say we could not leave to the Executive the choice of Legislative Councillors. A conflict might arise in the Cabinet before the choice was made, and a party administration might be formed.
Mr. John A. Macdonald—But that exists in Nova Scotia and New Brunswick at this time.
Mr. Brown—But the plan could not be carried in Canada.
Mr. John A. Macdonald—Arrangements can be made as to consultation between parties in case of a party Government. But we should not have a different system in the different Provinces. It is of great importance that all should follow the same mode.
Mr. Tupper—An essential point is that the Executive Governments should appoint the first Legislative Council.
The motion of Mr. Archibald and amendment of the Hon. Mr. McCully were withdrawn.
Mr. McCully—Before the Legislative Council can be formed there must be an Executive. I am content to take that the Government of each Province shall appoint subject to the approval of the Executive Council of the whole Federal Government. I accordingly move:—
That the members of the first Legislative Council in the Federal Legislature shall be appointed by the Crown at the recommendation of the Federal Executive Government upon the nomination of the respective Local Governments. And that in such nomination due regard be had to the claims of the members of the Legislative Council of the Opposition in each Province, so as that all political parties be as nearly as possible fairly represented.
Mr. Tupper—How do you construct the Executive before the Legislative Council?
Mr. John A. Macdonald—An Executive Council for the Federal Government must be the first thing. It will be in its nature provisional. After the elections the party not having support must go out.
Mr. Tilley—I think this is an additional guarantee to the minority that party shall be represented. Anything to the contrary would be a direct breach of the will of the Conference.
Mr. Coles—How is the minority to know of the proposed appointments?
Mr. John A. Macdonald—The Federal Government will be bound to see that the parties are appointed under this understanding before their appointments are ratified.
Mr. Brown—I think Mr. McCully’s proposal is an amelioration of the evil under which we should labour if Mr. Shea’s motion had carried. But I think it still objectionable. I press on the Conference that each Province should be allowed to take its own mode of selection.
Mr. Archibald—It is desirable to have one plan for the whole. The Maritime Provinces will probably adopt the same system, and Canada should agree to one.
Mr. Fisher—Canada has forced us into a false position by requiring the choice to be made from the existing Legislative Councillors.
Mr. John A. Macdonald—I must deny on the part of Canada any attempt to coerce other Governments. The other Provinces took the same view.
Mr. McDougall—I disagree with the shape which the question is in before the Conference. Two questions were submitted to Canada. Mr. Brown asks the other Provinces to assist the minority of the Canadian delegation. That I think wrong. The proper course for the minority of the Canadian Government will be to discuss the matter afterwards among themselves and endeavour to change their colleagues’ opinions.
Mr. Brown—It was understood that we should vote by Provinces, but it was also understood that every individual member should speak against the decision of his own Province.
Mr. McDougall—Is it the meaning of the resolution that the Federal Government can displace any member of the Legislative Council appointed in breach of agreement?
Mr. John A. Macdonald—It is the understanding that the Federal Government shall be a Court of Equity to see that the understanding of fairness as to party is carried out.
Mr. McCully’s motion was unanimously agreed to.
Mr. Brown moved a resolution defining the representation in the House of Commons.
Mr. Galt—In reference to Mr. Brown’s motion, I propose 225 members instead of 200. If we divide 225, according to population, I calculate it would give:—
|Prince Edward Island||6|
We should commence with the census of 1861, and re-adjust after each subsequent census. We hare supposed that the population of Lower Canada, being tolerably equable in its character, would afford the best basis. But having respect to the rapid increase of Upper Canada, we think the Lower Provinces should not be reduced if they do not increase in the same ratio. Therefore, the Lower Provinces would have the same as they have now unless in the very improbable case of any one falling off by five per cent, or more—that is a decrease relatively to the whole Federation.
Mr. Brown—We thought it best not to take the census of 1861, but the proportionate increase in five years thence and change in 1881, but this may not be intelligible. It may be better to take the census of 1861. In that case the figures in the motion will be as follows:—
|Prince Edward Island||5|
Mr. Tupper—That is better, as the public in the other case have no data.
Mr. Brown—In the apportionment, if, a fractional part, we don’t allow it; if over one-half, we allow one.
Mr. Johnson—But if you have quadrennial Parliaments, you may by increase of population have to increase your members in the Assembly at an improper time.
Mr. Tilley—And to alter your electoral divisions.
Mr. Brown—After the census of 1871, we shall adopt the same rule. The practical result will be that while Lower Canada certainly will not be less and the Lower Provinces may increase in population, they cannot decrease in the number of representatives. It keeps the House within a reasonable limit. It is now to start with one in 17,000. It will afterwards vary. There is just one difficulty. Messrs. Galt and Cartier think the number too small. They think the House should number 216.
In that event, Mr. Galt proposes that Lower Canada shall get 73, and the rest in proportion, so as to get, on the basis of the census of 1861, 216 in the House.
Mr. Coles—1871 is too soon to alter. It should be in 1881.
Mr. Galt—Upper Canada will not consent to that, and it must be so definitely understood.
Mr. Tilley—We have fourteen counties, some with four representatives, others with two, and the City of St. John, two. Twenty-one, the number stated in the printed motion, would better answer us. I agree with Mr. Brown’s proposition to begin with a goodly number, that it may not be disturbed for some time to come.
Mr. McCully—I advocate the adoption of the measure as it stands. I do not think we should make any local distribution of members.
Mr. Archibald—By accident the proposed arrangement will suit both Nova Scotia and New Brunswick. One member for each county, and one for each metropolis, will give the exact number provided in Mr. Brown’s scale of 193.
The several Provinces announced their consent and approval of the scheme of 193 members based on the census of 1861, as precisely suiting the mode in which each could adapt the electoral divisions at present existing to such a state of things.
Mr. Shea, however, argued that inasmuch as the Newfoundland census was taken in 1857, an allowance for the period intervening between that date and 1861 would entitle Newfoundland to another representative. It was conceded by all the Provinces that Newfoundland should have another representative, thus raising its number to eight, and the whole number to 194.
Mr. Brown’s motion carried, Prince Edward Island alone voting nay.
Mr. Haviland—Prince Edward Island would rather be out of the Confederation than consent to this motion. We should have no status. Only five members out of 194 would give the Island no position.
Mr. Tilley—That is rather a singular ground of objection, for they have objected to the basis of representation by population. Now it was fully understood at Charlottetown that those who came to the Conference expected representation by population. Some difficulty might have arisen on those points but not on this.
Mr. Palmer—I am not inimical to the grand scheme of Confederation. I believe it will be productive of great benefits. But I take exception to the principle adopted by this resolution. Representation by population is not applicable when a certain number of Provinces are throwing their resources into one Confederation, and giving up their own self-government and individuality. When a colony surrenders that right, she should have something commensurate in the Confederation. The debt of Prince Edward Island is nothing. Our taxation is vastly below that of the other Provinces. Our trade and revenue are rapidly increasing. Why give up so great certainties for an uncertain benefit where we have only a feeble voice? Looking first at the larger Provinces, Canada has secured to herself a greater number of representatives than she had before. It may be said that we may join with the other Maritime Provinces in any matters affecting our common interests, but even then our united strength would still be far below Canada’s number of representatives. Not even two or three more members would induce me to give my assent to the scheme. I never understood that any proposition at Charlottetown was to be binding as to representation by population. It was there made by those from Canada and I did not think it necessary to remark on it, as it was a mere suggestion then thrown out by Canada for consideration.
Mr. Shea—The speech just made should have been delivered before we came to this Conference. What has brought us here? What brought about the Conference except the difficulties in Canada over the question of representation by population? We came here from Newfoundland with that understanding. Canada could not give way in such a matter. Prince Edward Island is in a better position than Newfoundland as regards the Legislative Council, as they have an equal number of representatives therein.
Mr. Coles—Newfoundland is the cause of our getting a less representation in the Legislative Council than we should otherwise have had. I understood that this matter was to be settled on the basis of representation by population. I stated lately that I thought our Prince Edward Island Government should not have sent us here unless to carry out these views stated by the Canadian Government. The Attorney-General of Prince Edward Island (Mr. Palmer) now states that the Government cannot accede to it. I think that we came here prepared for representation by population, and I regret that the Attorney-General of Prince Edward Island had not previously stated that he could not accede to the principle and withdrawn from the Conference.
Mr. Haviland—I am not a member of the Prince Edward Island Government. I express only my individual opinion.
Mr. Coles—Then the Government should have instructed their delegates properly.
Colonel Gray (Prince Edward Island)—My colleagues and myself feel in a humiliating position. We feel that a slur has been cast by Mr. Coles on the Government which I have the honour to lead. I came to the Conference understanding fully the question. I have never had any conversation with the Attorney- General on the subject. My idea was as clear as the sun at noonday that we were to treat on the basis of representation by population. The Attorney-General heard as much as I did at Charlottetown. Certainly none of us should have been here unless the members of our delegation had been agreed on the point. All that I could get for Prince Edward Island I would, but I fancied we were fully agreed on these points at Charlottetown, and that our discussion was to be about details.
Mr. Galt—It would be a matter for the greatest regret that any difficulty should arise over this matter. We request the Prince Edward Island delegates to reconsider their decision. It would be a matter of reproach to us that the smallest colony should leave us.
Mr. Whelan—I should feel it my duty to-night to vote against the resolution, but we had better reconsider the matter. Mr. Haviland and I came here perfectly untrammelled and without any instructions from the Government of Prince Edward Island. We understand that all proceedings were to be de novo and apart from anything which had taken place at Charlottetown. I thought that Prince Edward Island had not been fairly treated as to representation in the Legislative Council, but I gave way on that occasion. I do not think, however, I could say that I was satisfied with the representation of five in the Federal House of Commons. We are in an isolated position. Our resources are large, and our people would not be content to give up their present benefits for the representation of five members. It may be said that the Confederation will go on without Prince Edward Island, and that we shall eventually be forced in. Better, however, that, than that we should willingly go into the Confederation with that representation. But if the Government who form the delegation will take the responsibility on them, I may, support them.
Adjourned at ten o’clock p.m.
Thursday, 20th October 1864.
Mr. Brown—I desire to ask if the Prince Edward Island delegates will state what their views are on the resolution of last evening.
Mr. Palmer—On making my observations last night I was under the impression with respect to any vote given that the party voting was bound to maintain it. Dr. Tupper had said whoever voted for a proposition could not afterwards oppose it in his Local Legislature, and such appeared to be the general opinion by tacit consent. I could not consent that Prince Edward Island, free of debt comparatively, should come into Federation with the other Provinces indebted largely, especially as nothing had been said or settled as to the relative shares of the burdens to be borne by each. I am told, however, by my colleagues from Prince Edward Island, that the financial questions will follow the present discussion, and that the matter of representation must depend on the financial resolutions. That may alter our position.
Mr. Coles—Every question must stand on its own footing. Why mix up financial matters with representation?
Colonel Gray (Prince Edward Island)—I am instructed by my co-delegates to say that the provision of five members is unsatisfactory. Prince Edward Island is divided longitudinally into three counties, each returning ten members. But they are always opposed to change of representation. We cannot divide the three counties into the five members.
Mr. Brown—Every Province must revise its own electoral divisions to suit the number of its representation.
Mr. Coles—Mr. Galt had proposed six members for Prince Edward Island. I approved that rather than Mr. Brown’s motion, because it allows us to give to our three counties two members each.
Mr. Pope—I was absent last night. I was under the impression that it had been clearly laid down at Charlottetown that representation by population was to form the basis of the Lower House. I could not, therefore, have argued for a greater number than our population entitled us to get. I agree in all that has been said by Colonel Gray and Mr. Coles. But the circumstances of Prince Edward Island are such that I hope the Conference will agree to give us such a number as we can divide amongst our three constituencies. Nature, as well as the original settlement of the Island, has made three counties, and it would give rise to much difficulty if we had to adjust five members to the three counties. I cannot ask it as a matter of right, but one of expediency, as one without which it is impossible for us to carry the measure in Prince Edward Island. I, therefore, ask for six members.
Mr. Haviland—I fully agree with Mr. Pope. It would be an insuperable difficulty to us if we had not six members.
Mr. Brown—To give Prince Edward Island five members the total properly should be 205. It is obvious we cannot depart from representation by population. The only thing to do would be to take Prince Edward Island as the basis which would give a House of 230, altogether too large. Give one member to each county and let the whole Island elect the other two, and keep the number five intact; or let the whole Island elect five. We should have to add thirty-eight members to the House in order to give Prince Edward Island six, as the basis of representation by population.
Mr. A. A. Macdonald—We are not bound by the principle of representation by population laid down at Charlottetown. Our constituents will say and will speak of the increased representation of Canada, and decreased representation of the Lower Provinces.
Mr. Galt—There is no use in asking the Conference to depart from the principle laid down. We could not justify it. If the principle is good it is the same for all, and we could not defend the action of giving 13,000 in Prince Edward Island a member where it requires 17,000 in any other Province for that purpose. It would be indefensible. The difficulty is of a purely local nature. It is impossible for the Conference to depart from the rule of population being the basis of representation.
Mr. McCully—There is another reason. As to the constitution of the Upper House, we looked on that as flexible. If we made the concession perhaps Prince Edward Island might not come in; and, besides, the North-West might require, for some local reason, an increased representation irrespective of population. The rule of representation by population must be rigid and unyielding.
Mr. Dickey—Give one member to each county in Prince Edward Island, one to Charlottetown, and one elected by the whole Island. Members elected for the Federal Legislature would not be elected for local purposes, but are representatives of the whole Island. It is a question for Canada. We (Nova Scotia) would concede the six members though it would place us in difficulty.
Mr. Haviland—There is no solution in the above proposition.
Mr. Pope—Religious feeling in Prince Edward Island runs very high. The Protestants outnumber the Roman Catholics, and in consequence the fifth member as proposed by Mr. Dickey would not represent the Roman Catholics.
Mr. Fisher—I came here convinced that representation by population was settled as the basis upon which the Provinces were to be asked to confederate.
Mr. Coles—Whatever may be the result of this matter, Prince Edward Island should submit. The question has been settled. Let us go on with the business, and let Prince Edward Island settle for themselves when the question comes before them.
Mr. John A. Macdonald moved:—
That there shall be a session of the Legislative Council and Assembly once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the Legislative Council and Assembly in one session and the first sitting of the Legislative Council and Assembly in the next session. And every Legislative Assembly shall continue for five years from the day of the return of the writs choosing the same and no longer, subject nevertheless to be sooner prorogued or dissolved by the Governor.
He said: There have been only four Parliaments out of eighteen in England which have exceeded five years. The term Parliament is correct, because Parliament is dissolved, but elections take place for Commoners only. I prefer the term “House of Commons,” but they do not like it to be used elsewhere than in England as they have prescriptive rights. I desire a clause to the effect that all rights of the Lords or Commons in their legislative capacity shall be provided to the Federal Parliament. It would be necessary to say legislative capacity, as the House of Lords has a judicial capacity. Carried.
Mr. John A. Macdonald moved:—
That the Executive authority or Government shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well understood principles of the British Constitution by the Sovereign personally or by representative duly authorized.
Mr. Tupper—Is it meant to leave it to the Queen or to make any suggestion as to the appointment of a, Viceroy?
Mr. John A. Macdonald—I think it advisable not to make any suggestion. At least it should not be a constitutional suggestion. Hereafter the Parliament of the Federation may represent a desire for one of the Royal Family as Viceroy.
Mr. McCully—I assume that we should continue to be governed by a Governor-General.
Mr. Macdonald’s motion carried.
Mr. Brown—As to Local Governments, we desire in Upper Canada that they should not be expensive, and should not take up political matters. We ought not to have two electoral bodies. Only one body, members to be elected once in every three years. Should have whole legislative power—subject to Lieutenant- Governor. I would have Lieutenant-Governor appointed by General Government. It would thus bring these bodies into harmony with the General Government. In Upper Canada executive officers would be Attorney-General, Treasurer, Secretary, Commissioner of Crown Lands, and Commissioner of Public Works. These would form the Council of the Lieutenant- Governor. I would give Lieutenant-Governor veto without advice, but under certain vote he should be obliged to assent. During recess Lieutenant-Governor could have power to suspend executive officers. They might be elected for three years or otherwise. You might safely allow County Councils to appoint other officers than those they now do. One Legislative Chamber for three years, no power of dissolution, elected on one day in each third year. Lieutenant-Governor appointed by Federal Government. Departmental officers to be elected during pleasure, or for three years. To be allowed to speak but not to vote.
Mr. Cartier—I entirely differ with Mr. Brown. It introduces in our local bodies republican institutions.
Mr. Brown moved:—
That in the Local Government there shall be but one Legislative Chamber.
Sir E. Taché—This motion is made merely to elicit opinion of conference.
Mr. Tilley—New Brunswick differs with Mr. Brown. They propose to keep the existing things as they are, so far as consistent with expense. They propose Lieutenant-Governor, five departmental officers, with seats in House.
Mr. Dickey—Before details, settle principles. Will conference take present Local Governments as models?
Mr. Fisher—I am opposed to Mr. Brown’s views. I approve of the present system of Local Legislatures. I agree with Mr. Brown that the Lieutenant-Governor should be appointed by the Federal Government.
Mr. Carter—In 1842, we had one Chamber in Newfoundland, partly appointed by Crown and partly by people. It worked well. An object to reduce expense.
Mr. Henry—I think uniformity is very desirable. But you should first consider what is to be left to the Local Legislatures before you proceed to discuss their constitutions.
Mr. McGee—No. Institute your body, then assign its powers.
Mr. Chandler— We are here to form a constitution for Federal Government. Let the Provinces otherwise remain as they are, so far as possible.
Mr. Tupper—I agree with general principles laid down by Mr. Brown that The Governments should be as simple and inexpensive as possible. We should diminish the powers of the Local Governments, but we must not shock too largely the prejudices of the people in that respect.
Mr. McCully—We must have miniature responsible Governments.
Adjourned at two o’clock p.m.
Mr. Archibald proposed a resolution to the effect that Lieutenant-Governors should be appointed by the Federal Government for five years; each Legislature to continue until altered. He said: If the Imperial Act authorizes this, you have then the several governments shorn, however, of such, powers as are taken from them by the central authority.
Mr. Chandler—I think we should form only a federal constitution, and we should pass no resolutions or act relative to the Local Governments. Let them retain what they have, and have power to manage their own local concerns. The Imperial Government will never consent to put in an Imperial Act of Parliament that the Crown shall appoint Lieutenant-Governors on the recommendation of the Federal Government. It is perfectly understood that as in case of Legislative Councillors the Crown take the recommendation of the Government and appoint a suitable person.
Mr. McCully—I would make it absolute in the Federal Government to appoint Lieutenant-Governors.
Mr. Chandler— I think the Imperial Government would never acquiesce in that.
Mr. McDougall—From the peculiar position of Canada we must get permission to change.
Mr. Dickey—I agree with Mr. Chandler that the Crown should appoint Lieutenant-Governors directly.
Mr. Brown—One material point is that the choice of the Federal Legislative Councillors will extinguish or largely diminish the Local Legislative Councils. If you have a Local Legislative Council you then embarrass yourselves by reconstructing that body. Mr. McDougall says he is willing to take a Governor and two Chambers as a Local Government and reduce them afterwards. Consider how insignificant are the matters agreed at Charlottetown, to be left to the Local Governments. As to private and local bills, that might be done under the General Incorporation Act.
Mr. John A. Macdonald—The Imperial Act must repeal the several Acts affecting the constitution of the various Colonies. The most artistic way to do this would be to wipe them out and re-enact. The mode adopted in Ireland was by resolutions setting forth “it is fit that such should be done,” which were afterwards turned into enactments. I have little doubt that when the system is complete a delegate will have to be sent to the Imperial Government from each Province, charged with the interests of the Province and to express them to the Imperial Government and their views. We should have uniformity as much as possible, but that is only a secondary matter as compared with the passage of the measure.
Mr. McCully—Let Upper Canada try a single Chamber, and if it succeeds the other Provinces can afterwards adopt it.
Mr. McCully’s motion carried.
Mr. Dickey—Ought not something to be laid down as to the constitution of the Federal Executive Government? On the principle now adopted by Upper and Lower Canada, ought not there to be some mode of choosing advisers from the agricultural interests of Upper Canada, the mixed agricultural and maritime interests of Lower Canada, and the great maritime interests of the Lower Provinces?
Mr. John A. Macdonald—We cannot limit or define the powers of the Crown in such respect. See our Union Act. There is nothing in it about Responsible Government. It is a system which we have adopted. There is not even any resolution on our own journals as to the number of the Executive. The Sovereign may have such number as she pleases. In Canada it was found convenient that both sections of the Province should be represented m the Cabinet, and in time it grew practically into an equal division. The same principle must obtain as to the body of advisers of the Governor-General of the Federation. That must be a provisional cabinet, and it probably will be very few and merely for necessary purposes. The Federal Parliament being elected, the person charged with the formation of the Ministry will probably increase the number. We must leave such arrangements as to equality in the Cabinet to change or necessity.
Mr. Chandler concurred.
Mr. McCully—But the royal instructions limit the number to nine. It should be an unlimited number, and that point seems generally conceded here.
Mr. Henry—We feel that the first Government at least, should contain a due number from the Lower Provinces. We of the Lower Provinces feel that we may be out-voted by Upper and Lower Canada; but we knew that before we came here, and are willing to run the risk of it.
Mr. John A. Macdonald—I think there may be an expression of opinion as suggested by Mr. Dickey. In the formation of the first Executive Council I think the Governor-General should send for one man through whom the writs for election should be issued, and choose his Council afterwards.
Mr. John A. Macdonald moved:—
That for each of the Provinces there shall be an Executive Officer, styled the Lieutenant-Governor, who shall be appointed by the Governor-General in Council, under the Great Seal of the Federated Provinces, during pleasure; such pleasure not to be exercised before the expiration of the first five years, except for cause; such cause to be communicated in writing to the Lieutenant-Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of the General Legislature, within the first week of the first session afterwards.
He said: The office must necessarily be during pleasure. The person may break down, misbehave, etc. The term of Governors and. Lieutenant-Governors is usually six years; but I have fixed it at five years, that being the duration of our Parliaments. The Lieutenant-Governor will be a very high officer. He should be independent of the Federal Government, except as to removal for cause, and it is necessary that he should not be removable by any new political party. It would destroy his independence. He should only be removable upon an address from the Legislature.
Mr. Macdonald’s motion carried.
Mr. John A. Macdonald proceeded to read his several proposed resolutions as to the powers of the Federal and Local Governments.
Mr. McCully—Suppose a Local Legislature should pass a law on a subject in respect of which they have no authority. In New Zealand no laws of Local Legislatures are of effect until approved by the Governor-General.
Mr. John A. Macdonald—If it be clearly an excess in the opinion of the Governor-General and his law officers, it will be disallowed by the Queen.
Adjourned at 10 o’clock p.m.
Friday, 21st October 1864.
Mr. John A. Macdonald moved resolution defining the powers of the General Legislature.
Mr. Galt—I propose that we take up the subjects seriatim.
(2) As to duties of Customs on Imports and Exports. New Brunswick has a duty on timber. As proceeds of lands will belong to the Local Government, it will be necessary to consider this point as regards New Brunswick. An export duty on timber must be on timber of public and private lands, and none could therefore be imported at Quebec; and a question may arise as to the export of coal from Nova Scotia. These questions, however, affect territorial revenues.
Mr. Tilley—The export duty was imposed in New Brunswick on timber because the stumpage dues took so much to collect. Private land owners did not object to it, as few export timber from private lands.
Mr. McCully—I understood that mines and minerals were to be under Local Legislatures. Therefore as to coal in Nova Scotia, the General Government should not be at liberty to put an export duty on coal.
Mr. Tupper—Nova Scotia will rely on the Local Government for its royalty on coal, to meet its expenses. If the General Government have the right to impose a duty on coal, it will add to the revenue of the General Government, to the prejudice of the Local Government.
Mr. Galt—You are assuming that the General Government will impose a duty on coal, whereas the fact is that the General Government should be in a position to protect the Federation by avoiding a policy injurious to Federation.
Mr. Henry—It is not an export duty on coal in Nova Scotia. It is a royalty, as it is paid by consumers in the Province. (Further consideration of number two reserved).
(3) Excise Duties. (4) Taxation.
Mr. Tupper proposed to restrict the latter to general taxation.
Mr. John A. Macdonald objected—You could not then tax shares, because it would be a general tax, or impose harbour dues for the same reason on any particular harbour.
Mr. Galt—Existing charters of banks will be reserved. In Canada they all expire in 1870, when the subject may be reconsidered.
(15) Ocean Navigation and Shipping.
Colonel Gray (New Brunswick)—I would’ suggest some insertion providing for safety of passengers, and provisions respecting proper machinery and inspection, etc.
Mr. McCully—It is said this is concurrent. But I think such an arrangement will be found to be unworkable. I t will lead to a conflict between the two jurisdictions. I think Upper and Lower Canada would prefer it being for Local Governments.
Mr. Palmer—I think it should be local. But I apprehend that would not prevent the General Government from taking subjects of agriculture under their care in respect to grants of money locally.
Mr. Brown—I do not think you can make it local and yet expect that the General Government can give moneys to the Local Governments. But if you put it under the General Government you may have the advantage of one Bureau of Agriculture, a Model Farm, etc. But I am willing that it should be local, only in that event not to look for money from the General Government.
Mr. Coles—I think it should be retained for the General Government. There should be a Minister of Agriculture in the Federal Government.
Mr. Tupper—I approve of some things being of a concurrent character. We should confine the jurisdiction neither to one nor the other exclusively. The same remark applies to Immigration, which is intimately connected with the Grown Lands, and these are under the Local Government.
Mr. McGee—The General Government may draw attention to this country for settlement. The only permanent attraction we can offer is cheap land, free institutions, etc. I propose that the Local Legislatures should be bound to let immigrants have lands as hitherto. Immigrants should feel that they came to British America as a whole, and that they are free to choose lands where they like.
Mr. Dickey—The Local Governments have as great an interest as the Federal Government in promoting immigration.
Mr. Henry—The General Government ought to have the control of agriculture. If conflict likely to arise, I would rather withdraw it from the Local Legislature; but I do not fear any clashing between the two powers. We ought to keep up a Bureau of Agriculture in our Confederation.
Mr. Mowat—The items of Agriculture and Immigration should be vested in both Federal and Local Governments. Danger often arises where there is exclusive jurisdiction, and not so often in cases of concurrent jurisdiction. In municipal matters the county and township council often have concurrent jurisdiction.
Mr. McCully—I take another view. The concurrent jurisdiction is the ground of the difficulties in the United States.
Mr. Mowat—That is because there is a doubt whether there is a concurrent jurisdiction or not.
Mr. McCully—I beg to move that item number 25, “Agriculture,” be struck out of the resolution before the Conference. Lost on a division, all the Provinces voting nay.
(26) Criminal Law.
Mr. John A. Macdonald—We should discuss the appointment of the judiciary, and as to local and supreme judiciary. In whom should the appointment be vested?
Mr. Tupper—It is of special value to have a common system of jurisprudence. That is impossible on account of Lower Canada. But as near as possible it should be attempted.
Mr. John A. Macdonald—I am glad to hear that Mr. Tupper and Mr. McCully’s views accord with mine. We may have one statutory law, one system of courts, one judiciary, and eventually one bar.
Mr. Mowat—I quite concur in the advantages of one uniform system. It would weld us into a nation. We must, however, provide that the Judges should be appointed and paid by the General Government. But if Lower Canada is excepted, she will still have a voice in deciding for the other Provinces.
(27) Roads and Bridges.
Mr. Tilley—I move to strike out from item 27 of Mr. Macdonald’s motion the words “Roads and Bridges.”
After further slight amendments, Mr. Macdonald’s motion carried.
Adjourned at half-past four p.m.
Saturday, 22nd October 1864.
Mr. Galt moved a series of financial resolutions.
He said: It is very desirable that no question should arise on account of which any Province could complain of injustice. Any Province being less indebted than another, whether through good fortune or good management, should benefit by it. Future liabilities of Confederation must be presumed to be for the benefit of all. We must start, therefore, on a fair basis. It is therefore proposed that certain principles should be laid down. The admission of the principle embodied in number one involves the concession of number two, and then you must proceed to draw the line prescribed by number three.
All works of an intercolonial character, and which have created debt to be borne by Confederation, and not being in private corporations or towns, should be vested in the Confederation, i.e. (as is suggested by Attorney-General Macdonald), harbours as to railroads. In Canada we are not proprietors of any railroads, but have lent large sums to them. Buildings for accommodation of Local Legislatures as distinguished from residences of Lieutenant-Governors should be left to the Local Government.
The first three resolutions cover all the property to be taken by the General Government, and the subsequent resolutions show what changes shall be adopted by the Confederation.
I propose five per cent, as the rate of interest. It is impossible for us at this moment to determine the debts and liabilities of the several Provinces. This can only be ascertained when the functions of the Local Legislatures cease in that respect. At that time we can ascertain the amount and debit each Province.
The debt of Canada is different from that of the other Provinces, as it enters as two Provinces. A previous subdivision must be made between Upper and Lower Canada. This subdivision must be done by the Canadian Legislature. In the case of New Brunswick we find an actual debt existing and liabilities which between this time and the passing of the Act of Union may become liabilities of the Confederation. Further liabilities might be incurred, and it is therefore essential that a rule should be laid down and that if, supporting the principle of equality, any one Province goes into such expense it must be on its own account. There should be an officer, not a political officer, to audit the affairs of the Provinces. The honourable gentleman then went on to explain the apportionment of the debt, but his remarks are so imperfectly reported as scarcely to be intelligible.
Mr. Tilley—This scheme gives Newfoundland and Prince Edward Island everything. Takes over railways which cost us a, very large sum of money and gives us nothing in return. The Grand Trunk stock is of no value, yet we find it put down as an asset; and as to Canal tolls, the policy of the Canadian Government is not to look to them. You have fixed the population of New Brunswick as inferior to that of Nova Scotia, which is the case, but it ought not to be immovable but to vary in its increase. The increase of the population will lessen the per capita fax.
Colonel Gray (New Brunswick)—Our railway is productive and yields three per cent. It is only the difference between that and five per cent, which should be charged.
Mr. Tupper—It is wrong to assume assets to be of equal value when they are not so.
The remainder of the debate is not reported.
Adjourned at five o’clock p.m.
Monday, 24th October 1864.
Mr. Mowat moved a series of resolutions defining the powers of the Local Legislatures.
Mr. Chandler—I object to the proposed system. You are adopting a Legislative Union instead of a Federal. The Local Legislatures should not have their powers specified, but should have all the powers not reserved to the Federal Government, and only the powers to be given to the Federal Government should be specified. You are now proceeding to destroy the constitutions of the Local Governments, and to give them less powers than they have had allowed them from England, and it will make them merely large municipal corporations. This is a vital question, which decides the question between a Federal and Legislative Union, and it will be fatal to the success of Confederation in the Lower Provinces.
Mr. Tupper—I have heard Mr. Chandler’s argument with surprise. Powers—undefined—must rest somewhere. Those who were at Charlottetown will remember that it was fully specified there that all the powers not given to Local should be reserved to the Federal Government. This was stated as being a prominent feature of the Canadian scheme; and it was said then that it was desirable to have a plan contrary to that adopted by the United States. It was a fundamental principle laid down by Canada, and the basis of our deliberations. Mr. Chandler says that it gives a Legislative instead of a Federal Union. I think that a benefit is the Federal Government to be one of mere delegates? We have provided for a legislative representation and for the representation of every section of all the Provinces. Such a costly Government ought to be charged with the fullest powers. It will be easier for every one of the remotest settlers in Nova Scotia and New Brunswick to reach the Federal Legislature than the present Local Legislatures. If it were not for the peculiar condition of Lower Canada, and that the Lower Provinces have not municipal systems such as Upper Canada, I should go in for a Legislative Union instead of a Federal. We propose to preserve the Local Governments in the Lower Provinces because we have not municipal institutions. If Conference limit the powers of the General Legislature, I feel that the whole platform is swept away from us.
Mr. Coles—I did not understand that this was laid down as a basis at Charlottetown. I thought there the only thing specified was representation by population in the Lower House. I agree with Mr. Chandler’s view.
Mr. Haviland—I disagree with Messrs. Chandler and Coles. I understand the basis of our scheme, so as to avoid difficulties of the United States, is to give limited powers to Local Legislatures.
Colonel Gray (New Brunswick)—Mr. Coles’ memory is short. (Quotes. from Mr. Macdonald’s speech at Charlottetown and from Mr. Brown’s, that Federal Government was to have general powers and limited as to local.) Whatever conclusion we may now arrive at, such was the basis of the Canadian scheme.
Mr. Chandler—My argument is not met as to merits, but as to what was laid down at Charlottetown. We all agree that Local Government should have local powers, we differ as to whether such powers should be defined.
Mr. Tupper—Under Mr. Chandler’s view, the Governor- General would be less than the Lieutenant-Governor and the Federal Government less than the Local.
Mr. Dickey—I propose a Supreme Court of Appeal to decide any conflict between general and state rights. I am rather inclined to agree with Mr. Chandler. Immense interests omitted in Mr. Mowat’s motion.
Mr. Brown—This matter received close attention of Canadian Government. I should agree with Mr. Chandler were it not that we have done all we can to settle the matter with sufficient powers to Local Legislatures. I would let the courts of each Province decide what is Local and what General Government jurisdiction, with appeal to the Appeal or Superior Court.
Mr. McCully—I refer to New Zealand Act, which is evidently framed to meet difficulty. It strangely defines what the Local government shall not do. In 53rd clause, General Assembly to make laws, etc., for government of New Zealand, and shall control and supersede those of Local Governments repugnant thereto. Mr. Brown will land us in position of United States by referring matter of conflict of jurisdiction to courts. You thus set them over the General Legislature.
Mr. John A. Macdonald—New Zealand constitution was a Legislative Union, ours Federal. Emigrants went out under different guarantees. Local charters jarred. In order to guard these, they gave the powers stated to Local Legislatures, but the General Government had power to sweep these away. That is just what we do not want. Lower Canada and the Lower Provinces would not have such a thing. There is no analogy between New Zealand and ourselves in such respects. Our courts now can decide where there is any conflict between the Imperial and Canadian statutes. I think the whole affair would fail, and the system be a failure, if we adopted Mr. Chandler’s views. It would be adopting the worst features of the United States. We should concentrate the power in the Federal Government, and not adopt the decentralization of the United States. Mr. Chandler would give sovereign power to the Local Legislatures, just where the United States failed. Canada would be infinitely stronger as she is than under such a system as proposed by Mr. Chandler. It is said that the tariff is one of the causes of difficulty in the United States. So it would be with us. Looking at the agricultural interests of Upper Canada, manufacturing of Lower Canada, and maritime interests of Lower Provinces, in respect to a tariff, a Federal Government would be a mediator. No general feeling of patriotism exists in the United States. In occasions of difficulty each man sticks to his individual State. Mr. Stephens, the present Vice-President, was a strong Union man, yet, when the time came, he went with his State. Similarly we should stick to our Province and not be British Americans. It would be introducing a source of radical weakness. It would ruin us in the eyes of the civilized world. All writers point out the errors of the United States. All the failings prognosticated by De Tocqueville are shown to be fulfilled.
Mr. Johnson—Enumerate for Local Governments their powers, and give all the rest to General Government, but do not enumerate both.
Mr. Palmer—Easier to define what are general than what are local subjects, but we cannot define both. We cannot meet every possible case or emergency.
Mr. Henry—We should not define powers of General Legislature. I would ask Lower Canada not to fight for a shadow. Give a clause to give general powers (except such as given to Local Legislatures) to Federal Legislature. Anything beyond that is hampering the case with difficulties. If we are to have Confederation let us have one on the principles suggested by Attorney-General Macdonald. In the United States there is no power to settle the constitutionality of an Act. Hereafter we shall be bound by an Imperial Act, and our judges will have to say what is constitutional under it as regards general or local legislation.
Mr. Dickey—Why should not Imperial statutes give the powers they did to New Zealand General Government?
Mr. Chandler—My plan is not precisely the same as in the United States, because the Government does not in the United States appoint the Lieutenant-Governors and the Legislative Councillors. If my plan is not adopted, I should have elective Legislative Councillors.
Colonel Gray (New Brunswick)—The power flows from Imperial Government. We propose to substitute the Federal Government for the Imperial Government. But the Federal Government is itself subordinate to the Imperial Government. And as to the policy of the thing, I think it best to define the powers of the Local Governments, as the public will then see what matters they have reserved for their consideration, with which matters they will be familiar, and so the humbler classes and the less educated will comprehend that their interests are protected.
Tuesday, 25th October 1864.
Mr. Mowat moved (a series or resolutions respecting the powers of the General Legislature.
Mr. Fisher—I object to inspection laws being included in the list, Many laws as to inspection of fish, flour, etc., are local, and steamboats may be so also.
Mr. Tupper—I would approve of the General Legislature having the regulation of inspection of steamboats.
It was agreed to strike out of item number one of the resolution moved by the Hon. Mr. Mowat the words, “3. For the regulation and incorporation of Fire and Life Insurance Companies.” And from item number two the words, “Inspection laws and laws relating to.” And the question of concurrence being put on the eighth item,
Mr. Johnson—I object to this clause. It is too great a restriction.
Mr. Chandler concurred in Mr. Johnson’s objection.
Colonel Gray (New Brunswick)—I fully agree with the observations of Messrs. Johnson and Chandler.
Mr. McCully—I think the clause as drawn is desirable.
Mr. Chandler—But your Courts will decide whether the Local Legislatures exceed their powers, and why require a second veto.
Eighth and ninth resolutions agreed to.[Note ]
The Duke of Newcastle to the Earl of Mulgrave. Nova Scotia,
Downing Street, 6th July, 1862.
I have duly received Your Lordship’s despatch, No. 47, of the 21st of May, accompanied by a copy of a Resolution which was passed in the House of Assembly on the 15th of April, 1861, relative to an amalgamation of part of all the British Provinces in North America. The Resolution points out that the question might be considered either of a distinct union of the Maritime Provinces or of a general union of them with Canada and suggests that it might be desirable upon so important a subject to ascertain the policy of Her Majesty’s Government, and to promote a consultation between the leading men of the Colonies.
Your Lordship explains that for various reasons your Government were of opinion that it would be inexpedient to act on this Resolution last year, but that they now wish it to be brought under consideration.
No one can be insensible to the importance of the two measures which are alluded to, and I am far from considering that they do not form a very proper subject for calm deliberation. They are, however, of a nature which renders it especially fit that if either of them be proposed for adoption it should emanate in the first instance from the Provinces, and should be concurred in by all of them which it would affect.
I should see no objection to any consultation on the subject amongst the leading members of the Governments concerned, bat whatever the result of such consultation might be, the most satisfactory mode of testing the opinion of the people of British North America would probably be by means of Resolution or Address, proposed in the Legislature of each Province by its own Government.
Beyond this expression of the views of Her Majesty’s Government as to the preliminary steps which might be taken towards the decision of this great question, I am not prepared to announce any course of policy upon an invitation proceeding from one only of the British North American Provinces, and contained in a Resolution of so general and vague a character as that which you have transmitted to me. But if a Union, either partial or complete, should hereafter be proposed with the concurrence of all the Provinces to be united, I am sure that the matter would be weighed in this country both by the public, by Parliament, and by Her Majesty’s Government, with no other feelings than an anxiety to discern, and to promote any course which might be the most conducive to the prosperity, the strength and the harmony of all the British Communities in North America.
I have, etc.,
The Right Honourable. The Earl of Mulgrave, etc., etc., etc.
 There is a question mark here, and it is not clear whether this is in the original or Pope’s.
 From what follows it appears that Mr. Brown here made some remarks adverse to the motion of Mr. Galt, which have not been recorded. [Pope]
 There is apparently some confusion in the notes at this place. These remarks of Mr. Brown may refer to Mr. Galt’s motion, for the consideration of which the Canadian delegates withdrew. At the same time it is evident from his subsequent remarks, that he strongly opposed Mr. Shea’s motion. What adds to the difficulty of interpretation of the record of this part of the debate is the fact that the motion of Mr. Shea is in the handwriting of Mr. John A. Macdonald, and may therefore, equally with that of Mr. Galt, represent the views of the majority of the Canadian delegates against which Mr. Brown protested. [Pope]
 The transcript ends here. [C.D.]