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Date: 1867-02-28
By: The Montreal Herald
Citation: “The New Constitution”, The Montreal Herald (28 February, 1867)
Other formats: TBA

THE NEW CONSTITUTION.

—The room occupied yesterday by the articles of this document as amended, which we printed in extenso, made it impossible for us to give space for a synopsis, which would nevertheless have no doubt been more useful to the general reader. We propose to fulfil that duty to-day, by giving a sketch of the novel features of the new scheme; but leaving such dispositions as are common to it and to our existing system of government, to be supplied by the reader. First then as to the political geography of the Confederation. It is to embrace for the present Canada, New Brunswick, and Nova Scotia, and is to be called the Kingdom of Canada; its separate divisions being entitled respectively the Provinces of Ontario, Quebec, New Brunswick, and Nova Scotia. The boundaries are to be as at present, and the whole is to be under a Governor General, with Lieutenant Governors in the several Provinces. The latter are to be appointed for five years, by the General Government; but are to be removable on a months’ notice for assigned cause.

The Seat of the General Governments is to be at Ottawa; those of the local governments at Toronto, Quebec, Fredericton, and Halifax.

Of the general Parliament, the Upper House is to be known as the Senate, and the lower as the House of Commons. The first is to consist of seventy-two members, nominated by the Federal Executive, twenty-four of whom are to represent Ontario, twenty-four Quebec, and twenty-four the maritime Provinces. In case of need the number may be increased, but is never to exceed seventy-eight, and the additions must always consist of one or two new members from each of the divisions. These additions are not to be made without the express permission of the British Government, and the augmented number is not to be kept up after vacancies shall occur, unless with this express permission. Members are to be thirty years of age at their appointment; British subjects; qualified by the possession of real property to the value of $4,000, which, as well as their residence, must be in the Province for which they are supposed to sit. In the Province of Quebec, moreover, the qualification and the residence must be in that one of the twenty-four districts into which the Province is divided which the Senator is held to represent. The Speaker is to be appointed by the Crown.

The House of Commons is to consist of one hundred and eighty-two members, eighty-two for Ontario; sixty-five for Quebec; nineteen for Nova Scotia; and fifteen for New Brunswick. The electoral divisions are set forth in the bill; but need not be repeated.

The number of members may from time to time be increased by Parliament, providing the respective proportions are preserved. The term for which the House of Commons is to be elected is to be five years, instead of four as at present. The number of members sent to the House of Commons from each Province, is to be readjusted after each census, so as to preserve the same proportion of members to the population of each Province which the number sixty-five bears to the population of the Province of Quebec.

The following are to be the subjects of legislation within the control of the general government:

The Public Debt and Property; the regulation of Trade and Commerce; the raising of money by all or any mode or system of taxation; the borrowing of money on the Public Credit; Postal Service; Steamships, Railways, Canals, and other works connecting two or more of the Provinces, or extending beyond the limits of any Province; Steamships between Canada and other countries; Telegraph communication and the incorporation of Telegraph Companies; all such works as shall, though lying wholly within any Province, be specially declared by the Acts authorizing them, to be for the general advantage; the Census and Statistics; Militia; Military and Naval Service and Defence; Beacons, Buoys, Lighthouses, and Sable Island; Navigation and Shipping; Quarantine and Marine Hospitals; Sea Coast and Inland Fisheries; Ferries between any Province and a Foreign Country, or between any two Provinces; Currency and Coinage; Banking, and the issue of paper money; Savings Banks; Weights and Measures; Bills of Exchange and Promissory Notes; Interest; Legal Tender; Bankruptcy and Insolvency; Patents of Invention and Discovery; Copy Rights; Indians and Lands reserved for the Indians; Naturalization and Aliens; Marriage and Divorce; Immigration; Agriculture; The Criminal Laws, excepting the Constitution of Courts of Criminal Jurisdiction but including the procedure in Criminal matters; Penitentiaries; Rendering uniform all or any of the laws relative to property and civil rights in Ontario, Nova Scotia, New Brunswick, and rendering uniform the procedure of all the Courts in these provinces; but any Statute for this purpose shall have no force in any Province until sanctioned by the Legislature, and when so sanctioned the power of amending, or repealing such laws shall thenceforward be vested in the in the Parliament only; The establishment of a General Court of Appeal, and in order to the due execution of the Laws of Parliament, the establishment of additional Courts; Fixing and providing the salaries of the Lieutenant Governors, and of all other Officers of Canada, and the salaries, allowances and pensions of the Judges of the Superior, District and County Courts, and of the Admiralty Courts, in cases where the Judges shall be paid by salaries. And such laws shall control and supersede any laws in any wise repugnant thereto or inconsistent therewith which may have been made prior thereto; and any laws made by any Legislature in pursuance of the authority hereby conferred upon it in regard to matters and sub jects in which concurrent jurisdiction is hereby given to Parliament shall, so far as the same is repugnant to or inconsistent with any Act passed by Parliament, be null and void.

The following Public Works and Property of each Province shall be the Property of Canada, to wit:—

Canals, with lands and water power connected therewith; Public harbours; Light-houses and Piers, and Sable Island; Steamboats, dredges, and public vessels; Rivers and lake improvements; Railways and railway stocks, mortgages and other debts due by railway companies; Military roads; Custom houses, post offices and all other public buildings, except such as may be set aside by the Government of Canada for the use of the Local Legislatures and Governments; Property transferred by the Imperial Government, and known as Ordnance property; Armouries, drill sheds, military clothing, and munitions of war, and lands set apart for general public purposes.

For the particulars of the arrangement of the existing debts of the Provinces we refer to the Act itself; as well as for the sums which are to be paid out of the general revenues of the Provinces for their local purposes. We have already mentioned in preceding numbers the changes made in this particular.

The local legislatures are to consist for Ontario of the Lieutenant-Governor, and one Chamber, to be called the Legislative Assembly;

For Quebec, of the Lieutenant-Governor, the Legislative Council of twenty-four members, and the Legislative Assembly of sixty-five members;

For Nova Scotia and New Brunswick the local legislatures are to be constituted and governed according to the existing constitutions of those Provinces. The Electoral Divisions are to be the same for the members of the Federal and of the Local Governments.

Officers [Illegible] may each be composed of the Attorney General, the Secretary and Registrar of the Province, the Treasurer, the Commissioner of Crown Lands and the Commissioner of Agriculture and Public Works, and in Quebec, of the Speaker of the Legislative Council and of the Solicitor General, and of any other person who may be appointed to the office of Executive Councillor under the Great Seal.

The assent to bills passed by the Federal Parliament will be in the same form as at present. In the local Legislature bills passed by the two Houses may be assented to by the Governor General or reserved, not for the signification of the pleasure of the Queen, but for that of the Governor General, and bills passed by Lieutenant-Governors may be disallowed by the General Government within a year.

Newfoundland, Prince Edwards Island, Rupert’s Land, the North-West Territory, and British Columbia, may hereafter be admitted on terms to be agreed upon between them and the Kingdom of Canada; but in case Prince Edward Island or Newfoundland shall be so admitted, the number of members of the Senate to which they shall be admitted will be reduced from those members of the Senate who are to represent New Brunswick and Nova Scotia.

The following are the clauses as to schools:

In each Province the Legislature may make Laws in relation to Education in the Province, subject and according to the following provisions:

Nothing in any such law shall prejudicially affect any right or privilege with respect to Denominational Schools which any class of persons have by law in the Province at the Union.

All the powers, privileges and duties by law conferred and imposed in Upper Canada, at the time of the Union, on the Separate Schools and School Trustees of the Queen’s Roman Catholic subjects, shall be extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic subjects in Lower Canada.

Where in any Province a system of separate or Dissentient Schools by Law obtains or is hereafter established by the Legislature thereof, an appeal shall lie to the Governor General in Council from any Act or decision of any Provincial authority affecting any right or privilege of the Protestant or Catholic minority in relation to Education.

In case any such Provincial Law as from time to time seems to the Governor General in Council requisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case required, the Parliament of Canada shall have power to make remedial laws for the due execution of the provisions of this section and of any such decision of the Governor General in Council.

These, we believe, are the leading points. Besides the evidently unjust extension of the political influence, and pecuniary advantages of the smaller Provinces. The chief amendments, if the changes are so to be considered, have been made in the clauses relating to the Legislative Council and the regulation of Schools. Of these the first is nearly as absurd, as one could conceive it could have been made by a candidate for Beauport, The original draft of the Constitution limited the number of the Senate, and of course made that body the absolute master of any changes, which might hereafter be called for by the popular feeling and carried in the popular branch of the Legislature. By what kind of crotchet this limitation was suggested it is impossible to say; but its inconvenience consisted in the possibility of a ministry having the support of the people and the House of Commons, finding itself nevertheless checkmated in the Senate. Any remedy for this could only be one adequate to meet the case—power granted to a ministry to make as many creations as might be re quired to harmonize the Senate with the other branch. If there was any principle in preventing a ministry from adding to the constituted number, that has been invaded by the amendment with permits an addition of six members, while that permitted addition secures nothing, since it will be operative only in case the majority in the Council shall be less than six, and having been once applied can never be used again. We cannot conceive a greater bungle; and to make the operation of the remedial process the more difficult and the more obviously unfit for the purpose it is intended to serve, the Provincial Ministry cannot avail itself of it, until after it has obtained the assent of the British Government. Thus a Ministerial crisis here in Canada, in which the British Government and People have no concern whatever, may be kept open till all the red tape formalities are exhausted of a request forwarded to England, assented to there, and the assent signified here.

The School Clauses appear to give the Government of the Kingdom of Canada the power of doing pretty much what it pleases in the direction of increasing the facilities for separate schools; and in other respects the changes seem to indicate an increased desire to give the Federal Government a power of interference in local matters; but perhaps some of these changes are merely verbal and may not be taken in connection with the whole enactment, have all the extent of meaning which appears to belong to them considered separately.

The great characteristics of the bill is that our constitutional system, lately supposed to be in our own hands, has been recast without any real consent, or as to the alterations, even apparent consent on our part, and that the same statute which does this, binds us to spend certain sums of money, and even to make a railroad, in the manner therein specified–all this, while Lord Monck congratulates his old constituents at Portsmouth upon having made the Colonies contented and happy by having committed their own government into their own hands. We may add this remarkable fact, that in not one of the specific instances in which the Imperial Government interferes by this measure, or is by it authorized to interfere hereafter, is there any apparent connection between that interference and its own interests. We might, for example, not unreasonably have expected some provision binding us to maintain a certain defensive force; or prohibiting us from imposing more than a certain rate of duties, because in these and perhaps some other things the Empire is interested. But in none of these things is Imperial interference specially provided for or invoked. That authority seems to be employed only as an instrument for strengthening the party which is just now at the head of affairs, and which by the weakness and folly of certain persons has from a beaten faction suddenly obtained a position of permanent dictatorship. The effect may be seen already in the articles we reprint from the Globe, one of the greatest advocates of the unconstitutional scheme.