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UNCONSTITUTIONAL LEGISLATION.

■■*,>>

See Montreal Herald, 20th March, 1868,

IN BE.

"ST. LOUIS HYDRAtUC BILL."

N\>>

i* » —

•n

The St. Louis Hydraulic CoMpANf».i'^f 'his as^ciation, or its promoters, ' J
are, we learn, taking a step to secure thfer*^bT^S6t^"which cannot but appear ''j
very remarkable, and, as we suppose, is wholly unprecedented. They are cir-
culatiog for signature a petition praying for the passing of the bill, which is to^^
give them possession of the property of a nunjber of gentlemen, who do not ^
desire to sell, except on the usual terms upon which people dispose of what
belongs to them : viz, at the price which they fix themselves. This step to

say the least of it, is one which shows very little delicacy, when we consider
that the point on which the aid and stress of public opinibn is thus invoked, is''
as to whether the parties to the act of incorporation shall obtain, at their own
desire, something to which at present they" have no right, and can hereafter
have no moral right whatever. If the proprietors who are to be ousted, were .j,
to obtain signatures to petitions intended t<x defend their just claims to pro-
perty now undoubtedly theirs, one could understand it. They have a plain,
equitable, and legal connection with the matter in dispute, such as civilized f^
men everywhere recognize ; but those who sfeek to become its possessors have'*
at present no other connection or interest iff it, than the affection which they
have conceived for it — we say affection in preference to the word mentioned in
the tenth commandment in order to keep the discussion within the bound of
reason, without calling for the intervention of conscience. One would think
that when these gentlemen found that they could not agree with the proprietors
of the land they wanted, they would have abandoned their project, or would
have sought to obtain an accommodation by the offer of better terms ; — or
again, that if they were absolutely bent on manufacturing, they would have
found some other site for their industry, where they would be welcomed. In
fact, however, they do not intend manufacturing, but speculating, and the
speculation is on the spoliation of other people. For if there is a profit to be
expected from the possession of this property at its present value, who ought to
have that profit? Is it they to whom the land belongs, or some gentlemen
who riding by have been taken by the capabilities of the site ? If the place
selected become a great scat of industry, why is it to go out of the hands of its

present owners, and into the hands of persons, who only purpose as a condition
of the acquisition to subscribe a sum of money quite within the power of any
one of the present owners ? The proposition is this — We, mere strangers to
this property, except in so far as the attraction it has exercised over our ac-
quisitive organs establishes a sympathetic link between the dirty acres and our
hearts and pockets, can by investing a small sum of !noney, obtain further as-
sistance from capitalists, uud with this can convert your homesteads into some
thin^ of indefinitive value, for our benefit. We therefore propose to take these
homesteads. But, say, the objectors, '' we can do that ourselves ; sime of us
" indeed, contemplate doing it ourselves in our own way, and for our own
** profit. We bought the profierty, in fact, just with this design." "No matter,"
reply the Joint Stock gentlemen, " we will send round and get signatures to a
" petition from people who have as little right as ourselves and with that, and
" with the interest some of us have in Parliament and in the Government, we
" have little need to care for your very weak notions about being master of
" what you have paid for." Now, it does seem to us that persons who are
urging a measure in which they arc, so far, irere intruders, might be content
to leave their side of the case to rest upon what the law officers of the Crown
will hold to be the correct principles of eipropriation, without attempting to
bring to bear upon the decision influences which cannot be governed by any ap-
preciation of right or wrong. We think it proper, therefore, to caution those
who may be asked to sign this petition to think a little before they yield, as
persons frequently do yield, to such requests. The very same principles may
hereafter be applied to themselves, and they may find that when they have
asked a price for their property which the would-be purchaser does not choose
to give, such would-be purchaser will have only to apply for an Act of in-
corporation, associate himself with a few other persons, and get himself put
into possession at a valuation. At this moment there are two or three Asso-
ciations to whom the adoption of such a principle would be very convenient.
The Warehousing Company might like to obtain a number of properties of a
prospectively increasing value, at what abritators would conceive to be the fair
price of the day ; and the gentlemen who are known to have been in treaty for
the property of the Bank du Peuple for an Hotel, without so fur coming to
terms with the Bank, would have the whole matter settled by an Act of Par-
liament. If there were no other reason for objeoting to such a law as the one
now sought for, the manifest hardship and inequality of its operation should be
enough to condemn it. There is no man in his senses who can suppose that an
Act of Parliament could be put through to take a property for such limited
and merely private purpose, as the one in question, from any person of influence
in politics — say Mr. Brydges, or Mr. Ferrier, or Mr. Gait. Why then should
persons without this influence be made victims ? In the present case it is true
that all the proprietors ooncatned are men of good social position and means,
and able to make some resisUnoe ; but once introduce this precedent into legis-
lation, and what chance would there be for a single individual, perhaps, utterly
ignorant of the methods of conducting public business, and with no means ex-
cept the property whose very desirability, like the beauty of some women,
might constitute the chief danger of its possessor. At this moment we see the
question of the abaolute nghta of property discussed elsewhere on the very

largest scale, by the finest iDtelleots, and under circumstances which may well
reduoe the value of these rights to the lowest point, or cause men to believe
that they must at any cost be made to yield to rights still more sacred and
paramount. When millions of human beings are confessedly suffering miseries,
unknown elsewhere, and when the whole frame-work of a great empire and
ft civilized society has become insecure and dangerous, the most conservative
of men may not unreasonably believe that the extreme pretensions of pro-
perty must, if necessary, give way. But even men like Mr. Mill and Mr.
Bright, who believe that Ireland might be regenerated by commuting the
tenure of land, and who, therefore, advocate that measure, do so with a full
consciousness of the great hazards and dangers which must attend any inter-
ference with the fundamental rule upon which depends the stability of all men's
possessions. If even to pacify a nation and to save an empire the boldest
shrink from, banding over to the tenant the fee simple of the lands which have
been fertilized by his labour at a rent to be fixed by arbitration, what shall be
said of an attempt on the part of half a dozen or half a scoi*e of persons who
are neither landlord nor tenants and who have no legitimate interest at all, to
break through the most ancient rules of property for the sake of creating large
fortunes for themselves ?

Statement of the grounds on which it is (intended that the Bill to incorporate
the St. Louis Hydraulic Company ^ passed hy the Parliament of the
Province of Quebec hut reserved for the Royal assent should not he
passed.

The first ground upon which it is believed, the Royal assent must be re-
faseu to this Bill is its unconstitutionality. One of its most important clauses,
gives a right to dam a navigable channel of the St. Lawrence, a river whose
property and right of conservancy is in the Government of the Dominion, end
not in that of the Province of Quebec. Even if the proposed dam were not
intended to obstruct a navigable channel, it would be not the less true, that
the water in that part of the stream is not within the domain of the Local
Government, because it is impossible to divide a river, and to say that the
navigable part belongs to one authority and the non-navigable part to another.
However there can be no doubt of the navigability of the channel, which it is
now intended to close, since before the construction of the artificial navigation
by the Lachine Canal, it was by that course that all the vessels bound upwards
used to pass the Lachine Eapids. It is believed| that there can be no doubt
therefore of the Bill in question being ultra vires of the Parliament of Quebec.
If not, it must be because the stream which is to be dammed, is held to be non-
navigable. But if so, the promoters of the Bill have asked, and so far as the
action of the Quebec Legislature is concerned, have obtained the gift of a
property, supposed, by them, to be of enormous value, which did not belong to
the public ; but to the riparian proprietors, and this without any conipensation
whatever to these proprietors. Since the passing of the Seigniorial Tenuie
Bill, there pan bo no cjuestjoij on %kU subject. The Seigniorial Tenure Couit

♦ >

declared, evea bebre the passing of that act, that the water of non-Davigable
ntrenms, by law, belonged to the riparian nroprietors ; and the act followed that
decision und established the rights of such proprietors, by a most comprehen-
sive eniictment. Is it to be supposed that, after the country has thus deliber
ately determined that the individual ownership of non-navigable waters, shall
be in the censitaire to the utter abolition of the pretensions heretofore made by
the holder of the dominium directum, a body of mere strangers can, at their
own request, be put into possession of this property, without the smallest oo . -
pensation to those from whom it is usurped ? If so, one of the leading features
in the policy of the legislation on the Seigniorial Tenure will be utterly de-
stroyed, and after lirge sums of money have been expended to confirm the title
of the censitaire as against another ancient claimant who moreover had written
titles, the censitaire will find himself despoiled by persons absolutely without
title, except the vulgar desire of owning that which belongs to others.

The Bill is farther opposed on the ground that it will if passed, consecrate
the worst kind of spoliation of other private and vested rights. It provides
that the persons to be incorporated may go upon the lands which border the
ohaniiol, which it is proposed to dam. and tuke all or any part of those lands,
at prices to be fixed by arbitrators. The Bill, in short, confers upon this Com-
pany all the prerogatives which belong to the State in order that (in case of
need), it may exercise its supreme authority by the expropriation pour cause
d'utiUfipubUque. It is contended that the circumstances under which this
Bill have been applied for, and passed by the two houses at Quebec, are not
such us to justify the delegation of this extraordinary prerogative of the
Sovereign. The expropriation pour cause d'utilitS publique is essentially op-
posed to any idea of private profit, or subsequent private ownership of the land
expropriated. In its principle it is the Prince representing the State, who
takes, for purposes to which the idea of profit and subsequently private owner-
Hliip is utterly foreign — as for the construction of citadelt<, harbours, canals, &o.,
which have in all ages been regarded bv civilized communities as constructions
that should be made by the 6tate, and when made as the property of the
Stute. Even for such purposes the expropriation ought only to take place, ac-
cording to the best authorities on the subject, when the land to be taken is the
particular property required for the purpose, and when none other will serve,
or at all events none other will serve except at a very considerable diminution
of efficiency in the work to be constructed. Now the purposes for which it is
intended to acquire property under this Bill do not conform to any of these
conditions.

1st. The purpose is not m&inly a general one, nor one which can be described
as d'vtiliti publique though incidentally like all . idustrial enterprises, it will
if prosecuted, add to the prosperity of the country In this respect it only
differs in degree from any other industrial enterprise whatever, and if it be a
catue d'utiliti publique to construct one dam for obtaining water power it must
be equally so to construct any other-^or even to establish a steam engine in-
tended to move machinery for industrial purposes. Yet it will surely not be
pretended that the hundreds of men who m this Province desire to to be mill
owners have *i right to inroke the prerogative of expropriation which belongs

-navigable
lowed that
3mpreben-
iis deiiber
ters, shall
e made by
I, at their
allest 00 . -
ig features
itterly de-
va the title
ad written
ly without

consecrate
X provides
border the
tiose lands,
this Com-
(in case of
oour cause
which this
0, are not
,ve of the
Qtially op-
3f the land
State, who
ate owoer-
mnals, &o.,
[istructions
rty of the
place, ao-
iiken is the
will serve,
liminution
which it is
of these

i described
ies, it will
)ct it only
if it be a
'er it must
engine in-
jly not be
to be mill
ch belongs

to the State, in order to lave them from what they may coosider a hard
bargain.

2nd. In the present instance it is not in any sense the State by whom the
property is to be acquired and owned, and yet this is »n essential condition of
the just exercise of the prerogative of esepnwriaiion. It may bo said that in
modern times, the condition has been often departed from, and the example of
expropriations for railways will no doubt be relied upon as a precedent, and
has probably suggested the objectionable clauses in the present Bill. But that
supposed analogv, occurring very naturally to the minds of men who have hud
to deal frequently with lc<«(islation which confers the power, without having
had to consider the basis of it, cannot for a moment stand the test of scientifio
investigation. No doubt there may be cases wherp it is difiGcult to draw the
precise line between a public work and a private enterprize, and it is possible
that legislation may be cited, which, enacted by popular bodies at the request
of interested persons, generally ignorant, sometimes unscrupulous, and occa-
sionally without opposition from the proprietors who are to bo affected, has
overpassed tho just limit. But in general it will be found that the true rules
have not been infringed upon. They certainly have not been in the case of
railway expropriations ; for no one can doubt that it is one of the first func-
tions of all civilised governments to construct roads and other great communi-
cations according to the best scientific methods of the day. If this duty has
sometimes even in the case of Turnpike roads been committed to trustees,
empowered to borrow money, and pay interest from the tolls, or even to Com-
panies entitled to levy tolls for the sake of paying interest in the shape of divi-
dends on the capital outlay, that has been only the mode adopted of obtaining;
the construction and maintenance of the work at a cheaper rate than was
suppo&ed possible by day labour under oflBclal supervision. But the roads so
made are still the Ciueen's highways — the railways built by companies no le^a
than the Turnpikes built by the same agency. The former cannot as Lord
Cairns has decided be so mortgaged as to divert them from the public purpose
for which they were intended. Their rates of fare are limited ; and m moi<t
countries the State either exercises a concurrent control with the Companies,
or has granted Charters subject to its own right thereafter to re-acquire the
roads. The private property in these roads is therefore a mere incident in a
work essentially public, and the reason why the intervention of private propri-
etors was admitted is well known to te the practical difficulty or impossibility
of allowing the running of carriages upon them under diverse management.
Yet even so, many of the ablest thinkers believe that the State ought never to
have delegated its power, even partially, into private hands, and ought to
resume all such delegations.

It is submitted that these considerations show the utter impossibility of
reasoning from the justice of expropriation for railway purposi^s, to the expro-
priation ibr whi'^h authority is now asked. It surely cannot be pretended that
it is or over has been considered as a function or duty of the State to construct
water powere for manufacturing purposes in competition with other owners of
mill sites : nor, that under the present Bill, the State will possess any property
in the works to bo constructed ; nor, that a manufacturing business, upon how-
ever large a scale, of which thei'e are thousands throughout the country, can

be looked upon as a matter of such geueral and public utility as to justify tho
intervention of one of the high prerogatives ot tho State, as against the laws
which ordinarily govern society.

3rd. Other and subsidiary reasons mav be urged in supfvort of the above
why the consent of His Ezoellency should be refused to this Bill. Among
these, it may be pointed out that usually the land which is required for u
public improvement, is of very small value compared to the work to be erected
upn it ; out in this case the great value of the property which the Company
, will own if its project should be carried out, will not consist in the works
which they erect, but in the power of thn water, that they are to make avail-
able, at an outlay which, compared to the expected results, is exceedingly
small. Thus the persons seeking incorporation do not propose to create the
major part of the value which they are to own, but to force the major part of
the value, which is already existing, out of the hands of the present propri-
etors, and merely render it available by an inconsiderable investment. In this
respect the actual demand, is the case of persons who should claim to be put
into possession of a gold or other valuable mine, worth thousands of poundhi,
upon the consideration that they would aid in the development of the property
by the erection of a winch, at the cost of a few sco*"* of dollars.

Another very important consideration arises from the last fact. Supposing
that in opposition to the established principles which have been developed
above, it should be held that the possessors of a valuable piece of natural
wealth ought not to be allowed to lock it up from the use of mankind, and thus
play the part of the " dog in the manger. It cannot be pretended that the
first comers who ask for it, are to have it conferred upon them, though they may
be wilhng to do nothing for its development, and merely mean to put it on the
market for other purchasers, in the shape of subscribers to a joint stock com-
pany. In that case the right causes of expropriation would cease to be those
which have been described by authors, and would hereafter consist of a penalty
to be exacted for the benefit of the prosecutor from owners who do not make
the best use of their land. But even if that is to be imported as a principle
into the equitable laws, of which all municipal laws should be the application
and interpretation, surely the actual proprietors have the first right, after due
warning, to be allowed to make the required amelioration, and to secure the
profit, in preference tc mere intruders.

The promoters of this Bill set up that they intend to construct a very im-
portant water power. How do they know that the proprietors whom they are
to eject, do not intend to do the same thing ? Yet these new claimants do not
pledge themselves absolutely to eflfect this work, but they demand three— or
practically ten — ^years, during which they shall retaiL the privilege, without
committing themselves to any responsibility whatever. Surely the present
proprietors have not by their delay to make this improvement committed so
grave an offence as to shut themselves out of the days of grace which are asked
by mere strangers, whose sok claim consists in their pretended intention to do
the projected work. In point of fact, some of the proprietors have just as
keen an appreciation of the capabilities of this site as the gentlemen who, in
virtue of their appreciation of them, seek to appropriate it. They desire to
render these capabilities available in their own time and their own way, of

justify tho
iDSt the laws

)f the above

ill. AlUQDg

quired for a
:o be erected
he Company
Q the works
make avail-
exceedingly
o create the
lajor part of
jsent propri-
int. In this
im to be put
8 of poundfci,
the property

Supposing
in developed
i of natural
nd, and thus
led that the
gh they may
mt it on the
; stock corn-
to be those
of a penalty

not make
a principle
application

t, after due
) secure the

b a very im-
}m they are
kants do not

1 three — or
ge, without
the present
mmitted so
h are asked
ntion to do
ave just as
oen who, in
)y desire to
wn way, of

course fur their owt. benefit, but also, with as great a benefit to the public as
can be conferred by ani^ other plon. Why are they and their plans to be
superseded ? The question may be tested by another question. If the pro-
moters of this Bill, in virtue of a pretension — moreover an unproved preten-
sion — that they will make of this property better use than the present owners,
can usurp possensian, what will be the future value to the intrusive owners of
their new-fangled Parliamentary title ? Why should not some still abler or
more enterprising or more boastful speculators obtain the right to dispossess
them, in order still further to improve their improvements ? Onoe admit the
idea we are now discussing, and property will no longer be held by the ordi-
nary stable and l"gul title ; but only by the iact that the owner docs not
promise — truly or falsely — to do as magnificent things us some landless person,
possibly a mere quack, may undertake. The penalty for not conceiving and
working out the very highest capability of a property, will be to lose it ; but
afterwards the holder of the championship must, in his turn, answer all chal-
lengers.

In close connection with this part of the subject, is the very Small sum of
money, the investment of which is to authorize the persons seeking incorpora-
tion, to poscess themselves of the property. So soon as they have got together
the paltry sum of $10,000, they Hre to be able to dispossess against their will
the owners of land worth some hundreds of thousands of pounds in the
aggregate. Can any proposition be more reasonable ? — especially when there
is not one of the proprietors thus to be unceremoniously turned out, who could
not easily raise the whole of this small capital himself! The mode-it persons
who ask thus to be put in possession of the estates of others, on account of the
service they are abuut to confer upon the public, measure this service by the
standard of $10,000, that is to say, of £250 for each of the ten gentlemen
named in the bill. All the rest of the money required they are to borrow on
mortgage, or to raise by shares issued on the basis of land, of which to-duy
they do not own an inch. Why again is it asked, are the present proprietors
not to be allowed one hour to see whether they cannot obtain the funds
required to give them the control, and profit of improvements on what belongs
to them, while mere strangers ask for the tee simple of the land, without tliu
risk of forfeiture for neglect of use during a period of ten years.

In conclusion it is respectfully submitted, that if the principle of this bill
be adopted in our legislation, the fee simple of land will not consist of the right
to hold it ; but only of the right to appoint one of three valuators to fix the
price to be paid by the first company who wants to buy it. But as the new
purchaser must be subjected to the consequences of the same philosophical
conception of the nature of property, his holding will be as precarious as tnut
of his predecessor — a tenor which will introduce some novel and very startling
changes into the law of real estate

Copy of a Report of a Committee of the Honourable the Privy Council ^
approved by Ilia Excellency the Administrator in Council, on the ISth
January, 1869.

On a Keport dated 11th January, 1869, from the Honourable the Minister

of Justice on a despatch of the Licuionaot-Govornor of the ProviDco of
Quebec, of the 28th February last, enclosing a Bill which he had reserved for
the assent of the Governor-Oeueral intituled : '' An Act to Incorporate the St.
Louis Hydraulic Company."

The Minister of Justice reports that this Cuiiipuny in proposed to be incor-
porated, for the purpose of creating a water-power by the erection of a daiu
across the river St. Lawrence, running between Isle-nu Heron and the northern
bank of the river.

That the Bill was reserved for the Governor-Geucrarrt assent, on the report
of the Attorney-General for Quebec.

That in his opinion, the second clause of the act, which authorises the
construction of this dam, appeared to fall within the powers of the Parliament
of Canada, under the 10th paragraph of the Olst section of the Union Act.

That as it is a matter of national importance to preserve the navigation of
the greatest river in the Dominion from being obstructed, and as it was the
opinion of some professional men, that the erection of the proposed dam would
not only injuriously affect the navigation of the river, but cause great injury
to property on or near its banks, he, the Minister of justice, thought it
expedient that a report should be obtained from the Chief Engineer of the
Department of Pubfio Works on the subject. That report, a copy of which
he submits, was, he states, received by him on the 24th ultimo.

That the whole tenor of this report shows, that Mr. Page apprehends that
the projoctod work would cause serious changes of a prejudicial character in
the navigation of the river and might be the means of injuring private property
to an extent which cannot now be calculated.

That after such a report, and without reference to the constitutionality of
the act, he is of opinion that it would not be safe, in the public interests, to
allow this bill to become law.

He therefore rccommenda that your Excellency's sanction be not given to it,
and that such decision, together with a copy of Mr. Page's report, be
transmitted to the Lieutenant-Governor of Quebec, for his information.

The Committee concurs in the abovt; recommendation and submits the same
for your Excellency's approval.

Certified,

(Signed) W. H. LEE,

C.P.C.

To the Honourable

The Secretary of State for the Provinces, Slq.

Ottawa, 7th December, 1868.
The Secretary of Public Works.
Sir,

I have the honour to acknowledge the receipt of your letter (No.
2864), drawing attention to certain enauiries, made by the Honourable the
Minister of Justice, relative to tb? probable effects of t^e works purpoied to be

oouitruotflU by a Compaoy, at or oear the LaohiDO llapida in tbo ilivor St.
Lawrer-

With ^ . .c4v of placinz tho matter fully before the Departiuunt, it is deemed
proper first, to give a buef statement of the leading points contained in the
documents, which hove been submitted both for and against the scheme,
together with reference to other papers bearing on the subject.

It appears that a number of gentlemen, residenti of Montreal and othor parts
of the Province of Quebec, are desirous of being incorporated under the name
of the '' 8t. Louis Hydraulic Company," for the purpose of carrying on tbe
business of creating water power for driving of Mills and Machinery by tbe
v3onstruotion of dams, sluices and other mechanical appliances, and of leasing or
selling the same."

The place where they purpose engaging in this bubiness is at, or near, that
part of the River i^t. Jiuwrence known ad the Lachine Rapids and in the vicinity
of Montreal.

They represent Iwivin^ made an arrangement for the undivided half or
moiety of that certain fief, in the district of Montreal, known as Tlsle au-Ueron,
in the river St. Lawrence, near the St. Louis or Lachine rapids, etc.

In confirmation of this, a copy of a notarial document dated 4th December,
1866, is submitted from which it appears that the transfer of the undivided
half of risle-au-H^ron has been made conditionally, that is to say, in case the
company be not incorporated and ohartered» or of its failing to carry out the
terms of the arrangement, then re-assignment of the property is to be made to
the original owner or person who made the transfer.

On a memorial setting forth the objects proposed to be effected by the com-
pany, an act of incorporation was passed at the last session of the Legislature
of Quebec, authorizing a Joint-Stock Company to be formed, with power to
take possession of part of the bed and boaoh of the St. Lawrence, to purchase,
acquire and hold lands for canals, roads, ditches, &c., and construct a dam
between Isle-au-Hdron and the North Shore of tbe River.

The several clauses of chapter 66 of the Consolidated Statutes of Canada,
under the several heads of Powers, Plans and Survey Lands, and their valua-
tion and fences shall be incorporated with this Act, 8u!., 5bc.

The company to have a capital stock of two millions of dollars with power
to increase that amount, if deemed proper. The charter to be forfeited if the
(sompany do not go into actual operation within three years. The construction
of the works not to be commenced until one million of dollars of the capital
stock is subscribed, nor until one hundred thousand dollars shall have been
paid up.

This Act or Bill was however reserved for the Royal assent.

Sinoe the Bill was passed by the Lsgislature of Quebec, several memorials
have been presented to His Ezcellenoy the Governor-General praying for
various reasons therein stated, that it be disallowed, viz : —

1st. From W. J. Knox and Robert Knox (18th March, 1868), owners of
Mills at the Lachine Rapids, representing that, by the Bill, the St. Louis
Hydraulic Company would have the power of constructing works which would
destroy the water-power owned by them, tho memorialists.

That the Company would have the right of acquiring a large amount of

] *

property that would prevent the carrying out of a scheme, which had been in
contemplation for the last thirty years, for the further developement of tha
water-powers, &c.

2nd. From F. B. Mathews (2l8t March, 1S68), owner of the undivided
half of Jsle-au-Heron, praying that his property may not bo taken possession
of, against his will, for the benefit of a private Company, &c.

3rd. From Hugh Fraser, and eighteen other proprietors of land lying on
the north-shore of the River St. Lawrence, between Montreal and Lachine
(23rd iVlarch, 1868), praying that assent to the Bill be withheld, inasmuch as
the passage of a law giving private individuals and speculators the right to take
the property of their neighbours, at their own valuation, would tend to destroy
the security hitherto enjoyed by the inhabitants of the country^ in their titles
to lands, &c.

The petitioners also state that they believe the Bill in its present shape to
be unconstitutional for various reasons and amongst others, those recapitulated
in the expose or factum hereunto annexed, and respectfully submitted, &c.

The document thus referred to is headed "Statement of the grounds on
which it is contended that the Bill to incorporate the St. Louis Hydraulic
Company, passed by the Parliament of the Province of Quebec, but reserved
for the Koyal assent, should not be passed."

In this paper the principal features of the Bill are discussed and reasons
assigned why it should be disallowed. This document seems to have been
ably and carefully prepared and as a whole is well worthy of consideration.

There is also a memorial (dated March, 1868,) signed by i'31 persons
chiefly residents of Montreal, to His Excellency the Governor General, praying
that the Bill may be assented to, inasmuch as the carrying out of the proposed
undertaking would secure to Montreal an unfailing supply of pure water, and
create an immense amount of invaluable water-poj?er for general use, &c.

In this connection it may be stated that an Act was passed in 1861, (24 Vic.
cap. 96) intituled : " An Act to incorporate the Montreal Hydraulic and
Dock Company." By the third section of this Act the company are em-
powered to make a canal and conduct water from some point on the river 8t.
Lawrence, within seven miles from the city of M ntreal, for the use and supply
of the said Docks or for Hydraulic or manufacturing purposes.

By the fifth section, the company has the power to lease or sell water-power
for milla, manufactories, &c., &c,, " but none of the provisions in this Act
" mentioned, as to taking possession of and entering upon lands, shall apply to
** lands to be purchased along the canal, applying the said water-power, which
" land shall only be acquired by voluntary contract and agreement."

By the 45th section, the powers of the company are to cease if their works
are not commenced within three years, or are not finished or put in operation
within ten years from the passing of this Act.

Ihe Act shows that the scheme was looked upon as consisting of two distinct
parts ; the principal one or that connected with navigation being considered as
essentially a public work, whilst that relating to water-power was viewed and
treated as a private undertaking.

It is believed that the proposed canal was to have been supplied with water

ied with water

from a point above the Lachine Rapids, where the river is naturally of a
height suited to the purposes contemplated.

It appears from the Acts passed previous to 1839 that the Public Works
Department had no power to acquire land as a site for water-powers, or other
hydraulic purposes, except in the usual manner of voluntary agreement with
the owners, although invested with full power to take possession of all such
lands as were necessary for works essentially of a public nature.

But in 1859 an Act was passed (22 Vic. cap. 3.), intituled, " An Act to
amend and consolidate tlie several Acts respecting the Public Works." By the
31st section the commissioner may at all times acquire and take possession of
all lands or real estate, streams, water and water-courses, the appropriation of
which for the use, construction and maintenance of hydraulic privileges made
or created, by, from or at such public works, is, in his judgment, necessary, &c.

In ''An Act respecting the Public Works of Canada," passed in 1S67 (31
Vic. cap. 12), the powers relating to acquirement of land are similar to those
described in the Act of 1859.

It therefore appears that pretious to 1859, the Department of Public
Works was not invested with the power of taking possession of lands for the
water-powers which even the construction of the Provincial Canals had created.

The exception then made in favour of the department was not however, in
1861, extended to the " Montreal Hydraulic and Dock Company," in so far
as related to that portion of their project which had for its object the forma-
tion ot mill privileges.

Notwithstanding the magnitude of the scheme now in consideration and its
great public importance, if it could be successfully carried out, its chief aim is
similar to that part of the Montreal Hydraulic and Dock Company's project
from which the power of expropriation was withheld.

It may therefore fairly be questioned whether such powers could judiciously
be conceded to the St. Louis Hydraulic Company.

The (231) memorialists in favour of the projected undertaking give as their
principal reason for supporting it, that it would have the eflFect of " perma-
nently securing for the City of Montreal an unfailing supply of pure and
wholesome water."

On examining the plan submitted by the company it appears that the water
above the proposed dam is intended to be raised 18 feet, and kept at a height
of about 30 feet over ordinary low water mark, in the harbour of Montreal, and
in this way it is alleged the desired object will be effected.

A memorandum, explanatory of the design, shews that during a portion of
last winter (1867), a natural dam of ice was actually formed across the lower
end of thiij channel and raised the water above it to about the level which will
be attained when the permanent dam is constructed, &c., &c.

A record of the water levels kept by the superintendent of the Montreal
Water Works shews that during the period alluded to, viz. the 16th and 18th
January, 1867, the water at the site of the proposed dam stood at a height of
30. 37 feet above datum or fully 4 inches higher than the level to which it is
intended to raise the water above the dam.

During the remaining portion of the month of January, it varied from 29.
74 to 27. 97 and averaged 28. 76 feet about datum, giving for this time a

ih I

mean fall of 1. 24 feet at the site of the dam when the level above is main-
tained at 30 feet as proposed.

In the month of February it ranged from 28. 97, to 24. 63 feet averaging
26. 58 feet over datum and giving for this period a mean fall of 3. 42 feet at
the dam.

From the first to the 21st March, the average level was 25. 61 fi^et over
datum giving a mean fall at the dam of 4. 39 feet.

The general average of the daily levels from 16|h January to 21st March,
1867, gives a mean fall of 3. 31 feet. Although the water was backed up in
1867 to a greater height at this point on the St. Lawrence than is usually the
case, the phenomenon is more or less of annual recurrence so that in ordinary
seasons, during the greater part of the months of January, February and
March, there is not a fall of more than 4 to 6 feet, under the assumed level,
at the place where the dam is proposed to be built.

Any opinion given as to the probable effects which the construction of a per-
manent dam would have on the ice jam below, must of necessity be mere con-
jecture it being quite as likely that the height of the back water, hitherto
experienced might be augmented as that it would be diminished. In fact the
result is something which cannot be foreseen or calculated upon with the
slightest degree of certainty.

From the facts above stated it appears that for a considerable portion of
every winter (ice jams and back water continuing as heretofore) there would
practically be no available pumping power to eflFect the object for which the
memorialists mainly recommend the scheme, nor indeed a sufficient head
of water to drive ::ii£cl:iiQery suitable for manufacturing or milling purposes.

In the memoranda submitted by the company it is stated that the erection
of this dam will be followed by the packing back of the water to the lake 100
feet and the probable rising of the lake level with its tributary streams.

This view of the matter is doubtless correct, by closing up tbe north branch
of the river, all the water would be forced into the south channel where it
would have to pass in a space of much less width than at present occupied by
the river, which would of course cause an elevation of the surface level above.

This increased height of the surface would doubtless bear some proportion-
ate relation to the section of the river closed and would be such as lo give ihe
water a fall sufficient to produce a velocity which would carry oflf the whole
natural flow of the river. The height or distance up stream to which this
rise would be experienced it would be all but impossible under any circum-
stances to determine correctly in advance, but from this class of information
submitted on the part of the company no "data" whatever are afforded, on which
to base any opinion relnticg to these important points.

Indeed when the magnitude of the river, the sets of the rapids and the
irregularity rf the chanricl at this place is considered, it seems doubtful whether
such details and formula as are applicable to ordinary streams would be any
thing like a safe guide, in attempting to form an opinion of the results likely to
ensue from the construction of the proposed works.

The banks of the Birer below Laehineonthe north-side and below Caughna-

waga on the south-siie are understood to be so high that they are unlikely to
be flooded to any great extent.

There is reason to apprehend that a permanent rise in the L ce St. Louis,
would, duriug periods of high water, result in considerable damage to several
low Islands on the Lake and to tracts of low lands along its shores.

The streams which now drain the surrounding country might also form
channels for conveying water into the interior. Thus the property of a large
number of persons, in no way connected with the enterprise, would in all
probability be injuriously affected and possibly to an extent which, when fully
ascertained, might prove t hi) a serious if not unexpected drain on the means
of the Company.

There is no doubt that if they could cause the proposed undertaking to be
successfully accomplished it would greatly advance the manufacturing interests
of Vlontreal and be a source of immense benefit to the whole community.

Nevertheless a project where so many individual interests are at stake and
which is open to such serious objections should not be entertained unless it can
be clearly shown that it is the best, if not the only way of effecting the object.

An enterprise of this kind to be really successful should be so situated that
the power is as little as possible liable to variation or interruption. This it
has been shown is unlikely to be the case with water powers found in the
viciuity of Isle-au-H6roo.

It is however evident that the river St. Lawrence between Montreal and
I^achine can supply a very large amount of " unfailing " water-power, but in
order to secure this, the water must be drawn from the river at a point oon-
sidarably higher than the place selected by the St. Louis Hydraulic Company.
That is to say, if from some point within a few miles of Lachine, a canal of
large dimensions was CDnstructcd at such a distance from the margin of the
river as circumstance required, an almost unlimited number of unfailing
water-powers might be formed.

In this way the probable extent of damages could be foreseen and provided
for, the risk of flooding of lands avoided and the hazardous experiment of
blocking up a large section of a river of such magnitude as the St. Lawrence
rendered unnecessary.

I have the honour to bo,

Sir,

Your cbedient servant,

(Signed,)

JOHN PAGE,

Chf. Engr. P. Works.

P. S. A copy of my letters on this subject, dated 21st September 1867, is
herewith appended.

All papers bearing on this matter which have been sent or obtained f:om
the Office of the Honourable the Minister of Justice are herewith returned.

(Signed,)

J. PAGE.

Ottawa, 21st November, 1867.
The Secretary of Public Works*
Sir,

I have carefully read over the accompanying report of Mr. Sippell, and the
explanatory statements of Mr. Legge, but have failed to obtain from them any
other information bearing on the main question, than that the River-banks between
Lachine and the proposed dam (on the north-side) and belov? Caughnawaga on
the south side, are so high that thC; raising of the water would be unlikely to
cause much damage between these points.

The water levels are not given, except for a short distance above the site of
the proposed dam ; so that the effect at Lacbine cannot even be approximtaely
ascertained, but both Mr. Sippell and 3Ir. Legge agree that the water in Lake
St. Louis will be raised. Mr. Sippell states that the extent of this cannot be
determined until after the dam is built, and Mr. Legge remarks that the
precise amount of the ** pack " cannot be definitely ascertained at present
except at great labour and expense. We therefore propose to establish beach-
marks along the margin of the rivei lod lake for the purpose of ascertaining
the amount of damage that may be caused at a future period. Mr. Sippell
further remarks that although there will not be so much drowned land below
the villages of Lachine and Caughuawaga, there are however large tracts of
lowland on the shores of the lake and several large islands which would
probably be rendered worthless."

The works and improvements proposed are doubtless of great importance
and if executed would create very extensive water powers, irrespective of other
advantages claimed for them by the applicants.

The scheme, however, is of such a nature that a large number of land owners
in no way coanected with it, would in all probability be injuriously aflFected,
and no attempt seems to have been made to arrive even at an approximate
estimate of what these damages would amount to.

In this view of the matter it appears to me that the interest of the Company
would not be consulted, should they embark in an undertaking of such magni-
tude without some knowledge of the liabilities which they would be inevitably
called on to meet, while at the same time, it is open to question whether it
would be fair to place the land-owners in a position where the only compensa-
tion they could obtain would be from the funds of a limited liability company.

It is presumed that the general government has the control of all main
navigable rivers and can proceed with such undertakings as may be fairly con-
sidered of national importance, by allowing reasonable compensation to all
parties suffering damage by the construction of the works.

Semewhat analogors powers are given to Railway Companies, but the amount
of land required for their purposes is usually determined beforehand with
suflBcient accuracy, and the extent to which they will interfere with the rights
of private parties is generally foreseen and provided for. It does not however
follow that powers of a similar nature could with equal propriety be granted to
the St. Louis Hydraulic Company, inasmuch as the extent of the damage for
which they may be liable is not stated and when asoortaiued might prove to
be of such magnitude as to be wholly beyond their means. Besides in the ab-

67.

sence of the necessary information, oonfidence in the scheme would doubtle3S
be lessened by those likely to sustain damage from it.

It must aho be borne in mind, that the effect of shutting off so large a sectional
area of the river would not be confined merely to throwing into the south-chan-
nel, the volume of water, which has hitherto flowed through the north-channel ;
but will establish a permanent rise at all stages on the normal levels of the
river above the dam, and this rise will be proportionally greater during periods
Of high water.

In the absence of proper data, it is impossible to even approximately esti-
mate what the rise of the water would bo ; but it is probable that it would not
be only the low-lands on the margin of the lake Sc. Louis or its Islands that
would be affected, but it will also back up into the rivulets and streams which
drain the surrounding country. It therefore appears to me that, although this
undertaking would doubtless be greatly beneficial to the manufacturing interests
of the community, it would at the same time, be likely to affect injuriously
those of a large number of individual land-owners in the Province of Qaebec,
which might eventually lead to serious complications. If this view of the case
be correct, it would be scarcely judicious for the Department to treat the ap-
plication of St. Louis Hydraulic Company as cjming within the scope of the
general Act respecting Joint-Stock Companies.

I have, etc.,

(Signed,) J. PAGE,

Chief Eng. Pub. Works.

The powers thus sought by the projectors of this Bill, under the several
clauses of Chapter 66 of the Consolidated Statutes of Canada, under the
several heads of powers, &c., &c., which should be applicable only to Public
Companies in case of disagreement between proprietors aud petitioners, is to be
settled as stated in the Act by the Arbitrator, of course to be named by the
petitioners, who is empowered to name what he considers a fair compensation
for the land, damages, &c., &c., It is then provided by the ninth clause of
the Act, That,

" If within ten days after the service of such notice, or within one month after
the first publication thereof as aforesaid, tlie opposite party does not notify to
the Company his acceptance of the sum offered by them, or notify to them the
name of a person whom he appoints as Arbitrator, then the Judge shall, on the
application of the Company, appoint a Sworn Suveyor for Upper or Lower
Canada, as the case may be, to be sole Arbitrator for determining the compensa-
tion to be paid as aforesaid."

And although provision is made for the appointment of an arbitrator by the
oppoiing party, and the appointment of a tni'.d by the arbitrators, or a judge
on the application of the Company, no provision is made for the water privil-
eges connected with the several properties, the Company would be empowered
to wrench from the proprietors or the "prix d'affection" their undoubted right.
There is not a farm at any point along the entire line this Company would in-
clude in their Charter, upon which a " Mill privilege" does not exist, and that

I I

might not be utilized at comparatively small outlay. The grant of such a
Charter, therefore, would no doubt enrich a few '' PRIVATE " speculators at the
expense of the proprietary— the extent of land, too, the Company seek thn
right to take on the banks' of the proposed ''Hydraulic ^Yorks," would render
the remainder of the farms useless for agricultural purposes, if not totally de-
stroyed by inundations, as in all probability they would be. The idea of the
Company paying indemnity in such cases would be preposterous. The Govern-
ment and the people of Canada have already experienced, but triflingly, the
damages arising from the ''Beauharnois Canal." The damming of the "Great
^t. Lawrence" at the point indicated, would sooner or later destroy millions
worth of valuable property. The natural obstruction of the waters at this
particular point — " isle-au Heron" — but three years ago, caused the river to
rise higher than ever known in that locality, in so much that the ire shoved
over the north bank of the river on the high road.

Apart from various reasons above set forth, there can be no doubt the bed ot
the River St. Lawrence is a part of the Public Domain, and out of the juris-
diction of the Legislature of the Province of Quebec, as conclusively shewn by
the "Factum " above, and as coincided in by the following editorial which ap-
peared in the '• Montreal Telegraph " of the 27th February, LS69.

'•The Minister of Justice probably thought that he had adopted a conciliatory
course towards tho Quebec Legislature in disallowing the bill to incorporate
the 6t. Louis Hydraulic Company on the ground of the '• public interests,"
and '' without reference to the constitutionality of the act." The Quebec
Legislature is determined to be guided by no such ideas of moderation. It will
have all or nothing, and the Minister of Justice will find out before he has
done with the question that our note of warning, that the constitution whs in
danger, merited a little more serious consideration than it received. On the
23th, Mr. JJeaubien, sccouded by Mr. He.mming, moved the suspension of
the 51st Rule of the House — that is the rule requiring regular notice for tho
introduction of every private bill, m order to introduce the selfsame law the
Governor General has disallowed. This motion was carried without a dissent-
ing word. VVliat. then, is intended ? Does the Local Legislature mean to
try and force the Governor General to declare that the act cannot bo sanctioned
because it is unconstitutional, or does it hope to compel the Federal Ministry
to neglect "the public interests" in obedience to the vote of a majority of a local
legislature ? Sir J-^hn Macdonald may try to avoid bringing these ques-
tions to an issue ; bu. they have to be decided, and until a federal court is
established, the Federal Ministry will have to decide the constitutionality as
well as the adv'sability of every local measure."

^^■^i ^: ■!).

-jA..' .:-a:^