IMAGE EVALUATION TEST TARGET (MT-3) // ^/ ^.^^ *^r^ A*'*"^ . ^ ^4^ <" 1.0 I.I 11.25 ■50 ^^* *^ 136 I m US us 2.2 inii^ 1.4 - 6" M 1.6 m A 7 y /^ PhotDgraphic Sciences Corporation \ iV •s^ \\ #v 23 WEST MAIN STREET WEBSTER, N.Y. MSSO (716)872-4503 '9>'- >14 2x CIHM/ICMH Microfiche Series. CIHIVI/ICIVIH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiques ^ Technical and Bibliographic Notes/Notes techniques et bibiiographiques The institute has attempted to obtain the best original copy available for filming. Features of tl^is copy which may be bibliographically unique, which may alter any of the images in the reproduction, or which may significantly change the usual method of filming, are checked below. 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The following diagrams illustrate the method: Les cartes, planches, tableaux, etc., peuvent dtre film^s A des taux de reduction diff^rents. Lorsque le document est trop grand pour dtre reproduit en un seul clichi, il est film6 A partir de Tangle sup6rieur gauche, de gauche A droite, et de haut en bas, en prenant le nombre d'images nicessaire. Les diagrammes suivants illustrent la mdthode. 1 2 3 1 2 3 4 5 6 1^ ^ LE ^ TO' .■(,'!nf,!w J^ '■;.;{ \U m^ HONOURABLE 0. MOWAT, • ' (ATTOBNEt-QENKBAL, Etc.), M ..^.. ON tht; AMENDMENT OF THK PROVINCIAL CONSTITUTION BY THK HON. Wm. MAIQDOUGALL. C.B., M.P.P. ■*^v f? £,>» ■r- ■n: ;1' ^■t 'iIk- Sli' ■s.?lttf ' TOROlITO: PUBLISHED BY "THE MAIL' PRINTING COMPANY. 1875. How GoNsnflrTiONB must be Intekpbetrs. " A power given by the ConBtitution cannot be cons tnied to authorize a destruction of other powers given in the same instrument. It must be construed, therefore, in sub- ordination to it; and cannot supersede or interfere with any other of its fundamental provisions."— Ston/'a Commentariea on the Constitution, Vol. li., p. 326. Legislative Bodies aee always inclined to Usurp Power. "De Lolme has said, with great emphasis: 'It is without doubt absolutely necessary for, securing the Constitution of a State, to restrain the executive power ; but it ia atill more necessary to restrain the legislative. What the former can only do by successive steps (I mean subvert the laws), and through a longer or a shorter train of circumstances, the latter does ih a moment.' "Story's Commentaries, Vol. I., p. 384. " The representatives of the people will watch with jealousy every encroachment of the executive magistrate, for it trenches upon their own authority. But who shall watch the en~ croachment of these representatives themselves? Where the legislative power is exercised by an assembly which is inspired by a supposed influence over the people, with an intrepid confidence in its own strength, it is easy to see that the tendency to the usurpation of power is, if not constant, at least probable, and that it is against the enterprising ambition of this department that the people may well indulge all their jealousy, and exhaust all their precau- tions."— I&. p. 385. "• '^ * ', si"' Lawyers, as a class, not to be relied on to Defend the Constitution. • "Now, above all was exhibited the base sycophancy of the lawyers, rendered more dis- gusting by the learned garb in which it clothed the vile language of crouching slaves,— their subserviency the more glaring as it was the more pernicious, and the more infamous in the more elevated positions of the profession. Kow were seen the Members of the Middle Temple first hailing with delight the earliest act of the tyrant's reigu, bis levying money without consen*; of Parliament, for which wholesome exercise of the prerogative those sages of the law humbly and heartily tendered him their thanks. Again, the raptures of the same vile body knew no bounds when James, himself spurning all bounds, assumed the full dispensing and suspending powers."— Lord Brougham's British Constitution, p. 247. 1 ]M^ll's Admission as to Despotic Tendency of Sinule Chambers. "It is important that no sei of persons should be able, even temporarily, to make their tic volo prevail, without asking any one else for his consent. A majority in a single assedibly when it has assumed a permaneat character,— when composed of the same per- sons, habitually acting together, and always assured of victory in their own house,— easily be- comes despotic and over-bearing if released from the necessity of considering whether its acts will be concurred in by another constituted authority."— J. Stuart Mill on Bepreaentativf iiQovemment, p. 251. i I ''I -t i ' I'i / i CHANCERY,,LAWYERS VERSUS THE CONSTITUTION. THuBBiilisHNoBTHAMBHiCA Act of 1867 united, presently and prospectively, all British North America under one system or constitution of goyernment. The general outlines and principles of the system, and the distribution. and limitation of both legislative and executive powers, are set forth in the Act itself. This "supreme law" repealed or superseded proprio vigore aU previous acts, laws, and constitutions of government inconsistent with, or repngnant to its provisions. It is binding upon all estates, authorities, and persons within the Dominion of Canada, and especially upon those authorities, legislative and administrative, which are created by it. In a word,, it is our wniTTEN constitution, and every contravention or violation of its provisions is a breach of the fundamental law, and an Infriiigement upon the rights of the people. .The Organic law in all countries and in all ages, has been regarded as of higher authority than ordinary acts of legislation. In the old Greek democracies it was a criminal offence even to propose any measure in contravention of it. Lord Brougham in his review of Athenian polity, says: — "It was criminal to bring forward any decree or any legisla- lative measure which was contrary to the existing laws. The first step to be taken was propounding a direct repeal. This of itself was a great security," and if "a person> propounded a total repeal of the old law, he was compelled to substitute another in its place, and if this was not beneficial to the nation, he was hable to be prosecuted at any time within a year, although the people and the senate should have sanctioned his proposition and passed the law." The Locrians, a ruder people than the Athenians, and according to Gibbon, equally averse from frequent or sudden changes, compelled "the proposer of any new law to stand forth in the assembly of the people- with a cord round his neck, and if the law was rejected, the innovator was instantly strangled ! " In modern republics the Organic law is protected by less truculent and probably more effective safeguards. No change can be carried by sui-prise. The con- currence of numerous 'deliberative assemblies, or of a considerable majority of the people upon a direct appeal, is required|',before the proposed change can take effect. In our case the supreme power of the empire is in "Parliament." It makes consti- tutions for Provinces and Colonies, and therefore it only can unmake or alter them. A "ring" of Chancery lawyers, in Ontario; having first conspired with certain other "rings," composed of applicants for grants of public money and property, seized the reins of government in 1871) and^secured control of the legislature. They im- medfately reconstituted the Courts to suit their own personal and family interests. They degraded our most eminent judges, andjweakened public confidence in the adminis- tration of justice by subjecting theu' decisions to review and reversal by men who had never occupied the judgement seat, were scarcely known at the bar, and not to be com- ** pared for a moment in respect of the qualities and attainments required on the bench, with the learned, upright and experienced {judges over whose heads these men wer^n- sultingly and subversively placed. The retention of the venerable ex-Chief Justice of the Queen's Bench as president of the-new court, might be put to the credit of the " ring," if they had not confessed that his great age and long service must soon lead to his retirement and thus enable them to complete their domestic arrangements. ThiB uuprmcipl^d combiuatiou of jpniining, greedy, unsornpulous Chanowy lawyers^ persuaded one of the Judges oft^jgir dwn Oouxt to doff the ermine, and take oomlnand of their forces in the assembly. In close aUianoe with the " Catholic League " he mani- pulates the elections, directs legislation, and proclaims opeply his intention to distribute the public patronage, money and property, to the " advantage of the party V This shame- less avowal, as unprecedented in British annals, aa it is repugnant to the spirit of the con- stitution, has been followed by another more heinous still: — to wit, that he and his majority in the legislature have a right to alter, and therefore to subvert every part of our constitution, except one office, and to make a netv Constitution of their own authority! This startling and revolutionary doctrine was promptly illustrated and enforced by the passage of an act on the eve of the last general election to abolish certain constituencies, temodel others, and by increasing the number of its members, to change the constitution of the legislature. The success of this daring raid upon the constitution has emboldened the Chancery Bing, and they now threaten fresh incursions, for their leader openly and boldly reiterates his right, as a constitution-destroyer and constitution-maker, to. revolutionize "everything!" In the following letters, which were published in the Mail newspaper within the last few weeks, the writer has endeavoured to -show the existence in the people of this Pro- vinf superior right, and one that is indefeasible, except as against the Imperial Pan jnt, to enjoy, and to maintain inviolate, against legislative infringement, every sec.xon and every clause of their constitution which is not specially declared to be subject to amendment. It has been suggested, in view of the importance of the question, and the interest these letters have excited among the inteUigent readers of the Mail, that their publication in pamphlet form might serve the cause of order, promote "the reign of law," and help to defeat the dangerous faction which in this and many other instances has proved itself the enemy of both. They are republished without re- vision or addition— a few errors of the press excepted. Septembeb, 1875- ,«»ff a i- ;e 3- 1- is 3f n )d ih to le I' id lie • pait. I am justified therefore in assuming that you hold, have acted, and intend to act, upon the constitutional (or as I think, the unconstitutional) doctrine announced by yon in these words :— " The North America Act contained an express clause giving to the Legislatures of the Provinces the power of altering their own constitution in everything except as regarded the Lieutenant-Gov- ernor." I had ventured to question the constitu- tional power of the Legislature of Ontario to pass the Act " to readjust the representa- tion,'' introduced by you at the close of the last session, and to point out to yon that if the Act were held to be within the power of the Legislature, it was in my view both un- necessary and inexpedient, and as a prece- dent for tinkering and altering the constitu- tion, open to the very gravest objections. 'I confess that further examination of the Con- «titutional Act, and further dis^,ussions with intelligent men — lawyers, judges, politicians, and citizens — have not changed my original opinion. The report tells us that your in- telligent Re/orm demonstration received your remark that one £;entleman — a law- yer — had disputed your right to gerryman- der the constituencies on the eve of an elec- tion, with "laughter." Knowing how suc- cessful you are upon the stamp, and with what ease you can excite the risible faculties, I am not at all offended with the good Re- formers of West Elgin for laughing even cm an occasion bo serious. But if they will d( me the favour to read these letters oud then laugh at me for questioning your right to alter ever;/thing in the Provincial Constitu- tion whenever you can get forty-four mem- bers of the Legislature to agree with you; I will frankly admit that they are. too far ad- vanced in their ideas of reform and consti' tutional government for me, and I will here- after accept the title " traitor " as the most honourable their platform orators can confer upon me. First. Let us see what the "Provincial Constitution " is, and where it is to be found. " The British North America Act, 1867," contains, as I presume yon will admit, the text of that Constitution. The fifth heaid or division of that Act is entitled " Provincial Constitutions." All the sections from fifty- eight to ninety-five, both inclnsive, establidi, define, limit, or relate to the executive and legislative powers of the Provincial Govem- jnents. The ninety-first section enumerates the classes of subjects assigned exclusively to the Federal Parliament, but as this enumer- ation affords a more perspicuous view of the distribution of powers between the general and local Legislatures, it is not out of place where it stands. A few sections in the sub- sequent part of the Act irelate exclusively or chiefly to the Provinces, and being extensions or limitations of the powers already granted, must be regarded as part of the " Provincial constitutions. " It i 3 to be observed that what you claim power to " alter" is one or more — you say all, except the provisions relating to the Governor — of these Imperial enactments ! Your claim is not power to *' amend," or make additions to, or to legislate nnder and in pursuance of jbhese constitutional provi- sions ; but to altei', i.e., to repeal, ^Dolish, supersede, ignore, and override uiem. You claim for your municipal corporation, created by an Imperial Act, with specified and limited powers, the faculty of reconstituting itself in all its parts, except in regard to one " oflSce," by its own volition, propria manu, and for this purpose, to " alter" the acts of itc creator. I venture to assert this is the first time in the history of constitutional government that an inferior Legislature has undertaken, eucceesfuUy, to repeal the legislative enactments of a superior Legisla- ture, and that superior its master. A man need not be a lawyer to see the absurdity of such a proDosition. But, you say, the Imperial Act has, by an " express clause," given your Local Legis- lature this extraordinary faculty. I cannot find it ; I would not believe it capable of the construction you have put upon it, even if I had found it. As a lawyer, I must conteild that no Legislature, superior or inferior, can create another legislative body and endow it with authority equiJ to itf> own. Power to repeal is power to enact. The power to "make laws in re- lation to m^^tters coming within the classes of subjects" enumerated in the 92nd section of the British I^orth America Act is one thing, but the power to repeal or set aside that Act, or tiny jpart of it, is quite a differ- ent thing. The first is given to the Local Legislature ; the last is not, and in the nature of things, cannot be given to it. If, as you contend, a law of the On- tario Legislature may alter " everything" in the Provincial Constitution, except the provisions regarding " the office of Lieut. - Governor," then you may alter, repeal, set aside, or render nugatory sections 69, 70, 85, 86, 87, 90, and even sections 92 and 93, for they form part of the Provincial Consti- tution, and are not within the exception. Sections 126 and 128 must be subject to alteration also, for they come within the classes of subjects enumerated, viz., " the Constitution of the Province." You have even attempted to " alter" the first schedule of the Act, which is expressly placed by Section 40 within the legislative jurisdiction of the Parliament of Canada. Let me point out, for the information of the Reformers of West Elgin, some of the constitutional rights and safeguards which you claim the power to "alter," abolish, or destroy, whenever you can persuade your partizans in the House, provided they con- stitute a majority, to follow you. 1. You may abolish the Legislature as you^ "abolished" the constituencies of Nia- gara and Bothwell. Section 69 seour|| " » Legislature for Ontario," but if yon can " hiter" this section l>j90ause it is a part of the Provincial constitution, you may either enact that the present House shall sit en permanence like a French Assembly, or that you and your colleaj^es shall constitute a commission, or councl of five " Tyrants," to govern the Province after the maniler of the " thirty tyrants" of Athens. 2. You may " alter" the 70th section (you have already undertaken to repeal it,) so that the Legislature shall be composed of only 54 members, the number you claim as supporters ;- and so that the Electoral Dis- tricts represented by the other 34 shall, for electing "Tories," be disfranchised, or, in your own phrase, "abolished," or you nAy increase the number to 200 as at Ottawa, l>r to "between 600 and 700," which you tell us "le^slate without any very great diffi> culty" m the British House of Commons. 3. You may "alter" the 85th section which fixes the legislative term, and instead of four years, detuare that it shall hereafter be limited to one year, or extended to seven or ten, or any higher number. 4. You may " alter " the 86th section which secures the Province against irresponsible administration, except for a few months, by those whom the people have re- jected at the polls. It declares that " there shall, he a, session of the Legislature once at least in every year." You claim the power by a vote of your majority to de- prive us of this constitutional right. The Governor of Madrid, with his soldiers at his back, lately dismissed the representa- tives of the Spanish people to their homes for an indefinite period. You can attain the same end by an Act of the Legislacure ! 5. You may " alter " the 87th section, which provides rules for the organization of the Legislature, and declares that the "majority" there shall decide all ques- tions. A new provision by which each mem- ber of the Council of Five shall have two voices, or which will entitle you to vote for Mr. Crooks until he finds a seat, would no doubt commend itself to the Reformers of West Elgin who laughed at my objections to such a proceeding. 6. You may "alter" section 90— our Par- liamentary magna charta — which secures us. against legislative log-rolling, (except with the connivance of lesponsible advisers of the Governor,) in appropriating the public rev- enues, and imposing' taxes upon the people. The constitutional restraints upon reckless votes of money by the House of CommoBS, contained in the B. N. A. Act, cannot be evaded or abrogated by the Dominion Par* liunent, but the identiiial provisions of that- i I ( Aot, which the 90th seotion declares " aliall extaod and apply to the Legislatures of the Mvenl Provinces " may, according to ,yotur doctrioe, be annulled and set aside any day by a vote of the Ontario Legislature. 7. But if you can alter "everything" in the Provincial constitution, you can alter section 92 and diminish or extend the " mat- ters" in relation to which the Ontario Legis- lature " may exclusively make laws." You will probably ■ admit that your power of idteration does not enable you to encroach upon the " matters" assigned to the Parlia- ment of Canada, but you have already at- tempted to alter this section in the opposite direction. By the Act of last session re- rting boundaries you have transferred to Dominion Parliament the power to dis- pose of a large portion of our territory — luds, farms, mines, public works, lakes, rivers — and people ! In another letter I shall adduce some facts and cite some authorities in support of the opinion that the Local Le^slature cannot " alter" any section or clause of the Consti- tutional Act except such as are in express terms made subject to alteration, by "pro- viding" for that exercise of power by the Legislature. I am, &c., WM. MACDOUGALL. • ! Toronto, July 10th, 1875. Letter II. Sir, — In my letter of the 10th inst., I promised to adduce some facta and cite some authorities in support of the opinion that Local Legislatures cannot " alter " any sec- tion or clause of the Constitutional Act, ex- cept such sections and clauses as ar in ex- press terms made subject - to alteru ion by the Local Legislatures. You rely upon the first clause of section 92, to support the startling doctrine that a majority of one in the Local Assembly may at any session "alter everything " in our Provincial Constitution. I diflfer from you because, 1. The word " alter" is not in the clau|e you cite. ^ 2. The word " amendment " is there, and no other. You assume that power to amend is power to alt^r. In common parlance, and even in the construction of Parliamentary rules, the distinction may not always be re- garded. But in the interpretation of a sol- emn legal instrument like the Constitution of th« United Statep, or an Apt of the Xm-> ari4 Parliament, which grMto, Itmi^ mj^ itributea powers among different ana In- some respflots Mitf^om«tio legislative 1k4u#> in a colony or depeno^cy every word )s,im»^ portant and must boi construed, n^tnttr loosely nor striotljr* but according tp ita. obvious legal meanins and the evident "in- tention of the parties. I believe most law- yers will agree with me that what is oallwl " strict construction," must be applied to an Act of the Imperial ParliJftment when uiy' doubt arises upon i^ in Canadian CpurU; Our Interpretation 4ct, which declares tl^li every Act shall be deemed "^remedial," and " shall accordingly receive such fair, large^and liberal construction and interpretation a» will ^test ensure the attainment of the object of the Aot,"&c.,is not applicable to Imperial ^atutes. But for the purpose of my afgu- ment I am willing to accept t^e rule of con- struction adopted by the Canadian Parlia- ment. Your construction defeats " the ob- ject of the Act," and is therefore much too large and liberal to be comprehended with% our rule. Blackstone says that " tho inten- tion of a law is to be gathered from the words, the context, the subject-matter, the effects, and consequence, or the reason and spirit of the law. " Mr. Justice Story, in his learned commentiiries on the Constitution of the United States, quotes these rules of in- terpretation with approval, and applies them to that instrument. What, then, is the meaning of the word, " amend ?" On refer- ring to a dictionary in common use in England when thet. Constitutional Act was passed I find that it means — "to make better, to supply a defect." The same authority tells us that "alter" means "to make some change in; to change." "The plain ipean- ing of the words," which all legal author^ ities tell us is the first thing to be considered in the construction of a statute, demonstrates that a power to am^nd is not so large or so absolute as a power to alter. It is a curious and — iu a discussion of this kind — an instruc- tive fact, that with one, or perhaps two ex- ceptions, all amendments made to the cpn- stitution of the United States since the foundation of the Government, are additions, and not alterations. " Defects " and omis- sions in the original instrument, have been supplied ; better safeguards for therighta and liberties of the people against legisla- tive encroachment. State and Federal, have been provided ; but no repeal, or material alteration of the terms of the original consti- tution, has ever been adopted. Even the 14th and 16th Amendments, to achieve which the nation sacrificed at least a million of lives, and four thousand millions of doUars, have not abro> 8 lotted a aiogle artiole of the constitution. lliey simply make it impowriblo for legisla- tures or individuals to deny to black men the rights of citizenship, or to abridge the right of any citizen to vote on account of race or colour. By the terms of the Ameri- can Constitution — which was a voluntary compact or agreement among equals, and not a grant or concession from a superior authority — the right to amend it in all its parts was reserved. Yet amid the conflicts of parties, and the vicissitudes and innova- tions of a century, the original articles stand to-day as they stood in the first ratified copy —unaltered and unrepealed. The fun da- inental law of the nation — the palladium of its liberties — has always been regarded as a thing too sacred for experimental revision, or incautious and unnecessary alteration. You tell us, however, with a heart as " light " a* that of the French Minister when he advised his master to set out on the journey, which ended at Sedan, and your par- tizans share your good humour, that our constitution is neither sacred nor enduring, that it guarantees nothing, but may be al- tered in ** everything" at two days' notice by a majority of one in the Legislative As- sembly ! 3. But let me remind you of another fast. One of the resolutions adopted at the Quebec Conference (of which you were a member) was expressed in those words : — " 42. The L3cal Legislatures shall have power to alter or amend their constitution from time to time." When the Legislative Assembly of the Province of Canada afterwards (in tlie session of 1866) settled the outlines of the Provin- cial constitutions the above resolution was intentionally omitted. You were not pre- sent, having exchanged your seat in Parlia- ment for a seat on the Bench, and may have forgotten this important alteration. But the power to " alter and amend" was not merely omitted from the proposed consti- tutions. A resolution was moved by Mr. M. C. Cameron, seconded by Mr. A. Mac- kenzie, proposing, among other things, that " the Local Government shall, until altered by the Local Legislature, be composed of a Lieutenant-Governor and an Executive Cound^, to consist of five mem- bers, &c., and it was negatived with- out a division. (Journals 1866 p. 257.) No general power of alteration and amend- ment of the constitution was therefore in- tended to be given to the Local Legislatures of Ontario and Quebec by the late Parliament of Canada. 4. The next fact in the history of this question is bignificant ; the 42nd resolution of the Quebec Conference does not appear in the Imperial Act as an independent, sabatan* tive article, granting an unqualified power. ' It is altered. That ambiguous and dan^teroui word ie altogether excluded. I happen to know, as one of the framers of the Act, that the word " alter" was struck out advisedly, and upon full argument. But I am not pressing my view from any personal knowl- edge, or upon any grounds that would not be admissiUe in ' a court of law. It is enough to show that the wdrd " alter" is not in the clause ; that fact upsets the doc- trine you asserted in the House last session and reasserted at St. Thomas. But the power to anwnd is a limited or qualified power as it now stands in the Act. The " context" shows that it is a limited power, for it is in the same category with all the other classes of sn ejects which are placed under the exclusive but necessarily limited jurisdiction of the Local Legisla- tures. In the exercise of all these powers you must keep within the B. N. A. Act. The moment you step beyond it, or encroach upon Imperial or Federal territory you be- come a trespasser, and the Courts, or the law officers of the Crown, will turn you back and pronounce your legislation waste paper. You have had this sentence passed upon you more than once ; I need not therefore explain to you the meaning of ultra virefi. Now let ns attend to the lan- guage of the section, which gives or grants these powers. It reads as follows : — "92. In each Province the Legislature may ex- clusively make laws in relation to matters coming within the classes of subjects here- inafter enumerated." The " amendment of the conttitution of the Province^' is one of tlie classes enumerated, and the Legis- lature is empowered to make laws "in rela- tion to any matter cominff within that class." What matters come within it? You say "everything," even a law to repeal or " alter" the Imperial Act I I say only two kinds of amendments can possibly come within it. 1st. Those which are contem- plated and provided for by the Constitu- tional Act itself. 2nd. Those which — like the amendments to the American constitu- tion — are in the nature of additions to the constitution, or "supply defects," or omissions in it, without directly con- travening its mandatory provisions. These tt|^ distinct fields of lawful jurisdiction are wide enough and fruitful enough to yield an abundant harvest to the patient and honest Keformer, but they restrain some- what the political gymnastics of the partizan intriguer, the sensational peddler of crotchets, and the designing, plotting enemies of the British system of government and the British connection. 9 As a lawyer, and au ex> judge, you ought to have noticed the aignifloance of the worda •0 often repeated in the Britiah North America Act, "until the Parliament of Canada otherriae provides;" "until the Legislature of Ontario or of Quebeo other< wise provides," &,o. This expression which implies that a power has been, or will be granted in the constitution, enabling the egisiature to "otherwise provide " respect- ing the matters referred to, occurs in twelve of the sections respecting the Provincial constitutions. These twelve sections, pre- imbe temporarily, or until they are amend- ea, the law which regulates some of the most importerial Tf-^'' liament to permit, and at th? '^me tinie t^-'h limit, amendmentfl of the Prdvihcial 4onsti--' ' 10 tutions is evidenced bv the fact that in twelve leotiona of the Act the 9xerciK of snch a power by the Local Legislatures is expressly provided for. 6. That Local I^idatnres are at the same time expressly prohibited from repealing or contravening Imperial strttutcs in v^e exer- cise of their amending power. 7. That the British Norti^ America Act }M included in the prohibition oxcept whore it otherwise expressly "provides. I quoted Blackstone's' rules for interpreting statutes and applying them to the case in hand, I now sulmit that neither the "words," nor the "context," nor the "sub- ject matter," nor ^(; in your liberal interpretation of the '/•o^.l amendment. You may destroy Q'-.j existirg constitution and make a ''<«)w on«> republican or monarchi';al, .^<. ;■ :,x«inibae or Draconian, limited or orbi- "craiy, as to your majority in the Assembly may at any time seem expddient ! Now, I willingly aduiit that Mr. TSiake is an able ex- pounder of the discretional. Judge-made law of the Court of Chancery, but he has not yet proved himself a respecvable authority on constitutional questions. He is much oftener wrong than right. I submit under this hend two or tli^ee questions which I trust you or some of your legal backers will answer : — 1. If the power to " alter" everything in the B. X. A.. Act relating to Provincial con- stitutions (except the o£^e of Governor) is granted to the Local Legislatures by the 91st section, ^y is its exercise apvcially provided for in sections 65, 83, 84, 129, 134, and \9a t I n fer lawyers to their own maxiras : — O't.m mcfjua continet in se minus, 6 Coke, 116 a., Broo)n's maxims, 176 ; Quod semfl meum est amplvis meum esse non potest, Voke litt, 497, Bruom's maxims, 416 n. For the benefit of laymen I give the ordinary transit tioB of tiie text bookt :— " The ereater contains in itselt the less." " What IS once mine cannot be mine more com*. pletely." 2. If the power to alter, etc., is granted by the 92nd section, and if this general authority enables you to alter and also to increase the electoral districts of Ontario, ^ why was it deemed necessary in the case of Quebec to gznat to its Legislature special authority to alter the " limits " o2 electoral, districts ? If tiie greater includes the Iwa, why did the Imperial Parliament assume that the gener&l power of amendment would be in- terpreted so strictly in her case that, without s. special provision in the section creating her Legislature, Quebec would be unable to alter even the limits of her electoral dis- tricts ? You, under the same treneral power, have assumed thp right not only to alter the limits, but to abnolidi the electoral districts of Ontario, or to increase them ad libitum, and yet there is no special provision or authority given in the corresponding section creating & Legislature for Ontario. An attentive study' of the Constitutional Act wbich ought not to have been neceuiary in your ca. e, would have led to the dis- covery chat the two Provinces of Ontario and Quebec are not only placed in a different position, constitutionally, from Nova Scotia and New Brunswick, but from one ar.other. Quebec has two Legislative Chambers, while Ontario has but one. The system oi 'epre- sentation is the same for both P.ovinnes, and the electoral districts for the ^^eneral and Local Legislatures are ideuticaL These districts arA created by the Imperial Act. TLey ;r^ dejcribed, named, and numbered for Ontario in a schedule to the Act, while for Quebec they are ascei cained and fixed by reference to the lawi in force in that Pro- vince at the Union. The number of electoral districts, and therefore the number of repre- sentatives for Quebec, was fixed at sixty-five. As regards the ("ommons, this number can- not be increased except under a general scheme of proportionate increase throughout the Dominion, never likely to be adopted. The Greneral Parliament, and that only, is authorized (sec. 40) tu "divide" the Pro- vinces into "Electoral districts." It can- not increase the number in any Province, except after each decennial census, end ac- cordmg to certain " rules " specified in the Act. But Quebec, keeping always the fixed numbev, sixty-five, would probably never in- -a 11 vite or require from the Dominion Parlia- ment a re^adjuatment of its el<>Ctooral dis- trict-^, and as in the progress of settlement and colonization the limits of some of these districts might require to be extended or re- adjusted for local, if not for general pur- poses, that power was given to the Quebec Legislature in express terms. Section 80 permits "the alteration thereof," but not the increase or the extinction thereof. And even this power of " altering the limits " of fai^ectoral districts cannot be exercised in the case of certaiu English constituencies with- out the concurrence of a majority of the mem- bers representing those constituencies. Could any " context" oe framed to contradict more completely than this does, by affirmative &nd negative provisions, your assumption that the 92nd section enables Quebec and On- tario to alter, abolish, or increase their elec« toral districts as they please ? The 70th section contains no words granting to Ontario even the limited authority conferred on Quebec, and the reason is obvious. Every ten vears the electoral districts of Ontario are subject to alteration or re-adjustment, and probably to increase, by the joint operation of the census and the rules prescribed in the Slat section of the Act. Ais often as this re-ad- justment takes place, the first schedule is amended accordingly. The Parliament of Canada, as provided by the 40th section, makes the amendment. The Ontario Legi>'<- lature has no authority to make it. And here I must ask another question — As the " electoral districts set forth in the first schedule" to the Constitutional Act are, ac- cording to section 70, those which the mem- bers of the Ontario Legislature " shall be elected to represent ;" as the power to amend that schedule has been granted exclusively to the Parliament of Canada ; as that power had been properly exercised before you in- troduced your representation bill of last session, under what authority did you venture to set aside or ignore that amended schedule, and under- take to make a new and different schedule for Ontario ? Will any one pretend that the members of the new Assembly, when they meet, have been "elected to represent the electoral districts set forth in the First Schedule to this Act," either in its original or amended form ? And willyou argue that the power to amend "the Constitution of the Province," given by the 92nd section, enables you to roD the Parliament of Canada of one of its exclusive powers, viz., that of " dividing" Ontario into electoral districts, and amending the schedule of theB.N.A. Act ? If it does not, then the Legislative Assembly elected under your Act is an illegal body, and its votes and proceedings cannot assume the form or acquire the force .of law. I need not remind you that words are to be interpreted accorduig to the «ubject-7nat- ter. Verba, accipienda sunt secundum subjec- tarn maieriam. Coke, 9td Inst, 236. " Where words,'' says Mr. Justice Story, " conflict with each other, where the different clauses of an instrument boar upon each other and would be inconsistent unless the natural and common import of the words be varied, con- struction becomes necessary, and a depar- ture from the obvious meaning of words is justifiable. " (Commentaries on the Consti- tution, voL 1, p. 315. ) But construction is not even re<|uired in this case. The clause of our constitution which you have trans- ormed into a monster, with the faculty of swallowing all its fellows at a single meal, and then, by way of dessert, swallowing itself, does not, as I have pointed out, con- flict with any other clause. The common import of the words need not be varied to give kihem the force and effect intended by the framers of the Act. The "subject- matter" here is a constitution of Govern- ment ; the creation by the sovereign author- ity of the nation, of subordinate legislative bodies, with limited and specified powers, to be exercised within defined territoriiJ and municipal boundaries ; and specially in- terdicted from encroaching upon the dele- gated rights of one another, or usurping the powers and attributes of indeoendent Gov- ernments. No argument woutd seem to be needed to convince the ordinary iatellect that this subject-matter is inconsist- ent with, and utterly repugnant to any Suvereign or constituent power in Cue of these subordinate legislatures. The existence of such a power in a municipal corporation or Provincial Legislature, would resemble in its absurdity the pretence of one of Keely's predecessors, who declared that he could lift himself over a fence by his boot-strps. The ' effect and consequence" of such an interpretation as you have given to the word " amendment" in the 92od section, I pointed out with some detail in my first letter. " The effect and consequence of a particular construction," says Mr. Story, " is to be examined, because, if a literal meaning would involve a manifest absurdity, it ought not to be adopted. " I conclude this letter with the remark that if your legal opinion is condemned by all the tests that the most learned jurists of ancient and modern times have laid down for our guidimce, those who differ from you need not be afraid of discussion through the press, upon the platform, or in the Legislature it- self. Jleason, and precedent, and common 12 senfe, and the " law of the land," will pre- vail over the intrigu?*: of partizau politicians and the foa;s, and subtleties, and uncertain- ties, impoited into the Legislature from the Court of Ciiancery. I am, etc., WM. MACDOUGALL. Toronto, July 22, 1875. Letter IV. Sir,— In my letter of the 10th ult. I di- rected your attention to an unconstitutional renunciation of legislative power, which, under you^ guidance, the Ontario Legislature assented to without inquiry and, as I have ascer/^ained from members present, without adequate explanation. I reminded you that "by the Act of last session respecting boundaries you transferred to the Dominion Parli&menv. the power to dispose of a large portion of our territory, lauds, farms, mines, fublic works, lakes, rivers, and people !" chai'ged that you had not only sinned against the constitution by usurping a power that did not belong to you, but you smned "in the opposite direction" by attempt-, ing to traT^sfer to another body the powers and functions which belong exclusively to the Provincial Legislature. I need not quote authorities or adduce arguments to convince you that " the trust reposed in an agent is personal and intransferaole," (Paley on Agency, p. 19), or " that a delegated authority can be executed only by the per- son . who:a it is given ; for the confidence being ^,drsonal cannot be assigned to a stranger," according to the maxim delegatus non potest delegare (lb. 175), nor do you re- quire to be told that " a trustee who has a delegated discretionary power cannot give a general authority to another td execute such power, unless he is specially authorized to do so by the deed or will creating the trust." These are elementary doctrines with which every lawyer u, or ought to be, familiar. Let UB look at the boundary question, and your method of dealing with it, in the light of these doctrines. It may be necessary to state, for the infor- matipn of the general public, that the boun- dary of the Province of Ontario on the west and north has never been mark'jd out by surveyors, nor described by metes and bounac. A very cursor}' examination of the subject, however, will satisfy any candid enquirer that the western boundary, if not the northern, is easily found by reference to the Act of 1774, called the Quebec Act ; the commissions to Governors ; the Treaties be- tween England and the United States ; and the acts of the Imperial Government from tim » to time in relation to boundary adjurt- meufm in America. A natural boundary — » the Mississippi River-^marked th« confliie»>Hl as to our wester;: boundary, in consequence of an ambiguous word, oi rather the accidental omission of a word in the Act of 1774, and will all vote, if they set the opportunity, to cut Ontario in two at Thunder Cape (or the meridian of 88° 50*) and thereby appropriate 18 t the western half of it to the niei of the Do< mfauon. ' Yoa know that onr Votes, a88iiin-> ing'that they would prove faithful, nnmber 88, while those of the other Provinces namber 116. Yet, with fnll knowledge of these facts you deliberately projKwed and passed an Act in concert—some may think in collusion — with the Federal au- thorities, to deprive the pec^le of this Pro- vince of the opportunity of even protesting against the intended spoliation ! In my judgment you have in this matter committed the gravest breach of trust ever proved against a public man in this country. Lord Ashburton was accused of surrendering a large portion of the Province of Quebec to the State of Maine corruptly. His connec- tion with a certain family largely interested in the timber lands of that State gave some countenance to the accusation. At all events we know that he proved himself a weak and credulous, if not a faithless, negotiator. But Lord Ashburton had not been specially selected by the people of Quebec to defend their rights. Y'ou were taken from the Bench by a political party that proclaimed itself opposed to the policy of com promise, or even of friendly negotia- tion wit^ the general government. Mr. Blake signalized the beginning of his official career by abruptly breaking off negotiations with the Duminion authorities in this very matter of boundaries, under the pretence of apprehended danger to the in- terests of Outario. Every one expected that "No surrender" of our territorial rights would now be the cry of that Party which he had engineered into office, and which you were appointed to keep in office. But in this, as in every other instance, pro- fession and practice have sadly belied one another. We are now threatened with the expropriation of a large part of the Province — enough to constitute two or three king- doms of European proportions — and nothing will avert the disaster un- less public opinion, indignau' and re- sentful, compels you to suspend your expro- friating Act and to rescind your arbitration, have met so many intelligent persons, even among members of the Legislature that assented to your bill, who entirely misap- prehended its purport and object, that I am not surprised at the silence of the press nor at the apparent apathy of the public in the presence of so grave a periL The general history, and some of the special facts of the question, which you took no pains to com- municate, must lie understood before the reader of your Act can fully comprehend its unconstitutional character, or perceive its dangerous concesF;ions. If I now formally charge you with incivism in y>ur official treatiMntof the boandary questioot ai>4 specify ' - the particulars, you . . , muiti <»> me the justice ,to admit tlMit' it is not mere political . carping, or, in the polite language; of your chief organist, "henpecking on my part A» soon as I became aware that you h«d agreed to submit the matter to arbitration, I pub* lished my report or memorandum, made at the request of the Ontario Government, in March, 1872. The first time I ^ai the honour to meet you on a public platform since the passing of your Act, I denounced it, and specified the grounds of my objec- tion. You prudently remained silent, but the interest then manifested, even among supporters of your Government, in that one- sided disiiussion, convinces me that a mure detailed and formal statement of the case against you, may not he unacceptable to the public. 1. I object to the recital in the preamble of your Act. You pretend that the Im- perial Act of 1871, entitled " an Act re- specting the establishment of Pravinces in the Dominion of Canada," which was passed, as we all know, for the nurpose of confirm- ing the Manitoba and xiupert's Land Acts (the constitutional power uf the Dominion Parliament to pass them having been doubted), givts authority to the Dominion Parliament to " alter the limits " of the old Provinces ! You not only assume that this Act, in spite of its title, pre- amble, history, enacting clauses, &c., which limit its operation to new Provinces, may be extended to Ontario, but that the "consent "of the Local Legislature, with- out which no alteration of limits or diminu- tion of territory can be made in the case of new provinces, may, in our case, be given in advance, and before the extent, of the alter- ation or diminution is known ! In other words, it is a case of " shut your eyes, open your mouth, and see what you may get," with this grandmotherly addition, that the credulous youngster must first agree that if all the sngarsticks find their way into his big brother'c mouth he is not to cry ! Such a proposal would be repudiated even in a four-year-old nursery. 2. But admitting for a moment that the 3rd section of the Act of 1871 can be wrest- ed from its place, and extended to the ori- ginal provinces, whose boundaries have been established as matter of legal description for more than a hundred years, it would not cover your case. The words of that section are — " The Parliament of Canada may from time to time, with the consent of the Legis- lature, &c., increase, diminish or otherwipe alter the limits of such Province. " No que will pretend that a majority of the arbi- U: thkton/orof the Dominion Farlianiiarii mre likely to " increase" th^ limits of Ontario* We may therefore dismiee that ease. An-* thority is next given to "diminish " limits. Did you authorise the Dominion Parliament to do this? 8o' your Act reads. But who authorized you or yoar colleagues to cede our territory, or rather to transfer to another, and on this subject a hostile body the power not of ceding, but of seizing it.? Did you receive a single petition in favour of your Bill ? Were you asked at any public meeting, or by any respectable newspaper in Ontario to pass it ? I have no doubt many persons wished you to have the limits of Ontario, especially its western limits, surveyed and marked out upon the ground, but very few imagined that you would allow them to be either diminiihed or aUered to the disadvantage of the Pro- vince. To ascertain the true legil boundaries and to permanently mark them on the ground is one thing ; to " diminish or " alter " those boundaries is another and very different thing. The Imperial Act of 1871 makes no provision for the first, because only new provinces, whose boundaries would of neces- sity be mentioned in the Acts creating them, were intended or referred to. It might be expedient in the case of a small province like Manitoba, to increase it at some future time, or to divide or diminish a large province if the progress of settle- ment and public convonience should at any time require it. Hence, no provision for ascertaining or settling disputed boundaries is found in the Act of 1871, but alterations by consent are provided for. 3. My next objection is that the Act of 1871 authorizes "the Parliament of Canada," and, assuming that it applies to Ontario, " the Legislature of the Province," to diminish or alter limits. You have assigned that duty to an irresponsible body unknown to the Act and unknown to the Constitu- tion, to wit : an arbitration. You have not even reserved to the Legislature the right to confirm or adopt the award of the arbitra- tors. A Legislative Act of confirmation might possibly be held to cure the irregu- larity, bnt you have put this out of your power, or rendered it a mere empty form, for you have assi^med the right or power of con- firmation to the Parliament of Canada ! I affirm as a proposition of law, that no Pro- viUcial Legislature appointed and authorized to legislate on a particular question can renounce that duty, or transfer it to any other body. The act of that other body will, in such a case, be ultra vires and a nullity. 4. But I object to arbitration even if we could l^fi^ly diminish, or alter the limits of the Province by its agency. The true ques* tion, which you have entirely ignored, is one of law. not of discretion. It is this, — where according to law is the western limit of On- tario ? The same qnestiou must be asked as- to the northern limit. An arbitration is not the tribunal to answer such a question. Let us see how it will work. You have agreed that two out of three arbitrators shall "determine" this momentous question. You have named the Chief Justice of the Queen's Bench on; the part of Ontario. The Dominion Govern- ment has named the ex-Governor of New Brunswick. These two, if they can agree upon him, are to name the third arbitrator, "not being a resident of Canada." The determination, tiicrefore, of Ontario's limits on the west and north, has been withdrawn from the Courts, dhd in case of appeal, from the Judicial Committee of the Privy Coun- cil ; it I- as been put out of the reach of the constitutional guardian ,of the people's rights, the Ontario Legislature, and it is now in the hands of a New Brunswicker and a foreigner, or stranger, at present un- known ! The question will be decided &a aequo et bono, for arbitratiors need not follow the law. We may expect the Chief Justice to contend for the boundary established by law, and to resist all attempts to ' ' diminish'" our limits or even to " alter " them. But by the very word arbitration you have suggested a " height of land " boundary, or an arrangement which will suit the author- ities at Ottawa, into whose hands you have resigned the power of confirmation. The result of such a determination would be agreeable to all, our Provincial rivals, for it would cut off from 250 to 300 miles of ter- ritory on the west that now legally belongs to us, and on the north, a still larger ex- tent. I cannot believe that you agreed to arbi- tration, and framed and hurried through the Legislature your extraordinary Act of last session, for the purposx. of asserting or de- fending the territorial rights of this Province. There is not a word or sentence or clause in it that even squints in that direction. There is one saving clause, however — you can sus- pend its operation till the new Legislature meets. I give you notice that whether it remains suspended or not, I shall, God willing, propose its repeal as soon as the rules of the House will permit me to submit the question. I am, &o., W. MACDOUGALL. August 16, 1875. u < Lbttbb v. I^IR, — My indiotment againit you . ior : — laL Unconstitutional aaaumption oi power ; 2nai Unoonatitutional renunciation and at- tempted tranter I, of power, has attracted some attention from the press. Two of your organs, the Globe and the St. Thomas Jour- nal, have attempted to answer it. I observe that vou honoured me with a "slap" — tp use the nursery phrase of the reporter—in your speech yesterday at the WeUand pio- nia If, when fully reported, the "slap" should turn out to be a defence of your own acts, I shall have much pleaaupie in replying to it. In the meantime, I assume that the Olobe and Journal hare, on your behalf and with . your sanction, filed your plea. In ef- fect, if not in form, it is the plea known to lawyers as the " general issue," for it denies or traverses the whole indictment. Your advocates fill several columns with witti- cisms, vituperative allusions, false assump- tions, and arguments. I shall endeavour to reply to the arguments. ■The Olobe contends : — 1. That if any one denies the right of the Local Legislature to alter the Provincial constitution, or to make a new one, he shows himself unwilling to " trus't the peo- ple." - .;:fr 3tf 2. That because the dictionary Bay6 "to amend" is to r^orm, to correct, and " to alter" is to reform, to change, to vary ; therefore, power to amend is the same thing as power to alter. 3. That as there were " able lawyers" in the House when Mr. Mowat carried his Representation Bill and asserted his right to " dter every thiag" in the Provincial consti- tution with a single exception, his claim ought not now to be questioned ; that the assent of these lawyers is equivalent to res judicata. ,^.^ 4. That in denying the existence of this power to alter everything, Mr. Macdougall admits that " he wants to establish popular liberty on a secure basis by depriving the Pu-liament of Ontario, or, in other Words, the people of Ontario, of the power to govern themselves," &c., &c. Except the usual fetor which the Globe emits whenever it runs foul of a politick opponenii, I find nothing in its long article tnat may not be answered under these four heads. The St. Thomas Journal, representing the so-called " Reformers," who listened with BO much good humour to your announce- ment that their local constitution is simply the urill and pleasure of the Premier for the time beiog, backed by a majority of one in tktt l^pslator*^ devotes three laoeeasivd artdolea to tbo defenoe of your position. .T^ Jomrtml oontendB :— 1. That the doctrine "that no Legisla- ture, superior or inferior, can create another Legislative body and endow it with au- thority equal to its own," is " of little con- sequence,^' shows Mi^. Macdougall to be an oVer-rated man, to be incapable of " ibter- preting the constitution," doc, because the Legislature of Great Britain could, after creating a legislative body for Canada, en- dow that body with authority equal to it» own by "an Act declaring and confirming the independence of Canada !" 2. That, as Worcester tdls us, " t6 amend" pieans to remove errors from, to correct, ^ make better, to rectify, to im- p'rove, to emend, and " to alter" means to change partially, to make otherwise or dif- ferent, to vary, to modify ; therefore, both words mean the same thing. ^ 3. That the reasoning from the constitu- tion of the United States finds no parallel in its application to ours. 4. That nevertheless because " the sover- eignty of every State resides in the people of the State, anid they may alter and change their form of Government at their ^wn pleasure," and because " the theory of our system is that the 'absolute despotic power ' which in all Governments must re- side somewhere is entrusted to Parliament ; therefore, the Local Legislatures retain all the powers they formerly held except such as they voluntarily surrendered to the Fed- eral Legislature," including "the power to amend their constitution within certain limits." 5. That "a constitution without this power would be an anomaly." ^ 6. That " If the Legislature consents there is nothing in our constitution to prevent " you from abolishing the Legislature as yOu abolished Niagara and Both well. 7. That " The Legislature may make any other ehange| they please, and the people have only auch remedy as" 1. "punishing Wrong-doers at the polls " 2. " appealing to the Supreme Court " 3. " appealing to the God of battles." 8. That at first flush there seemed a good^ deal of force in the argument derived from the case of express power to altar the limits of electoral districts, given to Quebec, but on examination the Journal found it " a limi- tation, not an enlargement." The Journal, while copying the bad habit of your city organ, betrays a consciousness that abusing the plaintiff's attcamey will not be accepted for argument by the great jury 16 ifow tryiQe the oftuse. Hsnoa,' the greater effort and more decorous treatment of the case by the country advocate. In my rc|di- cation I shall bracket the arguments of yoor defenders when they bear on the same point. 1. (Becond section, and no- where else. I have argued that this author- ity, or power cannot be extended to other sections in which the key *' until" is not found, — 1. Because if such had been the in- tention, the key would have been left in the lock. You know the rule, expreagio unius est exclusio aUerius. 2. Because your con- struction in the language of Justice Story, involves "a manifest- absurdity and there- fore ought not to be adopted|^' 3. {Globe). The ''ableKwyers" argu- ment may carry weight with people who do not attend courts or legislatures, and who seldom think or reason for themselves on political and constitutional questions. The able lawyers were there when you passed your Escheat Bill, and yet the law officers of the Crown at Ottawa advised its disallow- ance becuuse you exceeded your constitu- tional authority in passing n. Able lawyers were in the House when it passed other Acts that have been disallowed at Ottawa, or declared by the courts to be null. In fact lawyers, and sometimes able lawyers, are to be found in every legislature, and yet these legis- latures are always passing hasty, imponect, ill-advised and injurious measures, and wherever their powers are limited by consti- tutional provisions, they are constantly, not- withstanding the presence of lawyers, violat- ing those provisions. Are not the books full of cases decided to-day and revised, over- ruled, or reversed to-morrow ? How often are the opinions even of the ablest lawyers, found, when tested before ther-^ courts, to be erroneous ? And yet your organs ask me to accept all your measures as of undoubted oonstitutionality, because a few gentlemen of the long robe happened to be members of the Assembly and were present when they passed. The experience of a quarter of a century, in and out of Parliament, has taught me that as a class, lawyers are the worst legislators and the most unsafe guides in questions of parliamentary prac- tice and constitutional uw, that any one can appeal to in a case of doubt. In their own held, with precedents, and cases, and text-books to guide them, they excel ; but in the broader fields of public life, in the higher sphere of statesmanship and adminis- tration, they are often outstripped by merchants and journalists, and sometimes even by tradesmen and meohanics, I have /Men many constitutional ques- tiona. niia«d, and a few settled ia Oanada^ but I do mot remember one wliioh was either raised, or much aided in ite aolution, by practising lawyers. The question, 1 submit, is not whether able law- yers were present when the unconstitutional doctrine was propounded, and the illegal Act was passed ; but what are the constitu- tional rights of the people, and how are they to be vindicated ? I must reserve for another letter the re- ply that is still due to your village cham- pion. I I am, etc., WM. MACDOUGALL. Toronto, Aug. 23, 1875. Lkttee VI. 3lK, — Continuing my review of the argu- , meu^s of the Globe and St. Thomas Journal I in iiupport of your plea of not guilty, I have ! only a few words to add in reply to your ; chief organ : — 4 [Globe). The attempt to fasten upon me the charge of seeking to "establish popular I liberty" by "depriving the people of On- I tario of the power to govern themselves " , because I deny to our Local Legislature the I unrestricted powers of a French constituent I Assembly, and contend that it is, and ought I to be restrained within constitutional limits I like any other subordinate body, is as dis- ! honest as it is illogical. The question is not i whether Ontario should be "deprived" of . self-government, but whether a corporation ! created by an Imperial Act should be per- . mitted to exercise ungranted and therefore I illegal powers. We are not making, but I interpreting a constitution ; and he is neither \ a good citizen nor a loyal subject who attempts to weaken its authority, or to disregard or violate its provisions. The insinuation that I am not a friend of "popular liberty," because I cannot acqui- esce in your doctrine, that an "unbridled democracy" which can make and unmake constitutions at pleasure, has been legtdly established in this Province, comes with a bad grace from a newspaper that resisted my efforts, and opposed the policy and measures of the true Liberals of Upper Canada from 1848 to 1854, for the extension and confirmation of that "liberty." lob- serve that you never foreet to rail against the "Family Compact, "and to claim credit to youraelf and present political associates for the secularization of the Clergy Reserves, i|8 the exteniion of the franohise and eleo- tivet>rinoiple, Sto., aodfor the achievement of Confederation. I had to rettiind yon in Victoria, wher? yon repeated year atnmp formula for the nrst time in my presence, that you could not personally l»v claim to one of these " reforms except the last ; and, that in reference to Confederatioa, as soon as the winds rose, and the vessel of State began to labour, and dangerous breakers appeared directly in her course, you set an oxample which your leader, Mr. Brown, followed at a later period— you deserted the Confederate ship and the Con- federate cause, and fled to a secure haven in the Court of Chancery ! You joined us in June, 1864, under the leadership of a Lower Canadian " Tory," a class of politicians you seem now to detest ; you came into the Government avowedly to assist in accom- plishing the greatest reform of our time, but in December of the same year you abandoned the work, resigned it to the " Tories," and accepted olhce at the hands of Sir John Macdonalrl ! As to the Clergy Reserves, when I was w riting and publish- ing the history of that question, at my own private cost, I uot no sngj/estion, or encour- agement, or contribution from you. When I first met you, and made your acquaintance, you were introduced as a Tory, which then (1845 or 1846) meant an adherent of the "Family Compact." All your antecedents, all your associations, and proclivities were Tory, until it became evident that the policy and traditions of that party, under its " Family Compact" loaders, could not be upheld, and that political power and official Eatronage must soon be transferred to other ands, — then j'ou abandoned the Tory party, became *' converted " — and carried South Ontario as a Reformer ! I did net then, and shall not now, question your conversion ; but I protest against your right, or the right of any of your colleagues, or of any of your Ottawa allies, now claiming the leadership of the Reform party, to reproach the " Family Compact, " or to claim personal credit for abolishing the Clergy Reserves, or extending popular liberty, or even for carrying Confed- ' eration. Among you all there is not a man whose name was ever heai d in connection with these early reforms, except as an op- ponent, and only one or two can be men- tioned who at best were very milk-and- water advocates of Confederation ! I protest further againpt the attempt of your organ to falsify history in my case, and to accuse me of turning my back upon the cause of „ " self-government" which, for a quarter of a century, I have upheld through good report and through evil report. Democratic licence is not popular liberty as I have understood it, nor is the power to set all laws aside, and to break down all constitutional safe-guards at two days' notice, the kind of self -govern* ment that I and the old Reformers contend- ed for, in opposition to Messrs. Mowat, Cart- wright, k, Co., when they were supporters of the " FamUy Compact " I have now answered all the Olobe's, and two of the JournaVs points or positions in support of your claim to alter the constitu- tion at wilL I shall briefly notice the re- maining six points of the Journal 1. I readily admit that " an Act of the Imperial Parliament declaring and confirm- ing the independence of Canada," an event certain Reform politicians contemplate with equanimity, if not with hopefulness, would create, or raHipr enable the people to create, a le^mtive body vrith power, equ'al, in theory, to its own. But I was arguing for a principle of consti- tutional law, without which the very idea of authority or sovetHignty in a State is repug- nant and inconceivable. Whenever an in- ferior or derivative body asserts its right to exercise the authority of its superior or cre- ator, it repudiates that authority and claims an independent existence. Is this, after all, the object and meaning of your policy ? The argument of your St. Thomas organ is a mere impertinence if it does not go that far. 3 and 4. Your advocate objects to the au- thority of American precedents when they are against you, but quotes them and reasons upon them without hesitation when they seem to be in your favour. . In this he is neither logical nor honest. Bat when he concludes his long argument M'ith this deduc- tion, "the Local Legislatures (in Canada) retain all the powers they formerly held ex- cept such as they voluntarily surrendered to the Federal Legislature," he shows that he neither comprehends the American nor the Canadian Constitution. There was no Local Legislature in existence in Ontario previous to confederation which could " retain " any- thing. There was no question of retaining or surrendering, bnt of repealing certain Constitutional acts and passing others. The Imperial Parliament no doubt was moved to exercise its " absolute despotic power" by our solicitations. But that did not affect the question of right or power. Our constitution is not a compact but a law. The provincial legislatures, unlike tiiose of the States, are municipal-only : they are not sovereJoTi ; they have no " reserved" rights in the American sense ; their powers are those which the superior legislature has dele- cted to them, either expressly or by necessary implication. Any reserved rights or powers of government in our constitution 19 of ot iMlong to the federal or ffenenJ parliament. Ita power extend* to '*im matter* not com- ing within the oUuwee of lubjeota by thit Act Msigned exolnnvely to the legiuAtnree of the Provinces." (too. 91. The Amerioan constitution left this point doubtful ; hence the two great parties, federalists and nation* «lists; hence, at last the decision of t^> Supreme Court in the case of Dred Scott, -lu which a majority of the court held that the Union was federative ; that Jefferson, and not Hamilton, was its true expositor ; and hence the civil war, the greatest uid most sanguinary that the world has ever seen. Although your advocate praises the " dear- ness" of the American constitution, and con- demns the " verbiage" of ours, that terrible Rumple of the evil of ambiguous com- promise was not lost upon the framers of the latter, as you well know. The Supreme Court was probably wrong when it held that slavery was national and freedom sectional, but the Imperial Parlia- ment took care that no Court in Canada or in England should ever be left in doubt as to the question of sovereignty or reserved rights. 6 and 6. Your St. Thomas organ contends that a constitution without the power of amendment would be an anomaly. But that is not the question. I have never denied the existence of the power somewhere. My con- tention is that the power vf amendment, ex- cept in the cases specified, and to the extent provided in the constitution itbelf, appertains to the Legislature that made the constitu- tion, a fortiori the power to "alter" it funda- mentally, or as you contend, in " everything" except one office — must reside in the same Legislature. Suppose one of the Municipal Councils of Ontario should claim the right to alter its constitution — the Municipal Act — and should pass a by-law for the purpose ? And suppose some learned and zealous advo- cate of "the rights of the people " should defend the by-law on the ground of '• anomaly," what answer would the Attor- ney-General make to himT Is there any dilference in principle between the two cases ? I can see none, and therefore we come back to the issue as it stood before the Journal abandoned it, and tookrefugein the idea of anomaly. But I deny that the United States Affords any example of a power in the Legist kUure, State or Federal, to alter a Constitution, of its own motion, and of its own anthority as it would pass an ordin- ary law. The existence of such a power in the legislature ^ an American State would indeed be an anomaly. Every Yankee school-boy over ten years of age would laugh at the ignoramus who should gravely ask him, if tiie Constitution of his State could 1m altered or amended by an Aet of the Legialatur*. Itkemni incredibla thai any literate penon in Inis oonntey, even a writer for a partizan vawspaper, should Ten* tnre to inaolt the intelligenee of hia readers by attemptiBg to impose such a fiction upon them. But when an Attorney-General ocm- tenda that a word of limited signification, with ita aphere of operationa distinctly pointed out in the Constitution, may be charged into another word conveying the power of altering and overriding " every- thing," and when he aaaumea the right and affirms the expediency of making fundamen- tal alterations per saUum, as he would pass a law to encourage the growth of pumpkins, or to exterminate thistles, one need hardly feel surprise if here and there his newspaper carasites, since he has deprived " the people of the right to ad- vertiae municipal noticea in the papera of their choice, should either through crass ignorance, or wicked design, falsify hiatoiy and misrepresent the question at issue, in defence of their benefactor. To place this S[ueBtion once for all out of the reach of alsifiers, I shall quote the text of the Federal, and also of a recent State Constitu- tion, on the Subject of amendments. The Federal article on this head, which has never been altered, is as follows : — " V. The Congress whenever two-thirds of Ixith Houses shall deem it necessary, shall )>ropo»e Amendments to this Constitu- tion, or on the application of theLe^slatures of two-thirds of the several States, shailcall a convention for proposing Amendments, which in either case shall be valid to all in- tents and purposes, as part of this (A>nstitu- tion, when ratified by the Legislatures of three-foitrths of the several States, or by conventions in three-fourths thereof, as the one or the other mode of ratification may be prmKwed by the Congress." The Constitution of Minnesota, adopted in 1868, in the light of adequate experience and under the guidance of able statesmen, provides for its amendment as follows ; — "Article XIV.— Sec. 1.— Whenever a majority of both Houses of the Legislaturo shall deem it necessary to alter or amend thia Constitution, they may propose such alterations or amendments, which proposed amendments shall be published, with the laws which have been passed at the same session. And said amendments shall be submitted to the people for their approval or rejection. And if it shall appear in a manner to be provided by law, that a ma- jority of voters present and voting shall have ratified such aUerations or amendments, the same shall be valid to all intents and purposes as a part of thia Constitution. If 20 two or more alter»tion8 or »ai«ndiiMnt« shall be sabmitted at the i^me time it i^all be so regulated that the voters shall vote for or agaiuBt each separately. *' Sea .2. — Whenever two^ thirds of the members elected to each branch of . the Legislature shall think it necessary to call a c ventions, whiuli can amend the constitution. " But the Congress or Legislature of the na- tion, is only a subordinate division of that power, a mere wheel in the machine, and un- able to amend a single word of its own authority. So also the State Legislatures are incapable of any higher function than that of ' ' proposing" amendments. In Min- nesota the proposed amendments must be published with the statutes of the same ses- sion, to> bring them under the public eye, and in due time formally submitted to the people for "approval or rejectignt" If a majority of the voters approve, they be- come part of the fuftdamental law, which no Aet of tha Legislature can override or re> peaL \ on will notice also that our American eoostna reoognixe verbal distinctions where yoa ignore them. They provide one method for "altering or amending," and another for "revising," (which, I suspect, means your kind of altering,) the constitution. But such r«>finements of language are unworthy of Legislators fresh from the Court of Chan- eery, where legality is contemned and justice is measured "by me length of the Chancel- lor's foot 1" 8. This letter is already too long. I must content myself with a brief answer to the 8th and last point of ; your 8t. Thomas ad- vocate. The 80th section, gives express authority to the Quebec legislature eto " alter the limits " of any of its sixly- fivo electoral districts ; it contains these words of enlargement, after fixing the number and limits of those districts, "sub- ject to alteration thereof by the Legislature of Quebec *' — a power iwt given to, and therefore not jKwsessed by the Legislature of Ontario. The restriction requiring con- currence of particular members is limited to twelve districts out of sixty-five. I have read your Welland speech as re- ported in the Olobe. I find only iteration in it, and therefore nothing to answer. You re- . assert your right to treat our constitution as a latv, which uke anv other in the statute book, may be repealed or altered at wilL I have joined issue with you. and intend " to fight it out on that line." The Courts may, but the people ultimately must, decide between us. I am, ftc., WM. MACDOUGALL. Toronto, Aug. 28, 1875.