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I • • PRINTED BY Thos. MooJtE & Co., Law Puintkks 22 & 24 Adklaide St. East TORONTO. 00 JL H9 \ » PREFACE. THIS volume is the result of an attempt to bring together in a single collection the documents which contain the consti- tution of the Dominion of Canada and illustrate its historical development. A much larger number of documents might legiti- mately have been included under this description, but the line had to be drawn somewhere, and I have chosen to draw it between those that are of international and imperial origin on the one hand, and those that have resulted from the exercise of colonial autonomy on the other. Any apparent violations of this prin- ciple of classification have been dictated by considerations of convenience which are too obvious to call for specific mention, ^lany documents that are either not imperial or not constitu- tional have been added in the form of appendixes to the text. It is hoped that they will prove to be not the least useful part of the collection. Where the material to choose from is abundant and the space is limited there will always be differences of opinion as to what should properly be included. While I have received much valuable advice on this point from eminent statesmen and publicists, I feel bound to say, in justice alike to them and myself, that the plan of the work is essentially my own. My belief that the true line of development of the Canadian constitution takes us back, not to the French regime in Canada, but to the colonial govern- ments of what is now the United States is sufficient to account for the absence of all French documents, except the articles of capitulation of Quebec and Montreal. If space had permitted I would gladly have inserted as appendixes some of the con- IV PREFACE, stitutional documents of the British colonies ; I have been forced to content myself with the United States constitution, on which, as regards federal form, our own is avowedly modelled. I have made no attempt to interpret the documents here collected. Mine was the humbler but infinitely more useful task, to see that the texts were as correct as possible, and to give in the form of notes such historical informa.ion and references as would tend to lighten the labours of the student without supplying him with ready-m.ade opinions. Alike in selection and annotation I have had primarily in view the needs of students of political and legal science in universities and law schools, and the chief aim of the collection — to give them a chance to think for themselves — would have been defeated if I had impertinently undertaken to think for them and give them the results. Gratitude for valuable aid and counsel requires that I should mention the names of those who have been specially helpful to me. Easily first must be placed Dr. Bourinot, Mr. Douglas Brymner, and Mr. William Kingsford, each of whom has in his own way usefully illustrated Canadian history. To Thomas Hodgins, Q.C., iEmilius Irving, Q.C., and Hon. David Mills, Q.C., I am indebted for hints which lessened greatly the labor of research. To Mr. Francis Parkman of Boston, and Mr. Justin Winsor of Harvard University, my thanks are due for prompt responses to requests for information on historically doubtful points. Mr. James Bain of the Toronto free library, Mr. J. P. Macdonnell of the Ontario Civil Service, Mr. David Boyle of the Canadian Institute, J. M. McEvoy, B.A. of the University of Toronto, and A. F. Chamberlain, M.A., of Clarke University, have all taken a warm personal interest in the progress of the work and rendered practical and valuable assistance in its preparation. WM. HOUSTON. Toronto, March 81st, 1891. TABLE OF CONTENTS. PAUE. Introduction , vii Chronological Index xviii Treaty of Utrecht, 1713 3 Representative Institutions in the Maritime Provinces 7 Nova Scotia — 1. Settlement of Halifax 7 2. Commission to Governor Cornwallis 9 3. Letter from Governor Lawrence to Lords of Trade Ki 4. Letter from Lords of Trade to Governor Lawrence 17 5. Opinion of Crown Law Officers 17 6. Constitution of Legislative Assembly IS 7. Letter from Lords of Trade to Governor Lawrence 21 Prince Edward Island — Commission to Governor Patersoii 21 Neic Brunswunck— Commission to Governor Carleton . 22 ■Capitulation ok Quebec 26 Capitulation of Montreal 32 Treaty of Paris, 1763 61 Royal Proclamation, 1763 67 Commission to Governor Murray 71 ORD Mansfield's Judgment in Campbell v. Hall 79 ■Quebec Act, 1774 90 Quebec Revenue Act, 1774 97 Quebec Revenue Act, 1775 102 Colonial Ta.x Repeal Act, 1778 104 Canadian Revenue Control Act 106 Constitutional Act, 1791 112 Constitutional Act Amendment Act, 1830 134 Constitutional Act Suspension Act, 1838 136 Indemnity Act, 1838 140 Suspension Act Amendment Act, 1839 142 Union Act, 1840 149 Union Act Amendment Act, 1848 (use of French language) 175 Union Act Amendment Act, 1854 (Elective Legislative Conncil). . 177 Union Act Amendment Act, 1859 (Speaker of " " )..180 Confederation Act (British North America Act, 18()7) 186 (British North America Act, 1871) 225 (Parliament of Canada Act, 1875) 227 (British North America Act, 1886) 229 Colonial Habeas Corpus Act, 1862 240 Colonial Laws Validity Act, 1865 241 VI TABLE OF CONTENTS. PAGE. Governor-Gen'krals' Commissions and Royal Instructions 245 Commission to Lord Monck 245 Instructions to Lord Monck 248 Letters Patent Constituting the office of Governor-General 253 Instructions to (Governors 256 Commission to Lord Lome 258 Treaties Relating to Canada 265 Treaty of Ryswick, 1697 265 Treaty of Utrecht, 1713 3 Treaty of Aix-la-Chappelle, 1748 265 Treaty of Paris, 1763 61 Treaty of Versailles, 1783 266 Treaty of Paris, 1783 267 Canadian Boundaries 271 Boundaries of Nova Scotia 271 Boundaries of New Brunswick 272 Boundaries of Quebec and Ontario 273 Boundaries of Manitoba 277 Boundaries of British Columbia 278 Boundaries of the North-West Territories 279 Boundaries of the Dominion of Canada 280 Extradition 282 Jay Treaty, London, 1704 282 Ashburton Treaty, Washington. 1842 283 Fisheries 284 1. Stipulations v)ith France 284 Treaty of Utrecht, 1713 3 Treaty of Paris, 1763 61 Treaty of Versailles, 1783 266, 284 Treaty of Paris, 1814 285 2. Stipulations rvith United States 285 Treaty of Paris, 1783 268 Convention of Lt)ndon, 1818 285 Treaty of Washington, 1854 286 Treaty of Washington, 1871 287 3. Stipulations loith Russia 288 English Law introduced into Upper Canada .... 290 Trial by Jury introduced into Upper Canada 292 Responsible Government 293 Lord Durham's report, 1839 293 Russell's Despatches, 1839 299 Legislati\ e Assembly resolutions, 1841 303 Quebec Conference Resolutions, 1864 — 305 Constitution of the ITnited States of America 317 General Index 334 INTRODUCTION. VII INTRODUCTION. THE purpose of this introduction is to explain briefly the author's views on the teaching of history in general and of Canadian constitutional history in particular. They may be summed up in the statement that while ex cathedra lectures are an antiquated and ineffective method of dealing with any sub- ject in the class-room, they are particularly out of place in the academic treatment of history. It is of course important that the student should have a wide acquaintance with historical facts, and that he should have well-defined opinions as to the general principles that underlie and explain them ; but in so far as the educative value of the subject is concerned, the manner in which he acquires his knowledge and arrives at his opinions is of far greater importance than the knowledge and the opinions themselves. Facts that are simply memorized and principles that are simply appropriated, whether from text books read or lectures heard, count for little in real education ; facts that are discovered by patient research and principles that are reasoned out from the facts, serve a really useful educative purpose. History is one of the inductive sciences, and it should be dealt with on the inductive method. The student should be required to collect facts for himself by the investigation of such sources as may be available, instead of learning them by rote from treatises or lectures, and he should be encouraged and required to form and express his own opinions, instead of adopting those formulated for his instruction by the historian or the lecturer. His collection of historical facts will undoubtedly be meagre and his opinions will probably be wrong, but this is no more than can with the most perfect truth be said of every one who either Vlll INTRODUCTION. writes a text-book or delivers a lecture. The diflference is one of degree only, and fortunately the question of more or less is of little consequence educationally, provided that the student's acquaintance with the subject is the result of his own honest endeavor to get at the truth, not of his asssimilation of the opinions of other people. The degree of culture that results from the academical use of history is determined, not by the fact that knowledge of a certain kind has been acquired, but by the fact that knowledge of some kind has been acquired in a certain way. The truth of these statements will become more evident if it be borne in mind that the mass of historical facts is a shift- ing quicksand. Every now and then some new writer — a Gardiner, a Freeman, or a Stubbs — re-explores the old familiar ground, unearths a number of facts that cannot be rejected or ignored, and erects on the enlarged basis a modified inductive superstructure. It would be absurd to suppose that the last word on the subjects of which they treat has been said even by them. History is not only, from the pedagogical point of view at least, a science but it is one of the most progressive of the sciences, and any method of academical treatment that does not put the student in possession of a method of investigation, and at the same time tend to free him from prejudices and preconcep- tions, is worse than useless for purposes of culture. Fortunately some progress has been made in this direction by the introduction of the " seminary method " into universities and colleges, and history has benefitted more from the change than almost any other subject. In all progressive American institutions the seminary is rapidly supei'seding the lecture, and the latter retains a foothold only in places which do not come under this description. In a very short time such academical performances as " lectures," in the sense of formal ex cathedra deliverances of professorial opinions will be unknown, and the consummation of the change cannot take place too soon. In the lecture-room the teacher works after a fashion, and the students are supposed to absorb the erudition that has been carefully stored up and is now poured forth for their benefit ; INTRODUCTION. IX in the seminary the student works under the direction of the teacher, who saves him time in his search for facts hut carefully abstains from any attempt to control his reason. It is easy to understand tlie nature of the change effected in the academical atmosphere by the substitution of the seminary for the lecture method. The result is nothing less than the substitution of intellectual life for intellectual death. It has been so wherever the change has taken place ; it will be so everywhere else when the change does take place. The great merit of the seminary is that it facilitates the use of the inductive method, which the lecture system absolutely precludes. Induction is a species of reasoning, and the lecturer cannot teach by reasoning for his students and telling them his conclusions. They must do their own reasoning, draw their own inferences, discover their own principles, establish their own laws. They may do this erroneously, but they must do it if they are to derive any intellectual training from tlie academi- cal use of history, and especially of political history. Mere soundness of opinion is fortunately of less importance, where no one can be absolutely and indisputably right, than are open- mindedness, freedom from prejudice, and the habit of closely observing phenomena and reasoning from them. " History is past politics and politics present history," says Mr. Freeman, and this is but another way of saying that past and present states of political society throw light upon each other. Usually history is taught as if the past served in this respect the more important purpose of the two. The student is asked to begin at the beginning and come down through a series of more or less arbitrarily selected events and institutions until he makes the acquaintance of the state of society which is his own environment, if indeed he is allowed to come so near. It is easy to see how such a view of historical method should have been universally acted upon at a time when method claimed little attention and received less ; it is difficult to under- stand why it is still generally practised at a time when the study of methods is occupying the attention of the foremost intellects of the day. It is perhaps too much to expect the INTRODUCTION. present generation of professorial lecturers on history and politics to abandon the only method they know anything about, but it will not be incumbent on their successors to submit to conventional and traditional limitations. The true method of teaching history, as of teaching other subjects that lend themselves to inductive treatment, is to pass from the known to the unknown, to start from the here and now and travel backward and outward until the entire ground has been covered. The student should begin with the history and the mstitutions of his own time and his own country, and his knowledge of these will enable him to understand the history and the institutions of other times and of other lands. All valuable knowledge is comparative. One never knows any- thing thoroughly until he has compared or contrasted it with something else. His progress in real culture is conditioned on a never ending process of difterentiation of things that are similar to each other, and of assimilation of things that are different from each other. If the study of the past is helpful to the comprehension of the present much more is the study of the present helpful to the comprehension of the past. The reason is obvious. It is extremely difficult to form a clear or useful conception of what is distant either in time or in place ; it is comparatively easy to form a clear conception of what is within the range of every day experience. It would be unreasonable to expect such a conception as a student can form of the Roman comitia to be helpful to him m comprehending the nature of an American town meeting, or such a conception as he can form of an Old English witenagemot to aid him in understanding the functions of a modern parliament ; Ijut to comprehend clearly the nature of a town meeting or a parliament will aid him in getting a useful conception of the comitia or witenagemot, and he can make a study of both town meeting and parhament in actual operation. This view of method in relation to history is especially true of constitutional history, which is substantially a digest of human experience in the development of govermental machinery. It is more limited and more definite than general history, and INTRODUCTION. XI is, both in its own nature and in the methods apphcable to its acamedical use, closely akin to legal science. No subject in a university curriculum is better suited for inductive treatment than constitutional history, and therefore no subject, apart altogether from its intrinsic interest in relation to the advance- ment of civilization, is more valuable as an educative instru- ment. The line of causation is usually discernible with a. minimum of uncertainty as to the correctness of the results arrived at, and the number of phenomena to be observed, analyzed, and classified as a basis of induction are for the most part not open to reasonable dispute as matters of fact. To a greater or less extent in every country the history of the constitution is to be traced by means of documents, the correct interpretation of which is, in relation to the subject and for other reasons, a matter of the greatest importance. Usually the student is deprived of the valuable training afforded by the practice of hermeneutics, because he is expected to learn the meaning of a document either from a text-book writer's gloss or from a lecturer's interpretation. That both writer and lecturer may be wrong in their opinions is the least regrettable feature of this system, because, fortunately, neither gloss nor interpre- tation is likely to be long remembered after the examination in preparation for which they have been "crammed" by the student ; infinitely more mischievous is the waste of time and opportunity which might have been utilized in enabling him to master a method that would have made him ever afterwards independent of text -books and lecturers by placing him on a par with both. If their opinions are right he should be put in possession not of them but of the way to arrive at them by his own unaided efforts ; if they are wrong he has at least a chance of avoiding some eiTors which he mu3t on the ordinary plan imbibe, if it be but for a time. The same remarks apply mutatis mutandis to the generalization of constitutional principles from those events that come under the name of precedents. Acquain- tance with certain facts must be made by reference to narratives, but their relation to each other as antecedents and consequents, if not as causes and effects, must be established by an exercise XU INTRODUCTION. of reason. The reasoning in this case must be the student's own if he is to benefit educationally by the time given to the subject, and he must reason from consequent to antecedent, if a premium is not to be put on the mere exercise of memory. It is interesting to note that in some respects the constitu- tional history of Canada is better adapted for academical use than the constitutional history of either England or the United States, which is equivalent to saying that it surpasses in that respect the constitutional history of any other country where- soever. The constitutional history of the United States is too largely a written history ; that of England is too largely an unwritten one. In the one country precedent counts for too little in the interest of speculation ; in the other it counts for too much in the interest of definiteness. The history of the Canadian constitution involves a great deal of documentary interpretation, but it involves also a great deal of generalization from recorded instances. The constitution at present bears a strong resemblance in form to that of the United States, and it would have been surprising if it had not done so, in view of the fact that it was avowedly modelled upon it ; but it bears an equally strong, though less easily discerned, similarity in its mode of operation to that of England, through the adoption from the latter of the constitutional device known as " respon- sible government." For purposes of inductive treatment, there- fore, it possesses most of the merits of each, being at the same time comparatively free from the defects of either, while the ■colonial position of Canada is from the academical point of view an advantage rather than otherwise. At every stage of Canadian history the ultimate political sovereignty has been, as it now is, vested in the British Parliament, and constitutional compli- cations, at once caused and resolved by the gradual tendency towards colonial autonomy, impart to the subject an interest that is quite unique in the whole range of comparative consti- tutional history. A similarly unique interest attaches to the study of jurispru- dence and of international law in connection with Canadian history. In the Provmce of Quebec ever since the passage of INTRODUCTION. Xlll the Quebec Act in 1774 French law has been the recognized rule of decision in all matters of controversy relating to property and civil rights, and the codification of French law in Quebec followed its codification in France. On the other hand the common law of England is the rule of decision in all the other Canadian Provinces, and therefore it is quite possible for- a Canadian student to take up the study of either the common or the civil law as a living system without going beyond the boundaries of his own country, and to study them inductively in comparison or contrast with each other. As the State of Louisiana has a civil code, while all the other States of the Union have the common law, the student in the United States has a similar privilege, but in a less convenient field. Canada as a quasi-autonomous country enjoys quasi international rela- tions, and is saddled with quasi international responsibilities,, but of formal relation or formal responsibility she has none. She is allowed a real voice in the making of treaties with the- United States, and is permitted and expected to supplement them with legislation when legislation is necessary ; but on the other hand her representatives in international negotiations are for- mally appointed by the British Government, and if the Canadian Parliament were to refuse the necessary confirmatory legislation the British Parliament could in any case, and probably would in some cases, enact it. It is unnecessary to describe at any length the manner in which the following documents may be most advantageously used. All that need be attempted is to lay down a few general propositions, in the application of which there will be room for an infinite variety of pedagogical devices. No two teachers will ever deal with them in precisely the same way ; no pro- gressive teacher will ever deal with them in precisely the same way with successive classes. These general propositions, with the reasons on which they are founded, may be thus briefly stated : — 1. The first document taken up should be the British North America Act of 1867, which is the present constitution of Canada. It should be studied with a view to ascertaining its XIV INTRODUCTION. textual meaning, determining its legal validity, and compre- hending its political working. It is a matter of minor importance in what order these various lines of inquiry are prosecuted, but the order here stated is not without certain obvious advantages. The Act abounds in technical terms, and failure to catch their precise meaning must needs leave an obscure impression of the import of the statute as a whole. As examples of terms that stand m need of elucidation may be cited such expressions as ♦' Privy Council," " Executive Council," " privileges " and " immunities" of Parliament, " seised," " freehold," "free and common soccage," " franc-alleu," " in roture," " allegiance," " Royal assent," " disallow," " royalties." To appreciate clearly the force of these and analogous expressions is not all that is necessary to the comprehension of the text, but it is at least a good first step towards it. The legal validity of the document is due to the fact that it is the Act of a sovereign Parliament, but it is an Act tliat embodies a compact between the federating Provinces. Its legal effect must be determined by judicial decisions, but in the reasoning on which those decisions are based some account must be taken of the intentions of the parties to the federation. Already a long line of judicial findings has laid the foundation of an interesting and important con- stitutional jurisprudence for Canada. The political working of the constitution is a wide subject, but one that cannot be evaded. All who know anything about it can understand that the student of the mere letter, however thorough and expert, may go out into public or professional life loaded up with the most absurd misconceptions. Nothing is said in the British North America Act, for instance, about the responsibility of the Governor- General's cabinet, or of its solidarity, and yet these are among its most important features. Not much is said, except what is now misleading, as to the manner of electing the House of Commons. The financial relations of the Provinces to the Dominion have been extensively changed since the Act was passed. The fiscal system has been modified, either slightly or radically, over and over again. These are only a few of the matters which come under the head of " political working," INTRODUCTION. XV but they will serve to give some idea of the comprehensive- ness of the phrase. In connection with both the textual meaning and the political working of the Act the commissions and instructions issued to the Governor- General should be read, indeed must be read, in order to get a clear idea of either the one or the other, and closely connected with the subject of the legal validity of the constitution is the Act of 1865, which states the grounds on which the validity or invalidity of colonial legis- lation must be determined. It is needless to say that the Imperial Acts of 1871, 1875, and 1886, supplementary to the Act of 1867, must now be read with it, just as if they were part of its text. 2. The British North America Act should be compared or contrasted with other constitutional documents, to which it is more or less closely related either formally or historically. Pre- eminent among these is, of course, the constitution of the United States. The analytical comparison between them, should, without being too minute in detail, be so carefully made as to enable the student to grasp the essential differences between the constitutions of the two countries, not merely as a matter of textual interpretation but also in their respective political operations. These differences have been frequently and accurately described, but they must none the less be thought out by each generation of students for themselves ; and this can be done only as the result of a careful analytical comparison. The " Quebec Eesolutions " of 1864, which embody the agree- ment originally entered into by the various parties to the Canadian Confederation, should receive a certain amount of attention in this connection. More important, however, are the Imperial enactments which chronologically precede the British North America Act of 1867, and each of which was in turn the Canadian Constitution — the Union Act of 1840, the Constitutional Act of 1791, the Quebec Act of 1774, and the Eoyal Proclamation of 1763. These have a relation to the present constitution that is not merely historical ; the nature of that relation can be ascertained only by the comparative method, and the comparison should be made by each student for himself. XVI INTRODUCTION. In the last analysis some part of what he should discover may escape him, but he ought not on that account to be deprived of the chance to try what he can do. 3. These constitutional documents should be taken up in the inverse chronological order. The comparison should be one of consequent with antecedent for the purpose of ascertaining the caiisal relation between them. It is easy to dogmatise in history by alleging that a certain condition precedent is sufficient to account for a cei'tain other condition which succeeds it, the cause being studied before the effect ; the safer and better way is to acquaint oneself with the condition that is the effect, and then proceed to search for some previous condition that will suffice to explain it. The former course puts a premium on dogmatism and memorization ; the latter encourages reasoning and research. It is needless to say that these documents should be studied in their relation >to each other, as well as their relation to the British North America Act. They are the mile- stones of constitutional progress, and the nature of the intervals between them must be clearly made out by him who would read them aright. 4. The documents which precede the Royal Proclamation are all constitutionally important — the Treaty of Paris as containing the precise definition of the concessions made by the British to the French Government when Canada passed finally under British dominion ; the Articles of Capitulation as the chrono- logical background of the treaty stipulations ; and the documents relating to the establishment of parliamentary government in Nova Scotia, Prince Edward Island, and New Brunswick, whose representative institutions have enjoyed a continuous existence ever since. 5. Finally the class work should be done on the seminary plan. Anything of the nature of a lecture is hopelessly out of place. That nondescript kind of intercourse between teacher and taught which is connoted by the term " socratic method " is the ideal to be attained. The teacher, as conductor of the seminary exercises, should be nothing more than the first amongst equals. The relationship between him and his students INTRODUCTION. XVll should be such as would obtain among a band of searchers after truth, each of the others having as good a right as he has to believe and maintain that he has discovered it. Written exercises should form a constant feature of class work, and these exercises should in turn become subjects of class discussion. Only by frequent applications of the test of committing views to paper can the rate or the character of the progress made be accurately ascertained. The assumption that a single written examination at the end of a course is a fair or useful criterion of a student's attainments is as untenable as the assumption that mere accumulations of knowledge, without any reference to the manner in which it has been acquired, have any real educational value. The single terminal examination has outlived whatever usefulness it ever had, and it must shortly follow, if it does not precede, the e.c cathedra lecture into academical oblivion. H.C.C. B XVMl CHRONOLOGICAL TABLK. CHRONOLOGICAL TABLE. First vdyage of Jacques Cartier. . . Second voyage of Jac(iues Cartier. Third voyage of Jacques Cartier. . Gilbert in Newfoundland , Quebec founded by De Champlain . . Fourth voyage of De Champlain. . . Fifth voyage of De ( 'liain])lain . . . Sixth voyage of DeChanqilain, and ascent of the Ottawa De Chamjilain at the Georgian Bay 1492. 141»7. 1534. 1535. 1541. 1542. 1504. 1583. 1584. 1606. 1607. KiOS. IGIO. 1611. 1613. 1614. 1615. 1619. Tenth voyage of De Champlain. . . 1620. Nova Scotia granted to Sir William Alexander by James 1 1621. 1623. "One Hundred Associates.".. 1627. Quebec taken by Sir David Kirke. . 1629. 1630. Canada and Acatured 174;"). De la (Jalissonniere (iovemor of Canada 1747. De la Jonquiere Governor Canada. 174S. Halifax founded 174'.>. Coniwallis ( lovernor of Acadia. . . . 174!l. Fort Kouilk' built at Toronto 174!t. Hopson (xovcrnor of Acadia 17.'i"-. Duquesne (Governor ijf Canada.... 17-'>2. Lawrence (iovernor of Acadia 175.S. 1754. 17."i4. Kxpatriati(^n of the .Acadians 17.'>."'. De Vaudivuil (icivernor of Canad.i. 17-").">. First .\sseinhly of Nova Scotia .... 1758. • Quebec taken by Wolfe 17S'.'. Montreal taken by Amherst 171)0. Province of (^"''I't'f^ created 17(i;i Murray, first (Jovernor of (Quebec. . 17(>.3. 171 ■>.'). Carleton (iovernor of t^uebec 17(i(). Prince Fdward Island made a Pro- vince 17()!l. 1760. First Assenil)ly of i'rince Kdward Island " 1773. Lord .Mansfield's Judgment 1 77 t. The C^uebec Act passed 1774. Montgomery and Arnold invade Canada 17 7-"). 1776. I77.S. Haldimand Governor of Queliec. . 1778. Immigration of I^. E. Loyalists. . . . 17,S,S. New Biiinswick made a Province.. 1784. Lord Dorcht^ster( iovernor of Quebec 178(i. 1787., 1780. Con.stitutional Act jiassed 1791. First Parliaments of Upi)er and Lower Can.ida Law'.s Mississippi Charter. New Orleans founded. Burnet Governor of New York. Fort Oswego built by Burnet. Paper money in Pennsylvania. George II. King of Great Britain. Crown Point occupied by the French. Tjouisiana made a Royal Province. (ieorgia Settled. N. Jersey separated from N. York. Treaty of .A.i.\-la-( 'liai)elle. Sla\es admitted to Georgia. I >e Celorons Ohio Expedition. ()sl)orn (io\crnor of New York. First As.sembly of (ieorgia. Tnteri)rovincial (.'ongre.ssat AlVjany P>rad(look"s Expedition to Fort du (^uesne. I )ieskau defeated at Fort (ieorge. .\bercrombie defeated at Fort Ticonderoga. Niagara taken by Johnston, (ieorge III., King of (ireat Britain. Treaty of I'aris. The Stamp .Vet jiassed. Repeal of the Stamp Act. Pontine Icilled. Colonial Tax Act pa.ssed. ! )estrueti. 1829. Andrew .Tackson, President. Aylmer (Governor of Canada 1830. First railway in United States. Revenue Control Act 1831. First Assembly in Newfoundland . . 1832. Gosford Governor of Canada 183.5. 1837. Victoria Queen of Britain. Rebellion in Canada 1837. Martin Van Buren, President. Lower Canadian Constitution Sus- pended 1838. Durham (Tovernor of British America 1838. Sydenham Govenrorof the Canadas 1839. Union Act 1840. Sydenham Governor of Canada 1841. William H. Harrison, President. First Parliament of Canada 1841. John Tyler, President. Responsible Government introduced 1842. Bagot Governor of Canada 1842. Ashburton Treaty (Washington. ) Metcalfe Governor of Canada 1843. Great fire in Quebec City 184.5. James Knox Polk, President. Elgin Governor of Canada 1846. War with Mexico. 1848. Treaty with Mexico. Rebellion lo.sses agitation 1849. Za«hary Taylor, President. 1850. Willard Filmore, President. 1850. Fugitive Slave Bill. Gavazzi Riots in IVIontreal 1853. Franklin Pierce, President. Clergy Reserves secularized 1854. Reci|3rocity Ti-eaty (Washington.) Feudal Tenure abolished 1854. Kansas-Nebraska Bill passed. Head Governor of Canada 1855. Kan.sas riots. 1857. James Buchanan, President. 1857. '■ Dred Scott " case. Canadian Federation mooted 1859. Harjier's Ferry uprising. The Anderson (fugitive slave) case. ISfiO. Monck (icjvernor of Canada 18(51. War of Secession begun. 18(>1. Abraham Lincoln, President. Self-Governing Colonies made re- sponsible for their own defence. 18(52. The A/ciIk/uki s^uls from Liverpool, Colonial Habeas Corpus Act 18(52. Quebec Conference 18(54. xxu CHRONOLOGKUIi TABLE. Colonial Laws Validity Act IWio. Fenian Raids lS(i(i. Conffdfi-ation Act 1867. Lispir (idveriior of ('anada 1868. Nortii-West Ttn-ritorics acquired. . . 18()0. Province of IVlanitoba created 1870. British Columbia added to Canada. 1871. Duflferin Governor of Canada 1872. 1877. Lome Governor of Canada 1878. Canadian Pacific Railway Company organized 1 881. 1881. Lansdowne Governor of Canada... 1883. Nt)rth-West Rebellion suppressed . . 1885. Stanley Governor of Canada 1888. 1889. Andrew Johnson, Pre.sident. Ulysses 8. (irant, President. Treaty of Washington, Rutlierford B. Hayes, Paesident. .Tames A Garfield, President. Chester A. Artlnir, President. Grover Cleveland, President. Benjamin Harrison, President. ERRATA. Page 25, Note 28— For " .Vppendi.x M " read " Appendix B, p. 272." Page 89, Note 13— For " Case of Ireland against England " read " Case of Ireland's being bound by Acts of Parliament in England stated." Page 183, Note 15— For " pp. 175-170 below " read ' pp. 175-17C above." Pages 235-236— Note 50 should be Note 44, and the numbering of the intermediate notes should be changed so that 44 becomes 45; 45 becomes 46 ; 4C becomes 47 ; 47 becomes 4B ; 48 becomes 49 ; and 49 becomes 50. EXTRACTS FROM THE TREATY OF UTRECHT,^ 1713. The Treaty of Peace and Friendship between the Most Serene and Most Potent Princess Anne, by the Grace of God, Queen of Great Britain, France, and Ireland, and the Most Serene and Most Potent Prince Lewis the XlVth, the Most Serene and Most Potent Christian King, concluded at Utrecht, the ■" day of ^rarch, 1713.2 . 1 •' April, I. That there be an universal peace, and true and sincere friendship, between the most Serene and most Potent Princess Anne, Queen of Great Britain, and the most Serene and most Potent Prince Lewis the XlVth, the most Christian King, and their heirs and successors, as also the kingdoms, states, and subjects of both, as well without as within Europe; X. The said most Christian King shall restore to the kingdom and Queen of Great Britain, to be possessed in full right for ever, the bay and streights of Hudson,^ together with all lands, seas, sea-coasts, rivers, and places situate in the said bay and streights, and what belong thereunto, no tracts of land being excepted, which are at present possessed by the subjects of France. All which, as well as any buildings there made, in the condition they now are, and likewise all fortresses there erected, either before or since the French seized the same, shall, within six months from the ratification of the present treaty, or sooner if possible, be well and truly delivered to the British subjects, having commission from the Queen of Great Britain to demand and receive the same, entire and un- diminished, together with all the cannon and cannon-ball which are therein, as also with a quantity of powder, if it be there found, in pro- portion to the cannon-ball, and with the other provision of war usually belonging to cannon. It is, however, provided, that it may be entirely free for the company of Quebec, and all other subjects of the most Christian King whatsoever, to go by land or by sea, whithersoever they please, out of the lands of the said bay, together with all their goods,, merchandizes, arms, and effects, of what nature and condition soever,, except such things as are above reserved in this article. But it is agreed on both sides, to determine within a year, by commissaries to be forth- with named by each party, the limits which are to be fixed between the said Bay of Hudson and the places appertaining to the French ;* which limits both the British and French subjects shall be wholly forbid to pass over, or thereby to go to each other by sea or by land. The same H.C.C. — 1 X 4 THE TREATY OF UTUECHT. commissaries shall also have orders to describe and settle, in like manner, the boundaries between the other British and French colonies in those parts. XI. The above-mentioned most Christian King shall take care that satis- faction be given, according to the rule of justice and equity, to the English 'company trading to the Bay of Hudson, for all damages and spoil done to their colonies, ships, pei-sons, and goods, by the hostile incursions and depredations of the French, in time of peace, an estimate being made thereof by commissaries to be named at the requisition of each party. The same commissaries shall moreover inquire as well into the com- plaints of the British subjects concerning ships taken by the French in time of peace, as also concerning the damages sustained last year in the island called Montserat, and others, as into those things of which the French subjects complain, relating to the capitulation in the island of Nevis, and Castle of Gambia, also to French ships, if perchance any such have been taken by British subjects in time of peace ; and in like manner into all disputes of this kind, which shall be found to have arisen between both nations ; and due justice shall be done on both sides without delay. XII. The most Christian King shall take care to have delivered to the Queen of Great Britain, on the same day that the ratification of this treaty shall be exchanged, solemn and authentic letters or instruments, by virtue of which it shall appear that the island of St. Christopher's is to be possessed alone hereafter by British subjects, likewise all Nova Scotia ■or Acadie, with its ancient boundaries, = as also the city of Port Iloyal, now called Annapolis Eoyal, and all other things in those parts which •depend on the said lands and islands, together with the dominion, pro- priety, and possession of the said islands, lands, and places, and all right -whatsoever, by treaties or by any other way obtained, which the most Christian King, the Crown of France, or any the subjects thereof, have hitherto had to the said islands, lands, and places, and the inhabitants of the same, are yielded and made over to the Queen of Great Britain, and to her Crown, for ever, as the most Christian King doth at present yield and make over all the particulars above said" ; and that in such ample manner and form that the subjects of the most Christian King shall hereafter be excluded from all kind of fishing in the said seas, bays, and other places, on the coasts of Nova Scotia, that is to say on those which lie towards the east, vv-ithin 30 leagues, baginning from the island com- monly called Sable, inclusively, and thence stretching along toward the south-west. XIII. The island called Newfoundland, with the adjacent islands, shall from this time forward belong of right wholly to Britain ; and to that end the town and fortress of Placentia, and whatever other places in the THE TREATY OF UTRECHT. O said island are in the possession of the French, shall be yielded and given up, within seven months from the exchange of the ratifications of this treaty, or sooner, if possible, by the most Christian King, to those who have a commission from the Queen of Great Britain for that purpose. Nor shall the most Christian King, his heirs and successors, or any of their subjects, at any time hereafter, lay claim to any right to the said island and islands, or to any part of it or them. Moreover, it shall not be lawful for the subjects of France to fortify any place in the said island of Newfoundland, or to erect any buildings there, besides stages made of boards, and huts necessary and useful for drying of fish ; or to resort to the said island, beyond the time necessary for fishing and drying of fish. But it shall be allowed to the subjects of France to catch fish, and to dry them on land, in that part only, and in no other besides that, of the said island of Newfoundland, which stretches from the place called Cape Bonavista to the northern point of the said island, and from thence running down by the western side, reaches as far as the place called Point Riche." But the island called Cape Breton, as also all others, both in \y the mouth of the river of St. Lawrence and in the gulf of the same name, shall hereafter belong of right to the French, and the most Christian King shall have all manner of liberty to fortify any place or places there.* XIV. It is expressly provided that in all the said places and colonies to be yielded and restored by the most Christian King, in pursuance of this treaty, the subjects of the said King may have liberty to remove themselves within a year to any other place, as they shall think fit, together with all their moveable effects. But ^those who are willing to remain there, and to be subject to the kingdom of Great Britain, are to '/^'j.. enjoy the free exercise of their religion according to the usage of the Church of Rome, as far as the laws of Great Britain do allow the same." XV. The subjects of France inhabiting Canada, and others, shall here- after give no hindrance or molestation to the five nations or cantons of Indians, subject to the Dominion of Great Britain, nor to the other natives of America, who are friends to the same. In like manner the subjects of Great Britain shall behave themselves peaceably towards the Americans who are subjects or friends to France ; and on both sides they shall enjoy full liberty of going and coming on account of trade. As also the natives of those countries shall, with the same liberty, resort as they please to the British and French colonists, for promoting trade on the one side and the other, without any molestation or hindrance, either on the part of the British subjects or of the French. But it is to be exactly and distinctly settled by commissaries, who are, and who ought to be accounted the subjects and friends of Britain or of France. THE TREATY OF UTRECHT. NOTES TO THE TREATY OF UTRECHT. 1 The text is reprinted from the " Collection of Treaties between Gi-eat Britain and other powers ," published by George Cliahners at London in 1790. In that collection the Treaty of Utrecht is, according to the compiler, " printed from the copy which was published by authority in 1713." 2 The two dates here given are according to the Old Style and the New Style ; the latter had been adopted by France in 1582, and it was not adopted in England till 17.^)1. ■^ For the Charter of the Hudson Bay Company see Ontario Sessional Papers^ vol. xi, No. 31. 4 The boundary was never determined by the commissaries appointed under the Treaty of Utrecht {Out, Sess. Papers, vol. xi. No. 31, p. 13C p.), and it remained un- settled until Canada became a British Province. There was then no pressing reason for defining it, and it remained undetermined until it was defined by the Imperial Act of 1889, 52 & 53 Vict, cap 28, which settled the northern boundary of Ontario. ■J These ancient boundaries are thus given by Murdoch in his "History of Nova Scotia or Acadia": "Acadia was then bounded on the north by the Gulf of St. Lawrence, on the east by the Atlantic, on the south by the river Kennebec, and on the west by the Province of Canada, its northwesternmost boundary being in Gaspe Bay." Thus defined, Acadia included the present Provinces of Nova Scotia and New Brunswick, and part of the State of Maine. The St. Croix river is named as the boundary, instead of the Kennebec, in the Commission to Walter Paterson, the first Governor of Prince Edward Island, in 171)9, and this definition is repeated in the Commission to Thomas Carleton. the first Governor of New Brunswick, in 1781. (See Dominion of Canada Sessional Papers, vol. xvi. No. 70.) For an account of disputes between the French of Acadia and the British Colonists of New England over the district between these two rivers, see Kingsford's " History of Canada," Murdoch's "History of Nova Scotia," and the volume of "Selections" mentioned in Note 6. 6 Governor Philijips was instructed, in 1729, to appoint Commissioners to confer with Commissioners appointed by the Governor of Canada as to the boundaries of Acadia. This was never done, and for correspondence on the subject see " Selec- tions from the Public Documents of the Province of Nova Scotia," Halifax, 1869. Gov. Philipps' instructions are given in the Dom. Sess. Papers, Vol. xvi, No. 70. 7 Comi^are the provisions of this treaty respecting fishing privileges with those reserved to France in the Treaty of Paris, 17C3. See also the provisions in the Treaty of Versailles, 1783, relating to the same franchises; and the i)rovisions of the Treaty of Paris, 1783, the Treaty of Ghent, 1814, the Convention of 1818, and the Treaty of Washington, 1871, dealing with the claims of the United States to the Canadian fisheries. For these documents see Appendix A. 8 This right was exercised in the case of Louisburg, which was made the centre of French operations in .\cadia. Cape Breton was finally ceded to Great Britain by the Treaty of Paris, 17G3. Compare the concessions made in the articles of capitulation of Montreal, 1760; in the Treaty of Paris, 1763; in the Quebec Act, 1774; and in the Constitutional Act, 1791. MARITIME PROVINCE ASSEMBLIES. REPRESENTATIVE ASSEMBLIES IN THE MARITIME PROVINCES.^ Nova Scotia. - 1. The Ititroduction af British Settlement and of Civil Government.* Whiteh.\ll, 7th March, 1749. A proposal having been presented unto His Majesty for the estabhsh- inga civil government in the Province of Nova Scotia, in North America, as also for the better peopling and settling the said Province, and extend- ing and improving the fishery thereof, by granting lands within the same, and giving other encouragement to such of the officers and private men lately dismissed His Majesty's land and sea service, as shall be willing to settle in said Province. And His Majesty having signed his royal appro- bation of the report of the said proposals, the Right Honourable the Xiords Commissioners for Trade and Plantations,* do by His Majesty's commands give notice"' that proper encouragement will be given to such ■of the officers and private men lately dismissed^ His Majesty's Land and Sea Service as are willing to accept of gi-ants of land, and to settle with or without families in Nova Scotia. That fifty acres of land will be granted in fee simple to every private soldier or seaman, free from the payment of any quit rents or taxes for the term of ten years, at the expiration whereof no person to pay more than one shilling per annum for every fifty acres so granted. That a grant of ten acres, over and above the fifty, will be made to each private soldier or seaman having a family, for every person includ- ing women and children of which his family shall consist, and from the grants made to them on the like conditions as their families shall increase, or in proportion to their abilities to cultivate the same. That eighty acres on like conditions will be granted to every officer under the rank of Ensign in the land service, and that of Lieutenant in the sea service, and to such as have families fifteen acres over and above the said eighty acres for every person of which their families shall con- sist. That two hundred acres on like conditions will be granted to every Ensign, three hundred to every Lieutenant, four hundred to every Captain, and six hundred to every officer above the rank of Captain. 8 KEPRESENTATIVE ASSEMBLIES. And to such of the above mentioned officers, as have famihes, a further grant of thirty acres will be made over and above their respective quotas for every person of which their families shall consist.'' That the lands will be parcelled out to the settlers as soon as possible after their arrival, and a civil <,'ovcnnnent established, whereby they will enjoy all the liberties, piivile>4es, and immunities enjoyed by His Majesty's subjects in any other of the Colonies and Plantations in America, under His Majesty's government, and proper measures will also be taken for their security and protection. That all such as are willing to accept of the above proposals shall, with their families, be subsisted during the passage, also for the space of twelve months after their arrival. That they shall be furnished with arms and ammunition as far as will be judged necessary for their defence, with a proper quantity of materials and utensils for husbandry, clearing and cultivating the lands, erecting habitations, carrying on the fishery, and such other purposes as shall be deemed necessary for their support. That all such persons as are desirous of engaging in the above settle- ment, do transmit by letter, or personally give in their names, signifying in what regiment or company, or on board what ship they last served, and if they have families they intend to carry with them, distinguishing the age and quality of such person to any of the following officers appointed to receive and enter the same in the books open for that pur- pose, viz: — John Pownell,'^ Esq., Solicitor and Clerk of the Repts. of the Lords Comrs. of Trade and Plantations, at their office at White- hall ; John Russell, Esq., Comr. of His Majesty's Navy at Poi'ts- mouth ; Philip Vanburgh, Esq., Comr. of His Majesty's Navy at Ply- mouth. And the proper notice will be given of the said Books being closed, as soon as the intended number shall be completed, or at least on the 7th day of April. It is proposed that the transports shall be ready to receive such persons on board on the 10th April, and be ready to sail on the 20th, and that timely notice will be given of the place or places to which such persons are to repair in order to embark. That for the benefit of the settlement, the same conditions which ai'e proposed to private soldiers and seamen shall likewise be granted to Carpenters, Shipwrights, Smiths, Masons, Joiners, Brickmakers, Brick- layers, and all other artificers necessary in building or husbandry, not being private soldiers or seamen. That the same conditions as are proposed to those who have served in the capacity of Ensign shall extend to all Surgeons, whether they have REPRESENTATIVE ASSEMBLIES. 9 been in His Majesty's service or not, upon iheir producing proper certifi- cates of their being duly qualified. By order of the Right Hon. the Lords Comrs. of Trade and Planta- tions. Thomas Hill, Secretary. 2. Commission of Governor Cormvallis,^ 1749. Geokge the Second, by the Grace of God of Great Britain, France and Ireland, King, Defender of the Faith, etc. To our trusty and well- beloved, the Honorable Edward Cokxw.allis, Esquii-e, Greeting. Whereas we did by our letters patent under our Great Seal of Great Britain, bear- ing date at Westminster the eleventh clay of September in the second yearof our reign, constitute and appoint Richard Philipp's,^^ Esquire, our Captain General and Governor in Chief, in and over our Province of Nova Scotia or Acadie^'- in America, with all the rights, members and appurtenances whatsoever thereunto belonging, for and during our will and pleasure ; as by the said recited letters patent, relation being there- unto had, may more fully a)"id at large appear. Now know you that we have revoked and determined, and by these presents do revoke and determine the said recited letters patent, and every clause, article and thing therein contained ; and further know you that we reposing special trust and confidence in the prudence, courage, and loyalty of you, the said Edward Cornwallis, of our special grace, certain knowledge and meer motion, have thought fit to constitute and appoint you, the said Edward Cornwallis, to be our Captain General, & Governor in Chief in and over our Province of Nova Scotia or Acadie in America, with all the rights, members, and appurtenances whatsoever thereunto belonging, and we do hereby require and command you to do and execute all things in due manner that shall belong unto your said command and the trust we have reposed in you according to the several powers and authorities granted or appointed you by this present Commis- sion and the instructions herewith given you, or by such further powers, instructions and authorities as shall at any time hereafter be granted or appointed you under our signet and sign manuel, or by our order in our privy Council, and according to such reasonable laws and statutes as hereafter shall be made or agreed upon by you with the advice and con- sent of our Council and the Assembly of our said Province, under your government hereafter to be appointed in such manner and form as is hereafter expressed. And for the better administration of justice, and the management of the public affairs of our said Province, we hereby give and grant unto you, the said Edward Cornwallis, full power and authority to chuse, 10 REPRESENTATIVE ASSEMBLIHS. nominate, and appoint such fittinj^ and discreet persons as j-ou shall either find there or carry along with you not exceeding the number of Twelve, to be of our Council^ - in our said Province. As also to nominate and appoint by warrant under your hand and seal all such other officers and ministers as you shall judge proper and necessary for our service and the good of the people whom we shall settle in our said Province until our further will and pleasure shall be known. And our will and pleasure is, that you the said Edward Cornwallis, (after the publication of these our letters patent) do take the Oaths appointed to be taken by an Act^ '' passed in the first year of his late Majesty's, our Eoyal father's reign, entitled " An Act for the further S3curity of His Majesty's Person and Government and the succession of the Crown in the Heirs of the late Princess Sophia, being Protestants, and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors." As also that you make and subscribe the Declaration mentioned in an Act^^ of Parlianaent made in the twenty- fifth year of the reign of King Charles the Second, entitled " An Act for preventing danger which may happen from Popish Recusants." And like- wise that you take the usual Oath for the due execution of the office and trust of our Captain -General & Governor in Chief of our said Pro- vince, for the due and impartial administration of justice; and further that you take the oath required to be taken by Governors of Plantations to do their utmost that the several laws relating to Trade and the Plantations be observed. All which said oaths and declaration our ^Jouncil in our said province, or any five of the members thereof, have hereby full power and authority and are required to tender and adminis- ter unto you and in your absence to our Lieutenant Governor, if there be any upon the place, all which being duly performed you shall adminis- ter unto each of the members of our said Council, as also to our Lieuten- ant Governor, if there bs any such upon the place, the said oaths men- tioned in the said Act entitled " An Act for the further security of His Majesty's Person and Government and the succession of the Crown in the Heirs of the late Princess Sophia, being Protestants, and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abet- tors ; " as also to cause them to make and subscribe the afore-mentioned declaration and to administer to them the oath for the due execution of their places and trusts. And we do hereby give & grant unto you full power and authority to suspend any of the members of our said Council to be appointed by you as aforesaid from sitting, voting, and assisting therein if you shall find just cause for so doing. And if it shall at any time happen that by the death, departure out of our said Province, suspension of any of our said Councilors, or other- REPRESENTATIVE ASSEMBLIES. 11 wise, there shall be a vacancy in our said Council (any five whereof we do hereby appoint to be a quorum), our will and pleasure is that you signify the same unto us by the first opportunity that we may under our signet & sign manuel constitute and appoint others in their stead. But that our affairs at that distance may not suffer for want of a due number of Councilors, if ever it shall happen that there shall be less than nine of them residing in our said Province, we hereby give and grant unto you the said Edward Cornwallis full power and authority to chuse as many persons out of the principal freeholders inhabitants thereof as will make up the full number of our said Council to be nine and no more ; which persons so chosen and appointed by you shall be to all intents and purposes Councilors in our said Province until either they shall be confirmed by us, or that by the nomination of others by us under our sign manuel or signet our said Council shall have nine or more persons in it. And we do hereby give and grant unto you full power & authority, with the advice and consent of our said Council, from time to time as need shall require, to summon and call General A ssemblys of the Freeholders and Planters within your Government according to the usage of the rest of our Colonies & Plantations in Am erica. i° And our will and pleasure is that the persons thereupon duly elected by the major part of the Freeholders of the respective counties and places & so returned shall before their setting take the Oaths mentioned in the Act entitled " An Act for the further security of his Majesty's Person and Government and the succession of the Crown in the Heirs of the late Princess Sophia being Protestants, and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors," as also make and subscribe the afore-mentioned declaration (which Oaths & Declaration you shall commissionate fit persons under our Seal of Nova Scotia to tender and administer unto them,) and until the same shall be so taken and subscribed no person shall be capable of sitting tho' elected, and we do hereby declare that the persons so elected and quali- fied shall be called and deemed tlie General Assembly of that our Pro- vince of Nova Scotia. And that you the said Edward Cornwallis with the advice and consent of our said Council and Assembly, or the major part of them respectively, shall have full power and authority to make, constitute, and ordain Laws, Statutes, & Ordinances for the Publick peace, welfare & good govern- ment of our said province and of the people and inhabitants thereof and such others as shall resort thereto, & for the benefit of us, our heirs and successors, which said Laws, Statutes, and Ordinances are not to be repugnant, but as near as may be agreeable, to the Laws and Statutes of this our Kingdom of Great Britain.^'' 12 REPRESENTATIVE ASSEMBLIES. Provyded that all such Laws, Statutes A- Ordinances, cf what nature or duration so ever be within three months or sooner after the making thereof transmitted to us under our Seal of Nova Scotia for our approbation or disallowance thereof, as also dujjlicates by the next conveyance. And in case any or all of tlie said Laws, Statutes & Ordinances not before confirmed by us shall at any time be disallowed, and not approved & so signified by us our Heirs or Successors under our or their sign manuel & signet, or by order of our or their privy Council unto you the said Edward Cornwallis, or to the Commander in Chief of our said Province for the time being, then such and so many of the said Laws, Statutes, and Ordinances as shall be so disallowed A not approved shall from thenceforth cease, determine, & become utterly void & of none effect, anything to the contrary thereof notwithstanding. And to the end that nothing may be passed or done by our said Council or Assembly to the prejudice of us our Heirs & Successors, we will & ordain that you the said Edward Cornwallis shall have and enjoy a negative voice in the making and passing of all Laws, Statutes & Ordinances as aforesaid. And you shall & may likewise from time to time, as you shall judge it necessary, adjourn, prorogue & dissolve all General Assemblies as aforesaid. And our further will and pleasure is that you shall and may keep & use the Publick Seal of our Province of Nova Scotia for sealing all tilings whatsoever that pass the Great Seal of our said Province under your Government. And we do further give and gi\ant unto you the said Edward Corn- wallis full power and authority from time to time A' at any time here- after, by yourself or by any other to be authorized by j'ou in that behalf, to administer and give the Oaths mentioned in the aforesaid Act to all and every such person or persons as you shall think fit, who shall at any time or times pass into our said Province or shall be residing or abiding there. And we do by these presents give and grant unto you the said Edward Cornwallis full power and authority, with advice and consent of our said Council, to erect, constitute, and establish such and so many Courts of Judicature & Publick Justice within our said Province and Dominion as you and they shall third<^ fit and necessary for the hearing & determining all causes as well Criminal as Civil according to Law and Equity, and for awarding of Execution thereupon with all reasonable and necessary powers, authorities, fees & privileges belonging thereunto, as also to appoint & commissionate fit persons in the several parts of your Govern- ment to administer the oaths mentioned in the aforesaid Act, entitled REPRESENTATIVF. ASSEMBLIES. 13 " An Act for the farther security of His Majesty's Person Si Government & the Succession of the Crown in the Heirs of the late Princess Sophia being Protestants, and for extinguishing the hopes of the pretended Prince of Wales and his open and secret abettors ; " as also to administer the aforesaid declaration unto such persons belonging to the said Courts as shall be obliged to take the same. And we do hereby authorise and impower you to constitute and J \>-»J ' appoint Judges, & in cases requisite Commissioners of Oyer & Terminer, Justices of the Peace, and other necessary officers & ministers in our said Province for the better administration of Justice and putting the Laws in execution, and to administer or cause to be administered unto them such oath or oaths as are usually given for the due execution and performance of offices and places and for the clearing of truth in Judicial Causes. And we do hereby give and grant unto you full power & authority, where you shall see cause, or shall judge any offender or offender in criminal matters or for any fines or forfeitures due unto us fit objects of our mercy, to pardon all such offenders and to remitt all such offences, fines and forfeitures, treason & willfull murder only excepted ; in which cases you shall likewise have power upon extraordinary occasions to grant reprieves to the offenders untill & to the intent our Roj'al pleasure may be known therein. We do by these presents authorise and empower you to collate any person or persons to any churches, chapels, or other ecclesiastical bene- fices within our said Province as often as any of them shall happen to be void. And we do hereby give ct grant unto you the said Edward Cornwallis, by youi'self or by your captains & commanders by you to be authorised, full power and authority to levy, arm, muster, command & employ all persons whatsoever residing within our said Province, and as occasion shall serve, to march from one place to another or to embark them for the resisting & withstanding of all enemies, pirates & rebels, both at land and sea, and to transport such forces to any of our plantations in America, if necessity shall require, for the defence of the same against the invasion or attempts of any of our enemies ; and such enemies, pirates & rebels, if there shall be occasion to pursue and prosecute in or out of the limits of our said Province and plantations or any of them & (if it shall so please God) to vanquish, apprehend A- take them, ct being taken, according to law to put to death or keep and preserve them alive at your discretion, & to execute Martial Law in time of invasion or other times when by law it may be executed, & to do & execute all & every other thing or things which to our Captain Generals tt Governor in Chief, doeth or ought of right to belong. 14 REPRESENTATIVE ASSEMBLIES. And we do hereby give & grant unto you full power and autliority by d- with the advice and consent of our said Council of Nova Scotia, to erect, raise & build in our said Province such & so many forts & plat- forms, castles, citys, boroughri, towns & fortifications as you by the advice aforesaid shall judge necessary, and the same or any of them to fortify and furnish with ordnance, ammunition & all sorts of arms fit and necessary for the security and defence of our said Province, and by the advice aforesaid the same again, or any of them, to demolish or dis- mantle as may be most convenient. And for as much as divers mutinies & disorders may happen by per- sons shipped and employed at sea during the time of war, and to the end that such as shall be shipped & employed at sea during the time of war may be better governed & ortlered, we hereby give and grant unto you, the said Edward Cornwallis, full power and authority to constitute & appoint captains, lieutenants, masters of ships, & other commanders & officers, and to grant to such captains, lieutenants, masters of ships. A other commanders & officers commissions in time of war to execute the law martial according to the directions of such laws as are now in force or shall hereafter be passed in Great Britain for that purpose, and to use such proceedings, authorities, punishments and executions upon any offender or offenders who shall be mutinous, seditious, disorderly or any w-ay unruly either at sea or during the time of their abode or residence in any of the ports, harbours or bays of our said Province, as the cause shall be found to require according to the martial law and the said directions during the time of war as aforesaid. Provyded that nothing herein contained shall be construed to the enabling you or any by your authority to hold plea or have any jurisdic- tion of any offence, cause, matter or thing committed or done upon the high sea, or within any of the havens, rivers or ci-eeks of our said Province under your government by any captain, commander, lieutenant, master, officer, seaman, soldier or person whatsoever, who shall be in our actual service & pay in or on board any of our ships of war or other vessels, act- ing by immediate Commission or Warrant from our Commissioners for executing the office of our High Admiral of Great Britain for the time being, under the Seal of our Admiralty, but that such captain, com- mander, lieutenant, master, officer, seaman, soldier, or other person so offending shall be left to be proceeded against & tryed as their offences shall require, either by Commission under our Great Seal of Great Britain, as the Statute of the 28th of Henry the Eighth directs, or by Commission from our said Commissioners for executing the office of our High Admiral, or from our High Admiral of Great Britain for the time being, according to the afore-mentioned Act for the establishing articles & oi'ders for the regulating and better Government of His Majesty's Navies, Ships of War & Forces by Sea, and not otherwise. REPRESENTATIVE ASSEMBLIES. 15^ Provyded nevertheless that all disorders & misdemeanors committed' on shore by any captain, commander, lieutenant, master, officer, seaman, soldier or other person whatsoever belonj^ing to any of our ships of war or other vessels acting by immediate Commission or Warrant from our said Commissioners for executing the office of High Admiral, or from our High Admiral of Great Britain for the time being under the Seal of our Admiralty, may be tried tt punished according to the laws of the place where any such disorders, offences, and misdemeanors shall be committed on shore, notwithstanding such offender be in our actual service, & borne in our pay, on board any such our ships of war or other vessels acting by immediate Commission or Warrant from our said Commissioners for executing the office of High Admiral, or our High Admiral of Great Britain for the time being as aforesaid, so as he shall not receive any protection for the avoiding of justice for such offences committed on shore from any pretence of his being employed in our service at sea. And our further will and pleasure is that all publick money raised, or which shall be raised by any Act hereafter to be made within our said Province be issued out by Warrant from you by & with the advice and consent of the Council & disposed of by you for the support of the Govern- ment, and not otherwise. And we do likewise give & grant unto you full power and authority, by & with the advice and consent of our said Council, to settle and agree with the Inhabitants of our Province for such lands, tenements, & here- ditaments as now are or hereafter shall be in our power to dispose of, and them to grant to any person or persons upon such terms and under such moderate quit rents, services, and acknowledgments to be thereupon reserved unto us as you by & with the advice aforesaid shall think fit. Which said grants are to pass & be sealed by our seal of Nova Scotia, and being entered upon record by such officer or officers as shall be appointed thereunto shall be good & effectual in law against us, our heirs and successors. And we do hereby give you the said Edward Cornwallis full power to- order and appoint fairs, marts it markets, as also such and so many ports, harbours, bays, havens and other places for convenience & security of shipping & for the better loading & unloading of goods & merchan- dizes, as by you with the advice & consent of the said Council shall be thought fit and necessary. And we do hereby require & command all officers & ministers, civil & military, and all other Inhabitants of our said Province, to be obedient, aiding and assisting unto you the said Edward Cornwallis in the execu- tion of this our commission and of the powers ct authorities herein con- tained, and in case of your death or abscence out of our said Province to- be obedient, aiding & assisting unto such person as shall be appointed If) REPRESENTATIVE ASSEMBLIES. by us to be our Lieutenant Governor or Commander in Chief of our said Province ; to whom we do therefore by these presents give & grant all A singular the powers A- authority's herein granted, to be by him executed & enjoyed during our pleasure or untill your arrival within our said Province. And if upon your death or absence out of our said Province there be no person upon the place commissionated or appointed by us to be our Lieutenant Governor or Commander in Chief of the said Province, our will & pleasure is that the Eldest Councilor, who shall be at the time of your death or absence residing within our said Province, shall take upon him the administration of the government and execute our said Com- mission & Instructions and the several powers and authorities therein contained in the same manner ut his messenger was silenced and told by Amlierst " that he was fully resolved, for the infamous part the troops of France had " acted in exciting the savages to perpetrate the most horrid and unheard of " barbarities in the whole progress of the war, and for other open treacheries "as well as flagrant breaches of faith, to manifest to all the world, by this "capitulation, his detestation of such ungenerous practices, and disapprobation "of their conduct," (Knox's "Historical Journal.'' Vol. II, p. 418). In a letter sent to Marshal de Belle Isle after he landed in France, De Levis asserted that the regular troops " merited more attention from the Marquis de Vaudreuil and more esteem from Gen. Amherst, and added that his protest against what he considered harsh terms had prevented an exchange of the civilities "usual on such meeting between generals." New York "Documents" (Vol. X, p. 1123). s Gen. Amherst in a letter to the Marquis de Vaudreuil (Knox's " Historical Journal," Vol. II, p. 420i, stated, before the articles were signed, that he would leave the question of taking possession of the gates and of posting guards to the Governor's "own convenience," as he liad proposed these precautions "only with a view of maintaining good order, and to prevent with greater certainty anytning being attempted against the good faith and terms of capitulation." i In the New York " Documents " the blank is filled with the word " Quebec " in brackets. In Knox's English version — he does not give the French text — "Quebec" is inserted without brackets. It is similarly inserted in the text in the "Statutes of Lower Canada." 5 Knox gives this remark but it is wanting in the colonial office French ver- sion, and also in the articles printed in the " Annual Register." Its omission from the articles in the New York " Documents " shows that it is wanting also in the original in the French Archives. In the text in the " Statutes of Lower Canada " there is an obvious error in the French version, in the use of the word "precedent." 6 In his letter to Marshal do Belle Isle (see Note 2 above), De Levis attributes the large number of French deserters to the fact that the soldiers had been permitted to marry and settle on land, and that they liad been led to expect their discharge at the conclusion of the war. 7 The object De Vaudreuil had in view in the insertion of this stipulation was to ))reveut the perpetration of outrages on the French people by the Indians who formed part of the armies commanded by General Haviland and by Gen. Amherst. The latter had been joined at Oswego by Sir William Johnson, who, according to Knox (" Historical -Tournal," Vol. II, p. 403), had under his command I'SiO Indian warriors, mostly Iroquois. All but a few of these on the way to Montreal abandoned Amherst's army in disgust because the general would not permit scalping and other savage atrocities. 8 This name appears in Knox's " Historical Journal," in the "Annual Registei*," and in the New York " Documents." as "Moraigans." The Marquis de Vaudreuil in a despatch, of which a translation is given in the New York " Documents," (Vol. II, p. 579), twice spells the name " Moraingans." Who these Monaigans or NOTES TO CAPITUIjATION OF MONTREAL, 5^ Moraigaus were caunot now be indisputably ascertained. The weight of authority seems to favor the view that they were the Mohicans. Knox ("Historical Journal," Vol. II. p. 400), mentions the "Mohians" in the list of tribes which were represented in Johnson's army, and Golden in his '• History of the Five Nation Indians " states that the French name " Mourigan " is the equivalent of the English name " Mahikander," which was given to a tribe on the Hudson River, below Albany. That Knox's "Mohians" and Colden's " Mahikanders " were the Indians commonly called " Mohicans " is probable, as is also the identity of Colden's " Mourigan," with Vaudreuil's "Jloraigans" and "Moraingans " Golden wrote his history while he was surveyor-general of the Province of New York, and it was published just ten years before the capitulation of Montreal. 9 In the " Statutes of Lower Canada," ' Commissaires des guerre.' That there was only one " Gommissary of War " appears from the versions given in Knox's "Historical Journal" and the New York "Documents." De Levis in his letter to Marshal de Belle Isle (see note 2) gives his name and title " Commissary Bernier." 10 " Mon dit Sieur." 11 General Amherst did his best to keep this pledge, but as a matter of fact the French officers and soldiers suffered a good deal of hardship on the voyage. For an account of their sufferings see De Levis' letter to De Belle Isle referred to in Note 3. The French general does not charge the English general with want of good faith, and he admits that when Amherst, on account of insufficient vessel accommodation, desired to send the battalion by way of New York, he opposed it on the ground that it would have been "annihilated on that route by voluntary desertion or insubordination." i'2 The war between the British and the French in America was but an episode in the " Seven Years War," which was waged from 1757 to 1763. Hostilities came permanently to an end in America with the surrender of Canada, but they con- tinued for two years longer in Europe. The original belligerents, Prussia and Austria, settled their differences by the treaty of Hubertsberg, which was signed on the 15th of February, 1763; and Great Britain, France, and Spa.n did the same thing by the treaty of Paris, which was signed on the 10th of February, 1763. 13 " Le*s dits." 1* For an account of the various companies organized to carry on the fur trade, see Kingsford's " History of Canada," Vol. II , pp. r>04-508. See also Vol. I., p. 331 of the same work. 13 "La dite." 16 " Scarlet cloths" in the translation in the New York " Documents." 17 Compare with this concession. Art. 6 of the terms of capitulation of Quebec, Art. 4 of the treaty of Paris, 1703; sec. 5 of the Quebec Act, 1774; sec. 35 of the Con. stitutional Act, 1791 ; and sec. 42 of the Union Act, 1840. 18 Get article. 19 See Notes to the treaty of Utrecht, and " papers " relating to Nova Scotia. ■20 Compare with this stipulation the terms of the Royal Proclamation of 1763, of section 4 of the Quebec Act of 1774, and of the Act of Parliament of Upper Canada which restored English law in that Province (Appendix D). ■ii In 1603 Louis XIV. constituted as the governing body of New France " Le Conseil Souverain," with powers similar to those of the Parliament of Paris. The title of this body was in 1703 changed to " Le Couseil Sup6rieur." For a learned discussion of the nature of this council, see the " Introduction " by P. J. O. Chaii- veau, prefixed to the collection of " Jugemeuts et Deliberations du Conseil Souve- 60 NOtES TO CAPITULATiOK OF MONTREAL. rain de la Nouvelle Franco," published in 1885 under the auspices of the Legislature of Quebec. ■ii Capt. Knox in a footnote to this article in his " Historical Ji>urual, ' says : " I believe this implies convicts, or malefactors condemned to slavery." 38 Compare article 11 of tlic < iipitulation of Quebec, and see Note 7 upon it. •u " N' insultent." 23 The endorsation of the copy translated for the New York '■ Documents " is as follows : " Certified to V)e true, according to the original signed by the Marquis de Vaudreuil, and collated by Mr. Appy, secretary of M. Amherst." True copy (Signed) Vaudreuil. TREATY OF PARIS, 1763. 61 III. EXTKACTS FKOM THE TREATY OF PARIS, 1763. > The Definitive Treaty of Peace and Friendship, between his Britannic Majesty, the Most Christian King, and the King of Spain ; concluded al Paris, the 10th day of February, 1763. To which the King of Portugal acceded on the same day. I. There shall be a Christian, universal, and perpetual peace, as well by sea as by land, and a sincere and constant friendship shall be re-estab- lished between their Britannic, Most Christian, Catholic, and Most Faithful Majesties.-^ * * * II. The treaties^ of Westphalia of 1648 ; those of Madrid, between the Crowns of Great Britain and Spain, of 1667 and 1670 ; the treaties of peace of Nimeguen of 1678 and 1679 ; of Ryswick of 1697 ; those of peace and of commerce of Utrecht of 1713 ; that of Baden of 1714 ; the treaty of the triple alliance of the Hague of 1717 ; that of the quadruple alliance of London of 1718 ; the treaty of peace of Vienna of 1738 ; the definitive treaty of Aix-la-Chapelle of 1748 ; and that of Madrid, between the Crowns of Great Britain and Spain of 1750 ; as well as the treaties between the Crowns of Spain and Portugal, of the 13th of February, 1668, of the 6th of February, 1715, and of the 12th of February, 1761 ; and that of the 19th of April, 1713, between France and Portugal, with the guaranties of Great Britain : serve as a basis and foundation to the peace, and to the present treaty : and for this purpose they are all renewed and confirmed in the best form, as well as all the treaties in general, which subsisted between the high contracting parties before the war, as if they were inserted here word for word, so that they are to be exactly observed, for the future, in their whole tenor, and religiously executed on all sides, in all their points which shall not be derogated froin by the present treaty, notwithstanding all that may have been stipulated to the contrary by any of the high contracting parties ; and all the said parties declare, that they will not suffer any privilege, favour, or indulgence to subsist, contrary to the treaties above confirmed, except what shall have been agreed and stipulated by the present treaty. IV. His Most Christian Majesty renounces all pretensions which he has heretofore formed, or might form, to Nova Scotia or Acadia, in all its parts,* and guaranties the whole of it, with all its dependencies, to the King of Great Britain : moreover, his Most Christian Majesty cedes and guaranties to his said Britannic Majesty, in full right, Canada with all its dependencies, as well as the Island of Cape Breton," and all the other islands and coasts in the gulph and river St. Lawrence, and, in general. 62 TREATY OF I'AIilS, 17G3. everything that depends on the said countries, lands, islands and coasts, with the sovereignty, property, possession, suul all rij^hts acquired by treaty or otherwise, which the Most Christian King and the Crown of France have had till now over the said countries, islands, places, coasts- and their inhabitants, so that the IMost Christian King cedes and makes over to the said King and to the Crown of Great Britain, and that in the most ample manner and form, without restriction and without any liberty to depart from the said cession and guaranty, under any pretence, or to disturb Great Britain in the possessions above-mentioned. HiaBritanmc Majesty on his side agrees to grant the liberty of the Cathplk,.religion to the inhabitants of Canada : he will consequently give the most precise and most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish Church, as far as the laws of Great Britain permit." His Britannic Majesty further agrees, that the French inhabitants, or others who had been subjects of the Most Christian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to subjects of his Britannic Majesty, and bring away their effects, as well as their persons, without being restrained in their emigration, under any pretence whatsoever except that of debts or of criminal prosecutions : the term limited for this emigration shall be fixed to the space of eighteen months, to be computed from the day of the exchange of the ratifications of the present treaty. Y. The subjects of France shall have the liberty of fishin g and _drxing, on a part of the coasts of the Island of Newfoundland, such as it is specified in the Xlllth article of the Treaty of Utrecht ; which article is renewed and confirmed by the present treaty, except what relates to the island of Cape Breton, as well as to the other islands and coasts in the mouth and in the gulph of St. Lawrence : and his Britannic Majesty- consents to leave to the subjects of the Most Christian King the liberty of fishing in the gulph of St. Lawrence, on condition that the subjects of France do not exercise the said fishery but at the distance of three leagues from all the coasts belonging to Great Britain, as well those of the continent as those of the islands situated in the said gulph of St. Lawrence. And as to what relates to the fishery on the coasts of the island of Cape Breton out of the said gulph, the subjects of tlie Most Christian King shall not be permitted to exercise the said fisliery but at the distance of fifteen leagues from the coasts of the island of Cape Breton; and tha fishery on the coast of Nova Scotia or Acadia, and everywhere else out of the said gulph, shall remain on the foot of former treaties." VI. The King of Great Britain cedes the islands of St. Pierre and Miquelon in full right to his Most Christian Majesty, to serve as a shelter to the French fishermen : and his said Most Christian Majesty engages TREATY OF PARIS, 1763. 68 not to fortify the said islands ; to ei-ect no buildings upon them, but merely for the convenience of the fishery ; and to keep upon them a guard of fifty men only for the police. Vir. In order to re-establish peace on solid and durable foundations, and to remove for ever all subject of dispute with regard to the limits of the British and French territories on the continent of America, it is agreed that for the future the confines between the dominions of his Britannic Majesty, and those of his Most Christian Majesty, in that part of the world, shall be fixed irrevocably by a line drawn along the middle of the river Mississippi, from its source ^ to the river Iberville, and from thence, by a line drawn along the middle of this river, and the lakes Maurepas and Pontchartrain, to the sea ; and for this purpose, the Most Christian King cedes in full right, and guaranties to his Britannic Majesty, the river and port of the Mobile, and everything which he possesses, or ought to possess, on the left side of the river Mississippi, except the town of New Orleans, and the island in which it is situated, which shall remain to France ; provided that the navigation of the river Mississippi shall be equally free, as well to the subjects of Great Britain as to those of France, in its whole breadth and length, from its source to the sea, and expi-essly that part which is between the said island of New Orleans and the right bank of that river, as well as the passage both in and out of its mouth. It is further stipulated, that the vessels belonging to the subjects of either nation shall not be stopped, visited, or subjected to the payment of any duty whatsoever. The stipulations inserted in the IVth article in favor of the inhabitants of Canada shall also take place with regard to the inhabitants of the countries ceded by this article. YIII. The King of Great Britain shall return to France the islands of Guadeloupe, of Marie Galante, of Desirade, of Martinico, and of Belle- isle ; and the fortresses of these islands shall be restored in the same condition they were in when they were conquered by the British arms ; provided that his Britannic Majesty's subjects, who shall have settled in the said islands, or those who shall have any commercial affairs to settle there, or in the other places restored to France by the present treaty, shall have liberty to sell their lands and their estates, to settle their affairs, to recover their debts, and to bring away their effects, as well as their persons, on board vessels which they shall be permitted to send to the said islands and other places restored as above, and which shall serve for this use only, without being restrained on account of their religion, or under any other pretence whatsoever, except that of debts or of criminal prosecutions ; * * * IX. The Most Christian King cedes and guaranties to his Britannic Majesty, in full right, the islands of Grenada,'-* and of the Grenadines, 64 TREATY OF PARIS, 1763. with the same stipulations in favor of the inhabitants of this colony inserted in the IVth article for those of Canada : and the partition of the islands called Neutral is at^rced and fixed, so that those of St. Vincent, Dominica, and Tobago shall remain in full right to Great Britain, and that of St. Lucia shall be delivered to France, to enjoy the same likewise in full right; and the high contracting i^arties guaranty the partition so stipulated. XVII. Ilis Britannic Majesty shall cause to be demolished all the fortifications which his subjects shall have erected in the Bay of Hon- duras, and other places of the teri'itory of Spain in that part of the world, four months after the ratification of the present treaty ; and his Catholic Majesty shall not permit his Britannic Majesty's subjects, or their work- men, to be disturbed or molested, under any pretence svhatsoever in the said places in their occupation of cutting, loading, and carrying away logwood ; and for this purpose they may build without hindrance and occupy without interruption the houses and magazines which are neces- sary for them, for their families, and for their effects; and his Catholic Majesty assures to them by this article, the full enjoyment of those advantages and powers on the Spanish coasts and territories, as above stipulated, immediately after the ratification of the present treaty. XVIII. His Catholic Majesty desists, as well for himself as for his successors, from all pretension which he may have formed in favor of the Guipuscoans and other his subjects, to the right of fishing in the neigh- bourhood of the island of Newfoundland. XIX. The King of Great Britain shall restore to Spain all the territory which he has conquered in the island of Cuba, with the fortress of the Havana, and this fortress, as well as all the other fortresses of the said island, shall be restored in the same condition they were in when conquered by his Britannic Majesty's arms ; pi-ovidcd that his Britannic Majesty's subjects, who shall have settled in the said island, restored to Spain by the present treaty, or those who shall have any commercial affairs to settle there, shall have liberty to sell their lands and their estates, to settle their affairs, to recover their debts, and to bring away their effects as well as their persons on board vessels which they shall be permitted to send to the said island restored as above, and which shall serve for that use only, without being restrained on account of their religion, or under any pretence whatsoever, except that of debts or of criminal prosecutions; * * * * . XX. In consequence of the restitution stipulated in the preceding article, his Catholic Majesty cedes and guaranties, in full right, to his Britannic Majesty, Florida with Fort St. Augustin and the Bay of Pensacola, as well as all that Spain possesses on the continent of North America to the TREATY OF PARIS, 17G3. 65 east or to the south-east of the river Mississippi ; and, in general, every- thing that depends on the said countries and lands, with the sovereignty, property, possession, and all rights, acquired by treaties or otherwise, which the Catholic King and the Crown of Spain have had, till now, over the said countries, lands, places, and their inhabitants ; so that the Catholic King cedes and makes over the whole to the said King, and to the Crown of Great Britain, and that in the most ample manner and form. His Britannic Majesty agrees, on his side, to grant to the inhab- itants of the countries above ceded the liberty of the Catholic religion ; he will consequentlj' give the most express and the most effectual orders, that his new Roman Catholic subjects may profess the worship of their religion, according to the rites of the Romish church, as far as the laws of Great Britain permit : His Britannic Majesty further agrees that the Spanish inhabitants or others, who had been subjects of the Catholic King in the said countries, may retire with all safety and freedom whenever they think proper ; and may sell their estates, provided it be to His Britannic Majesty's subjects, and bring away their effects as well as their persons, without being restrained in their emigration under any pretence whatsoever except that of debts or of criminal prosecu- tions : . * . * * * * * XXII. All the papers, letters, documents, and archives, which were found in the countries, territories, towns, and places that are restored, and those belonging to the countries ceded, shall be respectively and bona Jide delivered or furnished at the same time, if possible, that posses- sion is taken, or at latest four months after the exchange of the ratifica- tions of the present treaty, in whatever places the said papers or docu- ments may be found, i" 66 TREATY OF PARIS, 1763. NOTES TO THE TREATY OF PARIS, 1763. 1 The extracts selected contain all that is essential from a Canadian point of view in the treaty. The text is reprinted from tlio " Collection of Treaties between Groat Hritain and other Powers," publislied in London in 1790, l)y Gcorf,'e Chalmers, who states that this Treaty of Paris " is printed from the copy which was published by authority in 17G3." Three " separate articles," having " the same force as if they were inserted in the treaty." are appended to it. The second of these is as follows : "It has been agreed and determined that the French language, made use of in all the copies of the present treaty, shall not become an example which may be alledged or made a precedent of, or prejudice in any manner any of the contracting Powers; and that they shall conform themselves for the future to what has been observed, and ought to be observed, with regard to and on the part of Powers who are used, and have a right, to give and to receive copies of like treaties in another lancjuago than French; the present treaty having etill the same force and effect as if the aforesaid custom had been tlierein observe!." 2 The titles by courtesy of George III. of Great Britain, Louis XV. of France, Charles III. of Spain, and Joseph Emanuel of Portugal, respectively. The first of the " separate articles," referred to in Note 1, provides that " some of the titles made use of by the contracting Powers * * * not being generally acknowledged, it has been agreed that no prejudice shall ever result therefrom to any of the said contracting parties, and that the titles taken or omitted on either side * ♦ * shall not be cited or quoted as a precedent." 3 For extracts from these treaties, relating to Canada, see Appendix A. * For the extent of Acadia, see note .'j to the Treaty of Utrecht. •> See Article XIII of the Treaty of Utrecht. « Compare the corresponding stipulation in Article XX. of this treaty, and also the one in Article XIV. of the Treaty of Utrecht. " See note 7 to the Treaty of Utrecht. s Compare the description of the boundary of Quebec given in the Quebec Act, 1771. For a list of French settlements on the Upper Mississippi, see the Ontario Sessional Papers, Vol. XI., No. ;U, pp. 4-15-440. This cession of Grenada is of importance in connection with Lord Mansfield's judgment in Campbell v. Hall. 10 In a declaration by the British plenipotentiary appended to tiie Treaty of Paris, it is undertaken that "the letters of exchange and bills, which had been delivered to the Canadians for the necessaries furnished to the French troops," shall be paid "agreeably to a liquidation made in a convenient time." See Articles 23, 24 of the Capitulation of Montreal. KOYAL PROCLAMATION, 1768. 67 IV. ROYAL PROCLAMATION^ UNDER THE TREATY OF PARIS, 17G3. BY THE KING. A PROCLAMATION. GEORflE R. Whereas we have taken into our Royal consideration the extensive and valuable acquisitions in America, secured to our Crown by the late definitive treaty of peace concluded at Paris the tenth day of February last ; and being desirous that all our loving subjects, as well of our kingdoms as of our colonies in America, may avail themselves with all convenient speed of the great benefits and advantages which must accrue therefrom to their commerce, manufactures, and navigation ; we have thought fit, with the advice of our Privy Council, to issue this our Royal Proclamation, hereby to publish and declare to all our loving subjects, that we have, with the advice of our said Privy Council, granted our letters patent under our Great Seal of Great Britain, to erect within the countries and islands ceded and confirmed to us by the said treaty, four distinct and separate governments, stiled and called by the names of Quebec, East Florida, West Florida, and Grenada, and limited and bounded as follows, viz : Firstlij. The Government of Quebec, bounded- on the Labrador Coast by the River St. John, and from thence by a line drawn from the head of. that river, through the Lake St. John, to the south end of the Lake Nipissim ; from whence the said line, crossing the River St. Lawrence, and the Lake Champlain in forty-five degrees of north latitude, passes along the high lands which divide the rivers that empty themselves into the said River St. Lawrence, from those which fall into the sea ; and also along the north coast of the Baye des ("haleurs, and the coast of the Gulph of St. Lawrence to Cape Rosieres, and from thence crossing the mouth of the River St. Law- rence by the west end of the Island of Anticosti, terminates at the aforesaid River St. John. St'comUy. Tlie Government of East Florida, bounded to the west- ward by the Gulph of Mexico and the Apalachicola River ; to the northward, by a line drawn from that part of the said river where the Catahouchee and Flint Rivers meet, to the source of the St. Mary's River, and by the course of the said river to the Atlantic H.C.C. — 5 68 ROYAL PROCLAMATION, 17C:}. Ocean ; and to the east and south by the Atlantic Ocean and the Gulph of Florida, including all the islands within six leagues of the sea coast. llnnUij. The Government of West Flokida, bounded to tlie soutli- ward by the Gulph of Mexico, including all islands within six leagues of the coast from the River Apalachicola to Lake Pontchartrain ; to the westward, by the said lake, the Lake Maurepas, suid the River Mississippi ; to the northward, by a line drawn east from that part of the River Mississippi which lies in thirty-one degrees north latitude, to the River Apalachicola, or Catahouchee ; and to the eastward by the said river. Fourtlili/. The Government of Ghenada,-' comprehending the island of that name, together with the Grenadines, and the islands of Dominico, St. Vincent and Tobago. And to the end that the open and free fishing of our subjects may be extended to and carried on upon tlie coast of Labrador, and the adjacent islands, we have thought fit, with the advice of our said Privy Council, to put all that coast, from the River St. John's to Hudson's Streights, together with the islands of Anticosti and the Magdeleine, and all smaller islands lying upon the said coast, under the care and inspection of our Governor of Newfoundhuid.* * t We have also, with the advice of our Privy Council, thought fit to annex the islands of St. John and Cape Breton, or Isle Royale, with the lesser islands adjacent thereto, to our Government of Nova Scotia."' We have also, with the advice of our Privy Council aforesaid, annexed to our Province of Georgia, all the lands lying between the rivers Attamaha and St. Mary's. And whereas it will greatly contribute to the speedy settling our said New Governments, that our loving subjects should be informed of our paternal care for the security of tlie liberty and properties of those who are, and shall become, inhabitants thereof ; we have thought fit to publish and declare, by this our Proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said Govern- nionts are constituted, given express power and direction to our governors QJL our said colonies respectively, that so soon as tlie state and circum- stances of the said colonies will admit thereof, tliey shall, with the advice and consent of the members of our Council, summon and call general assemblies" within the said governments respectively, in such manner and form as is used and directed in tlio.se colonies and provinces' in America, which are under our immediate government; anji_jve_liave also give n power to the said governors, with the consent of our said councils and the representatives of tlie people so to be summoned as aforesaid, to ROYAL PROCLAMATION, 17G3. 69 make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies, and of the people and inhabitants thereof, as near as may be, agreeable to the laws of England, and under such regulations and restrictions as are used in other colonies, and in the meantime, and until such assemblies can be called as aforesaid, all persons inhabiting in or resorting to our said colonies may contide in our Royal protection for the enjoyment of the benefit of the laws of our realm of England:* for which purpose we have given power under our great seal to the governors of our said colonies respectively to enact and constitute, with the advice of our said councils respectively, courts of judicature and public justice within our said colonies for the hearing and determining all causes as well criminal as civil according to law and equity, and, as jiear as may be, agreeable to the laws^pf ^England, with liberty to all persons who may think them- selves aggrieved by the sentence of such courts in all civil cases to appeal under the usual limitations and restrictions to us in our Privy Council' We have also thought fit, with the advice of our Privy Council as afore- said, to give unto the governors and councils of our said three new colonies upon the continent full power and authority to settle and agree with the inhabitants of our said new colonies, or any other person who shall resort thereto, for such lands, tenements and hereditaments as are now or here- after shall be in our power to dispose of, and them to grant to any such person or persons, upon such terms and under such moderate quit rents, services, and acknowledgments as have been appointed and settled in other colonies, and imder such other conditions as shall appear to us to be necessary and expedient for the advantage of the grantees and the improvement and settlement of our said colonies. And whereas we are desirous upon all occasions to testify our Eoyal sense and approbation of the conduct and bravery of the oflicers and soldiers of our armies, and to reward the same. We do hereby command and empower our governors of our said three new colonies, and other our governors of our several Provinces on the continent of North America, to grant without fee or reward to such reduced officers as have served in North America during the late war, and are actually residing there, and shall personally apply for the same, the following quantities of land, subject at the expiration of ten years to the same quit rents as otlier lands are subject to in the Province within which they are granted, as Also subject to the same conditions of cultivation and improvement, vi: : To every person having the rank of a field olficer. . . . 5,000 acres. To every captain 3,000 acres. To every subaltern or staff officer 2,000 acres. To every non-cummissioned officer 200 acres. To every private man 50 acres. 70 ROYAL PIIOL'LAMATION, 17C3. We do likewise authorize and require tlie (Jovernors and Commanders- in-Chief of all our said Colonies upon the Continent of North America, to grant the like (quantities of land and upon the same conditions to such reduced officers of our navy of like rank as served on board our ships of war in North America, at the times of the reduction of Louisburg and Quebec in the late war, and who shall personally apply to our respective Governors for such tyrants. And whereas it is just and reasonable, and essential to our interest and the security of our colonies, that the several nations or tribes of India ns^ " with whom we are connected, and who live under our pro- tection, should not be molested or disturbed in the possession of such parts of our dominions and territories as, not having been ceded to us, are reserved to them, or any of them, as their hunting-grounds ; we do therefore, with the advice of our Privy Council, declare it to be our Royal will and pleasue that no Governor or Commander-in-Chief in any of our colonies of Qukbec, East Florida, or West Florida, do presume upon any pretence whatever to grant warrants of survey, or pass any patents for lands beyond the bounds of their respective governments as described in their commissions : as also that no Governor or Commander- in-Chief of our other colonies or plantations in America do presume for the present, and until our further pleasure be known, to grant warrants of survey, or pass any patents for lands beyond the heads or sources of any of the rivers which fall into the Atlantic Ocean from the west or northwest; or upon any lands whatever which, not having been ceded to or purchased by us, as aforesaid, are reserved to the said Indians or any of them. And we do further declare it to be our Royal will and pleasure, for the present as aforesaid, to reserve under our sovereignty, protection, and dominion, for the use of the said Indians, all the land and territories not included within the limits of our said three new governments, or within the limits of tlie territory granted to the Hudson's Bay Companj' ; as also the lan d and territories Iving to the westward of the sources of the rivers which fall into thc'sea from the west and northwest as aforesaid ; and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and licence for that purpose first obtained. And we do fnrthei- strictly enjoin and require all persons whatsoever, who have either wilfully or inadvertently seated tliemselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to or purchased by us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such settlementa. ROYAL PROCLAMATION, 1763. 71 And whereas great frauds and abuses have been committed in the purchasing lands of the Indians, to the great prejudice of our interests and to the gi-eat dissatisfaction of the said Indians ; in order, therefore, to prevent such irregularities for the future, and to the end that the Indians may be convinced of our justice and determined resolution to remove all reasonable cause of discontent, we do, with the advice of our Privy Council, strictly enjoin and require that no private person do presume to make any purcliase from the said Indians of any lands reserved to the said Indians within those parts of our colonies where we have thought proper to allow settlement ; but that, if at any time any of the said Indians should be inclined to dispose of the said lands, the same shall be purchased only for us, in our name, at some public meeting or assembly of the said Indians, to be held for that purpose by the Governor or Commander-in-Chief of our colony respectively, within which they «hall lie : and, in case they shall be within the limits of any proprie- taries,' ^ conformable to such directions and instructions as we or they shall think proper to give for that purpose : and we do, by the advice of our Privy Council, declare and enjoin that the trade of the said Indians shall be free and open to all our subjects whatever, provided that every person who may incline to trade with the said Indians, do take out a licence for carrying on such trade, from the Governor or Commander-in- Chief of any of our colonies respectively, where such person shall reside, and also give security to observe such regulations as we shall at any time think fit, by ourselves or commissaries to be appointed for this purpose, to direct and appoint for the benefit of the said trade ; and we do hei-eby authorize, enjoin and require the Governors and Commanders- in-Chief of all our colonies respectively, as well those under our imme- diate government as those under the government and direction of pro- prietaries, to grant such licenses without fee or reward, taking special care to insert therein a condition that such licence shall be void, and the security forfeited, in case the person to whom the same is granted shall refuse or neglect to observe such regulations as we shall think proper to prescribe, as aforesaid. And we do further expressly enjoin and require all officers whatever, as well military as those employed in the management and direction of Indian affairs within the territories reserved as aforesaid for the use of the said Indians, to seize and apprehend all persons whatever who, standing charged with treason, misprision of treason, murder, or other felonies or misdemeanors, shall fly from justice and take refuge in the said territory, and to send them under a proper guard to the colony where the crime was committed, of which they shall stand accused, in order to take their trial for the same. Given at our Court, at St. James's, the seventh day of October, one thousand seven hundred and sixty-three, in the third year of our Reign. GOD SAVE THE KING. 72 PROCLAMATION UNDER THE TREATY OF PARIS. NOTES TO THE ROYAL PIIOCLAMATION, 1763. ' By the jurtgnient of Lord Chief Justice Maustield in the case of Cainpheli v. Hall, which has never been reversed by or questioned in a court of law, this Procla- iiiatiou is declared to have been the Imperial Constitution of Canada durint; the years 17G:M774. In the latter year it was superseded by tlie Quebec Act. The text is reprinted from the "Annual Register " for 176:!, a contemporory authority, but it has been compared with other reprints. 2 Compare the boundaries of Quebec as given in the Quebec Act, 1774, as modified by the Treaty of Paris, 1783, and as authoritatively declared for the western and northern limits of tlie former Province of Quebec by the Imperial Act of 18S9, to deelare the boundaries of the Province of Ontario in the Dominion of Canada (52 and ') See Lord Chief Justice Mansfield's judgment in Cainpheli y. Hall, for a state- ment of the facts connected with the establishment of British Government iu Grenada. ■» Compare the Quebec Act, 1774, and the Constitutional Act, 1791. For the treaty stipulations with France respecting the fisheries see the Treaty of Utrecht, 1713, the Treaty of Paris, 17C3, and the Treaty of Versailles, 1783. " St. John" was the former name of Prince Edward Island. With respect to Nova Scotia and Cape Breton, compare the Treaty of Utrecht, 1713 ; the Treaty of Aix-la-Chapelle, 174S ; and the Treaty of Paris, 17G3. 6 The commission to Governor Melville of Grenada was issued on the 9th of .\pril, 17G4, and the one to Governor Murray of Quebec on the 21st of November' 1763. Each authorized the Governor to call an Assembly, but in the case of Quebec this authorization was not acted upon. With respect to Grenada see Note 3, above. ^ See Note 1.5 to "Representative Assemblies in the Maritime Provinces." " For contemporary opinion as to the extent to which English law, civil and criminal, was really introduced by this proclamation, see Maseres' " Collection of Commissions." 9 The appellate jurisdiction of the King-in-Council was declared illegal by the Petition of Right and the Act of IGIO for all causes arising in Great Britain. It was recognized after the Restoration, first for the Islands of Jersey and Guernsey, and afterwards for all the Colonies, for which the Judicial Committee of the Privy Council is still the tribunal of last resort. 10 The nature of the Indian title to lands occupied by nomad tribes has from very early times in .America, been a subject of botl: political and legal importance- For all British Colonies all controversy on the ijuestion has been finally set at rest by the judgment of the Judicial Committee of the Privy Council in the well- known case, " St. Catharines' MilUnf) and Lumber Company v. The Queen." The judgment in that case (.\ppeal Cases, Vol. XIV., pp. 4G-61) was delivered by Lord Watson, according to whom the terms of this Proclamation " shew that the tenure of the Indians was a personal and usufructuary right, dependent on the good will of the Sovereign," and " the Crown has all along had a present proprietary estate in theland,upon which the Indian title was a mere burden." The theory on which the British colonists in America acted is lucidly stated in a formal opinion given jointly by several colonial antliorities, and printoil in the " Documents rclatins; to PKOCLAMATION UNDER THE TREATY OF PARIS. 73 the Colonial History of the State of New York," Vol, XIII., p. 480: " Tho' it Imth been and still is the usual practice of all Proprietors to give their Indians some recompenco for their land, and seem to inirchase it of them, yot that is not done for want of sufficient title from the King or Prince wlio hatii the right of discovery but out of prudence and Christian charity, least otherwise the Indians might have destroyed the first planters (who are usually too few to defend themselves) or refuse all commerce and conversation with the planters, and thereby all hopes of converting them to the Christian faith would be lost." The judgment of the Privy Council above cited was given on an appeal from the judgment of the Supreme Court of Canada in the same case (Supreme Coutr Reports, Vol. XIII., p. 577), dismissing an appeal from the Ontario Court of Appeal (Apxieal Reports, Vol. XIII., i^p. 148- 173), and the judgment of the latter Court dismissed the appeal from the original judgment of Chancellor Boyd, who held that, '' the claim of the Indians by virtue of their original occupation is not such as to give any title to the land itself, but only serves to commend them to the consideration and liberality of the Govern- ment upon their displacement," and tliat " the surrender to the Crown by the Indians of any territory adds nothing in law to the strength of the title para- mount," (Ontai'io Reports, Vol. X., p. 234). The various judgments in the Canadian Courts contain very full discussions of the whole question in its historical aspects. 11 Settlements or plantations, of which the territory had been granted to indi- viduals or companies by Royal charters. 74 COMMISSION OF GOVEUNOlt MlllKAY. COMMISSION' OF GOVERNOR MURRAY, 17G3. George the Third, by the Grace of God, of Great Britain, France, and Ireland, King, Defender of the Faith, and so forth, to our trusty and well-beloved James Murray,- Esquire, Greeting: We, reposing especial trust and confidence in the prudence, courage, and loyalty of you. tlie said James Murray, of our especial grace, certain knowledge, and mere motion, have thought fit to constitute and appoint, and by these premises do constitute and appoint you, the said James Murray, to be our Captain General and Governor in Chief in and over our province of Quebec'' in America; bounded on the Labrador Coast by tlie river Ht. John ; and from thence by a line drawn from the head of tliat river through the lake St. John to the soutli end of the lake Nipissim, from whence the said line crossing tlie river St. Lawrence and the lake Champlain, in forty-five degrees of northern latitude, passes along the high lands which divide the rivers that empty themselves into the said river St. Lawrence from those which fall into the sea ; and also along the north coast of the Baye des Chaleurs and the coast of the gulf of St. Lawrence to Cape Rosieres ; and from thence crossing the mouth of the river St. Lawrence by the west end of the island of Anticosti, terminates at the aforesaid river St. John ; together with all the rights, members, and appurtenances whatsoever thereunto belonging. And we do hereby require and command you to do and execute all things in due manner that shall belong to your said command and the trust we have reposed in you, according to the several powers and direc- tions granted or appointed you by this {)resent commission and the instructions and authorities herewith given unto you, or by such other powers, instructions, and authorities as shall at any time hereafter be granted or appointed under our signet and sign manual, or by our order in our privy Council, and according to such reasonable laws and statutes as shall hereafter be made and agreed upon by you with the advice and consent of the council and assembly of our said province under your government, in such manner and form as is herein after expressed. ***** And we do hei'eby give and grant unto you, the said James Murray, full power and authority, witli the advice and consent of our said council to be appointed as aforesaid, so soon as the situation and circumstances of our said province under your government will admit thereof, and when and as often as need shall require, to summon and call general assemblies' COMMISSION OF GOVERNOIl MURRAY. 75 of the freeholders and planters within your government, in such manner as you in your discretion shall judge niost jiroper; or according to such further powers,~iiistructiohs and authorities as shall be at any time here- after granted or appointed you under our signet or sign manual or by our order in our privy Council. And our will and pleasure is that the persons thereupon duly elected by the major part of the freeholders of the respective parishes or precincts, and so returned, shall, before their sitting, take the oaths mentioned in the said act, intituted " An Act for the further security of his Majesty's person and government, and the succession of the Crown in the heirs of the late Princess Sophia, being Protestants, and for extinguishing the hopes of the pretended Prince of Wales, and his open and secret abettors ;" as also make and subscribe the fore-mentioned declaration ; which oaths and declaration you shall commissionate fit persons under the public seal of that our province to tender and administer unto them; and, until the same shall be so taken and subscribed, no person shall be capable of sitting, though elected. And we do hereby declare that the persons so elected and qualified shall be called " The Assembly of that our Province of Quebec ''; and that you, the said James Murray, by and with the advice and consent of our said Council and Assembly, or the major part of them, shall have full power and authority to make, constitute and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said province, and of the people and inhabitants thereof, and such others as shall resox't thereunto, and for the benefit of us, our heirs, and succes- sors; which said laws, statutes, and ordinances are not to be repugnant, but as near as may be agreeable to the laws and statutes of this our king- dom of Great Britain. ***** And we do by these presents give and grant unto you, the said James Murray, full power and authority, with the advice and consent of our said Council, to erect, constitute, and establish such and so many courts of judicature and public justice''' within our said province under your gov- ernment as you and they shall think fit and necessary, for the hearing and determining of all causes, as well criminal as civil, according to law and equity, and for awarding execution thereupon, with all reasonable and necessary powers, authorities, fees, and privileges belonging thereto. * » • * » And we do hereby grant unto you full power and authority to consti- tute and appoint judges, and, in cases requisite, commissioners of oyer and terminer, justices of the peace, and other necessaroy fficers and ministers" in our said province for the better administration of justice and putting the laws in execution ; and jto administer, or cause to be 70 COMMISSION OF GOVERNOR MURRAY. administered, unto tliem such oath or oaths as are usually {,'iven for the due execution and performance of offices and places, and for cleariiifj the truth in judicial causes. And we do hereby j^ive and <,'nint unto 'you full power and authority when you shall see cause, or shall judj^e any offender or offenders in criminal matters, or for any fines or forfeitures due unto us, fit objects of our mercy, to pardon all such offenders and remit all such offences, fines and forfeitures, treason and wilful murder only excepted; in which cases you shall likewise have power upon extraordinary occasions to ■4rant reprieves to the offenders until, and to the intent that, our royal pleasure may be known therein. And we do by these presents f^ive and grant unto you full power and authority to collate" any psrson or persons to any churches, chapels, or other ecclesiastical benefices within our said province, as often as any of tliem sliall happen to be void. ***** And we do hereby require and command ail otlicers and ministers, civil and military, and all other inhabitants of our said province, to be obedient, aidiut,' and assisting unto you, the said James Murray, in the execution of this our commission and of the powers and authorities therein contained ; and in case of your death or absence from our said province and government, to be obedient, aiding and assisting to the commander in chief for the time being ; to whom we do therefore by these presents give and grant all and singular the powers and authorities herein granted, to be by him executed and enjoyed during our pleasure, or until your arrival within our said province. And in case of your death or absence from our said province our will and pleasure is that our lieutenant governour of Montreal or Trois Rivieres, according to the priority of their commissions of lieu- tenant governours, do execute our said commission with all the powers and authorities therein mentioned as aforesaid. And in case of the death or absence of our lieutenant governours of Montreal and Trois Rivieres from our said province, and that there shall be no person within our said province appointed by us to be lieu- tenant governour or commander in cliief of our said province, our will and pleasure is that the eldest councillor, who shall be at the time of your death or absence residing within our said province, shall take upon him the administration of the government, and execute our said commis- sion and instructions, and the several powers and authorities therein contained, in the same manner to all intents and purposes as other our governour or commander in chief should or ought to do, in case of your absence, or until your return, or in all cases until our further pleasure be known. COMMISSION OF GOVERNOR MURRAY. 77 And we do hereby declare, ordain, and appoint that you, the said James Murray, shall and may hold, execute, and enjoy the office and place of our Captain General and Governour in Chief in and over our said Pro- vince of Quebec and all the territories depending thereon, with all and singular the powers and authorities hereby granted unto you, for and during our will and pleasure. In witness whereof we have caused these- our letters to be made patent. Witness ourself at Westminster, the twenty-first day of November, in the fourth year of our reign. By writ of Privy Seal. (Signed) YORKE & YORKE.» NOTES TO GOVERNOR MURRAY'S COMMISSION. 1 The text of this Commission is reprinted from '• A Collection of Several Com- missions and other Public Instruments," by Francis Maseres, who became Attorney- General of the Province of Quebec in 1760. The "Collection " was published in Loudon in 1772. The omitted passages deal with the oaths to be taken by the ^ Governor and to be administered by him to other officials, the custody of the pub lie seal, the disallowance of statutes and ordinances, the Governor's veto, the I raising of armed forces and erection of fortifications, the ijunishment of offences committed by marines, the appropriation of public moneys, the management of the public lands, and the establishment of markets and harbors. They are ■mutatis iinitandis, practically identical with the passages that deal with the same subjects in the Commission of Governor Coruwallis. 2 Gen. Murray took part in the seige of Quebec in 1759, and was commandant of that city after its capture. In the summer of 1760 he ascended the St. Lawrence with an army to meet Gen. Amherst at Montreal. He was one of the British Generals who administered the country by military rule until this commission was issued to him as the first civil Governor after the capitulation. The other generals were Haldimand, who commanded at Three Rivers, and Gage who com- manded at Montreal. Murray retired from Canada in 17G7. •^ See the Koyal Proclamation, 1763. i No assembly was ever called together under this commission, as had been done- from 1758 under the similar commissions to the Governors of Nova Scotia. There is reason to believe that in declining to act on the authority contained in his commission, Gov. Murray followed the advice given by Chief Justice Hey, Attorney- General Maseres, and Lieutenant-Governor Carleton. 5 The assumption was that English law, both civil and criminal, had been introduced by the Koyal Proclamation of 1763. For illustrations of the state of confusion which ensued in the administration of Justice see Smith's "History of Canada from its First Discovery to the year 1791," and especially the report, there 78 NOTES TO GOVERNOR MURRAY'S COMMISSION. },'iveu in lull, of Crown Law Oflicers Yorko and DeGrcy to the Loi'ds of Trade and Plantations on certain memorials and petitions sent from botli British and Kreucli residents in Quebec. See also Attorney-General Maseres' "Draught" of a report in 1769 on the same subject in the collection mentioned in Note 1 aliove. This draft was not acceptable to Governor Carleton, who favored the revival of "the whole body of the French laws that wei'e in use there before the conquest with respect to civil matters." This policy of Governor Carleton's, in spite of the opposition of Maseres and of Chief Justice Hey, was afterwards embodied in the Quebec .Act. 6 The first judge appointed under this commission was Chief .Justice Gregory, who was recalled on the representation of Gov. Murray (Smith's "History"). He was succeeded by Chief .Justice Hey, whose commission was issued by Gov. Carle- ton in 1766, and is given in full by Maseres in his "Collection," as is also that issued in the same year to Maseres himself as Attorney-General. 7 In 1768 George III. issued a mandate requiring the Governor to appoint three Church of England Clergymen as Rectors of the i)arish churches of Quebec, Montreal, and Three Rivers respectively. Maseres gives in his "Collection" the draft of a commission that was intended to be issued to the Rev. David Francis de Montmollin as Rector of the church of Quebec, adding that instead of com- missions as Rectors, licenses to preach were afterwards substituted, on account of *' the peculiar and delicate situation of the Province with respect to religion." « See Note 18 to "Representative Assemblies in the Maritime Provinces." LORD Mansfield's judgment. 79 V. LORD MANSFIELD'S JUDGMENT^ IN CAMPBELL v. HALL, 1774. The case of the Island of Grenada ; in relation to the payment of four and one-half in the hundred of goods imported therefrom ; between Alexander- Campbell, Esq., Plaintiff, and Wm. Hall, Esq., Defendant, in the Court of King's-Bench, before Lord Chief -Justice Mansfield : 15 George III., A. D. 1774. November 28.~ The unanimous judgment of the Court was this day given by Lord Mansfield, as follows : This is an action brought by the plaintiff, Alexander Campbell, who is a natural-born subject of Great Britain, and who, upon the third of May,* 1763, purchased lands in the island of Grenada; and it is brought against the defendant, William Hall, who was collector for His Majesty at the time of levying the import of a duty of four and a half per cent. upon goods exported from the island of Grenada. The action is to re- cover a sum of money, which was levied by the defendant and paid by the plaintiff, as this dutj' of four and a half per cent, upon sugars, which were exported from the island of Grenada, from the estate and by the consignment of the plaintiff. The action is an action for money had and received ; and it is brought upon this ground, namely, that the money was paid to the defendant without consideration, the duty for which he received it not having been imposed by lawful or sufficient authority to warrant the same. And it is stated in the special verdict" that the money is not paid over, but continues in the defendant's hands, by consent of the Attorney-Gen- eral, for His Majesty, in order that the question may be tried. The special verdict states Grenada to have been conquered by the British arms from the French King in 17G2 ; that the island was ceded by capitulation ; and that the capitulation upon which it surrendered was by reference to the capitulation upon which the island of Martinico had been surrendered on the 7th of February, 1762. The special verdict then states some articles of that capitulation, particularly the fifth, which grants that Martinico should continue to be governed by its own laws till His Majesty's pleasure be known. It next states the sixth article, where, to a demand of the inhabitants of Gren- ada requiring that they, as also the religious orders of both sexes, should 80 LORD Mansfield's judgment. be maintained in the property of their effects, moveable and immoveable, of what nature soever, and that they should be preserved in their privilej^es, rij^hts, honours, and exemptions, tlie answer is that the in- habitants, bein}^ subjects of Great Britain, will enjoy their properties and the same privileges as in the other His Majesty's Leeward Islands." Then it states another article of the cajMtulation, namely, the 7th article, by which they demand that they shall pay no other duties than what they before paid to the French King ; that the capitation tax shall be the same, and that the expenses of the courts of justice, and of the administration of government should be paid out of the King's demesne : in answor to which they are referred to the answer I have stated, as •^iven in the foregoing article ; that is, being subjects they will be entitled ill like manner as the other His Majesty's subjects in the British Lee- ward Islands. The next thing stated in the special verdict is the treaty of peace signed on the 10th of February, 1763 ; and it states that part of the treaty of peace by which the island of Grenada is ceded, and other articles not material. The next and material instrument which they state is a proclamation under the Great Seal, bearing date the 7th of October, 1703, reciting thus :" " Whereas it will greatly contribute to the settling of our said islands ■" of which Grenada is one, that they be informed of our love and paternal " care for the liberties and rights of those who are, or shall be inhabitants ■" thereof ; we have thought fit to publish and declare by this our procla- " mation, that we liave by our letters patent under our Great Seal of " Great Britain, whereby our said Governments are constituted, given •" express power and direction to our governors of our said colonies re- " spectively, that so soon as the state and circumstances of the said " colonies will admit thereof, they shall, with the advice and consent of "our said council, call and summon general assemblies,^ in such manner " and form as is used in the other colonies under our immediate govern- " ment. And we have also given power to the said governors, with the " advice and consent of our said council and assembly of representatives " as aforesaid, to make, constitute, and ordain laws, statutes, and ordin- " ances for the public peace, welfare and good government of our said " colonies and the inhabitants thereof, as near as may be agreeable to the " laws of England, and under such regulations and restrictions as are " used in our other colonies." Then follow letters patent under the Great Seal, or rather a proclama- tion of the 20th of March, 1704, whereby the King recites, that he had ordered a survey and division of the ceded islands, as an invitation to all purchasers to come and purchase upon certain terms and conditions specified in that proclamation. LORD Mansfield's judgment. 81 The next instrument stated in the verdict is the letters patent beariii.<< date the 9th of April, 1764. In these letters there is a commission" appoint- injj General Melville Governor of the island of Grenada, with power to sum- mon an assembly as soon as the situation and circumstances of the island would admit ; and to make laws in all the usual forms with reference to the manner of the other assemblies of the King's Provinces in America. The Gosernor arrived in Grenada on the 14th of December, 1764 ; before the end of 176o, the particular day not stated, an assembly actually met; but before the arrival of the Governor at Grenada, indeed, before his departi;re from London, there is another instrument upon the validity of which the whole question turns, which instrument contains letters patent under the Great Seal, bearing date the 20th of July, 1764, and reciting that in Barbadoes, and in all the British Leeward islands, a duty of four and a half per cent, was paid upon goods exported ; and reciting further : " Whereas it is reasonable and expedient, and of importance to our " other sugar islands, that the like duties should take place in our said " island of Grenada ; we have thought fit, and our royal will and pleasure "is, and we do hereby, by virtue of our prerogative Royal, order, direct, " and appoint that an import or custom of four and a half per cent, in " specie, shall, from and after the 29th day of September next ensuing "the date of these presents be raised and paid to us, our heirs and stic- " cessors, for and upon all dead commodities of the growth or produce of *' our said island of Grenada that shall be shipped off from the same, in " lieu of all customs and impost^" duties hitherto collected upon goods " imported and exported into and out of the said island, under the " authority of his Most Christian Majesty, and that the same shall be " collected, &c."; then it goes on with reference to the island of Barbadoes, and the other Leeward islands. The jury find that in fact such duty of four and a half per cent, is paid to his Majesty in all the British Leeward islands. And they find several Acts of Assembly which are relative to the several islands, and which I shall not state, as they are public, and every gentleman may have access to them. These letters patent of the 20th of July, 1764, with what I stated in the opening, are all that is material in this special verdict. Upon the whole of the case this general question arises, being the sub- stance of what is submitted to the Court by the verdict : " Whether these letters patent of the 20th of July, 1764, are good and valid to abrogate the French duties, and in lieu thereof to impose this duty of four and a half per cent., which is paid by all the Leeward islands subject to his Majesty." That the letters are void has been contended at the bar, upon two points : (1) That although they had been made before the Proclamation 82 LORD Mansfield's .ttdgment. of the 7th of October, 1763, the KiiiL^ Ijy liis prerogative could not have imposed them ; and (2) that, although the King had sufficient authority before the 7th of October, 17():{, he had divested himself of that autliority by the Proclamation of that date. A great deal has been said, and authorities have been cited relative to propositions in which both sides exactly agree, or which are too clear to be denied. 'V\\e statini^ of these will lead us to the solution of the first point. I will state the propositions at large : 1 A country conquered by the British ai-ms becomes a dominion of the King in the right of his crown, and therefore necessarily subject to the legislative power of the Parliament of Great Britain. 2. The conquered inhabitants once received into the conquei-or's pro- tection becomes subjects ; and are universally to be considered in that light, not as enemies or aliens. ii. Articles of capitulation, upon which the country is surrendered, and treaties of peace by whicli it is ceded, are sacred and inviolate, according to their true intent and meaning. 4. The law and legislation of every dominion equally affects all persons and property within the limits thereof, and is the true rule for the deci- sion of all questions which arise there. Whoever purchases, sues, or lives there, puts himself under the laws of the place, and in the situation of its inhabitants. An Englishman in Ireland, jNIinorca, the Isle of Man, or the Plantations, has no privilege distinct from the natives while he continues there. '). The laws of a conquered country continue in force until they are altered by the conqueror. The justice and antiquity of this maxim are incontrovertible ; and the absurd exception as to pagans mentioned in Calvin's case," shows the universality and antiquity of the maxim. That exception could not exist before the Christian era, and in all probability arose from the mad enthusiasm of the Crusades. In the present case the capitulation expi'essly provides and agrees that they shall continue to be governed by their own laws, until his Majesty's pleasure be further known. (i. If the King has power (and, when I say " tlie King," I mean in this case " the King without the concurrence of Parliament ") to alter the old and to make new laws for a conquered country — this being a power sub- ordinate to his own authority as a part of the supreme legislature and parliament — -he can make none which are contrary to fundamental principles; he cannot exempt an inhabitant from tlie laws of trade, or the authority of Parliament, or give him privileges exclusive of his other subjects ; and so in many other instances that might be put. LORD Mansfield's judgment. 83 The present Proclamation is an Act of this subordinate legislative power. If it had been made before the 7th of October, 1763, it would have been made on the most reasonable and equitable grounds, putting the island of Grenada as to duties on the same footing as the other islands. If Grenada paid more duties, the injury would have been to her ; if less, it must have been detrimental to the other islands ; nay, it would have been carrying the capitulation into execution, which gave the people of Grenada hopes that if any new duties were laid on, their condition would be the same as that of the other Leeward islands. The only question which remains on this first point then is, whether the King of himself had power to make such a change between the 10th of February, 1763, the day the treaty was signed, and the 7th of October,^* 1763. Taking the above propositions to be granted, he has a legislative power over a conquered country, limited to him by the constitution, and subordinate to the constitution and parliament. It is left by the constitution to the King's authority to grant or refuse a capitula- tion. If he refuses, and puts the inhabitants to the sword, or- exterminates them, all the lands belong to him ; and if he plants, a colony, the new settlers share the land between them, subject to the- prerogative of the conqueror. If he receives the inhabitants under his pro- tection and grants them their property, he has power to fix such terms • and conditions as he thinks proper. He is entrusted with making peace at his discretion ; and he may retain the conquest, or yield it up, on such condition as he pleases. These powers no man ever disputed, neither has it hitherto been controverted that the King might change part or the whole of the law or political form of government of a con- quered nation. To go into the history of conquests made by the crown of England. The alteration of the laws of Ireland has been much discussed by lawyers and writers of great fame at different periods of time ; but nO' man ever said the change was made by the parliament of England ; no man, unless perhaps Mr. Molyneux,^'' ever said the King could not do it. The fact, in truth, after all the researches that have been made, comes out clearly to be as laid down by Lord Chief Justice Vaughan, that Ireland received the laws of England by the charters and commands of Henry II., King John, Henry III., and he adds an et cetera to take in Edward I., and the successors of the princes named. That the charter of 12 King John was by assent of a parliament of Ireland, he shows clearly to be a mistake. Whenever the first parliament was called in Ireland, that change in their constitution was without an act of the par- liament of England, and therefore must have been derived from the King. b' H.C.C. — 6 84 LORD Mansfield's judgment. Mr. Barriugton is well warranted in saying that the 12th of Edward I., called the " Statute of Wales," is certainly no more than a regulation made by the King as conqueror, for the government of the country, which, the predmble says, was then totally subdued ; and, however for purposes of policy he might think lit to claim it as a fief appertaining to the realm of England, he could never think himself entitled to make laws without assent of parliament to bind the subjects of any part of the realm. Therefore as he did make laws for Wales without assent of parliament, the clear consequence^* is that he governed it as a conquest : which was his title in fact, and the feudal right was but a fiction. Berwick, after the conquest of it, was governed by charters from the crown, till the reign of James I., without interposition of parliament. Whatever changes were made in the laws of Gascony, Guyenne, and Calais must have been under the King's authority ; if by act of parlia- ment, that act would be extant, for they were conquered in the reign of King Edward III. ; and all the acts from that reign to the present time are extant ; and in some acts of parliament there are commercial regula- tions relative to each of tlie conquests which I have named ; none mak- ing any change in their constitution and laws, and particularly with regard to Calais, which is alluded to as if its laws were considered as given by the Crown. Yet as to Calais, there was a great change made in the constitution : for the inhabitants were summoned by writ to send burgesses to the English parliament ; and, as this was not by act of parliament, it must have been by the sole act of the King. Besides the garrison there are inhabitants, property, and trade at Gibraltar ; the King, ever since that conquest, has from tifne to time made orders and regulations suitable to the condition of those who live, trade, or enjoy property in a garrison town. Mr. Attorney-General^''' has alluded to a variety of instances, several within these twenty years, in which the King has exercised legislation over Minorca. In Minorca, it has appeared lately, there are and have been for years back a great many inhabitants of worth and a great trade carried on. If the King does it there as coming in the place of the King of Spain, because their old constitution continues (which by the by is another proof that the constitution of England does not necessarily fol- low a conquest by the King of England) the same argument applies here; for before the 7th of October, 1703, the constitution of Grenada continued, and the King stood in the place of their former sovereign. After the conquest of New York, in which most of the old Dutch inhabitants remained. King Charles II. changed its constitution and political form of government, and granted it to the Duke of York, to hold from his crown under all the regulations contained in the letters patent. It is not to be wondered that an adjudged case in point is not to be found ; no dispute ever was started before upon the King's legislative LOED Mansfield's judgment. 85 right over a conquest ; it never was denied in a court of law or equity in Westminster-hall, never was questioned in parliament. Lord Coke's report of the arguments and resolutions of the judges in Calvin's case lays it down as clear (and that strange extra judicial opinion, as to a con- quest from a pagan country, will not make reason not to be reason, and law not to be law as to the rest). The book says, that " if a King " — I omit the distinction between a Christian and an infidel kingdom, which as to this purpose is wholly groundless, and most deservedly exploded — " If a King comes to a kingdom by conquest, he may, at his pleasure, alter and change the laws of that kingdom ; but, until he doth make an alteration of those laws the ancient laws of that kingdom remain ; but if a King hath a kingdom by title of descent, then, seeing that by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself without consent of parliament." It is plain that he speaks of his own country where there is a parliament. Also, " if a King hath a kingdom by conquest, as King Henry the Second had Ireland, after King John had given to them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without parliament." Which is very just, and it necessarily includes that King John himself could not alter the grant of the laws of England. Besides this, the authority of two great names has been cited, who took the proposition for granted. And though opinions of counsel, whether acting'officially in a public charge or in private, are not proj)erly authority on which to found a decision, yet I cite them ; — not to establish so clear a point, but to shew that when it has been matter of legal enquiry, the answer it has received, by gentlemen of eminent character and abilities in the profession, has been immediate and without hesitation, and con- formable to these principles. In 1722, the assembly of Jamaica refusing the usual supplies, it was referred to Sir Philip Yorke, and Sir Clement Wearg,i« what w^as to be done if they should persist in this refusal. Their answer is — "If Jamaica was still to be considered as a conquered island, the King had a right to levy taxes upon the inhabitants ; but, if it was to be considered in the same light as the other colonies, no tax could be imposed upon the inhabitants, but by an assembly of the island, or by an act of parliament." The distinction in law between a conquered country and a colony they held to be clear and indisputable ; whether, as to the case before them of Jamaica, that island remained a conquest or was made a colony, they had not examined. I have, upon former occa- sions, traced the constitution of Jamaica as far as there are books or papers in the offices ; I cannot find that any Spaniard remained upon the island so late as the Eestoration ; if any, they were very few. A gentle- man to whom I put the question on one of the arguments in this cause, said he knew of no Spanish names^'' among the white inhabitants of 86 LORD Mansfield's judgment. Jamaica ; but there were amongst the negroes. The King, I mean Charles the Second, after tlie Restoration invited settlers by proclama- tion, promising them his protection. He made grants of land. He appointed at first a governor and council only; afterwards he granted a commission to the governor to call an assembly. The constitution of every province immeciiately under the King lias arisen in the same manner ; not by the grants, but by commissions, to call assemblies. And therefore, all the Spaniards having left the island, or having been killed or driven out of it, Jamaica from the first settling was an English colony, who under the authority of the King planted a vacant island, belonging to him in right of his crown ; like the cases of the islands of St. Helena and St. John, mentioned by Mr. Attorney-General. A maxim of constitutional law, as declared by all the judges in Calvin's case, and which two such men in modern times as Sir Philip Yorke and Sir Clement Wearg took for granted, will acquire some authority, even if there were anything which otherwise [made it doubtful ; but on the contrary no book, no saying of a judge, no, not even an opinion of any counsel, public or private, has been cited ; no instance is to be found m any period of our history where it was ever questioned. The counsel for the plaintiff undoubtedly labored this point from a diffidence of what might be our opinion on the second question. But upon the second point, after full consideration, we^^ are of opinion that before the letters patent of the '20th of July, 1704, the King had precluded himself from an exercise of the legislative authority which he had before by virtue of his prerogative over the island of Grenada. The first and material instrument is tlie proclamation of the 7th of October, 17(53. See what it is that the King there says, and with what view he s;iys it ; how and to what he engages himself and pledges his word : " Whereas it will greatly contribute to the speedy settling our said new governments, that our loving subjects should be informed of our paternal care for the security of the liberty and properties of those who are, and shall become, inhabitants thereof ; we have thought fit to pub- lish and declare by this our proclamation, that we have in the letters patent under our Great Seal of Great Britain, by which the said govern- ments are constituted, given express power and direction to our governors of our said colonies respectively, that, so soon as the state and circum- stances of the said colonies will admit thereof, they shall, with the advice and consent of the members of our council, summon and call general asHemblies" (and then follow the directions for that purpose.) And to what end ? " To make, constitute, and ordain laws, statutes, and ordinances for the public peace, welfare, and good government of our said colonies," of which this of Grenada is one, "and of the people and inhabitants thereof, as near as may be agreeable to the laws of LORD Mansfield's judgment. 87 England.'' With what view is the promise given ? To invite settlers ; to invite subjects. Why ? The reason is given. They may think their liberties and properties more secure when they have a legislative assem- bly than under a governor and council only. The governor and council depending on the King, he can recall them at pleasure, and give a new frame to the constitution ; but not so of the other, which has a negative on those parts of the legislature which depend on the King. Therefore that assurance is given them for the security of their liberty and pro- perties, and with a view to invite them to go and settle there after this proclamation that assured them of the constitution under which they were to live. The next act is of the 26th of March, 1764, which, the constitution having been established by proclamation, invites further such as shall be disposed to come and purchase, to live under the constitution. It states certain terms and conditions on which the allotments were to be taken, established with a view to permanent colonization and the in- crease and cultivation of the new settlement. For further confirmation of all this, on the 9th of April, 1764, three months before the impost in question was imposed, there is an actual commission to Governor Mel- ville, to call an assembly as soon as the state and circumstances of the island should admit. — You will observe in the proclamation there is no legislature reserved to be exercised by the King, or by the governor and council under his authority, or in any other method or manner, until the assembly should be called : the promise imports the contrary ; for what- ever construction is to be put upon it, (which perhaps it may be some- what difficult to pursue through all the cases to which it may be applied) it apparently considers laws then in being in the island, and to be administered by courts of justice ; not an interposition of legislative authority between the time of the promise and of calling the assembly. It does not appear from the special verdict when the first assembly was called ; it must have been in about a year at farthest from the governor's arrival, for the jury find he arrived in December, 1764, and that an assembly was held about the latter end of the year 1765. So that there appears to have been nothing in the state and circumstances of the island to prevent calling an assembly. We therefore think that, by the two proclamations and the commission to Governor Melville, the King had immediately and irrevocably granted to all who were or should become inhabitants, or who had or should have property, in the island of Grenada— in general to all whom it might con- cern — that the subordinate legislation over the island should be exercised by an assembly, with the consent of the governor and council, in like manner as in the other provinces under the Kintl. Therefore, though the right of the King to have levied taxes on a con- quered country, subject to him in right of his crown, was good, and the 88 LORD Mansfield's judgment. duty reasonable, equitable, and expedient, and, according to the finding of the verdict, paid in Barbadoes and all the other Leeward islands ; yet by the inadvertency of the Kinf,'"s servants in the order in which the several instruments passed the office (for the patent of the '2Gth of July, 1764, for raising the impost stated, should have been first), the order is inverted, and the last we tliink contrary to and a violation of the first, and therefore void. How proper soever the thing may be respecting the object of these letters patent of the 26th of July, 1764, it can only now be done, to use the words of Sir Pliilip Yorke and Sir Clement Wearg, " by the assembly of the island, or by an act of the Parliament of Great Britain." The consequence is, judgment must be given for the plaintiff. ^^ NOTES TO LORD MANSFIELD'S JUDGMENT. 1 This judgment is to be found iu Cowper's "Reports of Cases adjudged in the Court of King's Bench;" in Lofft's "Reports," etc.; and in Vol. XX. of Howell's " Complete Collection of State Trials." Cowper gives the judgment only ; Lofft gives the "special verdict" referredtoin the judgment, and also a very full summary of the arguments of counsel before the King's Bench, which heard it argued three separate times with different counsel on each side on each occasion. The text given here is taken mainly from Lofft, whose report has been used in compiling the " State Trials," but there are in it many inaccuracies which a comparison with Cowper's text will expose. The judgment appears to have been an oral one, for Lofft explains in a note that he used a contemporary printed summary to correct errors and supply omissions in his own notes. 2 Cowper's Report has "James Campbell." 3 The Quebec Act, 1774, which in Canada superseded the Royal Proclamation of 1763, became law on the 22nd of June. i In Cowper's Reports, "the third of IMarch." 5 In July, 1773, the case of Campbell v. Hall was first tried at the Guildliall, before Lord Chief Justice ]\Iansfleld and a jury. The latter returned a " special verdict," embodying in it simply the ascertained facts of the case, and expressly leaving the legal or constitutional question at issue to be decided by the Court. <"' Compare with this stipulation and reply those found in the .Articles of Capitu- lation of Quebec, 1759, and of Montreal, 1760, and the corresponding provisions of the Treaties of Utrecht, 171.'i, and of Paris, 17C3. 7 This paragraph from the Royal Proclamation is not quoted literally. See the correct text on pp. C8-G9. s See Note 1.5 to " Representative Assemblies in the Maritime Provinces." The form of this Commission was similar to that of Governor Cornwallis' of Nova Scotia (pp. 9-lG). 10 Cowper's "Reports " has " import." 11 Lord Chief Justice Coke gives an abstract of the Calvin case in the seventh book of his " Reports." A lucid and interesting account of it is given by Maseres in the "Canadian Freeholder," \'ol. II., pp. 312-322. For the benefit of those who have not access to these works it may be stated that Calvin was an infant born iu NOTES TO LORD MANSFIELD's JUDGMENT. 89 Scotland three years after James VI. of that country became James I. of England, and the question at issue in the case was whether, having been born after the union of the Crowns, he was an alien in England, as he undoubtedly would have been if he had been born before it. Lord Chancellor Ellesmere and twelve out of fourteen Judges decided that Calvin was not an alien, and Lord Coke in his judg- ment, in the course of a discussion of the nature of alienage, uttered the dictum quoted by Lord Mansfield respecting the legislative authority of the King over conquered countries. Maseres ingeniously contends that Lord Coke's dictum makes against, rather than for Lord Mansfield's opinion on this point. 12 The day the Royal Proclamation was issued. 13 In his " Case of Ireland Against England." i4 That is, "inference." 15 Thurlow. ifi Attorney-General and Solicitor-General, respectively, under George I. 17 The word "slave" occurs instead of "names" in the report in the "State Trials." 18 The report in the '' State Trials " has " we are all of opinion ; " Maseres, in the the "Canadian Freeholder," (Vol. II., pp. 343-346), raises, but does not settle, the question whether Lord Mansfield's colleagues of the King's Bench concurred in the former part of his judgment, namely, that the King had a prerogative right to legislate for a conquered country until he lost that right either by surrendering it to the conquered people or by the legislative intervention of the British Parlia- ment. The compiler of the " State Trials " (Vol. XX., p. 1389), gives the following statement, as an addendum to the text of the Report in the Grenada case : " Mr. Baron Maseres has told me he was informed by Mr. .Justice Miller himself, that he did not concur in the doctrine which Lord Mansfield in the case of Campbell v. Hull, laid down respecting the right of the Crown to legislate antecedently to a, renunciation of such right for a conquered colony." It is somewhat peculiar that Lord Mansfield here for the first time in his judgment associates his colleagues with himself in the finding of the Court. 19 For a full, learned, and interesting discussion of this judgment in all its aspects— historical, political, and legal— see Maseres' second dialogue in Vol. II. of the "Canadian Freeholder." See also "State Trials" (Vol. XX. p. 331), for the opinion of Sergeant Marshall on the view of the constitution given by Lord Mansfield. The second part of the judgment has always been regarded as an important charter of colonial liberties, all the uiore so because Lord Mansfield in Parliament, as well as on the Bench, was a thorough-going asserter of royal prerogative and of imperial sovereignty over the colonies. See his speech, made in the House of Lords on the 3rd of February, 1S66, on the adoption of the motion declaring the right of Great Britain to tax her American colonies. DO THE QUEBEC ACT. THE QUEBEC ACT, 1774, AND SUPPLEMEN- TARY ACTS. An Act, for wahiiuj more effectual provision for the Government of the Province of Quebec in Xorth America. Preamble. Whereas his Majesty, by liis Eoyal Proclamation, bearing date the seventh day of October, in the third year of his reif^n, thought fit to declare the provisions which had been made in respect to certain countries, territories, and islands in America, ceded to his Majesty by the definitive treaty of peace, concluded at Paris on the tenth day of February, one thousand seven hundred and sixty three ; and whereas by the arrangements made by the said Royal Proclamation, a very large extent of country, within which there were several colonies and settlements of the subjects of France, ^ who claimed to remain therein under the faitli of the said treaty, was left without any provision being made for the administration of civil government therein ; and certain parts of the territory of Canada, where sedentary fisheries had been established and carried on by the subjects of France, inhabitants of the said Province of Canada, under grants and concessions from the Government thereof, were annexed to the Government of Newfoundland, and thereby subjected to regulations inconsistent with the nature of such fisheries. May it therefore please your Most Excellent Majesty that it may be enacted, and be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Com- mons, in this present Parliament absembled, and by the The territories, authority of the same : Tliat all the territories, islands, and countri'os'iii countries in North America, belonging to the Crown of North America, Great Britain, bounded on the south by a line from the Bay Great Britain, of Chalours, along the high lauds which divide the rivers that empty themselves into the lliver St. Lawrence from those which fall into the sea, to a point in forty-live degrees of Northern latitude on the Eastern bank of the River Con- necticutt, keeping tiie same latitude directly west tlirough the Lake Champlain until, in the same latitude, it meets the THE QUEBEC ACT. dl "River St. Lawrence; from thence up the Eastern bank of the said River to the Lake Ontario; thence through the Lake Ontario, and the River commonly called Niagara; and thence along by the Eastern and South-Eastern bank of Lake Erie, following the said bank until the same shall be intersected by the Northern boundary granted by the charter of the Province of Pennsylvania, in case the same shall be so intersected ; and from thence along the said Northern and Western boundaries of the said Province until the said Western boundary strike the Ohio : But in case the said bank of the said Lake shall not be found to be so intersected, then following the said bank until it shall arrive at that point of the said bank which shall be nearest to the north- west angle of the said Province of Pennsj'lvania, and thence by a right line to the said northwest angle of the said Pro- vince, and thence along the Western boundary of the said Province, until it strike the River Ohio ; and along the Bank of the said River westward to the banks of tne Mississippi^ and Northward^ to the Southern boundary of the territory granted to the Merchants Adventurers of England trading to Hudson's Bay ; and also all such territories, islands, and countries, which have since the tenth of February, one thou- sand seven hundred and sixty-three been made part of the Government of Newfoundland — be, and they are hereby, Annexed to the during his Majesty's pleasure, annexed to and made part Que^T^f^ and parcel of the Province of Quebec, as created and established by the said Royal Proclamation of the seventh of October, one thousand seven hundred and sixty-three. II. Provided always, that nothing herein contained, rela- Not to affect tive to the boundary of the Province of Quebec shall in any of 1iny"o°tber ^^ wise affect the boundaries of any other colony. Uolony ; III. Provided always, and be it enacted, that nothing in nor to make this Act shall extend, or be construed to extend, to make rig'bts formerly void or to vary or alter any right, title, or possession derived gianted. under any grant, conveyance, or otherwise howsoever, of or to any lands within the said Province or the Provinces thereto adjoining ; but that the same shall remain, and be in force, and have effect as if this Act had never been made. IV. And whereas the provisions made by the said Pro- Former pro- clamation in respect to the civil government of the said provfnce°to be Province of Quebec, and the powers and authorities given null and void ^, _ ,,..,. , , after May 1st, to the Ciovernor and other civil officers of the said Province 1775. by the grants and commissions issued in consequence 92 THE QUEBEC ACT. thereof, have been found upon experience to be inapplicable to the state and circumstaiices of the said Province, the inhabitants whereof amounted at the conquest to above sixty-five thousand persons professing the religion of the • Church of Rome, and enjoying an established form of con- ^ stitution and system of laws by which their persons and property had been protected, governed, and ordered for a long series of years from the first establishment of the said Province of Canada ;* be it therefore enacted by the Authority aforesaid, that the said Proclamalion, so far as the same relates to the said Province of Quebec, and the Com- mission under the authority whereof the Government of the said Province is at present administered, and all and every the Ordinance and Ordinances made by the Governor and Council of Quebec for tlie time being relative to the civil government and administration of justice in the said Pro- vince, and all Commissions to judges and other officers thereof, be, and the same are hereby revoked, annulled, and made void'"' from and after the first day of May, one thousand seven hundred and seventy-five. Inhabitants of V. And for the more perfect security and ease of the profess tiiG^ minds of the inhabitants of the said Province it is hereby Komisli re- declared, that his Majesty's subjects professing the religion hl^ion, subject ■> J J i 1 . I- to tbe King's of the Church of Rome, of and in the said Province of supreinacy, as by Act i.^Kl'iz.; Quebec, may have, hold^aJid__enjoy_^the_jree._exe^^ and the Clergy religion of Ui.' Church of Rome, subject to the King's enjoy tlieu- ■ '^ — -— ■ Tr^^ — ■p..jt-.>-.^--~^ -^-^^^ accustomed supremac\ , .hrlared and established by an Act" made m ^^^^' the first year of the Reign of Queen Elizabeth over all the Dominions and Countries which then did, or thereafter should, belong to the Imperial Crown of this Realm ; and tlmt rlic <'li'i-i,'\-" iiT ill!' s.iid Cliurch may hold, roccivo, and enjoy ihcir aiji-iistmn 1 dui^ and rights with respect In si k--1i persons only as shall [irnfr-;s lln' said religion. Provision may VI. Provided, nevertheless, that it shall be lawful for his bo made by his ,, .,,.,. , • , • • „„i. Majesty for the Majesty, his heirs or successors, to make such provision out Protest' °t*'^'^ of the rest of the said accustomed dues and rights, for the Clergy. encouragement of the Protestant Religion, and for the maintenance and support of a Protestant clergy* within the said Province, as he or they shall from time to time think necessary or expedient. No person pro- VII. Provided always, and be it enacted, that no person Komisli'' rt professing the religion of the Church of Rome and residing ligion obliged ju tbe said Province shall be obliged to take the Oath* THE QUEBEC ACT. 93 required bv the said statute passed in the first year of the to take the ' , 11-11 Oatli of I. reign of Queen Elizabeth, or any other oaths substituted by Elizabeth ; but any other Act in the place thereof ; but that every such tlL*'cloveniOT! person, who bv the said statute is required to take the oath etc .thefollow- 1 . 1 , 1, , ,1- 1 1 • 1 1 ■ n ingOath: therein mentioned, shall be obliged, and is hereby required, to take and subscribe the following oath before the Gov- ernor, or such other Person, in such Court of Record as his Majesty shall appoint, who are hereby authorized to admin- ister the same ; indilicet, "I A. B. do sincerely promise aud swear that I will be faithful, The Oath. " and bear true allegiance to his Majesty King George, and him will " defend to the utmost of my power, against all traitorous cou- " spir-acies aud attempts whatsoever, whicli shall be made against "his person, crown, and dignity; and I will do my utmost endea- "vourto disclose and make known to his Majesty, his heirs and " successors, all treasons and traitorous consijiracies aud attempts, " which I shall know to be against him or any of them ; and all this " I do swear without any equivocation, mental evasion, or secret " reservation, and renouncing all pardons and dispensations from " any Power or Person whomsoever to the contrary. " So help me GOD." And every such person, who shall neglect or refuse to take Persons refus- the said oath before mentioned, shall incur and be liable to be"subject to the same penalties, forfeitures, disabilities, and incapacities the penalties as he would have incurred and been liable to for neglecting or refusing to take the oath required by the said statute passed in the lirst year of the reign of Queen Elizabeth. VIII. And be it further enacted by the Authority afore- His Majesty's said, that all his Majesty's Canadian subjects within the jggtgd.gijgjoyg Province of Quebec, the religious orders and communities orders except- ^ ' "^ . . ed) may hold only excepted,^" mayalsohold and enjoy tlieir property all their posses- T . ""r'~'°ir~ -ii 11 S I sions, etc., and and j_3QS§esaioas,.jogether__^ with all ciistoiiiK ami 'i^^i^^'^ hi matters of relative thereto, and all others their civil rights, in as large, controversy . .' resort maybe ample, and beneficial manner as if the said Proclamation, had to the Commissions, Ordinances, aud other Acts and Instruments g^jj^'f^^^^jg^^' had not been made, and as may consist with their allegiance cision. to his Majesty, and subjection to the Crown and Parliament of Great Britain ; and that in all matters of controversy relative to property andcivil rights, resort shall be had to the laws of Caiiada^^ as the rule for the decision of the same ; and all caused that shall hereafter be instituted in any of the courts of justice, to be appointed within and for the said Province by his Majesty, his heirs and successors, shall with respect to such property and rights be determined agreeably to the said laws and customs of (Janada, until they shall be varied or altered by any Ordinance that shall from time to time be passed in the said Province by the ^4 THE QUEBEC ACT. Governor, Lieutenant-Governor, or Commander-in-Chief for the time being, by and with the advice and consent of the Legislative Council of the same, to be appointed in manner hereinafter mentioned. Not to extend IX. Provided always, that nothing in this Act contained to lands gj^g^jj extend, or be construed to extend, to any lands that His Majesty in have been granted by his Majesty, or shall hereafter be cag^!"""^"*^ granted by his Majesty, his heirs and successors, to be holden in free and common soccage.^'^ Owners of X. Provided also, that it shall and may be lawful to and al'i^nateYhe ^°^ every person that is owner of any lands, goods or credits same by will, in the said Province, and that has a right to alienate the acconllfirto''''^ said lands, goods or credits in his or her lifetime, by deed of the Laws of g^jg^ ^^^^^^ q^ otherwise, to devise or bequeath the same at his or her death, by his or her last will and testament ; any law, usage, or custom heretofore or now prevailing in the Province, to the contrary hereof in anywise notwithstanding ; such will being executed either according to the Laws of Canada, or according to the forms prescribed by the Laws of England. Criminal Law XL And whereas the certainty and lenity of the Qriminal_ be wufinuedhi L_aw of _England , and the benetits and advantages resulting the Province, fj-om the use of it, have been sensibly felt by the inhabitants from an experience of more than nine years, during which it has been uniformly administered ; be it therefore further enacted by the Autliority aforesaid, tliat tlie same shajicon- tinue to be admiuistLTid, and wluillbu observed as la_win_tiie Province of Quebec, as well in the description and quality of the offence as in the method of prosecution and trial, and the punishments and forfeitures thereby inflicted, to the exclusion of every other rule of criminal law or mode of proceeding thereon, which did or might prevail in the said I'rovince before the year of our Lord one thousand seven hundred and si.xty-four ; everything in this Act to the con- trary thereof in any respect notwithstanding ; subject never- theless to such alterations and amendments'^ as the Governor, Lieutenant-Governor, or Commander-in-Chief for the time being, by and with the advice and consent of the Legislative CoiiaciLflLlhe_aaid_ Piwinc^e, Jiereafter_to_be^ appointed, shall from time to time cause to be madeTherein, in manner hereinafter directed. His Majesty XII. And whereas it may be necessary to ordain many Co°'uVcil'for" " regulations for the future welfare and good government of THE QUEBEC ACT. 95 the Province of Quebec, the occasions of which cannot now the affairs of , , -^i i 111 J • • 1, the Province ;. be foreseen, nor without much delay and inconvenience be provided for, without intrusting that authority for a certain time and under proper restrictions to persons resident there : and whereas it is at present inexpedient to call an Assembly, 1* be it therefore enacted by the Authority afore- said, that it shall and may be lawful for his Majesty, his heirs and successors, by warrant under his or their signet or sign manual, and with the advice of the Privy Council, to constitute and appoint a Council for the affairs of the Provi nce of QLuebec , to consist of such persons resident there, not exceeding twenty -three nor less than seventeen, as his Majesty, his heirs auH^successors shall be pleased to appoint; and, upon the death, removal, or absence of any of the members of the said Council, in like manner to consti- tute and appoint such and so many other person or persons as shall be necessary to supply the vacancy or vacancies ; which Council so appointed and nominated, or the major Which Council part thereof, shall have power and authority to make Ordin- Q^^^^^g^^^gg^ ances for the peace, welfare, and good government of the ^jth consent , V ■ , ^ • ^ of the Gover- said Province, with the consent of his Majesty s Governor, nor. or, in his absence, of the Lieutenant-Governor or Com- mander-in-Chief for the time being. XIII. Provided always that nothing jn t his Act contaijie^ The Council shall extend to authorize or impower the said Legislative p^^gj-g^ to lay Council to lav anv taxes or duties within the said Province, taxes, pubHc ' -. • roads or build- such rates and taxes only excepted as the inhabitants of ings excepted. any town or district within the said Province may be authorized by the said Council to assess, levy, and apply, within the said town or district, for the purpose of making roads, erecting and repairing public buildings, or for any other purpose respecting the local convenience and oeconomy of such town or district.^* XIV. Provided also, and be it enacted by the Authority Ordinances aforesaid, that every Ordinance so to be made shall within -^^^^^ before His six months be transmitted by the Governor, or in his Majesty for . his appro- absence by the Lieutenant-Governor, cr Commander-m- batiou. Chief for the time being, and laid before his Majesty for his Koyal Approbation ; and if his Majesty shall think tit to disallow thereof, the same shall cease and be void from the time that his Majesty's order-in-council thereupon shall be promulgated at Quebec. 96 THE QUEBEC ACT. Ordinances touchiiiK rc- Hfjion not to be in force witlioiit His i\Injesty's ap- probation. Wlien Ordi- nances are to be passed by a majority. Nothing to binder his Ma- jesty to consti- tute Courts of Criminal, Civil and Ecclesias- tical Jurisdic- tion. All Acts for- merly made ai'e hereljy in- forced within the Province. XV. Provided also that no Ordinance touching religion, or by which any punishment may be inflicted greater than line or imprisonment for three months, shall be of any force or effect, until the same shall have received his Majesty's approbation. XVI. Provided also that no Ordinance shall be passed at any meeting of the Council where less than a majority of the whole Council is present, or at any time except between the first day of January and the first day of May, unless upon some urgent occasion, in which case every member thereof resident at Quebec, or within fifty miles thereof, shall be personally summoned by the Governor, or in his absence by the Lieutenant-Governor, or Commander-in- Chief for the time being, to attend the same. XVII. And be it further enacted by the Authority afore- said, that nothing herein contained shall extend, or be con- strued to extend, to prevent or hinder his Majesty, his heirs and successors, by his or their letters patent under the Great Seal of Great Britain, from erecting, constituting and appointing such Courts of Criminal, Civil, and Ecclesi- astical jurisdiction within and for the said Province of Quebec, and appointing from time to time the judges and olficers thereof, as his Majesty, his heirs and successors, shall think necessary and proper for the circumstances of the said Province. XVIII. Provided always, and it is hereby enacted, that nothing in this Act contained shall extend, or be construed to extend, to repeal or make void within the said Province of Quebec any Act or Acts of the Parliament of Great Britain heretofore made for prohibiting, restraining, or regulating the trade or commerce of his Majesty's Colonies and Plantations in America ; but that all and every the said Acts, and also all Acts of Parliament heretofore made concerning or respecting the said Colonies and Plan- tations, shall be, and arc hereby declared to be in force within the said Province of Quebec, and every part thereof .i« THE QUEBEC REVENUE ACT. 97 The Quebec Revenue Act, 1774. An Aet"^' to establish a fund tuwards further defraying the charges of the Administration of Justice, and supjwrt of the Civil Gov- ernment within the Province of Quebec in America. Whereas certain duties^ * were imposed by the authority Preamble. of his Most Christian Majesty upon wine, rum, brandy. Certain duties eau de I'ie de liqueur, imported into the Province of Canada, his mostChris- now called the Province of Quebec, and also a duty of three ''^^'^ Majesty ^ ■'. npou rum. pounds per centum ad valorem upon all dry goods imported brandy, etc., into and exported from the said Province, which duties sub- Quebec^*^ sisted at the time of the surrender of the said Province to your Majesty's forces in the late war: And whereas it is expedient that the said duties should cease and be discon- tinued, and that in lieu and instead thereof other duties should be raised by the authority of Parliament for making a more adequate provision for defraying the charge of the administration of justice and the support of civil Govern- ment in the said Province : We, your Majesty's most dutiful and loyal subjects, the Commons of Great Britain in Parliament assembled, do most humbly beseech your Majesty that it may be enacted, and be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority of the same : That from and after the fifth day of April, After April 5, one thousand, seven hiindred, and seventy-five, all the coutiuued duties which were imposed upon rum, brandy, eau de vie de within the Pro- liqueur, within the said Provmce, and also of three pounds per centum ad valorem on dried goods imported into or exported from the said Province under the authority of his most Christian Majestyj shall be and are hereby discon- tinued ; and that in lieu and instead thereof there shall and instead of from and after the said fifth day of April, one thousand lowing duties seven hundred and seventy-five be raised, levied, collected, ^.^^1"!'^'^*° ■' II) jjjg Majesty. and paid unto his Majesty, his heirs and successors, for 98 THE QUEBEC REVENUE ACT. and upon tlie respective goods hereinafter mentioned, which shall be imported or brought into any part of the Raid Province, over and above all other duties now payable in the said Province, by any Act or Acts of Parliament, the several rates and duties following : that is to say, The rates. ^^^ every gallon of brandy, or other spirits, of the manufacture of Great Britain, three-peiTc*. For every gallon of rum, or otlier spirits, which shall bo imported or brought from any oFhis Majesty's sugar colonies in the West Indies, six-pence. For every gallon of rum, or otlier spirits which shall be im- ported or brought from any otlier of his Majesty's colonies or dominions in America, niue-peuce.iy For every gallon of foreign brandy, or other spirits of foreign manufacture imported or brought from Great Britain, one shilling. For every gallon of rum or spirits of the produce or manufac- ture of any of the Colonies or Plantatious in America, not in the possession or under the dominion of his Majesty imported from any other place except Great Britain, one shilling. For every gallon of molasses and syrups which shall be im- ported or brought into the said Province in ships or vessels be- longing to his Majesty's subjects in Great Britain or Ireland, or to his Majesty's subjects in the said Province, three-pence. For every gallon of molasses and syrups, which shall be imported or brought into the said Province in any other ships or vessels in which the same may be legally imported, six-pence ; and after those rates for any greater or less quantity of such goods respec- tively. Kates deemed II. And it is hereby further enacted by the authority orGreat*"*^"^^ aforesaid, that the said rates and duties charged by this. Britain ; Act shall be deemed, and are hereby declared, to be sterling money of Great Britain, and shall be collected, recovered, and paid, to the amount of the value of-" which such nominal sums bear in Great Britain ; and that such monies may be received and taken according to the pro- portion and value of five shillings and sixpence the ounce How they are in silver ; and that the said duties hereinbefore granted etc."^ ^^^^ ' shall be raised, levied, collected, paid, and recovered, in the same manner and form, and by such rules, ways, and means, and under such penalties and forfeitures, except in such cases where any alteration is made by this Act, as any other duties payable to his Majesty upon goods imported into any British Colony or Plantation in America are or shall be raised, levied, collected, paid, and recovered, by any Act or Acts of Parliament, as fully and effectually, to all intents and purposes, as if the several clauses. THE QUEBEC REVENUE ACT. 99 powers, directions, penalties, and forfeitures relating there- to, were particularly repeated and again enacted in the body of this present Act : and that all the monies that shall to whom they arise by the said duties (except the necessary charges of raising, collecting, levying, recovering, answering, paying, and accounting for the same), shall be paid by the Col- lector of his Majesty's Customs, into the hands of his Majesty's Receiver-Geneial in the said Province for the time being, and shall be applied in the first place in making and how to be a more certain and adequate pc^iisiojJ ^towards defraying tlu> tx[ien(.'(.-s of the administration of justice and of the support of Civil Government in the said Province ; and that the Lord High Treasurer, or Commissioners of his Majesty's Treasury, or any three or more of them for the time being, shall be, and is, or are hereby impowered, from time to time, by any warrant or warrants under his or their hand or hands, to cause such money to be applied out of the said produce of the said duties, towards defray- ing the said expences ; a nd that the residue of the said duties shall remain and be reserved in the hands of the said Receiver-General, for the future disposition of Parlia- ment. -i III. And it is hereby further enacted by the authority Regulations aforesaid that if any goods chargeable with any of the goods brought said duties herein-before mentioned shall be brought into ^'?''° ^^f ^^°' " vmce cliai-ge- the said Province by land carriage, the same shall pass able with the and be carried through the port of St. John's, near the mentfoned ^^ River Sorrel ; or if such goods shall be brought into the said Province by any inland navigation other than upon the River St. Lawrence, the same shall pass and be carried upon the said River Sorrel by the said port, and shall be there entered witli. and the said respective rates and duties paid for the same, to such officer or officers of his Majesty's Customs as shall be there appointed for that purpose ; and if any such goods coming by land carriage or inland navigation, as aforesaid, shall pass by or beyond the said place before named, without entry or payment of the said rates and duties, or shall be brought into any part ofl the said Province by or through any other place whatsoever, the said goods shall be forfeited ; and every person who shall be assisting, or otherwise concerned in the bringing or removing such goods, or to whose hands the same shall come, knowing that they were brought or removed contrary to this Act, shall forfeit < n.C.C. — 7 100 THE QUEBEC ACT, Penalties and forfeitures when to be prosecuted for, etc. Any person keeping a house of pub- lic entertain- ment ti) pay £1 16s for a license. Penalty of j£10 for every offence. treble the value of such t^oods, to be estimated and com- puted according to the best price that each respective commodity bears in the Town of Quebec, at the time such offence shall be committed ; and all the horses, cattle, boats, vessels, and other carriages whatsoever, made use of in the removal, carriage, or conveyance of such goods, shall also be forfeitetl and lost, and shall and may be seized by any officer of liis Majesty's Customs, and pro- secuted as hereinafter mentioned. IV. And it is hereby further enacted by the authority aforesaid, that the said penalties and forfeitures by this Act inflicted, shall be sued for and prosecuted in any Court of Admiralty, or Vice-Admiralty,-- having jurisdic- tion within the said Province, and the same shall and may be recovered and divided in the same manner and form, and by the same rules and regulations in all respects as other penalties and forfeitures for offences against the laws relating to the customs and trade of his Majesty's Colonies in America shall or may, by any Act or Acts of [Parliament be sued for, prosecuted, recovered, and divided. V. And be it further enacted by the autliority aforesaid, that there shall from and after the fifth day of April, one thousand seven hundred and seventy-five, be raised, levied, collected and paid unto his Majesty's Receiver-General of the said Province for the use of his Majesty, his heirs and successors, a duty of one pound sixteen shillings, sterling money of Great Britain, for every licence that shall be granted by the Governor, Lieutenant-Governor, or Com- mander in Chief of the said Province to any person or per- sons for keeping a house or any other place of publick entertainment, or for the retailing wine, brandy, rum, or any other spirituous liquors within the said Province ; and any person keeping any such house or place of entertain- ment, or retailing any such liquors without such licence shall forfeit and pay the sum of ten pounds for every such oftence, upon conviction thereof ; one moiety to such person as shall inform or prosecute for the same, and the other moiety shall be paid into the hands of the Eeceiver- General of the Province for the use of his Majesty. Not to maJte VI. Provided always that nothing herein contained shall revenues, etc., extend or be construed to extend to discontinue; determine, reserved at tlic qj. mii^^ void anv part of the territorial-' or casual revenues, conquest. - '■ AND SUPPLEMENTARY ACTS. 101 fines, rents, or profits whatsoever, which were reserved to, and belonged to his Most Christian Majesty, before and at the time of the conquest and surrender thereof to his Majesty, the King of Great Britain ; but that the same and every ■one of them, shall remain and be continued to be levied, collected, and paid in the same manner as if this Act had never been made ; anything therein contained to the con- trary notwithstanding. VII. And be it further enacted bv the authority aforesaid, l'^ suits '' . brouglit pursu- that if any action or suit shall be commenced against any ant to this Act, person or persons for anything done in pursuance of this Act, and if it shall appear to the Court or judge where or tefore whom the same shall be tried, that such action or suit is brought for anything that was done in pursuance of, and by the authority of this Act, the defendant or defendants shall be indemnified and acquitted for the same ; and if such defendants to defendant or defendants shall be so acquitted; or if the ^^^J^^ ^*"'^ ' ® plaintiff shall discontinue such action or suit, such Court or judge shall award to the defendant or defendants treble riti;i more ep'ectual prorision for the (locern)nent of the Prorime of Quebec, in Xorth A})iericaf' and to nialce fiirtlier jirorision for the Governnient of the saiil I'rm-inee. Preamble. Whereas an Act was passed in the fourteenth year of the 14 Geo. III., reign of his present Majesty, intituled " An Act for making ' more effectual provision for the Government of the Province of Quebec in North America " : And whereas it is expedient and necessary that furtlier provision sliould now be made for the good Government and prosperity thereof : May it therefore please your most Excellent Majesty that it may be euacted ; and be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons in tl:is present Par- liament assembled, and by the authority of the saine, that So much of re- so much of the said Act as in any manner relates to the relates to the appointment of a Council for the affairs of the said Province appointiiieiit f Quebec, or to the r)ower tJiven by tlie said Act to the said ot a Council for t i i ^ j Quebec, or its Council, or to the major part of them, to make ordinances pealed.' " ^'^^ *^^^ peace, welfare, and good Government of the said Province, with the consent of His Majesty's Governor, Lieutenant-Governor, or Commander in Chief for the time being, shall be, and the same is hereby repealed. II. And whereas his Majesty has been pleased to signify, by \iis message to both Houses of Parliament, his Royal I intention to dLvide his P royiase-Ql Quebec into tw ojeparate Provinces, to be called tlie Province of Upper Canada and the Province of Lower Canada:- Be it pnacted by th e Within each of aut hority aforesaid, that there shall be within each of the Provhicl's a ^''^^^ Provinces respectively a Legislative Council and an Le;4islativo Assembly,'' to be scverallv composed and constituted in the Oouiiiul and ' 'ini Assembly to manner hereinafter described ; and that m each of the said AND SUPPLEMENTARY ACTS. 113 Provinces respectively, His Majesty, His Heirs, and Sue- be constituted, cessors, shall have power during the continuance of this yj^g jjij^j^Ia.!; Act, by and with the advice and c onsent o f the Lej^islative Jesty may ■' -—^ — ] ^ ■ make laws for Counj; il and Assembly of such Provinces respect ively., to the Govern make_ law s for thfi_ peace, welfare a nd good Gnvei-nment pi^viuce^ ^^ thereof, such laws not being repugnant to this Act ; and that all such laws, being passed by tlie Legislative Council and Assembly of either of the said Provinces respectively, and assented to by His Majestv, His Heirs or Successors, or assented to in His Majesty's name by such person as His Majesty, His Heirs or Successors, shall from time to time appoint to be the Governor or Lieutenant-Governor of such Province, or by such person as His Majesty, His Heirs or Successors, shall from time to time appoint to administer the Government within the same, shall be, and the same are hereby declared to be, by virtue of and under this Act, valid and bindin;^, to all i ntents and purposes whatever, w ithin the Prov ince in which the s ame"sTran hivy elbeen so passed. III. And be it further enacted by the authority aforesaid, His Majesty that for the purpose of constituting such Legislative Council, the Governor as aforesaid, in each of the said Provinces respectivelv, it 9?" Lieutenant- , Governor of shall and may be lawful for his Majesty, his heirs, or sue- each Province , . , i. ] 1 • ii" • • 1 J. to summon cessors, by an mstrument under his or their sign manual^ ^ to ,yi p„Ti^p,.c; to authorize and direct the Go vernor or Lieutenant-Governor, ^^^^ Legislative ; ■ "" Council. or person administermg the Government, in each of the said Provinces respectively, within the time herein after men- tioned, in His Majesty's name, and by an instrument under the Great Seal of such Province, to summon to the said J jegislative Counci l, to be established in each of the said Provinces respectively, a Ruffici ent number of discreet and proper pe rso ns, being not fewer than seven , to the Legislat ive Council fo r the Province of Upper Canad a, and no fe wer than fifteen to the Let^islat ive Cou nci l for th e Prpyl nce of Lower Can ada ; and that it shall also be lawful for his Majesty, his heirs or successors, from time to time, by an instrument under his or their sign manual, to authorize and direct the Governor or Lieutenant- Governor, or person administering the Government in each of the said Provinces respectively, to summon to the Legis- lative Council of such Province in like manner such other persons as his Majesty, his heirs or successors, shall thinK lit ; and that every person who shall be so summoned to the Legislative Council of either of the said Provinces respec- 114 THE CONSTITUTIONAL ACT lively, shall thereby become a member of such Legislative Council, to whicli he shall have been so summoned. No person IV. Provided always, and be it enacted by the authority o"ft8eretc^,^t() aforesaid, that no person shall be summoned to tlie Legisla- besuiniiioiied. tive Council, in either of the said Provinces, who shall not be of the full age of twenty-one years, and a natural born subject of his INIajesty, or a subject of his Majesty natural- ized by Act of the British Parliament,* or a subject of his Majesty having become such by the conquest and cession of the Province of Canada. Members to hold their seats for life. His .Majesty may anne.x to hereditary titles of honor the right of being sum- moned to the Legislative Council. ^^ y I K Such descen- diV)le right forfeited, and V. And be it further enacted by the authority aforesaid, that every member of each of the said Legislative Councils shall hold his seat therein for the term of his life, but subject nevertheless to the provisions hereinafter contained for vacating the same, in the cases hereinafter specified. VI. And be it further enacted by the authority aforesaid, that whenever his Majesty, his heirs or successors, shall think proper to confer upon any subject of the Crown of Great Britain, by letters patent under the Great Seal of either of the said Provinces, any hereditary title of honor, rank, or dignity of such Province, descendible according to any course of descent limited in such letters patent, it shall and may be lawful for his Majesty, his heirs or successors, to annex thereto by the said letters patent, if his Majesty, his heirs or successors shall so think fit, an hereditary right of being summoned to the Legislative Council of such Pro- vince, descendible according to the course of descent so limited with respect to such title, rank, or dignity ; and that every person on whom such right shall be so conferred, or to whom such right shall severally so descend, shall thereupon be entitled to demand from the Governor, Lieutenant Gov- ernor, or person administermg the Government of such Pro- vince, his writ of summons to such Legislative Council at any time after he shall have attained the age of twenty-one years, subject nevertheless to the provision hereinafter con- tained.'' VII. Provided always, and be it further enacted by the authority aforesaid, that wlien and so often as any person to whom such hereditary right shall have descended shall, without the permission of his Majesty, his heirs or suc- cessors, signified to [the Legislative Council of the Province by the Governor, Lieutenant-Governor, or person adminis- AND SUPPLEMENTARY ACTS. 115 teriiif^ the Government there, have been absent from the said Province for the space of four years continually, at any time between the date of his succeeding to such right and the time of his applying for such writ of summons, if he shall have been of the age of twenty-one years or upwards at the time of his so succeeding, or at any time between the date of his attaining the said age and the time of his so applying, if he shall not have been of the said age at the time of his so succeeding ; and also when and so often as any such person shall, at any time before his applying for such writ of summons have taken any oath of allegiance or obedience to any foreign prince or power, in any such case such person shall not be entitled to receive any writ of sum- mons to the Legislative Council by virtue of such hereditary right, unless his Majesty, his heirs or successors, shall at any time think tit, by instrument under his or their sign manual, to direct that such person should be summoned to the said Council ; and the Governor, Lieutenant-Governor, or person administering the Government in the said Pro- vinces respectively, is hereby authorized and required, pre- vious to granting such writ of summons lo any person applying for the same, to interrogate such person upon oath, touching the said several particulars before such Executive Council as shall have been appointed by his Majesty, his. heirs or successors, within such Province for the affairs thereof. VIII. Provided also, and be it [further enacted by the Seats in Coun- authority aforesaid, ;that if any member of the Legislative cerui°f cises! Councils of either of the said Provinces respectively, shall leave such Province, and shall reside out of the same for the space of four years continually, without the permission of his Majesty, his heirs or successors, signified to such Legis- lative Council by the Governor, or Lieutenant-Governor, or person administering his Majesty's Government there, or for the space of two years continually without the like permission, or the permission of the Governor, Lieutenant- Governor, or person administering the Government of such Province, signified to such Legislative Council in the manner aforesaid ; or if any such member shall take any oath of allegiance or obedience to any foreign prince or power, his seat in such Council shall thereby become vacant. IX. Provided also, and be it further enacted by the Hereditary -foresaid, tha H.C.C. — 8 authority aforesaid, that in every case where a writ of sum- sMtfso'for- 116 THE CONSTITUTIONAL ACT feited, or vacated, to re- main suspenrl- ed durinK tlie lives of the parties, but on their deaths to go to tlie liersons next entitled tliere- to. Seats in Coun- cil forfeited, and heredi- tary rights extinguished, for treason. Questions re- specting tlie right to be suuinioned to Council, etc., to be deter- mined as here- in mentioned. mons to such Legislative Council sliiiU have been lawfully witliheld from any person to whom such hereditary right, as aforesaid, shall have descended, by reason of such absence from the Province as aforesaid, or of his having taken an oath of allegiance or obedience to any foreign prince or power, and also in every case where the seat in such Council of any member thereof, having such hereditary right as aforesaid, shall have been vacated by reason of any of the causes hereinbefore specified, such hereditary right shall remain suspended during the life of such person unless his Majesty, his heirs or successors, shall afterwards think fit to direct that he be summoned to such Council ; but that on the death of such person such right, subject to the provisions herein contained, shall descend to the person who shall next be entitled thereto, according to the course of descent limited in the letters patent by which the same shall have been originally conferred. X. Provided also, and be it further enacted by the author- ity aforesaid, that if any member of either of the said Legis- lative Councils shall be attainted for treason in any Court of law within any of his Majesty's dominions, his seat in such Council shall thereby become vacant, and any such hereditary right as aforesaid then vested in such person, or to be derived to any other person through him, shall be utterly forfeited and extinguished. XI. Provided also, and be it enacted by the authority aforesaid, that whenever any question shall arise respecting tlie right of any person to be summoned to either of the said Legislative Councils respectively, or respecting the vacancy ' of the seat in such Legislative Council of any person having been summoned thereto, every such question shall by the Governor or Lieutenant-Governor of the Province, or by the person administering the Government there, be referred to such Legislative Council to be by the said Council heard and determined ; and that it shall and maybe lawful, either for the person desiring such writ of summons, or respecting whose seat such question shall have arisen, or for his Majesty's Attorney-General of such Province in his Majesty's name, to appeal from the determination of the said Council in such case to his Majesty in his Parliament of Great Britain: and that the judgment thereon of his Majesty in his said Parliament shall be final and conclusive to all intents and purposes whatever. AND SUPPLEMENTARY ACTS. 117 XII. And be it further enacted by the authority afore- The Governor said, that the Governor or Lieutenant-Governor of the said vince may ap- Provinces respectively, or the person administering His Point and '^ •' '^ . " remove the Majesty's Government therein respectively, shall have Speaker. power and authority from time to time, by an instrument under the great Seal of such Province, to constitute, appoint and remove the Speakers of the Legislative Councils of such Provinces respectively. XIII. And belt further enacted by the authority afore- His Majesty said, that for the purpose of constituting such Assembly as the Governor aforesaid in each of the said Provinces respectively, it shall Jp call together and may be lawful for his Majesty, his heirs or successors, by an instrument under his or their sign manual, to author- ize and direct the Governor or Lieutenant-Governor, or person administering the Government in each of the said Provinces respectively, within the time hereinafter men- tioned, and thereafter from time to time as occasion shall require, in his Majesty's name and by an instrument under the Great Seal of such Province, to summon and call together an Assembly in and for such Province. XIV. And be it further enacted by the authority aforesaid, aud, for the , , . , ■ 1 . purpose of that for the purpose of electing the member of such Assem- electing the blies respectively it shall and may be lawful for his Majesty, jgs^i^ a'^pi-'ocU- his heirs or successors, by an instrument under his or their mation divid- sign manual, to authorize the Governor or Lieutenant- vince into Dis- Governor of each of the said Provinces respectively, or the tncts, etc. person administering the Government therein, within the time hereinafter mentioned, to issue a proclamation *= divid - ing such Province into districts, or coun ties, or circles, and towns or townships, and appointing the limits thereof, and declaring and appointing the number of representatives to be chosen by each of such districts, or counties, or circles, and towns or townships respectively ; and that it shall also be lawful for his Majesty, his heirs or successors, to author- ize such Governor or Lieutenant-Governor, or person administering the Government, from time to time to nom- inate and appoint proper persons to execute the office of returning-officer in each of the said districts, or counties, or circles, and towns or townships respectively; and that such division of the said Provinces into districts, or counties, or circles, and towns or townships, and such declaration and appointment of the number of representatives to be chosen by each of the said districts, or counties, or circles, 118 THE CONSTITUTIONAL ACT Power of the Governor to and towns or townships, respectively, and also such nomin- ation and appointment of returning-officers in the same, shall be valid and effectual to all the purposes of this Act, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs, or successors. XV. Provided nevertheless, and be it further enacted by appoint ro- t^e authority aforesaid, that the provision hereinbefore con- turning officers ^.^jj^e^l for empowering the Governor, Lieutenant-Governor, to continiio , y^ i i ■ t -n two years from or person administering the Government of the said Pro- ment*of'this°^ vinces respectively, under such authority as aforesaid from Act. his Majesty, his heirs or successors, from time to time to nominate and appoint proper persons to execute the office of returning-officer in the said districts, counties, circles, and towns or townships, shall remain and continue in force in each of the said Provinces respectively for the term of two years from and after the commencement of this Act within such Province, and no longer ; but subject nevertheless to be sooner repealed or varied by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors. XVI. Provided always, and be it further enacted by the authority aforesaid, that no person shall be obliged to exe- cute the said office of returning-officer for any longer time than one year, or oftener than once, unless it shall at any time be otherwise provided by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors. Numlier of XVII. Provided also, and be it enacted by the authority each Province, aforesaid, that the whole number of members to be chosen ill the Province of Upper Canada shall not be less than six- teen, and the whole number of members to be chosen in Lower Canada shall not be less than fifty. No person ob- liged to serve as returning officer more than once un- less otherwise provided by an Act of the Province. Regulations for issuing writs for the election of members to serve in the Assemblies. XVIII. And be it further enacted by the authority afore- said, that writs^ for the election of members to serve in the said Assemblies respectively shall be issued by the Governor, Lieutenant-Governor, or person administering his Majesty's Government within the said Provinces respectively, within fourteen days after the sealing of such instrument as afore- said for summoning and calling together such Assembly, and that such writs shall be directed to the respective returning- officers of the said districts, or counties, or circles, and towns AND SUPPLEMENTARY ACTS. 119 or townships, and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be otherwise pro- vided by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors ; and that writs shall in like manner and form be issued for the election of members, in the case of any vacancy which shall happen by the death of the person chosen, or by his being summoned to the Legislative Council of either Province, and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be otherwise provided by any Act of the Legislative CJouncil and Assembly of the Province, assented to by his MAjesty, his heirs or successors ; and that in the case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so summoned as aforesaid, the writ for the election of a new member shall be issued within six days after the same shall be made known to the proper officer for issuing such writs of election. XIX. And be it further enacted by the authoritv afore- Ketvu-uiugoffi- . , J cers to execute said, that all and every the returning-othcers so appomted ^rits. as aforesaid, to whom any such writs as aforesaid shall be directed, shall, and they are hereby authorized and required duly to execute such writs. XX. And be it further enacted by the authority aforesaid, By whom the . members are that the members for the several districts, or counties, or to be cliosen. circles of the said Provinces respectively shall be chosen by the majority of votes of such persons as shall severally be possessed, for their own use and benefit, of lands or tene. ments within such district, or county, or circle, as the case shall be, such lands being by them held in freehold, or in fief, or in roture, or by certificate derived under the authority of the Governor and Council of tlie Province of Quebec, and being of the vearl v value of forty shillings sterling or up - wards, over and above all rents and charges payable out of or in respect of the same ; and that the members for the several towns or townships within the said Provinces respectively shall be chosen by the majority of votes of such persons as either shall be severally possessed for their own use and benefit of a dwelling house and lot of ground in such town or township, such dwelling house and lot of ground being by them held in like manner as aforesaid, and being 120 THE CONSTITUTIONAL ACT of the y early value of five pounds ste rlint j or up wards, or as, having been resident within the said town or township for the space of twelve calendar months next before the date of the writ of summons for the election, shall bona fide have paid one year's rent for the dwellin<{ house in which they shall have so resided, at the rate of ten pounds sterling per annum or upwards. Certain per- XXI. Provided always, and be it further enacted by the L'?ble'to*the' authority aforesaid, that no person shall be capable of being Assemblies. elected a member to serve in either of the said Assemblies, or of sitting and voting therein, who shall be a member of either of the said Legislative Councils to be established as aforesaid in the said two Provinces, or who shall be a minister of the Church of England, or a minister, priest, ecclesiastic, or teacher, either according to the rites of the Church of Home, or under any other form or profession of religious faitii or worship. No person nil- XXII. Provided also, and be it further enacted by the aKe.'ete!!"^ ^ " authority aforesaid, that no person shall be capable of voting capable of vot- ^^^^ j^jjy election of a member to serve in such Assembly, in nig or ol beiiif,' "^ ,. , • , -i elected; either of the said Provinces, or of being elected at any such election who shall not be of the full age of twenty-one years, and a natural born subject of his Majesty, or a subject of his Majesty naturalized** by Act of the British Parliament, or a subject of his Majesty having become sucli by the con- quest and cession of the Province of Canada. nor any person XXIII. And be it also enacted by the authority aforesaid,, treaion^cV"' that no person shall be capable of voting at any election of felony. a member to serve in such Assembly in either of the said Provinces, or of being elected at any such election, who shall have been attainted for treason or felony in any Court of law within any of his Majesty's dominions, or who shall be within any description of persons disqualified by any Act of the Legislative Council and Assembly of the Province, assented to by his Majesty, his heirs or successors. Voters, if re- XXIV. Provided also, and bu it further enacted by the ?h "fonowinl!'° authority aforesaid, that every voter before he is admitted Oath, to give his vote at any such election shall, if required by any of the candidates, or by the returning-oflicer, take the fol- lowing oath, which shall be administered in the English or French language, as the case may require : AND SUPPLEMENTARY ACTS. 1'21 I, A. B., do declare and testify, in the presence of Almighty God, Oath, that I am, to the best of my knowledge and belief, of the full age of twenty-one years, and that I have not voted before at this election. And that every such person shall also, if so required as and to make aforesaid, make oath previous to his being admitted to vote particulars that he is, to the best of his knowledge and belief, duly l}erein speci- ° •' hed. possessed of such lands and tenements, or of such a dwelling house and lot of ground, or that he has bona fide been so resident and paid such rent for his dwelling house as entitles him, according to the provisions of this Act, to give his vote at such election for the county, or district, or circle, or for the town or township, for which he shall offer the same. XXV. And be it further enacted by the authority afore- His Majesty said, that it shall and may be lawful for his Majesty, his "he^Gove^nor* heirs or successors, to authorize the Governor or Lieutenant- to fix the term _ T • • i • 1 ^ ■ 1 ■ ^"^l place for Governor, or person administering the Government witbm holding elec- each of the said Provinces respectively, to fix the time and ^lons, place of holding such elections, giving not less than eight days' notice ofj such time, subject nevertheless to such pro- visions as may hereafter be made in these respects, by any Act of the Legislative Council and Assembly of the Pro- vince, assented to by his Majesty, his heirs, or successors. XXVI. And be it further enacted by the authority afore- and of holdinp; said, that it shall and may be lawful for his Majesty, his ^j^| counciT ° heirs or successors, to authorize the Governor or Lieutenant- and Assembly, etc. Governor of each of the said Provinces respectively, or the person administering the Government therein, to fix the places and times^ of holding the first and every other session of the Legislative Council and Assembly of such Province, giving due and sufficient notice thereof, and to prorogue the same from time to time, and to dissolve the same by pro- clamation or otherwise, whenever he shall judge it necessary or expedient. XXVII. Provided always, and be it further enacted by the Council and authority aforesaid, t hat the said Legislative Council an d caUe^d together Assembly in each of the said Provinces shall be called ^nce in twelve months, etc., t ogether once at the least in every twelve calendar mont hs. and that every Assembly shall continue for four years from the day of the return of the writs for choosing the same, and no longer,^" subject nevertheless to be sooner prorogued or dissolved by the Governor or Lieutenant-Governor of the Province, or person administering his Majesty's Government therein. 1'22 THE CONSTITUTIONAL ACT and all ques- XXVIII. And be it further enacted by the authority afore- to*be decided said, that all questions which shall arise in the said Legis- bythemajority j.^^jyg (^Qm^(,j]g or Assemblies respectively shall be decided of votes. by the majority of voices of such members as shall be pre- sent ; and that in all cases where the voices shall be equal the Speaker of such Council or Assembly, as the case may be, shall have a casting voice. No member to XXIX. Provided always, and be it enacted by the he haJtakcii authority aforesaid, that no member either of the Legisla- the following tive Council or Assembly, in either of the said Provinces, shall be permitted to sit or vote therein until he shall have taken and subscribed the following oath, either before the Governor or Lieutenant-Governor of such Province, or per- son administering the Government therein, or before some person or persons authorized by the said Governor or Lieu- tenant-Governor, or other person as aforesaid, to administer such oath, and that the same shall be administered in the English or French language, as the case may require : Oath. I, A. B., do sincerely promise and swear that I will be faithful and bear true allegiance to his Majesty, King George, as lawful Sovereign of the Kingdom of Great Britain, and of these Provinces dependent on and belonging to the said Kingdom ; and that I will defend him to the utmost of my power against all traitorous conspiracies and attempts whatevei which shall be made against his person, crown, and dignity; and that I will do my utmost endeavour to disclose and make known to his Majesty, his lieirs or successors, all treasons and traitorous conspiracies and attempts which I shall know to be against him, or any of them; and all this I do swear without any equivocation, mental evasion, or secret reservation, and renouncing all pardons and dispensations from any person or power whatever to the contrary— So help mo God. Governor may XXX. And be it further enacted by the authority afore- hoUnfiiTMa- s^id, that whenever any bill, which has been passed by the jesty's assent Legislative Council and by the House of Assembly in to bills passed ° ■' ■ i i n , by the Logisla- either of the said Provinces respectively, shall be presented and .\ssembly, ^^^ ^^^ Majesty's assent to the Governor or Lieutenant- or reserve Governor of such Province, or person administering his them for his . t ■ . Majesty's plea- Majesty's Government therein, such Governor or Lieutcnant- sure. Governor, or person administering the Government shall, and he is hereby authorized and required to declare, accord- ing to his discretion, but subject nevertheless to the pro- visions contained in this Act, and to such instructions as may from time to time be given in that behalf by his Majesty, his lieirs or successors, that he assents to such bill in his Majesty's name, or that he withholds his Majesty's AND SUPPLEMENTARY ACTS. 123 assent from such bill, or tliat he reserves such bill for the sij»nilication of his Majesty's pleasure thereon. XXXI. Provided always, and be it further enacted by the Governor to authority aforesaid, that whenever any bill which shall have secretary of been so presented for his Maiesty's assent to such Governor, state copies of ^ . . such bills as Lieutenant-Governor, or parson administering the Govern- have been as- ment, shall by such Governor, Lieutenant-Governor, or per- ^viij,,], \^\!i Ma- son administering the Government, have been assented to in )'.'^*> '" <'"un- . <'il iiKi V (locIaEe_ his Majesty's name, such Governor, Lieutenant-Governor, his disallow- or person as aforesaid shall, and he is hereby required, by ^^Q^^J^g^^g^^jJ^^^ the first convenient opportunity to transmit to one of his ttre jeceipt. Majesty's principal Secretaries of State, an authentic copy of such bill so assented to ; and that it shall and may be lawful, at any time within two years after such bill shall have been so received by such Secretary of State for his Majesty, his heirs or successors, by diis or their Order-in- Council to declare his or their disallowance of such bill, and that such disallowance, together with a certificate under the hand and seal of such Secretary of State testifying the day on which such billwas received as aforesaid, being signified by such Governor, Lieutenant-Governor, or person adminis- tering the Government, to the Legislative Council and Assembly of such Province, or by proclamation, shall make void and annul the same, from and after the date of such signification. XXXII. And be it further enacted by the authority afore- Bills reserved said, that no such bill which shall be so reserved for the ty^s pfeasu're signification of his Majesty's pleasure thereon, shall have "°'' ^P ^'^'^?.„ ° J ./ r j^ijy force till any force or authority within either of the said Provinces his Majesty's respectively until the Governor, or Lieutenant-Governor, or municated t "^" person administering the Government shall sitinifv, either ^^^ Couiieil f , ° , -r ■ , o J . g^jj^ Assembly. by speech or message, to the Legislative Council and Assembly of such Province, or by proclamation, that such bill has been laid before his Majesty in Council, and that his Majesty has been pleased to assent to the same ; and that an entry shall be made in the journals of the said Legis- lative Council of every such speech, message, or proclama- tion ; and a duplicate thereof duly attested shall be delivered to the proper officer to be kept amongst the public records of the Province ; and that no such bill, which shall be so reserved as aforesaid shall have any force or authority within either of the said Provinces respectively unless his Majesty's assent thereto shall have been so signified as 124 THE CONSTITUTIONAL ACT liiiws in force) at the coiii- mencenieut of tliis Act toc<'ii- tiuue so, ex- cept repealed or varied by it, etc. .■■J i^ i.v Kstablislnuciit of court of civil jurisdic- tion in each Province. 14 George III , cap- 83, and aforesaid, within tlic space of two years from the clay on which such bill shall have been presented for his Majesty's assent, to the Governor, Lieutenant-Governor, or person administering the Government of such Province. XXXIII. And be it further enacted by the authority aforesaid, that all laws, statutes, and ordinances which shall be in force on the day to be fixed in the manner herein after directed for the commencement of this Act, within the said Provinces, or either of them, or in any part thereof respec- tively, shall remain and continue to be of the same force, authority, and effect in each of the said Provinces respec- tively as if this Act had not been made, and as if the said Province of Quebec had not been divided ; except in so far as the same are expressly repealed or varied by this Act, or in so far as the same siiall or may hereafter by virtue of and under the authority of this Act be repealed or varied by his Majesty, his heirs, or successors by and with the consent of the Lej^islative Councils and Assemblies of the said Pro- vinces respectively, or in so far as the same may be repealed or varied by such temporary laws or ordinances as may be made in the manner hereinafter specified, XXXIV. And whereas by an ordinance passed in the Pro- vince of Quebec the Governor and Council of the said Pro- vince were constituted a Court of civil jurisdiction for hear- ing and determining appeals in certain cases therein speci- fied, be it further enacted by the authority aforesaid, that the Governor, or Lieutenant-Governor, or person administer- ing the Government of each of the said Provinces respec- tively, together with such E.xccutive Council as shall be appointed by his Majesty for the affairs of such Province, s hall be a Court of civil jurisdiction, within each of the said. Provinces respectively, for hearing and determining appeals within the same, in the like cases, and in the like manner and form, and subject to such appeal therefrom as such appeals might, before the passinii of this Act, have been heard and determined by the Governor and Council of the Province of Quebec ; but subject nevertheless to such further or other provisions' ' as may be made in this behalf by any Act of the Legislative Council and Assembly of either of the said Provinces respectively, assented to by his Majesty, his heirs, or successors. XXXV. And whereas by the above mentioned Act passed in the fourteentli year of the reign of his present Majesty it AND SUPPLEMENTARY ACTS. 125 was declared that the clergy of the Church of Rome in the Pro- vince of Quebec might hold, receive, and enjoy their accus- tomed dues and rights, with respect to such persons only as should profess the said religion; provided nevertheless that it should be lawful for his Majesty, his heirs or successors, to make such provision out of the rest of the said accustomed dues and rights for the encouragement of the Protestant religion and for the maintenance and support of a Protestant clergy within the said Province as he or they should from time to time tliink necessary and expedient : And whereas by his Majesty's Koyal instruction, given under his Majesty's Koyal sign manual on the third of January in the year of our Lord one thousand seven hundred and seventy -five to Guy Carleton, Esquire, now Lord Dorchester, at that time his Majesty's Captain-General and Governor in Chief in and over his Majesty's Province of Quebec, his Majesty was pleased amongst other things to direct that no incumbent instructions of professing the religion of the Church of Rome, appointed to iTy^^fo gfiy any parish in the said Province, should be entitled to Carleton, Esq., receive any tythes for lands or possessions occupied by a Pro- testant,but that such tythes should be received by such persons as the said Guy Carleton, Esquire, his Majesty's Captain- General and Governor in Chief in and over his Majesty's said Province of Quebec, should appoint, and should be reserved in the hands of his Majesty's Receiver-General of the said Pro- vince for the support of a Protestant clergy in his Majesty's said Province to be actually resident within the same, and not otherwise, according to such directions as the said Guy Carleton, Esquire, his Majesty's Captain-General and Governor in Chief in and over his Majesty's said Province, should receive from his Majesty in that behalf ; and that in like manner all growing rents and profits of a vacant bene- fice should during such vacancy be reserved for and applied to the like uses; and whereas his Majesty's pleasure has likewise been signified to the same effect in his Majesty's Royal instructions given in like manner to Sir Frederick iustructioiis to ^S 1 1* I^' I'G rl f* r 1 ('" k Haldimand, Knight of the most honorable Order of the Haldimaud, Bath, late his Majesty's Captain-General and Governor in Chief in and over his Majesty's said Province of Quebec ; and to Lord and also in his Majesty's Royal instructions given in like i-ecited manner to the said Right Honorable Guy Lord Dorchester, now his Majesty's Captain-General and Governor in Chief in and over his Majesty's said Province of Quebec ; be it and the declar- enacted by the authority aforesaid that tlie said declaration visions therein 126 THE CONSTITUTIONAL ACT respecting the and provision contained in the said above mentioned Act, Church of and also the said provision so made by his Majesty in con- Koiuo to con- sequence thereof by his instructions above recited, shall tmue in force. . . remain and continue to be of full force and effect in each of the said two Provinces of Upper Canada and Lower Canada respectively, except in so far as the said declaration or provi- sions respectively , or any part thereof, shall be expressly varied or repealed by any Act'^ or Acts which may be passed by the Legislative Council and Assembly of the said Provinces respectively, and assented to by his Majesty, his heirs or successors, under the restriction hereinafter provided. His Majesty's XXXVI. And whereas his Majesty has been graciously Pariiaiiient pleased, by message to both Houses of Parliament, to recited. express his Royal desire to be enabled to make a permanent appropriation of land in the said Provinces for the support and maintenance of a Protestant clergy within the same, in proportion to such lands as have been already granted within His Majesty the same by his Majesty : And whereas his Majesty has the"G(>vcnior been graciously pleased by his said message further to to iiiake^aUot^ gjgQify jjig Royal desire that such provision may be made for the support with respect to all future grants of land within the said Pro- of a Protestaut . ,-1 1. i 1 i ii 1 J £e clerKv in each vinces respectively as may best conduce to the due and sum- I'rovince ; cient support and maintenance of the Protestant clergy within the said Provinces, in proportion to such increase as may happen in the population and cultivation thereof ; therefore, for the purpose of more effectually fulfilling his Majesty's gracious intentions as aforesaid, and of providing for the due execution of the same in all time to come, be it enacted by the authority aforesaid that it shall and may be lawful for his Majesty, his lieirs or successors, to authorize the Governor, or Lieutenant-Governor of each of the said Provinces respectively, or the person administering the Government therein, to make from and out of the lands of the Crown within such Provinces such allotment and appro- priation of lands for the support and maintenance of a Pro- testant clergy within the same as may bear a due proportion to the amount of such lands within the same as have at any time been granted by or under the authority of his Majesty : And that, whenever any grant of lands within either of the said Provinces shall hereafter be made by or under the authority of his Majesty, his heirs or successors, tliere shall at the same time be made, in respect of the same, a pro- portionable allotment and appropriation of lands for the AND SUPPLEMENTARY ACTS. 127 above mentioned purpose, within the township or parish to which such lands so to be {^ranted shall appertain or be annexed, or as nearly adjacent thereto as circunastances will admit ; and that no such t;rant shall be valid or effectual unless the same shall contain a specification of the lands so allotted and appropriated, in respect of the lands to be thereby jjranted ; and that such lands so allotted and appro- priated shall be, as nearly as the circumstances and nature of the case will admit, of the like quality as the lands in respect of which the same are so allotted and appropriated, and shall be, as nearly as the same can be estimated at the time of makini,' such grant, equal in value to tlie seventh part of the lands so <;ranted. XXX\'II. And be it further enacted bv the authority ami the rents -1 ,1 . 1, T ii / " ,.. 1 arisiiigfrom aforesaid that all and every the rents, profits, or emolu- f,^^ch allotment ments, which may at anv time arise from such lands so '^^.''^^^l^r''^" •^ " able to that allotted and appropriated as aforesaid, shall be applicable purpose solely. solely to tiie maintenance and support of a Protestant clergy within the Province in which the same shall be situated, and to no other purpose whatever.^' I 3 XXXVIII. And be it further enacted by the authority His Majesty aforesaid that it shall and may be lawful for his Majesty, the Governor, his heirs and successors, to authorize the Governor or ^'.i*^ *'i^?.^'^" vice of the Lieutenant-Governor of each of the said Provinces respec- Executive tively, or the person administering the Government therein, gi-ect pa'rson- from time to time, with the advice of such Executive Coun- ages and endow them, oil as shall have been appointed by his Majesty, his heirs or successors, within such Province for the affairs thereof, to constitute and erect within every township or parish which is now or hereafter may be formed, constituted, or erected within such Province, one or more parsonage or rectory, or parsonages or rectories, according to the establishment of the Church of England ; and from time to time by instru- ment under the great Seal of such Province to endow every such parsonage or rectory with so much or such a part of the lands so allotted and appropriated as aforesaid, in respect of any lands with such township or parish which shall have been granted subsequent to the commencement of this Act or of such lands as may have been allotted and appropriated for the same purpose, by or in virtue of any instruction which may be given by his Majesty in respect of any lands granted by his Majesty before the commencement of this Act, as such Governor, Lieutenant-Governor, or 128 THE CONSTITUTIONAL ACT and the Govoi- nor to present incumbents to them, who are to enjoy the sameas inctini hents in Euti- land. Presentations to parsonages and the enjoy- ment of them to be subject to tlio jurisdic- tion (granted to the Bishop of Nova Scotia, etc. Provisions re- spectiue; tlie allotment of lands for the support of a Protestant clergy, etc., may be varied or repealed by the Legislative Council and Assembly. person administering the Government shall, wiili the advice of the said Executive Council, judge to be expedient under the then existing circumstances of such township or parish. XXXIX. And be it further enacted by the authority aforesaid, that it shall and may be lawful for his Majesty, his heirs or successors, to authorize the Governor, Lieuten- - ant-Governor, or person administering the Government of each of the said Provinces respectively, to present to every such parsonage or rectory an incumbent or minister of tlie Church of England, who shall have been duly ordained according to the rites of the said Church, and to supply from time to time such vacancies as may happen therein ; and that every person so presented to any such parsonage or rectory sliall hold and enjoy the same, and all rights, profits, and emoluments thereunto belonging or granted, as fully and amply, and in the same manner, and on the same terms and conditions, and liable to the performance of the same duties, as the incumbent of a parsonage or rectory in Eng- land. XL. Provided always, and be it further enacted by the authority aforesaid, that every such presentation of an incumbent or minister to any such parsonage or rectory, and also the enjoyment of any such parsonage or rectory, and of the rights, profits, and emoluments thereof, by any such incumbent or minister, shall be subject and liable to all rights of ijistitution, and all other spiritual and ecclesias- tical jurisdiction and authority, which have been lawfully granted by his Majesty's Eoyal letters patent to the Bishop of Nova Scotia, or which may hereafter by his Majesty's Royal authority be lawfully granted or ajipointed to be administered and executed within the said Provinces, or either of them respectively, by the said Bishop of Nova Scotia, or by any other person or persons, according to the laws and canons of the Church of England which are lawfully made and received in England.'^ XLI. Provided always, and be it further enacted by the authority aforesaid, that the several provisions hereinbefore contained, respecting the allotment and appropriation of lands for the support of a Protestant clergy within the said Provinces, and also respecting the constituting, erecting, and endowing parsonages or rectories within the said Provinces, and also respecting the presentation of incumbents or min- / AND SUPPLEMENTARY ACTS. 129 iaters to the same, and also respecting the manner in which such incumbents or ministers shall hold and enjoy the same shall be subject to be varied or repealed be any express pro- visions for that purpose contained in any Act or Acts which may be passed by the Legislative Council and Assembly of the said Provinces respectively, and assented to by his Majesty, his heirs or successors, under the restriction herein after provided. ''' XLII. Provided nevertheless, and be it further enacted by Acts of the Leg- the authority aforesaid, that whenever any Act or Acts shall cU^aruf Assem- be passed by the Legislative Council and Assembly of either bly containing . provisions to of the said Provinces, containing any provisions to vary or the effect here- repeal the above recited declaration and provision contained }.° be^JaTd^ife- in the said Act passed in the fourteenth year of the reign of fore Parlia- 1 • i Ti/r • i 1 1 ,1 1 •, T nient previous his present Majesty ; or to vary or repeal the above recited to receiving his provision contained in his Majesty's Koyal instructions gg^''®^*^ ® ^^' given on the third day of January in the year of our Lord one thousand-seven hundred and seventy -five to the said Guy Carleton, Esquire, now Lord Dorchester ; or to vary or repeal the provisions herein before contained for continuing the force and effect of the said declaration and provisions ; or to vary or repeal any of the several provisions herein before contained respecting the allotment and appropriation of lands for the support of a Protestant clergy within the said Provinces ; or respecting the constituting, erecting, or endowing parsonages or rectories within the said Pi'ovinces; or respecting the presentations of incumbents or ministers to the same ; or respecting the manner in which such incum- bents or ministers shall hold and enjoy the same : And also that whenever any Act or Acts shall be so passed, containing any provisions which shall in any manner relate to or affect the enjoyment or exercise of any religious form or mode of worship; or shall impose or create any penalties, burthens, disabilities, or disqualifications in respect of the same ; or shall in any manner relate to or affect the payment, recovery, or enjoyment of any of the accustomed dues or rights herein before mentioned ; or shall in any manner relate to the granting, imposing, or recovering any other dues or stipends, or emoluments whatever, to be paid to or for the use of any minister, priest, ecclesiastic, or teacher according to any religious form or mode of worship, in respect of of his said office or function ; or shall in any manner relate to or affect the establishment or discipline of the Church of England amongst the ministers and m:embers 130 THE CONSTITUTIONAL ACT thereof within the said Provinces ; or shall in any manner relate to or affect the King's prerogative touching the grant- ing of waste lands of the Crown within the said Provinces; every such Act or Acts shall, previous to any declaration or signification of the King's assent thereto, be laid before both Houses of Parliament in Great Britain ; and tliat it shall not be lawful for his Majesty, his heirs or successors, to signify his or their assent to any such Act or Acts, until thirty days after the same shall have been laid before the said houses, or to assent to any such Act or Acts in case either House of Parliament shall within the said tliirty days address his Majesty, his heirs or successors, to withhold his or their assent from such Act or Acts ; and that no such Act shall be valid or effectual to any of the said purposes within either of the said Provinces unless the Legislative Council and Assembly of such Province shall, in the session in which the same shall have been passed by them, have presented to the Governor, Lieutenant-Governor, or person administering the Government of such Province, an address or addresses specifying that such Act contains provisions for someof tha said purposes hereinbefore specially described, and desiring that, in order to give effect to tlie same, such Act should be transmitted to England without delay for the purpose of being laid before Parliament previous to the signification of his Majesty's assent thereto. Lands in Up- XLIII. And be it further enacted by the authority afore- brKnuuo.Un" ^^^^^' ^^^^^ ^'^ ^^"^^^ which shall hp hpcgail£i:.graiitedjvitliin free and coin- the said Erovmca ^f Upper Cana da shall be granted in free mon K()Cfut,'e, ^^^ r:; —^^ and also iu and common soccage, in like manner as lands are now ^°desh-eci"'^'''^' ^^'^l'^^" '" ^^'^^ ^"'^ common soccage in that part of Great Britain called England ; and that in every case where lands shall be hereafter granted within the said Province of Lower Canada, and where the grantee thereof shall desii'e the same to be granted in free and common soccage, the same shall be so granted ; but subject nevertheless to such alterations with respect to the nature and consequences of such tenure of free and common soccage, as may be established by any law or laws which may be made by his Majesty, his heirs or successors, by and with the advice and consent of the Legis- lative Council and Assembly of the Province.' * Persons hold- XLIV. And be it further enacted by the authority afore- Upper Canada s"'''^' t^'^* i^ ^"Y ppi'son or persons holding lands in the said may have fresh Province of Upper Canada*" by virtue of any certificate of grants. AND SUPPLEMENTARY ACTS. 181 occupation derived under the authority of the Governor and Council of the Province of Quebec, and having power and autliority to alienate the same, shall at any time from and after the commencement of this Act surrender the same into the liands of his Majesty, his heirs or successors, by petition to the Governor, or Lieutenant-Governor, or person admin, istering the Government of the said Province, setting forth that he, she, or they, is or are desirous of holding the same in free and common soccage, such Governor, or Lieutenant- Governor, or person administering the Government shall thereupon cause a fresh grant to be made to such person of such lands to be holden in free and common soccage. XLV. Provided nevertheless, and be it further enacted by Such fresh the authority aforesaid, that such surrender and grant shall gg^j. g^^y i-jght not avoid or bar any right or title to any such lands so sur- oi" title to the rendered, or any interest in the same, to which any person or persons other than the person or persons surrendering the same shall have been entitled either in possession, remainder, or reversion, or otherwise, at the time of such surrender ; but that every such surrender and grant shall be made subject to such right, title, and interest, and that every such right, title, or interest shall be as valid and effec- tual as if such surrender and grant had never been made. XLVI. And whereas by an Act^ ^ passed in the eighteenth 18 Geo. III., year of the reign of his present Majesty, intituled " An Act ' ' for removing all doubts and apprehensions concerning taxa- tion by the Parliament of Great Britain in any of the Colonies, Provinces, and Plantations in North America and the West Indies ; and for repealing so much of an Act made in the seventh year of his present Majesty as imposes a duty on tea imported from Great Britain into any Colony or Plantation in America, or relates thereto," it has been declared Jliat-thaKing and Parliam_entof Greatj3ritain will not impose any duty, tax, or assessment whatever, payable in any of his Majesty's Colonies, Provinces, and Plantations in North America, or the West Indies, except only such duties as it may be expedient to impose for the regulation of com- merce, the net produce of such duties to be always paid and applied to and for the use of the Colony, Province, or Plan- tation, in which the same shall be respectively levied, in such manner as other duties collected by the authority of the respective General Courts or General Assemblies of such Colonies, Provinces, or Plantations are ordinarily paid and H.C.C. 9 ^.j^ {.^^ I o4 132 THE CONSTITUTIONAL ACT applied ": And whereas it is necessary for the j^eueral benefit of the British Empire, that such power of regulation of commerce should continue to be exercised by his Majesty, his heirs or successors, and the Parliament of Great Britain, subject nevertheless to the conditions herein before recited with respect to the application of any duties which may be This Act not to imposed for that purpose : Be it therefore enacted by the operation of authority aforesaid, that nothin<^ in this Act contained shall any Act of I'ar- extend, or be construed to extend, to prevent or affect the hanient estal)- . , ■ , , i , , ,, lisbing pro- execution of any law which hath been or shall at any time imi)osin"°^ be made by his Majesty, his heirs or successors, and the duties for the Parliament of Great Britain, for establishing re<^ulations or navigation and prohibitions, or for imposing, levying, or collecting duties commerce, etc. f^^. ^^^^ regulation of navigation, or for the regulation of the commerce to be carried on between the said two Pro- vinces, '"or between either of the said Provinces and any other part of his Majesty's dominions, or between either of the said Provinces and any foreign country or state, or for appointing and directing the payment of drawbacks of such duties so imposed, or to give to his Majesty, his heirs or successors, any power or authority, by and with the advice and consent of such Legislative Councils and Assemblies respectively, to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or obstruct the execution thereof. Such duties to XLVII. Provided always, and be it enacted by the the'^iise'oftlie authority aforesaid, that the net produce of all duties wliich respective Pro- shali be so imposed shall at all times hereafter be applied to vincGs and for the use of each of the said Provinces respectively, and in such manner only as shall be directed by any law or laws which shall be made by his Majesty, his heirs or suc- cessors, by and with the advice and consent of the Legisla- tive Council and Assembly of such Province. His Majesty in XLVIII. And whereas, by reason of the distance of the and declare said Provinces from this country, and of the change to be the commence- inade by this Act in the Government thereof, it may be meut of the •' •' Act, etc. necessary that there should be some interval of time between the notification of this Act to the said Provinces respectively, and the day of its commencement within the said Provinces respectively; be it therefore enacted by the authority afore- said, that it shall and may be lawful for his Majesty, with the advice of tlie Privy Council, to fix and declare, or to authorize the Governor or Lieutenant-Governor of the Pro- AND SUPPLEMENTARY ACTS. 133 vince of Quebec, or the person administering the Govern- ment there to fix and declare the day of the commencement of this Act within the said Provinces respectively, provided that such day shall not be later than the thirty-first day of December, in the year of our Lord one thousand seven hundred and ninety-one.^" XLIX. And be it further enacted by the authority afore- Time for issu- . , , . ,^ . , T ■ 1 ■ in L' the writs of said, that the time to be fixed by his Majesty, his heirs or summons and successors, or under his or their authority by the Governor, f,'jf t'o°befa*ter Lieutenant-Governor, or person administering the Govern- tlmn 31st De- „ ,, . , _, . i.- 1 r • • , cember, 1792. ment in each of the said Provinces respectively, for issuing the writs of summons and election, and calling together the Legislative Councils and Assemblies of each of the said Provinces respectively, shall not be later than the thirty- first day of December, in the year of our Lord one thousand seven hundred and ninety-two.-^ L. Provided always, and be it further enacted by the Between the -, , T ■ 1 • i 1 1 commeuce- authority aforesaid, that during such interval as may happen ^ent of this between the commencement of this Act within the »aid Act^^d^the^^^^ Provinces respectively, and the first meeting of the Legisla- the Legislative tive Council and Assembly of each of the said Provinces Assembly, respectively, it shall and may be lawful for the Governor or '^*^"^P°'^'f;^5[ Lieutenant-Governor of such Province, or for the person made, administering the Government therein, with the consent of the major part of such Executive Council as shall be appointed by his Majesty for the affairs of such Province, to make temporary laws and ordinances for the good govern- ment, peace, and welfare of such Province, in the same manner and under the same restrictions as such laws or ordinances might have been made by the Council for the affairs of the Province of Quebec constituted by virtue of the above mentioned Act of the fourteenth year of the reign of his present Majesty ; and that such temporary laws shall be valid and binding within such Province until the expira- tion of six months after the Legislative Council and Assembly of such Province shall have been first assembled by virtue of and under the authority of this Act ; subject nevertheless to be sooner repealed or varied by any law or laws which may be made by his Majesty, his heirs or suc- cessors, by and with the advice and consent of the said Legislative Council and Assembly. 184 THE CONSTITUTIONAL ACT The Constitutional Act Amendment Act, 1830. A71 Act'^^ to amend so uiuvh af an Act of tly thirtij-jirst year of his late Ma jest I/, for viakimj more effectual i>nirixi()n for tlie (Sav- ernwent of the Province of Quebec. '^■ 1 ^ ■ [IGtii July, 1S;^0. 31 Geo. III., Whereas by an Act passed in the thirty-first year of the reif.;n of his late Majesty, Kint^ George the Third, intituled, " An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled, ' An Act for making more effectual provision for the Government of Quebecin North America,' and to make further provision for the Government of the said Province," it is amongst other things enacted-'' that no person sliall be summoned to the Legislative Council in either of the Provinces of Upper Canada and Lower Canada who shall not be of the full age of twenty- one 3^ears, and a natural-born subject of his Majesty, or a subject of his Majesty naturalized by Act of the British Parliament, or a subject of his Majesty having become such by the conquest and cession of the Province of Canada ; and it is thereby further provided that no person shall be capable of voting at any election of a member to serve in the Legisla- tive Assembly in either of the said Provinces of Upper Canada or Lower Canada, or of being elected at any such election, who shall not ba of the full age of twenty-one years, and a natural-born subject of his Majesty, or a subject of his Majesty's naturalized by an Act of the British Parliament, or a subject of his Majesty, having become such by the con- quest and cession of the Province of Canada : And whereas i it is expedient"* that persons naturalized by any Act of the Legislative Council and Assembly of the Province of Lower Canada assembled by liis, Majesty, his heirs, or successors should be enabled to be summoned to the Legislative Council of the said Province of Lower Canada, and of voting at the elections to serve in the Legislative Assembly of the said Province, or of being elected at any such jelection ; Be it therefore enacted by the King's Most Excellent Majesty, by AND SUPPLEMENTARY ACTS. 185 and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that all per- Persons natur- sons naturalized by any Act of the Legislative Council and jq Assembly of Assemblv of the Province of Lower Canada, assented to bv ^o^^>" Canada, ~ _ • and in Lepisla- his Majesty, his heirs or successors, shall henceforth be and tive Council. be deemed competent in the law to be summoned to the Let^is- lative Council of the said Province of Lower Canada, and to vote at the elections of members to serve in the Legislative Assembly of the said Province, and to be elected at any such election. II. Provided nevertheless, and be it further enacted, that Act of natur- whenever any bill which has been passed by the Legislative to' h^ve'fo'rce Council and bv the House of Assemblv in the said Province or authority r T r~, ' T e it , li"- r UHIbSS hlS Ma- 01 Lower Canada, for the naturalization of any persons or jesty's assent person, shall be presented for his Majesty's assent to the tj^g'same^'^ *° Governor or Lieutenant-Governor of the said Province, or to the person administering his Majesty's Government therein, such Governor or Lieutenant-Governor, or person administering the Government, shall and he is hereby required to reserve every such bill for the signification of his Majesty's pleasure thereon ; and no such bill shall have any force or authority within the said Province of Lower Canada until the Governor or Lieutenant-Governor, or per- son administering the Government, shall signify, either by speech or message to the Legislative Council and Assembly of the said Province, or by proclamation, that such bill has been laid before his Majesty in Council, and that his Majesty has been pleased to assent to the same ; and no such bill shall have any force or authority within tlie said Province unless his Majesty's assent thereto shall have been so signilied as aforesaid within the space of two years from the day on which such bill shall have been pre- sented for his Majesty's assent to the Governor, Lieutenant- Governor, or person administering the Government. 136 THE CONSTITUTIONAL ACT The Constitutional Act Suspension Act, 1838. A)i, Act"^'' to nKilce tempordnj jiroriaion for tlic G(roernmr)it of Ijiu-fv Ctinaihi. [10th February, 1838. Whereas in the present state of the Province of Lower Canada tlie House of Assembly of the said Province, consti- 31 Geo. III., tuted under the Act passed in the thirty-first year of his cap. 31. Majesty, King George the Third, intituled "An Act to repeal certain parts of an Act passed in the fourteenth year of his Majesty's reign, intituled ' An Act for making more effectual provision for the Government of the Province of Quebec in North America,' and to make further provision for the Government of the said Province " cannot be called together without serious detriment to the interests of the said Province,^ ° by reason whereof the Government of the said Province cannot be duly administered according to the provisions of the said Act : And whereas it is expedient to make temporary provision for the Government of Lower Canada, in order that Parliament may be enabled, after mature deliberation, to make permanent arrangements^" for the Constitution and Government of the said Province, upon such a basis as may best secure the rights and liberties and promote the interests of all classes of her Majesty's subjects in the said Province : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this pre- sent Parliament assembled, and by the authority of the same, that from the proclamation of this Act in the said The powers of Province as hereinafter provided, until the first day of rjo"/s[aUirG of November in the year one thousand eight hundred and forty, Lower Canada go much of the said Act of the thirty -first year of King Cieorge the Third, and of any other Act or Acts of Parlia- ment, as constitutes or provides for tiie constitution or call- ing of a Legislative Council or Legislative Assembly for the Province of Lower Canada, as confers any powers or func- tions upon tlic said TiOgislative Council and Legislative AND SUPPLEMENTARY ACTS. 137 Assembly, or either of those bodies, shall cease and be of no force. II. And be it enacted that it shall be lawful for her Her Majesty . . ■ ■ i. \ t f may appoint a Majesty, by any commission or commissions to be from time special Coun- to time issued under the Great Seal of the United Kingdom, '^ii^?^*'^^? '^ affairs of Lower or by any instructions under her Majesty's signet or sign Canada, manual, and with the advice of her Privy Council, to con- stitute a special Council^* for the affairs of Lower Canada, and for that purpose to appoint or authorize the Governor of the Province of Lower Canada to appoint such and so many Special Councillors as to her Majesty shall seem meet, and to make such provision as to her Majesty shall seem meet for the removal, suspension, or resignation of all or any such Councillors : Provided always that no member of Members of the said special Council shall be permitted to sit or vote J^^^^ °,"q"^jj ° therein until he shall have taken and subscribed before the Governor of the Province of Lower Canada, or before some person authorized by the said Governor to administer such Oath, the same Oath which is now required to be taken by the members of the Legislative Council and Assembly before sitting or voting therein respectively. III. And be it enacted that from and after such procla- Tlie Goveruor mation as aforesaid, and until the first day of November in j^jj^y „jake the year one thousand eight hundred and forty, it shall be Laws or Ordiu- •' '- -^ ances tor the lawful for the Governor of the Province of Lower Canada, Government of wdth the advice and consent of the majority of the said °^^^ ^^^^ ^' Councillors present at a meeting or meetings to be for that purpose from time to time convened by the Governor of the said Province, to make such laws or ordinances for the peace, welfare, and good Government of the said Province of Lower Canada as the Legislature of Lower Canada, as now constituted, is empowered to make ; and that all laws or ordinances so made, subject to the provisions hereinafter contained for disallowance thereof by her Majesty, shall have the like force and effect as laws passed before the pass- ing of this Act by the Legislative Council and Assembly of the said Province of Lower Canada, and assented to by her Majesty, or in her Majesty's name by the Governor of the said Province : Provided always that no such law or ordin- Such laws to ance shall be made unless the same shall have been first pro- the^Governor posed by the said Governor for adoption by the Council, nor unless the said Governor and five at least of the said Coun- cillors shall be actually present when such law or ordinance 138 THE CONSTITUTIONAL ACT LimitinR their sliall be made : Provided also, that no law or ordinance so duration. made sliall continue in force beyond the first day of Novem- ber in the year one thousand eight hundred and forty -two, Proviso as to unless continiaed by competent authority : Provided also, impoBingtaxes. ^j^,^^ -j. ^j^^^ ^^^^ ^^ lawful by any such law or ordinance to impose any tax, duty, rate, or impost, save only in so far as any tax, duty, rate, or impost which at the passing of this Act is payable within the said Province may be thereby con- Laws or Ordin- tinned : Provided also, that it shall not be lawful, by any affect the ex- such law or ordinance, to alter in any respect the law now istinRlawsre- existing in the said Province respecting the constitution or specting Rights . . „ , ^ ■ , ■ . i i ^i c of Election, composition of the Legislative Assembly thereof, or respect- ^^^- ing the right of any person to vote at the election of any mem- ber of the said Assembly, or respecting the qualifications of such voters, or respecting the division of the said Province into counties, cities, and towns for the purpose of such elec- tions; nor shall it be lawful by any such law or ordinance to repeal, suspend, or alter any provision of any Act of the Parliament of Great Britain or of the Parliament of the United Kingdom, or of any Act of the Legislature of Lower Canada as now constituted, repealing or altering any such Act of Paidiament. No law, etc., to IV. Provided always, and be it enacted, that it shall not tl?e mon\es^in be lawful by any «uch law or ordinance to appropriate any hand for re- monies which now arc or which shall hereafter be in the the sum of hands of the Receiver-General of the said Province of Lower £14^2,160 i^^^-.g Canada towards the repayment of any sum or sums of catoof Com- money which shall have been issued out of the sum of one TreaBuryTuor hundred and forty-two thousand one hundred and sixty to an amount pounds, fourteen shillings, and sixpence, granted to her exceeding tlie * ' " ■ j. t-. i- x appropriation Majesty by an Act passed in the last session of Parliament ^^'^' for advances on account of charges for the administration of justice and of the Civil Government of the Province of Lower Canada, unless upon a certificate from three or more of the Commissioners of her Majesty's Treasury, setting forth the several sums which shall have been so advanced for any of the purposes aforesaid : Provided also, that, exclu- sive of any such repayment as aforesaid, no appropriation to be made by any such law or ordinance of the monies aforesaid' in respect of the public service for any one year shall exceed the total amount of the sums appropriated by law within the said Province for the public service thereof for the year one thousand eight hundred and thirty-two. AND SUPPLEMENTARY ACTS. 139 V. And be it enacted that the Governor of the said Province Laws or Ordin- is hereby required, by the lirst convenient opportunity, to disallowed by transmit to one of her Majesty's Principal Secretaries of State ^*^^' I^Iajesty in ■* -^ '- Council. an authentic copy of every law or ordinance made under the authority of this Act ; and that it shall be lawful, at any time within two years after such law or ordinance shall have been so received by such Secretary of State, for her Majesty, her heirs or successors, by her or their Order in Council, to declare her or their disallowance of such law or ordinance; and that such disallowance, together with a certificate under the hand and Seal of such Secretary of State, testifying the day on which such law or ordinance was received as aforesaid, being signified by such Governor by proclamation within the said Province, shall make void and annul the same from and after the date of such signification. VI. And be it enacted that nothing herein contained shall This Act not to be taken to affect or invalidate any law, statute or ordinance now^in^forge*''"' now in force within the said Province of Lower Canada, or in etc. any part thereof, except in so far as the same is repugnant to this Act. VII. And be it enacted that this Act shall be proclaimed by Proclamation the Governor of the said Province of Lower Canada within this Act. the said Province, and shall commence and take effect within the said Province from the proclamation thereof. VIII. And be it enacted, that for the purposes of this Act The term any person authorized to execute the commission of Governor defliiifd"°'^ of the Province of Lower Canada shall be taken to be the Governor thereof. IX. And be it enacted that this Act may be altered or Act may be repealed by any Act to be passed in the present session of ^ '•^^^ ' ^'•°' Parliament. 140 THE CONSTITUTIONAL ACT The Indemnity Act, 1838. An Act^° /'or indemnifyiwi those irlio Iiarc issued or acted under certain parts of a certain Ordinance made under colour of an Act passed in the present session of Parliament, intituled ''An Act to make teuiporari/ Prorision for the Gorrruvient of Power Canada." [IGth August, 1838. 1 Vict., cap. 9 Whereas an Act was made tins present session of Parlia- ment, intituled " An Act to make temporary provision for the Government of I ower Canada" : And whereas a certain Law or Ordinance hath been made and published by the Governor of the said Province, by and with the advice and consent of the Special Council, bearing date the twenty-eighth day of June last, intituled "An Ordinance'"' to provide for the security of the Province of Lower Canada," which Ordinance cannot be justified by law, but was so much intended for the Security of the said Province that it is expedient that all per- sons advising or acting under or in obedience to so much of the same as relates to the sending of certain persons to Ber- muda, who are stated in the same to have made certain con- fessions, and to the subjecting such persons to restraint, should be indemnified by Pai-liament in the manner and to the extent herein-after provided for : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and Commons, in this present Parliament assembled, and by the authority Indemnity for of the same, that all personal actions and suits, indictments, iiiK IT acting informations, and all pi-osecutions and proceedings whatso- uiiiician ever, which have been or shall be prosecuted or commenced Ordinance of ' '■ the (ioveriHn- in any Court or before any tribunal in any part of her anrl C^ouncil of „, • i . t^ • ■ • ^ " c v. Lower Canada, Majesty s Dominions, against any person or persons foror by of the 2stii of reason of any act, matter, or thing advised, commanded, June last. j ' o > appointed, or done in relation to the premises before the pro- AND SUPPLEMENTARY ACTS. 141 clamation of this Act in the said Province of Lower Canada and in the Islands of Bermuda respectively, or elsewhere, in manner hereinafter provided, be, are, and shall be dis- charged and made void by virtue of this Act ; and that if any action or suit shall be prosecuted or commenced against any person or persons for any such act, matter or thing so advised, commanded, appointed, or done, he, she, or they may plead the general issue, and give this Act and the special matter in evidence ; and if the plaintiff or plaintiffs in any action or suit so to be prosecuted or commenced, except in that part of Great Britain called Scotland, after the first day of October next, shall become nonsuit, or for- bear further prosecution, or suffer discontinuance, or if a verdict pass against such plaintiff or plaintiffs, the defendant or defendants shall recover his, her, or their double costs, for which he, she, or they shall have the like remedy as in cases where costs by law are given to defendants ; and if any such action or suit as aforesaid shall be commenced or prosecuted after the first day of October next in that part of Great Britain called Scotland, the Court before whom such action or suit shall be commenced or prosecuted shall allow to the defender the benefit of the discharge and indemnity hereby provided, and shall further allow to him his double costs of suit in all such cases as aforesaid. II. And be it enacted that this Act shall be proclaimed This Act to be in the said Province of Lower Canada and in the said £o°^g^'^a^^'!^jl" Islands of Bermuda by the Governor, or by the person and Bermuda ii ■ J i j^ ii ^, • • f ^, n , , respectivelv. authorized to execute the Commission of Governor of the said Province and of the said Islands respectively, forthwith after he shall have received a copy of the same from one of her Majesty's Principal Secretaries of State. ^^ 142 THE CONSTITUTIONAL ACT The Suspension Act Amendment Act, 1839, An Acf- to iiiinnil ar- for any such law or oi'dinance as therein mentioned to no'law'to be* I't^pcal, suspend, or alter any provision of any Act of the made affecting Parliament of Great Britain, or of the Parliament of the or Spiritual United Kingdom, or of any Act of the Legislature of Lower rights of Eccle- Canada, as then constituted, repealing or altering any such siastics, or tlie > t- o o j law of tenure. Act of Parliament, shall be and the same is hereby repealed : Provided always, that it shall not be lawful for the said Governor, with such advice and consent as aforesaid, to make any law or ordinance altering or affecting tlie Tem- poral or Spiritual rights of the Clergy of the United Church of England and Ireland, or of the Ministers of any other religious communion, or altering or affecting the tenure of land within the said Province of Lower Canada, or any part thereof, save so far as the tenure of land may be altered or affected by any law or ordinance which may be made by the said Governor, with such advice and consent as afore- said, to provide for the extinction of any Seignorial rights AND SUPPLEMENTARY ACTS. 145 and dues now vested in or claimed by the Ecclesiastics of the Seminary of Saint Sulpice at Montreal within the said Province, or to provide for the extinction of any Seignorial rights and dues vested in or claimed by any other person or persons or body or bodies corporate or politic, within the Island of Montreal, or the island called Isle Jesus, within the said Province. V. And be it enacted that every law or ordinance to be Laws, etc.. to made by the said Governor, with such advice and consent j^j^^^^V,^^^®^ as aforesaid, shall, before the passing or enactment thereof, be published at length in the public Gazette of the said Province of Lower Canada. VI. And be it enacted that for the purposes of this Act Definition of the person authorized to execute the Commission of Gov- ^o^^^i^oi"- ernor of the Province of Lower Canada shall be taken to be the Governor thereof.'* VII. And be it enacted that this Act may be amended or Act may be repealed by any Act to be passed during the present session ^^^^ e , e c. of Parliament. ^^ 146 THE CONSTITUTIONAL ACT NOTES TO THE CONSTITUTIONAL ACT AND SUPPLEMENTARY ACTS. 1 This statute is 31 George III., cap. 31. The text is reprinted from the Imperial " Statutes at Large," London, 1794. For a full report of the debates on the measure while it was in progress through the British Parliament see Clarendon's " Parliamentary Chronicle," Vol. III. One of the chief causes of the passage of this .\ct was the inliux of British iminigrRnts, known as "United Empire Loyalists," who settled at various points along the north shore of Lake Ontario, and in the Niagara peninsula. 2 This intention was not carried out till after the Act was passed. On the 24th of August, 1791, two "Orders" were passed by the King in Council, one making the division of Quebec into Upp^r and Lower Canada by a boundary defined in the " Order;" the otlier citing this "Order" and enjoining the issue ol a warrant authorizing the Governor of Quebec to fix a day for the Act to go into operation. Both Orders in Council are given at length in the collection of papers entitled "Ontario Boundaries before Privy Council, 1KS4." Lieutenant-Governor Clarke, in the absence of Lord Dorchester, proclaimed the 26th of December, 1791, as the day wlien the division of the Province should take effect. The text of his procla- mation is given in Vol. O. of the " Statutes of Lower Canada." 3 See Note 1 to " Representative Assemblies in the Maritime Provinces." 4 See 11 George IV. & 1 William IV., cais. .53, appended to this Act. 5 For arguments for and against this design to create a political aristocracy see the debates in Clarendon's "Parliamentary Chronicle," Vol. III. The proposal emanated from Pitt and was endorsed by Burke, but was opposed by Fox, who declared his preference for an elective Council. •! The proclamation dividing Lower Canada into electoral districts was issued at Quebec by Lieutenant-Governor Clarke on the 7th of May, 1792; the text will be found in Vol. O. of the " Statutes of Lower Canada." The proclamation dividing Ujiper Canada was issued at Kingston by Lieutenant-Governor Simcoe on the 16th of July, 1792, and the te.xt of it is given in full in Thomson and McFarlane's col- lection of " Statutes of Upper Canada, 1791-1831," (Kingston, 1831). 7 Lieutenant-Governor Clarke's proclamation announcing the issue of writs for the election of the first Lower Canadian Assembly was dated the 14th of May, 1792, and the writs were made returnable on the 10th of July following. The text of the proclamation is given in Vol. O. of the " Statutes of Lower Canada." ** See Note 4 above. The first Parliament of Lower Canada met at Quebec on the 17th of December, 1792. For an account of its organization and work see Christie's "History of the Late Province of liower Canada," Vol. I., cap. IV. The first Parliament of Upper Canada met at Niagara, then Newark, on the 17th of September. 1792. An account of its work will be found in Kead's " Life of Governor Simcoe." 10 Compare sections 50, 85, 8C, and 88, of the British North America Act, 1867 ; sections 3 and 4 of chapter 11 of the Revised Statutes of Ontario, 1887 ; and article 110 of the Revised Statutes of Quebec, 1888. H The ordinance above referred to is 32 George III., cap. 1. It was passed as a temporary measure, and its operation was prolonged in Lower Canada by Act of the tirst Parliament, ;33 George III., cap. 3. This was in turn repealed by 34 George III., cap. 6. In Upper Canada a Court of Appeal was established by 34 George III., cap. 2. 12 Tithes payable to the clergy of " the Protestant Church " were abollBhed by Act of the Upper Canadian Legislature (2 George IV., cap. 32). AND SUPPLEMENTARY ACTS. 147 13 Tlie Iinpei-ial Statutes dealing furtlier with the Clergy Reserves are the fol- lowing : G George IV., cap. 59 ; 7 & 8 George IV., cap. 62 ; 3 & 4 Vict., cap. 78 ; and IG & 17 Vict., cap. 21. 14 Under the authority of these clauses Sir .John Colborne, when Lieutenant- Governor of Upper Canada, in 1S:!6 issued letters patent creating fifty-seven rectories. The text of the instrument which created and endowed the " Parsonage or Rectory of St. James," in the township of York, is given in full in the bill filetJ in Chancery in the "Rectories Case," August 2.5th, 1852, by Attorney-General Richards. The prayer of the bill was that the letters patent should be declared void and that the lands constituting the endowment should be given up. Th& decision of the Court was that the Lieutenant-Governor had autliority uuderthese- sections to create and endow rectories, and this decision has never since been reversed. See the volume known as " The Rectories Case, Upper Canada," con- taining the bill in Chancery and many other documents; Vols. V. and VI. of Grant's Chancery Reports, Upper Canada; "Religious Endowments in Canada," by Sir Francis Hincks (Loudon, 1869); and "Reminiscences of His Public Life," by the same author. 15 The " clergy reserves " were secularized in 18.54 by Act of the Canadian Parlia- ment, 16 Vict., cap. 2. Later enactments dealt with the uses to which the funds obtained by the sale of the lands should be put. 16 The boundary line between Upper and Lower Canada from the St. Lawrence to the Ottawa river (see Appendix) was located with a view to excluding from Upper Canada as many as possible of the existing Seignories. This design of converting feudal tenures into free and common soccage holdings, was the motive of several subsequent enactments of the Imperial Parliament. See 3 George IV., cap. 119; 6 George IV., cap 59; and 1 William IV., cap 20. The Canadian Statutes dealing with the same subject are 8 Vict., cap. 42; 12 Vict., cap. 49 ; and 18 Vict., cap. 3. The last of these is "The Seignorial Ant" of 18.54, which abolished "all feudal rights and duties in Lower Canada." See note 12 to the " Quebec Act, 1774." n The instructions to Governor Carleton in 1775, and to the same olHcer as Lord Dorchester in 1786. authorized him to gi-ant lands anywhere in the then Province of Quebec, on feudal tenures . 18 See " Colonial Taxation Act " above, 19 Disputes soon arose between Upper and Lower Canada over the division of the revenue from customs duties on goods imported by way of the St. Lawrence An agreement was arrived at in 1817, that one-fifth of all the duties collected in Lower Canada should be paid to Upper Canada, and this was ratified in the follow- ing year by Act of Parliament of Lower Canada (58 George III., cap. 4), and by Act of Parliament of Upper Canada (.58 George III., cap. 13). The Lower Canadian Statute expired on the first of July, 1819, and the Assembly refused to renew it. This refusal ultimately led to the passage of the Imperial Statute known as ' The Canada Trade Act " (3 George IV., cap 119), which made permanent the agreement that one-fifth of the duties should go to Upper Canada. See Christie's " History of Lower Canada," Vol II., cap. 23. 20 See Note 2 above. 21 See Notes 7 and 9 above. 22 This Act is 11 George IV. & 1 William IV., cap. 53. The text is reprinted from the Imperial "Statutes at Large," Loudon, 1832. 23 See " The Constitutional Act, 1791," section 4. 24 The English " Hansard " does not give any of the discussions on this measure in its progress through Parliament, and the Canadian histories are silent as to the reasons for its enactment. H.C.C. 10 148 THE CONSTITUTIONAL ACT. *5 This Statute is 1 & 2 Vict., cap. 9. The text is reprinted from tlie Imperial " Statutes at Large," London, 1838. 26 For an account of the state of the Province which led to the passing of this Act see Christie's " History of Lower Canada," Vol. IV.; Garneau's " Histoire du (Canada," Vol. III. ; and Lord Durham s Keport. On the 0th of March, 1836, the Uritish House of Commons adopted a series of resolutions which declared it inex- pedient to comply with the demand of the Legislative Assembly for an elective Legislative Council. When the Assembly met the following year it accepted these resolutions as "a formal and total refusal of the reforms and improvements" demanded by that House. The Legislature met on the IStli of August, 1837, and on the 26th of the same month it was prorogued by Lord Gosford never to be summoned again. The immediate result was a resort to arms on the part of the leaders of the Assembly, and a more remote one was the passage of this Act by the British Parliament in February, 1.S38, and its proclamation in liower Canada on the 29th of March following. 27 The permanent arrangements here contemplated were not made till the Union Act was passed in 1810. The intention was to make such arrangements dur- ing the same session. See section IX. of this Act. 2** The first Council, which was called by Sir John Colbcnnie as administrator, pending Lord Durham's arrival, was composed of eleven French and eleven Eng- lish members; tlieir names are given in Christie's "History of Lower Canada," Vol. v., p. 53. 29 This Act is 1 & 3 Vict., cap. 112. It is reprinted from the Imperial "Statutes at Large," London, 1833. 30 When Lord Durham arrived in Lower Canada, as Governor, he found many of the insurgents still in jn-ison, and in order to get rid as easily as possible of the difliculty created by their detention lie secured the previous consent of the loaders of the movement to their own banishment, and had this ordinance passed by his " Special Council " on the 28th of June, 1838. The text of the document will be found in the collection entitled "Ordinances Made and Passed by the Governor- General and Special Council for the Affairs of the Province of Lower Canada," Vol. II. It is given in Christie's " History of Lower Canada," Vol. V., i>p. 166-171. It enacted that Wolfred Nelson and seven others then in prison should be banished to the Hermudas and bo detained there, and that Louis Joseph Papineau, George Etieune Cartier, and fourteen others, then fugitives from justice, should not be permitted to return except by special permission from the Governor. The clause providing for the detention of the insurgents in the Bermudas was made the ground for declaring the ordinance ultra vires of the Governor and the Special Council, a view put forward by Lord Brougham and endorsed by Attorney-General (afterwards Lord Chancellor) Campbell. 81 The passage of this Act chagrined Lord Durham to such an extent that he soon afterwards retired to England. 82 This statute is 2 & 3 Vict., cap. 53. It is reprinted from the Imperial " Statutes at Large," London, 1811. S3 See Note 23 above. Lord Durham's Council, which passed the Ordinance under which Nelson and others were banished, was composed of Vice-Admiral Paget, who was then on a visit from Halifax to Quebec; Major-Geueral MacDon- nell, Lieut.-Col. Grey, Col. Cowper, and Hon. Charles Buller. Not one of these members was a Canadian. 34 Sir John Colborne succeeded Lord Durham in the administration of the Government of Lower Canada. 33 No amending Act was passed during that session; the next statute dealing with the constitution was the Union Act of 1840. AND SUPPLEMENTARY ACTS. 149 THE UNION ACT, 1840, AND SUPPLEMENTARY ACTS. An Act^ to re-unite the Provinces of Ujiper (ind Lower Canada, and fur the (/ovenunent of Canada. [23rd July, 1840. Whereas it is necessary that provision be made for tlie good government of the Provinces of Upper and Lower Canada, in such manner as may secure tlie rights and liber- ties and promote the interests of all classes of her Majesty's subjects within the same : And whereas to this end it is expedient^ that the said Provinces be reunited to form one Province for the purposes of executive government and legislation : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the pre- sent Parliament assembled, and by the authority of the Declaration of same, that it shall be lawful for her Majesty, with the advice of her Privy Council, to declare, or to authorize the Governor-General of the said two Provinces of Upper and Lower Canada to declare by proclamation" tliat the said Provinces upon, from , and after a certain day in such pro- clamation to be appointed, which day shall be within fifteen calendar months next after the passing of this Act, sliall form and be one Province under the name of tlie Province of Canada, and thenceforth tlie said Pj-cin inn s shall consti- tute and be one Province under the name aforesaid upon, from, and after the day so appointed, as aforesaid. II. And be it enacted that so much of an Act* passed in Kepeal of Acts, the session of Parliament held in the thirty-first year of the reign of George the Third, intituled, " An Act to repeal cer- /7Z tain parts of an Act passed in the fourteenth year of His Majesty's Reign, intituled ' An Act for making more effec- tual Pi'ovision for the Government of the Province of Que- bec in North America,' and to make further Provision for the Government of the said Province," as provides for con- stituting and composing a Legislative Council and Assembly within each of the said Provinces respectively, and for the 150 THE UNION ACT l&2Vic. c. 9. makinj^ of laws; and also the whole of an Act'' passed in the session of Parliament held in the first and second years of the reign of her present Majesty, intituled "An Act to make Temporary Provision for the Government of Lower Canada ; " and also the whole of an Act" passed in the ses- 2 & 3 Vict. c. 53. sion of Parliament held in the second and third years of the reijjn of her present Majesty, intituled " An Act to Amend an Act of the last Session of Parliament for making Tem- porary Provision for the Government of Lower Canada ; " 1 &2W. 4,c. 2:i. and also the whole of an Acf^ passed in the session of Par- liament held in the first and second years of the reign of his late Majesty, King William the Fourth, intituled " An Act to amend an Act of the fourteenth year of His Majesty, 14G. 3, c. 88. King George the Third, for establishing a fund towards defraying the Charges of the Administration of Justice and the Support of Civil Government in the Province of Quebec in America ; " shall continue and remain in force until the day on which it shall be declared by proclamation, as afore- said, that the said two Provinces shall constitute and be one Province as aforesaid, and shall be repealed on, from, and after such day : Provided always that the repeal of the said several Acts of Parliament shall not be held to revive or give any force or effect to any enactment which has by the said Acts, or any of them, been repealed or determined. Composition III. And be it enacted that from and after the reunion of LegislaTure."^ the said two Provinces there shall be within the Province of Canada one LegiBlati v^.jr.'ounfil and .one As,Ptmil)ly to be sevL'iallx idiistiUitcd and.cumposcd in-tlie-Jiuuiuet.Jierein- after prescribed, which shall be called " The Legislative Council and Assembly of Canada ; " and that within the Province of Canada her Majesty shall have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of the Province of Canada, such laws not being^ repugnant to tliis Act, or to such parts of the said Act^ passed in the thirty-first year of the reign of his said late ' Majesty as are not hereby repealed, or to any Act of Parlia- ment made or to be made and not hereby repealed, which does or shall by express enactment or by necessary intend- ment extend to the Provinces of Upper and Lower Canada, or to either of them, or to the Province of Canada ; and that all such laws being passed by the said Legislative Council and Assembly and assented to by her Majesty, or assented AND SUPPLEMENTARY ACTS. 151 to in her Majesty's name by the Govei'nor of the Province of Canada, shall be valid and bindini^ to all intents and pur- poses within the Province of Canada. IV. And be it enacted that for the purpose of composing Appointment the Legislative Council of the Province of Canada it shall C Quucii iors be lawful for her Majesty, before the time to be appointed for the first nieeting of the said Legislative Council and Assembly, by an instrument under the sign manual, to authorize the Governor in her Majesty's name, by an instru- ment under the Great Seal of the said Province, to summon to the said Legislative Council of the said Province such per- sons, b eing not fewer t hn.n twpntj as her Majesty shall think fit ; and that it shall also be lawful for her Majesty from time to time to authorize the Governor in like manner to summon to the said Legislative Council such other person or persons as her Majesty shall thiuk fit, and that every per- son who shall be so summoned shall thereby become a mem- ber of the Legislative Council of the Province of Canada ; Provided always, that no person shall be summoned to the Qualification said Legislative Council of the Province of Canada who 9,* Legislative " Councillors, shall not be of the full age of twenty-one years, and a natural-born subject of her Majesty, or a subject of her Majesty naturalized by Act of the Parliament of Great Britain, or by Act of the Parliament of the United Kingdom of Great Britain and Ireland, or by an Act of the Legisla- ture of either of the Provinces of Upper or Lower Canada, or by an Act of the Legislature of the Province of Canada. V. And be it enacted that every member of the Legislative Tenure of office Council of the Province of Canada shall hold his seat therein °* Councillor, for the term of his life,^ but subject nevertheless to the pro- visions hereinafter contained for vacating the same. VI. And be it enacted that it shall be lawful for any Resignation of member of the Legislative Council of the Province of Canada oouucillon to resign his seat in the said Legislative Council, and upon such resignation the seat of such Legislative Councillor shall become vacant. VII. And be it enacted that if any Legislative Councillor Vacating seat of the Province of Canada shall for two successive sessions ^ ^ sence. of the Legislature of the said Province fail to give his attend- ance in the said Legislative Council, without the permission 152 THE UNION ACT of her Majesty or of the Governor of the said Province signi- fied by the said Governor to the Legislative Council, or shall take any oath or make any declaration or acknov/ledgment of allegiance, obedience, or adherence to any foreign prince or power, or shall do, concur in, or adopt any Act whereby he may become entitled to the rights, privileges, or immuni- ties of a subject or citizen of any foreign state or power, or shall become bankrupt, or take the benefit of any law relat- ing to insolvent debtors, or become a public defaulter, or be attainted of treason, or be convicted of felony or of any infamous crime, his seat in such Council shall thereby be- come vacant. Trial of ques- tions. VIII. And be it enacted that any question which shall arise respecting any vacancy in the Legislative Council of the Province of Canada, on occasion of any of the matters aforesaid, shall be referred by the Governor of the Province of Canada to the said Legislative Council, to be by the said Legislative Council heard and determined : Provided always that it sliall be lawful, either for the person respecting whose seat such question shall have arisen, or for her Majesty's Attorney-General for the said Province on her Majesty's behalf, to appeal from the determination of the said Council in such case to her Majesty, and that the judg- ment of her Majesty, given with the advice of her Privy Council thereon, shall be final and conclusive to all intents and purposes. Appointment of Speaker. IX. And be it enacted that the Governor of the Province of Canada shall have power and authority from time to time, by an instrument under the Great Seal of the said Province, to appoint one member of the said Legislative Council to be Speaker of the said Legislative Council, and to remove him and ap[)()int another in his stead. Quorum. X. And be it enacted that tlie presence of at least_;^i members of the said Legislative Council, including the Speaker, shall be necessary to constitute a meeting for the Division. exercise of its powers ; and that all questions which shall arise in the said Legislative Council shall be decided by a majority of voices of the members present other than the Speaker, and when the voices shall be equal the Speaker Casting vote, shall have the casting vote. AND SUPPLEMENTARY ACTS. 153 XI. And be it enacted that for the purpose of constituting Convoking the the Lej^ishxtive Assembly of the Province of Canada it shall be lawful for the Governor of the said Province, within the time hereinafter mentioned and thereafter from time to time as occasion shall require, in her Majesty's name and by an instrument or instruments under the Great Seal of the said Province, to summon and call together a Legislative Assembly in and for the said Province. XII. And be it enacted that in the Legislative Assembly Kepreseuta- of the Province of Canada, to be constituted as aforesaid, the province, parts of the said Province which now constitute the Pro- vinces of Upper and Lower Canada respectively, shall, sub- ject to the provisions hereinafter contained, be represented by an equal number o f repre sentatives to bo cluct ud for ji be places and in the manner hereinafter mentioned. XIII. And be it enacted that the County of Halton in the County of Hal- Province of Upper Canada shall be divided into two ridings, to be called respectively the East Eiding and the West Rid- ing ; and that the East Eiding of the said County shall consist of the following townships, namely : Trafalgar, Nelson, Esqnesing, Nassagaweya, East Flamborough, West Flamborough, Ering, Beverley ; and that the West Eiding of the said County shall consist of the following towships, namely : Garafraxa, Nichol, Woolwich, Guelph, Waterloo, Wilmot, Dumfries, Puslinch, Eramosa ; and that the East Riding and West Eiding of the said County shall each be represented by one member in the Legislative Assembly of the Province of Canada. XIV. And be it enacted that the County of Northumber- County of land in the Province of Upper Canada shall be divided into ^1°^'"""'''^^' two ridings, to be called respectively the North Eiding and the South Eiding ; and that the North Eiding of the last- mentioned County shall consist of the following townships, namely : Monaghan, Otonabee, Asphodel, Smith, Douro, Dummer, Belmont, Methuen, Burleigh, Harvey, Emily, Gore, Ennismore ; and that the South Eiding of the last- mentioned County shall consist of the following townships, namely : Hamilton, Haldimand, Cramak, Murray, Seymour, Percy ; and the North Eiding and South Eiding of the last- mentioned County shall each be represented by one member in the Legislative Assembly of the Province of Canada. 154 THE UNION ACT County of Liii- XV. And be it enacted that the County of Lincohi in the ^'^ "■ Province of Upper Canada shall be divided into tvFO ridings, to be called respectively the North Riding and the South Riding ; and that the North Riding shall be formed by uniting the First Riding and Second Riding of the said County, and the South Riding by uniting the Third Riding and Fourth Riding of the said County; and that the North and South Ridings of the last-mentioned County shall each be represented by one member in the Legislative Assembly of the Province of Canada. Other county XVI. And be it enacted that every county and riding, other constituency ^j^j^^j those herein-before specified, which at the time of the ol L pper can- '■ , ^ , , . ada. passing of this Act was by law entitled to be represented m the Assembly of the Province of Upper Canada, shall be represented by one member in the Legislative Assembly of the Province of Canada. Town constitu- XVII. And be it enacted that the City of Toronto shall ency of Upper j^g represented by two members, and the towns of Kingston, Canada. ^ •' ,, -kt- t i t Brockville, Hamilton, Cornwall, Niagara, London, and Bytown shall each be represented by one member in the Legislative Assembly of the Province of Canada. ■County con- XVIII. And be it enacted that every county which before LoweTcanlc'a, a"c^ »* the time of the passing of the said Acti« of Parlia- 1 &2 Vict. c. 9. 'ment, intituled " An Act to make temporary provision for the Government of Lower Canada" was entitled to be repre- sented in the Assembly of the Province of Lower Canada, except the Counties of Montmorency, Orleans, L'Assomp- tion, La Chesnaye, L'Acadie, Laprairie, Dorchester, and Beauce hereinafter mentioned, shall be represented by one member in the Legislative Assembly of the Province of Canada. Further pro- XIX. And be it enacted that the said counties of Mont- vision as to morency and Orleans shall be united into and form one constituency of , ^ ,. -^t i i ii i. Lower Canada, county to be called the County of Montmorency; and that the said Counties of L'Assomption and La Chesnaye shall be united into and form one county to be called the County of Leinster ; and that the said Counties of L'Acadie and Laprairie shall be united into and form one county to be called the County of Huntingdon ; and that the Counties of Dorchester and Beauce shall be united into and form one AND SUPPLEMENTARY ACTS. 155 county to be called the County of Dorchester ; and that each of the said Counties of Montmorency, Leinster, Huntingdon, and Dorchester shall be represented by one member in the Legislative Assembly of the said Province of Canada. XX. And be it enacted that the Cities of Quebec and Town constitu- Moutreal shall each be represented by two members, and cauada. "^^"^ the Towns of Three Rivers and Sherbrooke shall each be represented by one member in the Legislative Assembly of the Province of Canada. XXI. And be it enacted that for the purpose of electing Boundaries of their several representatives to the said Legislative Assem- towns to be bly, the cities and towns hereinbefore mentioned shall be ^f'*-^®'^ ^^ '■^^^ •' Governor, deemed to be bounded and limited in such manner as the Governor of the Province of Canada, by letters patent under the Great Seal of the Province to be issued within thirty days after the union of the said Provinces of Upper Canada and Lower Canada shall set forth and describe ; and such parts of any such city or town (if any), which shall not be included within the boundary of such city or town respectively by such letters patent for the purposes of this Act, shall be taken to be a part of the adjoining county or riding for the purpose of being represented in the said Legislative Assembly. XXII. And be it enacted that for the purpose of electing Returning the members of the Legislative Assembly of the Province of Oncers. Canada it shall be lawful for the Governor of the said Province from time to time to nominate proper persons to execute the office of Returning Officer in each of the said counties, rid- ings, cities, and towns, which shall be represented in the Legislative Assembly of the Province of Canada, subject nevertheless to the provisions hereinafter contained. XXIII. And be it enacted that no person shall be obliged Term of office to execute the said office of Returning Officer for any longer officer" "^"^ term than one year, or oftener than once, unless it shall be at any time otherwise provided by some Act or Acts of the Legislature of the Province of Canada. XXIV. And be it enacted that writs for the election of Writs of elec- members to serve in the Legislative Assembly of the Pro- ^°^' vince of Canada shall be issued by the Governor of the said 156 THE UNION ACT Province within fourteen days after the sealing of such instrument, as aforesaid, for summoning and calling together such Legislative Assembly; and that such writs shall be directed to the returning officers of the said counties, rid- ings, cities, and towns respectively ; and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall at any time be otherwise provided by any Act of the Legislature of the said Province ; and that writs shall in like manner and form be issued for the election of members in the case of any vacancy which shall happen by the death or resignation of the person chosen, or by his being summoned to the Legis- lative Council of the said Province, or from any otlier legal cause ; and that such writs shall be made returnable within fifty days at farthest from the day on which they shall bear date, unless it shall be at any time otherwise provided by any Act of the Legislature of the said Province ; and that in any case of any such vacancy which shall happen by the death of the person chosen, or by reason of his being so sum- naoned as aforesaid, the writ for the election of a new mem- ber shall be issued within six days after notice thereof shall have been delivered to or left at the office of the proper officer for issuing such writs of election. Timeand place XXV. And be it enacted that it shall be lawful for the of holding elec- Qovernor of the Province of Canada for the time being to tions. ° fix the time and place of holding elections of members to serve in the Legislative Assembly of the said Province, until otherwise provided for as hereinafter mentioned, giving not less than eight days' notice of such time and place. Power to alter XXVI. And be it enacted that it shall be lawful for the presentatiou' Legislature of the Province of Canada, by any Act or Acts^ ^ to be hereafter passed, to alter the divisions and extent of the several counties, ridings, cities, and towns which shall be represented in the Legislative Assembly of the Province of Canada, and to establish new and other divisions of the same, and to alter the apportionment of representatives to be chosen by the said counties, ridings, cities, and towns respec- tively, and make a new and different apportionment of the number of representatives to be chosen in and for tliose parts of the Province of Canada which now constitute the said Provinces of Upper and Lower Canada respectively, and in and for the several districts, counties, ridings, and towns in AND SUPPLEMENTARY ACTS. , 157 the same, and to alter and regulate the appointment of returning officers in and for the same, and make provision in such manner as they may deem expedient for the issuing and return of writs for the election of members to serve in the said Legislative Assenibly, and the time and place of holding such elections : Provided always that it shall not be Proviso, lawful to present to the Governor of the Province of Canada for her Majesty's assent any bill of the Legislative Council and Assembly of the said Province by which the number of representatives in the Legislative Assembly may be altered, unless the second and third reading of such bill in the Legis- lative Council and the Legislative Assembly shall have been passed with the concurrence of two-thirds of the members for the time being of the said Legislative Council, and of two- thirds of the members for the time being of the said Le,gis- lative Assembly respectively, and the assent of her Majesty shall not be given to any such bill unless addresses shall have been presented by the Legislative Council and the Legis- lative Assembly respectively to the Governor, stating that such bill has been so passed. XXVII. And be it enacted that until provisions shall The prefeut otherwise be made by an Act or Acts of the Legislature of o/the'two^Pro- the Province of Canada all the laws which at the time of the viuces to apply , , . , , • r -IT-,- p TT until altered. passmg of this Act are in force in the Province or Upper Canada, and all the laws which at the time of the passing of the said Act^- of Parliament, intituled "An Act to make 1&2 Vict. c.'J. temporary provision for the Government of Lower Canada" were in force in the Province of Lower Canada, relating to the qualification and disqualification of any person to be elected, or to sit or vote as a member of the Assembly in the said Provinces respectively, (except those which require a qualification of property in candidates for election, for which provision is hereinafter made), and relating to the qualifica- tion and disqualification of voters at the election of members to serve in the Assemblies of the said Provinces respectively and to the oaths to be taken by any such voters, and to the powers and duties of returning officers, and the proceedings at such elections, and the period during which such elections may be lawfully continued, and relating to the trial of con- troverted elections and the proceedings incident thereto, and to the vacating of seats of members, and the issuing and execution of new writs in case of any seat being vacated otherwise than by a dissolution of the Assembly, shall 158 THE UNION ACT respectively be applied to elections of meirbers to serve in the Legislative Assembly of the Province of Canada for places situated in those parts of the Province of Canada for wiiich such laws were passed. Qualification of Members. Declaration of candidates for «lectiou. XXVIII. And be it enacted that no person shall be capable of being elected a member of the Legislative Assembly of the Province of Canada who shall not be legally or equitably seised as of freehold, for his own use and benefit, of lands or tenements held in free and common soccage, or seised or possessed, for his own use and benefit, of lands or tenements held in fief or in roture, within the said Province of Canada, of the v alue of five hundre d, pjauuds of steiiLLUg_iiiOJiey of Great Britain, over and above all rents, charges, mortgages, and incumbrances charged upon and due and payable out of or affecting the same ; and that every candidate at such election, before he shall be capable of being elected, shall, if required by any other candidate, or by any elector, or by the returning officer, make the following declaration : " 1, A. B., do declare and testify that I am duly seised at law or in "equity as of freehold, for my own use and beuetit, of lands or "tenements held in free and common soccage [or duly seised or "possessed for my own use and benefit, of lands or tenements held " in fief or in roture fas the case may be),] in the Province of Canada, "of the value of five hundred pounds of sterling money of Great " Britain, over and above all routs, mortgages, charges, and incum- "brances charged upon, or due and payable out of, or all'ecting the 'same; and that I have not coUusively or colourably obtained a " title to or become possessed of the said lands and tenements, or " any part thereof, for the |)uri)ose of qualifying or enabling me to "be returned a member of the Legislative Assembly of the Province "of Canada." ties of perjury. Persons mak- XXIX. And be it enacted that if any person shall know- claratloi/lfable ^""'y ^'^"^^ wilfully make a false declaration respecting his to the_ penal- qualification as a candidate at any election as aforesaid, such person shall be deemea to be guilty of a misdemeanor, and being thereof lawfully convicted shall suffer the like pains and penalties as by law are incurred by persons guilty of wilful and corrupt pei-jury in the place in which such false declaration shall have been made. Place and XXX. And be it enacted that it shall be lawful for the times of hold- Governor of the Province of Canada for the time being to meat. fix such place or places ^ " within any part of the Province of Canada, and such times for holding the first and every AND SUPPLEMENTARY ACTS, 159" other session of the Lej^islative Council and Assembly of the said Province as he may think fit, such times and places to be afterwards changed or varied as the Governor may jndije advisable and most consistent with general convenience and the public welfare, giving sufficient notice thereof ; and also to prorogue the said Legislative Council and Assembly from time to time, and dissolve the same, by proclamation or otherwise, whenever he shall deem it expedient. XXXI. And be it enacted that there shall be a session of Duration of the Legislative Council and Assembly of the Province of I'ailiament. Canada once at least in every year, so that a period of twelve calendar months shall not intervene between the last sitting of the Legislative Council and Assembly in one session and the first sitting of the Legislative Council and Assembly in the next session ; and that every Legislative Assembly of the said Province hereafter to be summoned and chosen shall continue for four years from the day of the return of the writs for choosing the same, and no longer, subject neverthe- less to be sooner prorogued or dissolved by the Governor of the said Province. XXXII. And be it enacted that the Legislative Council First calling and Assembly of the Province of Canada shall be called LlgiS'atVrL."^^ together for the first time at some period^* not later than six calendar months after the time at which the Provinces of Upper and Lower Canada shall become reunited as afore- said. XXXIII. And be it enacted that the members of the Legis- Election of the lative Assembly of the Province of Canada shall, upon the Speaker, first assembling after every general election, proceed forth- with to elect one of their number to be Speaker; and in case of his death, resignation, or removal by a vote of the said Legislative Assembly, the said members shall forthwith pro- ceed to elect another of such members to be such Speaker ; and the Speaker so elected shall preside at all meetings of the said Legislative Assembly. « XXXIV. And be it enacted that the presence of at least Quorum, twenty members of the Legislative Assembly of the Pro- vince of Canada, including the Speaker, shall be necessary to constitute a meeting of the said Legislative Assembly for the exercise of its powers ; and that all questions which Division. 160 THE UNION ACT shall arise in the said Assemhiy sliall he decided hy the majority of voices of such members as shall be present, other than the Speaker, and when the voices shall be equal Casting vote, the Speaker shall have the casting voice. No member to XXXV. And be it enacted that no member, either of the he has taken Legislative Council or of the Legislative Assembly of the *ath of°alle-" Province of Canada, shall be permitted to sit or vote therein gianee. until he shall have taken and subscribed the following oath before the Governor of tlie said Province, or before some person or persons authorized by such Governor to adminis- ter such oath: Oath of alle- " i, A. B., do sincerely promise and swear tliat I will be faithful glance. ,, ^^^^^ bear true allegiance to her Majesty, Queen Victoria, as lawful " Sovereign of the United Kingdom of Great Britain and Ireland, " and of this Province of Canada, dependent on and belonging to "the said United Kingdom ; and that I will defend her to the utmost "of my power against all traitorous conspiracies and attempts " whatever, which shall be made against her person, crown, and "dignity; and that I will do my utmost endeavour to disclose and " make known to her Majesty, her heirs and successors, all treasons " and traitorous conspiracies and attempts which I shall know to " be against her or any of them ; and all tins I do swear without any " equivocation, mental evasion, or secret reservation, and renounc- "ing all pardons and dispensations from any person or persons " whatever to the contrary, SO HELP ME GOD." Affirmation in- XXXVI. And be it enacted that every person authorized stead of oath, j^y j^^^^ ^^ make an affirmation instead of taking an oath may make such affirmation in every case in which an oath is hereinbefore required to be taken. Giving or with- XXXVII. And be it enacted that whenever any bill which to biUs.^^^^" lias been passed by the Legislative Council and Assembly of the Province of Canada shall be presented for her Majesty's assent to the Governor of the said Province, such Governor shall declare according to his discretion, but subject never- theless to the provisions contained in this Act, and to such instructions as may from time to time be given in that behalf by her Majesty, her heirs or successors, that he assents to such bill in her Majesty's name, or that he with- holds her Majesty's assent, or that he reserves such bill for the signification of her Majesty's pleasure thereon. Disallowance XXXVIII. And be it enacted that whenever any bill, sen'ted\o^ which shall have been presented for her Majesty's assent to AND SUPPLEMENTARY ACTS. 161 the Governor of the said Province of Canada, shall by such Governor have been assented to in her Majesty's name, such Governor shall by the first convenient opportunity transmit to one of her Majesty s principal Secretaries of State an authentic copy of such bill so assented to ; and that it shall be lawful at any time within two years after such bill shall have been so received by such Secretary of State, for her Majesty by Order in Council to declare her. disallowance of such bill ; and that such disallowance, together with a cer- tificate under the hand and seal of such Secretary of State certifying the day on which such bill was received as afore- said, being signified by such Governor to the Legislative Council and Assembly of Canada by speech or message to the Legislative Council and Assembly of the said Province, or by proclamation, shall make void and annul the same from and after the day of such signification. XXXIX. And be it enacted that no bill which shall be Assent to bills I'GSGl'VCd- reserved for the signification of her Majesty's pleasure thereon shall have any force or authority within the Province of Canada until the Governor of the said Province shall signify, either by speech or message to the Legislative Coun- cil and Assembly of the said Province, or by proclamation, that such bill has been laid before her .Majesty in Council and that her Majesty has been pleased to assent to the same; and that an entry shall be made in the journals of the said Legislative Council of every such speech, message, or proclamation, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept amongst the records of the said Province ; and that no bill which shall be so reserved as aforesaid shall have any force or authority in the said Province unless her Majesty's assent thereto shall have been so signified as aforesaid within the space of two years from the day on which such bill shall have been presented for her Majesty's assent to the Governor as afore- said. XL. Provided always, and be it enacted that nothing Authority of herein contained shall be construed to limit or restrain the exercise of her Majesty's prerogative in authorizing, and that, notwithstanding this Act and any other Act or Acts passed in the Parliament of Great Britain, or in the Parlia- ment of the United Kingdom of Great Britain and Ireland, or of the Legislature of the Province of Quebec, or of the 162 THE UNION ACT Provinces of Upper or Lower Canada respectively, it shall be lawful for her Majesty to authorize the Lientenant-Gov- vernor of the Province of Canada to exercise and execute, within such parts of tlie said Province as her Majesty shall think fit, notwithstanding the presence of the Governor within the Province, such of the powers, functions, and author- ity, as well judicial as other, which before and at the time of passing of this Act were and are vested in the Governor, Lieutenant-Governor, or person administering the Govern- ment of the Provinces of Upper and Lower Canada respec- tively, or of either of them, and whicli from and after the said reunion of the said two Provinces shall become vested in the Governor of the Province of Canada ; and to author- ize the Governor of the Province of Canada to assign, depute, substitute, and appoint any person or persons, jointly or severally, to be his deputy or deputies within any part or parts of the Province of Canada, and in that capacity to exercise, pei-form and execute during the pleasure of the said Governor such of the powers, functions, and authorities, as well judicial as other, as before and at the time of the passing of this Act were and are vested in the Governor, Lieutenant-Governor, or person administering the Govern- ment of the Provinces of Upper and Lower Canada respec- tively, and which from and after the union of the said Pro- vinces shall become vested in the Governor of the Province of Canada, as the Governor of the Province of Canada shall deem to be necessary or expedient : Provided always, that by the appointment of a deputy or deputies as aforesaid the power and authority of the Gover- nor of the Province of Canada shall not be abridged, altered, or in any way affected otherwise than as her Majesty shall think proper to direct. Languace of XLI. And be it enacted that from and after the said Legislative reunion of the said two Provinces, all writs, proclamations, records. , , ,,• ^ ^i ^i t • instruments .tor summoning and calling together the Legis- lative Council and ijegislative Assembly of the Province of Canada and for proroguing and dissolving the same, and all writs of summons and election, and all writs and public instruments whatsoever relating to the said Legislative Council and Legislative Assembly or either of them, and all returns to such writs and instruments, and all journals, entries, and written or printed proceedings of what nature soever of the said Legislative Council and Legislative Assem- AND SUPPLEMKNTARY ACTS. 163 \>\y and each of them respectively, and all written or printed proceedings and reports of committees of the said Legislative Council and Legislative Assembly respectively, alia] ] ho I'n t he English lani>u iiifp qi-iIy-^^ Provided alwaj-s, that this enactment shall not be construed to prevent translated copies of any such documents being made, but no sach copy shall be kept among the records of the Legislative Council or Legislative Assembly, or be deemed in any case to have the force of an original record. XLII. And be it enacted that whenever any bill or bills Ecclesiastical shall be passed by the Legislative Council and Assembly of ri^ht^!^°^" the Province of Canada containing any provisions to vary or repeal any of the pi-ovisions now in force contained in an Act of the Parliament of Great Britain passed in the four- 14 G. 3. c. 83. teenth year of the reign of his late Majesty King George the Third, intituled " An Act for making more effectual provi- sion for the Government of the Province of Quebec in North America," or in the aforesaid Act of Parliament passed in the thirty-first year of the same reign, reyaecting the accus- tomed dues and rights of the clergy of the Church of Rome ; or to vary or repeal any of the several provisions contained in the said last mentioned Act respecting the allotment and appropriation of lands for the support of the Protestant clergy within the Province of Canada, ^o or respecting the constituting, erecting, or endowing of parsonages or rectories within the Province of Canada, or respecting the presenta- tion of incumbents or ministers of the same, or respecting the tenure on which such incumbents or ministers shall hold or enjoy the same^"; and also that whenever any bill or bills shall be passed containing any provisions which shall in any manner relate to or affect the enjoyment or exercise of any form or mode of religious worship, or shall impose or create any penalties, burdens, disabilities, or disqualifica- tions in respect of the saine, or shall in any manner relate to or affect the payment, recovery, or enjoyment of any of the accustomed dues or rights hereinbefore mentioned, or shall in any manner relate to the granting, imposing, or recovering of any other dues, or stipends, or emoluments to be paid to or for the use of any minister, priest, ecclesiastic, or teacher according to any form or mode of religious wor- ship, in respect of his said office or function ; or shall in any manner relate to or affect her Majesty's prerogative touching the granting of waste lands of the Crown within the said H.C.C 11 104 THE UNION ACT Pi-ovince ; every such bill or bills sliall, previously to any declaration or signification of her Majesty's assent thereto, be laid before both Houses of Parliament of the United Kingdom of Great Britain and Ireland ; and that it shall not be lawful for her Majesty to signify her assent to any such bill or bills until thirty days after the same shall have been laid before the said Houses, or to assent to any such bill or bills in case either House of Parliament shall within the said thirty days address her Majesty to withhold her assent from any such bill or bills ; and that no such bill shall be valid or effectual to any of the said purposes within the said Province of Canada unless the Legislative Council and Assembly of such I'roviuce shall, in the session in which the same shall have been passed by them, have presented to the Governor of the said Province an address or addresses specifying that such bill or bills contains provisions for some of the purposes hereinbefore specially described, and desir- ing that, in order to give effect to the same such bill or bills may be transmitted to England without delay, for the pur- pose of its being laid before Parliament previously to the signification of her Majesty's assent thereto. Colonial Tax- XLIII. And whereas by an Acti'^ passed in the eighteenth year of the reign of his late Majesty King George the Third, 18G.a, c. 12. intituled "An Act for removing all Doubts and Appre- hensions concerning Taxation by the Parliament of Great Britain in any of the Colonies, Provinces, and Plantations in Noi-th America and the West Indies ; and for repeal- ing so much of an Act made in the seventh year of the reign of his present Majesty as imposes a duty on Tea imported from Great Britain into any Colony or Plantation in America, or relating thereto," it was declared that " the " King and Parliament of Great Britain would not impose " any duty, tax, or assessment whatever, payable in any of "his Majesty's Colonies, Provinces, and Plantations in " North America or the West Indies, except only such duties " as it might be expedient to impose for the regulation of " commerce, the net produce of such duties to be always " paid and applied to and for the use of the Colony, Province, " or Plantation in which the same shall be respectively " levied, in such manner as other duties collected by the "authority of the respective General Courts'** or General " Assemblies of such Colonies, Provinces, or Plantations " were ordinarily paid and applied ": And whereas it is neces- AND SUPPLEMENTAHY ACTS. 165 sary for tlie f,'eneral benefit of the Empire that such power of reguhition of commerce should continue to be exercised by her Majesty and" the Parliament of the United Kingdom of Great Britain and Ireland, subject nevertheless to the con- ditions hereinbefore recited with respect to the application of any duties which may be imposed for that purpose ; be it therefore enacted that nothing in this Act contained shall prevent or affect the execution of any law which hath been or shall be made in the Parliament of the said United King- dom for establishing regulations and prohibitions, or for the imposing, levying, or collecting duties for the regulation of navigation, or for the regulation of the commerce between the Province of Canada and any other part of her Majesty's Dominions, or between the said Province of Canada or any other part thereof and any foreign country or state, or for appointing and directing the payment of drawbacks of such duties so imposed, or to give to her Majesty any power or authority, by and with the advice and consent of such Legis- lative Council and Assembly of the said Province of Canada, to vary or repeal any such law or laws, or any part thereof, or in any manner to prevent or obstruct the execution there- of : Provided always, that the net produce of all duties which shall be so imposed shall at all times hereafter be applied to and for the use of the said Province of Canada, and (except as hereinafter provided) in such manner only as shall be directed by any law or laws which may be made by her Majesty, by and with the advice and consent of the Legisla- tive Council and Assembly of such Province. XLIV. And whereas by the laws now in force in the said Courts of Ap- Proviuce of Upper Canada the Governor, Lieutenant-Gover- Qu^en's'BeDcb nor, or person administering the Government of the said and Chancery Province, or the Chief Justice of the said Province, together ^a ; aud Court, with any two or more of the members of the Executive 2^ *^P1'^^ ^'^^ Council of the said Province, constitute and are a Court of Appeal for hearing and determining all appeals from such judgments or sentences as may be lawfully brought before them : And whereas by an Act of the Legislature of the said (Laws jf Up- Province of Upper Canada, passed in the thirty-third year i'3 q^o'^o'^'*'' o of the reign of his late Majesty King George the Third, c. 8.) intituled " An Act to establish a Court of Probate in the said Province, and also a Surrogate Court in every District thereof," there was and is established a Court of Probate in the said Province, in which Act it was enacted that the Gov- 166 THE UNION ACT (Laws of Up- per Canada, 2 W. 4, c. 8.) (Laws of Up- per Canada, 7 W. 4, c. 2.) ernor, Lieutenant-Governor, or person administering the Government of the said hxst-mentioned Province should preside, and that he should have the powers and authorities in the said Act specified : And whereas by an Act of the Le<^islature of the said Province of Upper Canada, passed in the second year of the reign of his late Majesty King William the Fourth, intituled " An Act respecting the Time and Place of Sitting of the Court of King's Bench," it was amongst other things enacted tliat his Majesty's Court of King's Mench in that Province should be holden in a place certain; that is, in the city, town, or place which should be for the time being the seat of the Civil Government of the said Province, or within one mile therefrom : And whereas by an Act of tlie Legislature of the said Province of Upper Canada passed in the seventh year of the reign of his late Majesty King William the Fourth, intituled " An Act to establish a Court of Chancery in this Province," it was enacted that there should be constituted and established a Court of Chancery to be called and known by the name and style of " The Court of Chancery for the Province of Upper Canada," of which Court the Governor, Lieutenant-Governor, or person administering the Government of the said Province should be Chancellor ; and which Court, it was also enacted, should be holden at the seat of Government in the said Province, or in such other place as should be appointed by proclamation of the Governor, Lieutenant-Governor, or person adminis- (Lawsof Lower tering the Government of the said Province: And whereas Q 3_) ' ' by an Act of the Legislature of the Province of Lower Canada, passed in the thirty-fourth year of the reign of his late Majesty George the Third,, intituled " An Act for the Division of the Province of Lower Canada, for amending the Judicature thereof, and for repealing certain Laws therein mentioned," it was enacted that the Governor, Lieutenant-Governor, or person administering the Govern- ment, the members of the Executive Council of the said Province, the Chief Justice thereof and the Chief Justice to be appointed for the Court of King's Bench at Montreal, or any five of them, the Judges of the Court of the District wherein the judgment appealed from was given excepted, should constitute a Superior Court of Civil Jurisdiction or Provincial Court of Appeals, and should take cognizance of, hear, try, and determine all causes, matters, and things appealed from ail civil jurisdictions and Courts wherein an appeal is by law allowed ; be it enacted that until otherwise AND SUPPLEMENTARY ACTS. 167 provided by an Act of the Legislature of the Province of Canada, all judicial and ministerial authority which before and at the time of passing this Act was vested in or might be exercised by the Governor, Lieutenant-Governor, or per- son administering the Government of the said Province of Upper Canada, or the members or any number of the mem- bers of the Executive Council of the same Province, or was vested in or might be exercised by the Governor, Lieutenant- Governor, or the person administering the Government of the Province of Lower Canada, and the members of the Execu- tive Council of that Province, shall be vested in and may be exercised by the Governor, Lieutenant-Governor, or person administering the Government of the Province of Canada, and in the members or the like number of the members of the Executive Council of the Province of Canada respec. tively ; and that iintil otherwise provided by Act or Acts of the Legislature of the Province of Canada the said Court of King's Bench, now called the Court of Queen's Bench of.Upper Canada, shall from and after the Union of the Provinces of Upper and Lower Canada be holden at the City of Toronto, or within one mile from the municipal boundary of the said City of Toronto : Provided always, that until otherwise provided by Act or Acts of the Legislature of the Province of Canada, it shall be lawful for the Governor of the Province of Canada, by and with the advice and consent of "the Executive Coun- cil of the same Province, by his proclamation to fix and appoint such other place as he may think fit; within that part of the last-mentioned Province which now constitutes the Province of Upper Canada, for the holding of the said Court of Queen's Bench. XLV. And be it enacted that all powers, authorities, and Powers to be functions which by the said Act passed in the thirty-first g^^^^g^^g'^.'^jjjj year of the reign of his late Majesty, King George the Third, the Executive or by any other Act of Parliament, or by any Act of the alone. Legislature of the Provinces of Upper and Lower Canada respectively, are vested in or are authorized or required to be exercised by the respective Governors or Lieutenant- Governors of the said Provinces, with the advice or with the advice and consent of the Executive, Council of such Pro- vinces respectively, or in conjunction with such Executive Council or with any number of the members thereof, or by the said Governors or Lieutenant-Governors individually and alone, shall, in so far as the same are not repugnant to 168 THE UNION ACT Existiufj saved. laws Courts of Jus- tice, Commis- Bious, Otlicers, etc. or inconsistent with the provisions of this Act, be vested in and may be exercised by the Governor of the Province of Canada, with the advice or with the advice and consent of, or in conjunction as the case may require with such Execu- tive Council, or any members thereof, as may be appointed by her Majesty for the affairs of the Province of Canada, or by the said Governor of the Province of Canada individually and alone in cases when the advice, consent, or concurrence of the Executive Council is not required. XFjVI. And be it enacted tliat all laws, statutes, and ordi- nances which at the time of the union of the Provinces of Upper and Lower Canada shall be in force within the said Provinces or either of them, or any part of the said Pro- vinces respectively, shall remain and continuo to be of the same force, authority, and effect in those parts of the Pro- vince of Canada which now constitute the said Provinces respectively as if this Act had not been made, and as if the said two Provinces had not been united as aforesaid, except in so far as the same are repealed or varied by this Act, or in so far as the same shall or may hereafter by virtue and under tlie authority of this Act be repealed or varied by any Act or Acts of the Legislature of the Province of Canada. XLYIL And be it enacted that all the courts of civil and criminal jurisdiction within the Provinces of Upper and Lower Canada at the time of the union of the said Provinces, and all legal commissions, powers, and authorities, and all officers, judicial, administrative, or ministerial, witliin the said Provinces respectively, except in so far as the same may be abolished, altered, or varied by or may be inconsistent with the provisions of this Act, or sliall be abolished, altered, or varied by any Act or Acts of the Legislature of the Province of Canada, shall continue to subsist within those parts of the Province of Canada which now constitute the said two Provinces respectively, in the same form and with the same effect as if this Act had not been made, and as if the said two Provinces had not been reunited as afore- said. Provision re- specting tem- porary Acts. XLVIII. And whereas the Legislatures of the said Pro- vinces of Upper and Lower Canada have from time to time passed enactments, which enactments were to continue in force for a certain number of years after the passing thereof, " and from thence to the end of the then next ensuing ses- AND SUPPLEMENTARY ACT3. 169 sion of the Legislature of tlie Province in which the same were passed " ; be it therefore enacted that whenever the words, "and from thence to the end of the then next ensuing session of the Legislature," or words to the same effect, have been used in any temporary Act of either of the said two Provinces which shall not have expired before the reunion of the said two Provinces, tlie said words shall be construed to extend and apply to the nsxt ssssioa of the Legislature of the Province of Canada. XLIX. And whereas by a certain Act passed in the third Repeal of part year of the reign of his late Majesty, King George the Fourth, °^ ^ ^- ^' "■ ^^^• intituled, " An Act to regulatp the Trade of the Provinces of Upper and Lower Canada, and for other purposes relating to the said Provinces," certain provisions were made for appointing arbitrators with power to hear and determine certain claims of the Province of Upper Canada upon the Province of Lower Canada, and to hear any claim which might be advanced on the part of the Province of Upper Canada to a proportion of certain duties therein mentioned, and for prescribing the course of proceeding to be pursued by such arbitrators-"; be it enacted that the said recited pro- visions of the said last-mentioned Act, and all matters in the same Act contained, which are consequent to or depen- dent upon the said provisions or any of them, shall be repealed. L. And be it enacted that upon the union of the Provinces Revenues of of Upper and Lower Canada, all duties and revenues over vinces to form which the respective Legislatures of the said Provinces before ^ Consolidated . Revenue Fund, and at the time of the passing of this Act had and have power of appropriation,'-^ s h£\.lL -fegni oxae. consolidated-' revenue fund to be appropriated for the public service of the Province of Canada in the manner and subject to the charges hereinafter mentioned. LI. And be it enacted that the said consolidated revenue Consolidated fund of the Province of Canada shall be permanently ^^^^^I^J^J^g^^J^^'* charged with all the costs, charges, and expences incident to with expense the collection, management, and receipt thereof, such costs, etc- charges, and expences, being subject nevertheless to be reviewed and au lited in such manner as shall be directed by any Act of the Legislature of the Province of Canada. LII. And be it enacted that out of the consolidated ^45,000 to be 'J)\lti.^ revenue fund of the Province of Canada there shall be pay- maneutly^for ^ 170 TIIK UNION ACT the Services in able in every year to her Majesty, lier lieirs and successors, 'aud''t':iO,0()o'for the sum of forty -five thousand pounds-- for defrayinj,' the thelifeot'lier expence of the several sei'vices and purposes named in the Majesty ami "^ -, -, t ■ ■, ■, ^ five years fol- Schedule marked A. to this Act annexed ; and during the life thoso'iVsche- o^ l^'^^' Majesty, and for five years after the demise of her dule B. Majesty, there shall be payable to her Majesty, her heirs and successors, out of the said consolidated revenue fund, a further sum of thirty thousand pounds, for defraying the expence of the several services and purposes named in the Schedule marked B. to this Act annexed ; the said sums of forty-five thousand pounds and thirty thousand pounds to be issued by the Receiver-General in discliarge of such warrant or warrants as shall be from time to to time directed to him under the hand and seal of the Governor; and the said Receiver-General shall account to her IVIajesty for the same, through the Lord High Treasurer or Lords Commissioners of her Majesty's Treasury, in such form and m'anner as her Majesty shall be graciously pleased to direct. How the appro- LIU. And be it enacted that, until altered by any Act of Turns granted the Legislature of the Province of Canada, the salaries of may be varied, the Governor and of the Judges shall be those respectively set against their several oifices in the said Schedule A. ; but that it shall be lawful for the Governor to abolish any of the offices named in the said Schedule B., or to vary the sums appropriated to any of the services or purposes named in the said Schedule B.; and that the amount of saving which may accrue from any such alteration in either of the said schedules shall be appropriated to such purposes connected with the administration of the Government of the said Pro- vince as to her Majesty shall seem fit; and that accounts in detail of the exi)enditure of the several sums of forty-five thousand and thirty thousand j)ounds hereinbefore granted, and of every part thereof, sliall bo laid before the Legisla- tive Council and Legislative Assembly of the said Province within thirty days next after the beginning of the session after such expenditure shall have been made : Provided always that not more than two thousand pounds shall be payable at the same time for pensions to the judges out cf the said sum of forty-five thousand pounds, and that not more than five thousand pounds shall be payable at the same time for pensions out of the said sum of thirty thousand pounds ; and that a list of all such pensions and AND SUPPLEMENTARY ACTS. 171 of the persons to whom the same shall have been granted, shall be laid in every year before the said Legislative Coun- cil and Legislative Assembly. LIV. And be it enacted that during the time for which Surrender of the said several sums of forty-five thousand pounds and venues of the thirty thousand pounds are severally payable the same shall Crown, be accepted and taken by her Majesty by way of Civil List, ijistead of all territorial and other revenues now at the dis- PQsal oi the Crown, arising in either of the said Provinces of Upper Canada or Lower Canada, or in the Province of Canada, and that three-fifths of the net produce of the said territorial and other revenues now at the disposal of the Crown within the Province of Canada shall be paid over to the account of the said consolidated revenue fund ; and also during the life of her Majesty and for five years after the demise of her Majesty the remaining two-fifths of the net pro- duce of the said territorial and other revenues and at the dis- posal of the Crown within the Province of Canada shall be also paid over in like manner to the account of the said con- solidated revenue fund. LV. And be it enacted that the consolidation of the Charges duties and revenues of the said Province shall not be taken fu^either Pro-^* to affect the payment out of the said consolidated revenue vince. fund of any sum or sums heretofore charged upon the rates and duties already raised, levied, and collected to and for the use of either of the said Provinces of Upper Canada or Lower Canada, or of the Province of Canada, for such time as shall have been appointed by the several Acts of the Legis- lature of the Province by which such charges were severally autliorized. LVI. And be it enacted that the expences of the collec- The order of tion, management, and receipt of the said consolidated Qo^^Q^?(j°"g*^ ®^ revenue fund shall form the first charge thereon ; and Fund to be :— that the annual interest of the Public Debt of the Provinces of collection ; of Upper and Lower Canada, or of either of them, at the of the debt^^' time of the reunion of the said Provinces shall form the second charge thereon ; and that the payments to be 3rd. Payments- made to the clergy of the United Church of England and *° ^^® '^^^'"Sy = Ireland, and to clergy of the Church of Scotland, and to ministers of other Christian denominations, pursuant to any law or usage whereby such payments before or at the pass- ing of this Act were or are legally or usually paid out of the 172 THE UNION ACT public or Crown revenue of eitlier of the Provinces of Upper and Lower Canada, shall form the third charge upon the ^f.^a'l'^^th. said consolidated revenue fund; and that the said sum of forty-five thousand pounds shall form the fourth charge thereon ; and that the said sum of tiiirty thousand pounds, so long as the same shall continue to be payable, shall form 6th. Other the fifth charge thereon ; and that tlie otlier charges upon already made ^'"^ rates and duties levied within the said Province of ou the Public Canada hereinbefore reserved shall form the sixth charge Kevenue. thereon, so long as such charges shall continue to be pay- able. Subject to the LVII. And be it enacted that, si;bject to the several pay- the\foi?soli-^^^' ments hereby charged on the said Consolidated Revenue dated Kevenue Fund, the same shall be appropriated by the Legislature of Fund to heap- -, , , propiiatetl by the Province of Canada for the public service in such man- L^fgfslature! by "^r as they shall think proper : Provided always that all bills, etc. bills for appropriating any part of the surplus of the said consolidated revenue fund, or for imposing any new tax or import, shall originate in the Legislative Assembly of the said Province of Canada : Provided also that it shall not be lawful for the said Legislative Assembly to originate or pass any vote, resolution, or bill for the api:)ropriation of any part of the surplus of the said consolidated revenue fund, or of any other tax or impost, to any purpose which shall not have been first recommended by a message of the Governor to the said Legislative Assembly during the session in which such vote, resolution, or bill shall be passed. Towiishi))sto LVIII. And be it enacted that it shall be lawful for the be constituted. ^ , ., i-x iii-ji. Governor, by an instrument or instruments to be issued by him for that purpose under the Great Seal of the Province, to constitute townships'-^ in those parts of the Province of Canada in which townshi)is are not already constituted, and to fix metes and bounds thereof, and__t o provide for Jj ae election and appoiutuient of township officers tliecein, who shall have and exercise the like powers as are exercised by the like officers in the townships already constituted in that part of the Province of Canada now called Upper Canada ; and every such instrument shall be published by proclamaticn, and shall have the force of law from a day to be named in each case in such proclamation. Powers of Gov- LTX. And be it enacted that all powers and authorities be'e'xerdsed'! expressed in this Act to be given to the Governor of the AND SUPPLEMENTARY ACTS. 173 Province of Canada shall be exercised by such Governor in conformity with and subject to such orders, instructions, and directions as her Majesty shall from time to time see fit to make or issue LX. And whereas his late Majesty King George the Third, Magdalen by his Royal Proclamation'--' bearing date the seventh day i,e annexed to of October in the third year of his reign, was pleased to $|^? ^^'^JL"? °* •' oil Pi-mce Ed- declare that he had put the coast of Labrador from the ward. River St. John to Hudson's Straits, with the islands of Anticosti and Madelaine and all other smaller islands lying on the said coast, under the care and inspection of the Gov- ernor of Newfoundland ; And whereas by an Act passed in the fourteenth year of the reign of his said late Majesty, intituled " An Act for making more effectual provision for the Government of the Province of Quebec in North America," all such territories, islands, and countries, which had since the tenth day of February in the year one thou- sand seven hundred and sixty-three been made part of the Government of Newfoundland, were during his Majesty's pleasure annexed to and made part and parcel of the Pro- vince of Quebec as created and established by the said pro- clamation ^ s ; be it hereby declared and enacted that nothing in this or any other Act contained shall be construed to restrain her Majesty, if she shall be so pleased, from annex- ing the Magdalen Islands in the Gulf of St. Lawrence to her Majesty's Island of Prince Edward. LXI. And be it enacted that in this Act, unless otherwise Interpretation expressed therein, the words " Act of the Legislature of the ^ ^"®®- Province of Canada " are to be understood to mean " Act of her Majesty, her Heirs or Succassors, enacted by her Majesty, or by the Governor on behalf of her Majesty, with the advice and consent of the Legislative Council and Assembly of the Province of Canada " ; and the words " Governor of the Province of Canada " are to be understood as compre- hending the Governor, Lieutenant-Governor, or person authorized to execute the Office or the functions of Governor of the said Province. LXII. And be it enacted that this Act may be amended Act may be r repealed 1 Parliament - or repealed by any Act to be passed in the present session of ^'^^"'^^'^' ®^<^- 174 THE UNION ACT SCHEDULES. SCHEDULE A. Governor . . - . . £7000 Lieutenant-Governor . . . . lOOO Upper Canada. 1 Chief Justice .... 1500 4 Puisne Judges, at ^-900 each - - - :SGOO 1 Vice-Chaucellor .... 112;> Lower Canada. 1 Chief Justice, Quebec .... 1500 3 Puisne Judges, Quebec, at £900 each - 2700 1 Chief Justice, Montreal - - - - 1100 8 Puisne Judges, Montreal, at £900 each - 2700 1 Resident Judge at Three Rivers - - 900 1 Judge of the Inferior District of St. Francis 500 1 Judge of the Inferior District of Gaspe - 500 Pensions to the Judges, salaries of the Attornies and Solicitors General, and contingent and miscellaneous expeuces of Administration of Justice throughout the Province of Canada 20875 £45000 SCHEDULE B. Civil Seci'etaries and their Offices - - £8000 Provincial Secretaries and their Offices - HOOO Receiver-General and his Office - - i^OOO Inspector-General and his Office - - - 2000 Executive Council .... HOOO Board of Works .... - 2000 Emigrant Agent .... 700 Pensions ...... ")000 Contingent Expences of Public Offices - 3300 £30000 AND SUPPLEMENTARY ACTS. 175 [/ The Union Act Amendment Act, 1848. An Act-' to repeal so much of an Act of the Third and Fourth Years of Her present Majestij, to re-unite the Provinces of Upper and Lower Canada, as relates to the Kse of the Eni/lish Langiiafje in Instruments relating/ to the Legislative Council and Legisla- tive Assembly of the Province of Canada. [14th August, 1848. Whereas by an Act past in the session of Parliament held 3 & 4 Vict. c. 35. in the third and fourth years of Her Preseiit Majesty, intituled "An Act to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada," it is amongst other things enacted that from and after the said reunion of the said two Provinces, all writs, proclamations, instruments for summoning and calling together the Legis- lative Council and Legislative Assembly of the Province of Canada, and for proroguing and dissolving the same, and all writs of summons and elections, ani all writs and public instruments whatsoever relating to the said Legislative Council and Legislative Assembly, or either of them, and all returns to such writs and instruments, and all journals, entries, and written or printed proceedings, of what nature soever, of the said Legislative Council and Legislative Assembly, and of each of them respectively, and all written or printed proceedings and reports of Committees of the said Legislative Council and Legislative Assembly respec- tively, shall be in the English language only : Provided always that the said enactment shall not be construed to prevent translated copies of any such documents being made, but no such cojay should be kept among the records of the Legislative Council or Legislative Assembly, or be deemed in any case to have the force of an original record : And whereas it is expedient to alter the law in this respect, in order that the Legislature of the Province of Canada, or the said Legislative Council and Legislative Assembly respectively, may have power to make such regulations herein as to them may seem advisable : Be it therefore enacted So much of re- by the Queen's most excellent Majesty, by and with the acts that all 176 THK UNION ACT writs, etc., sball be in English re- pealed. .\ct may be ameuded, etc. advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that from and after the pass- ing of this Act so much of the said recited Act as is herein- before recited shall be repealed.-* II. And be it enacted that this Act, or any part thereof, may be repealed, altered, or varied at any time during the present session of Parliament. AND SUPPLEMENTARY ACTS. 177 The Union Act Amendment Act, 1854. An Act~° to empua-cr the Lefjislature of Canathi to alter the Consti- tution of the Legislative Council for that Province, and for other purposes. [llxH August, 1854. Wliereas an Act^o of the session of Parliament holden in the third and fourth years of her Majesty, chapter thirty- five, " to reunite the Provinces of Upper and Lower Canada, and for the Government of Canada," providps amongst other things for the establishment of a Legislative Council in the Province of Canada, consisting of members summoned thereto by the Governor, under the authority of her Majesty as therein specified : And whereas it is expedient^i that the Legislature of the said Province should be empowered to alter the constitution of the said Legislative Council : And whereas the said Act requires amendment in other respects: Be it enacted by the Queen's most excellent Majesty, by and with the consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. It shall be lawful for the Legislature of Canada, by any Power to the Act or Acts to bs hereinafter for that purpose passed, to Canada to alter alter the manner of composing the Legislative Council of *^^ *^'i"^'^^*^' „ the said Province, and to make it consist of sitch number of islative coun- cil members appointed or to be appointed or elected by such persons and in sitch manner as to the said Legislature may seem fit, and to fix the qualifications of the persons capable of being so appointed or elected, and by such Act or Acts to make provision, if they shall think fit, for the separate dissolution, by the Governor of the said Legislative Council and Legislative Assembly respectively, and for the purposes aforesaid to vary and repeal in such manner as to them may seem fit all or any of the sections of the said recited Act, and of any other Act of Parliament now in force, which relate to the constitution of the Legislative Coitncil of Canada: Provided always that any bill or bills which shall be passed by the present Legislative Council and Assembly of Canada for all or any of the purposes 178 THK UNION ACT aforesaid shall be reserved by the said Governor,''^ unless he think fit to withhold her Majesty's assent thereto, for the signification of her Majesty's pleasure, and shall be subject to the enactments of the said recited Act of tlie third and fourth years of her Majest}', chapter thirty-five, section thirty-nine, which relate to bills so reserved for the signifi- cation of her Majesty's pleasure. Provisions of II. As soon as the constitution of Ihe Legislative Council Parliament't'o °^ *'^^ Province of Canada shall have been altered under apply to the such Act or Acts so assented to by her Majesty as aforesaid, live Council. all provisions of the said recited Act of Parliament of the third and fourth years of lier Majesty, chapter thirty-five, and of any other Act of Parliament now in force relating to the Legislative Council of Canada, shall be held to apply to the Legislative Council of Canada so altered, except so far as such provisions may have been varied or repealed by such Act or Acts of the Legislature of Canada so assented to as aforesaid. Legislature of HI- It shall be lawful for the Legislature of Canada from Canada may time to time to varv and repeal all or anv of the provisions vnry Acts con- - '■ ^ '■ stitiuing the of the Act or Acts altering the constitution of the said Legis- Councif; lative Council : Provided always, that any bill for any such purpose, which shall vary the qualification of councillors, or the duration of office of such councillors, or the power of the Governor to dissolve the Council or Assembly, shall be reserved by the Governor for the signification of her Majesty's pleasure in manner aforesaid. and may vary, IV. It shall be lawful for the Legislature of Canada, by pert'y quaUflca- ^"y ^^^ ^^ Acts reserved for the signification of her tionofmom- Majesty's pleasure, and whereto her Majesty shall have UGrs ot As- 1 1 ■ 1 ■ • n T 1 jr sembly. assented as herembetore provided, to vary or repeal any of the provisions of the recited Act of Parliament of the third and fourth years of her Majesty, which relate to the property qualification of members of the Legislative Assembly.-'''' Proviso in sec- V. So much of the twenty-sixth section of the said recited vfc".^c*35'r* '* ^^^ of Parliament as provides tliat it shall not be lawful to l)ealed. present to the Governor of the Province of Canada, for her Majesty's assent, any bill of the Legislative Council and Assembly of the said Province by which the number of representatives in the Legislative Assembly may be altered unless the second and third readings of such bill in the Legis- lative Council and Legislative Assembly shall have been AND SUPPLEMENTARY ACTS. 179 passed with the concurrence of two-thirds of the members for the time being of the said Legislative Council, and of two-thirds of the members for the time being of the said Legislative Assembly respectively, and that the assent of her Majesty shall not be given to any such bill unless addresses shall have been presented by the Legislative Council and the Legislative Assembly respectively to the Governor stating that such bill has been so passed, is hereby repealed. VI. The forty-second section of the said recited Act of Section 42 of 3 &4 Vict. c.;-!5 Parliament, providing that in certain cases Bills oi the repealed. Legislative Council and Assembly of Canada shall be laid before both Houses of Parliament of the United Kingdom, is hereby repealed ; and notwithstanding anything in the said Act of Parliament, or in any other Act of Parliament contained, it shall be lawful for the Governor to declare that he assents in her Majesty's name to any bill of the Legisla- ture of Canada, or for her Majesty to assent to any such bill if reserved for the signification of her pleasure thereon, although such bill shall not have been laid before the said Houses of Parliament; and no Act heretofore passed, or to be passed by the Legislature of Canada shall be held invalid or ineffectual by reason of the same not having been laid before the said Houses, or by reason of the Legislative Council and Assembly not having presented to the Governor such address as by the said Act of Parliament is required. VII. That in this Act the word " Governor " is to be Interpretatiou understood as comprehending the Governor and in his absence the Lieutenant-Governor, or person aiithorized to execute the office or the functions of the Governor of Canada. H.C.C. 12 180 THE UNION ACT The Union Act Amendment Act, 1859. A)t Acf* to empower the Legislature of Canada to make laivs regu- lating the appointment of a Speaker of the Legislative Council. [8th August, 1856. Whereas by an Act passed in the Session of Parliament, holden in the third and fourth years of Her Majesty, chapter thirty-five, " to re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada," it is amongst other tilings provided that the Governor of the Province of Canada shall have power and authority, from time to time, by an instrument under the Great Seal of the said Province, to api^oint one member of the said Legis- lative Council to be Speaker of the said Legislative Council, and to remove him and appoint another in his stead : And, whereas by an Act passed in the Session of Parliament holden in the seventeenth and eighteenth years of Her Majesty, chapter one hundred and eighteen, " to empower the Legislature of Canada to alter the constitution of the Legislative Council for that Province, and for other pur- poses," power was given to the Legislature of Canada to alter the manner of composing the Legislative Council for that Province, and to make it consist of such number of persons appointed, or to be appointed, or elected by such persons and in such manner as to the said Legislature may seem fit, in the manner and subject to the conditions by that Act provided, and for the purpose aforesaid to vary and repeal, in such manner as to them may seem fit, all or any of the provisions of tlie first-recited Act, and of any other Act of Parliament now in force which relate to the con- stitution of the Legislative Council of Canada ; and it was thereby further enacted, that the Speaker of the Legislative Council should, as theretofore, be appointed by the Gov- ernor : And, whereas the said Legislature, in pursuance of the powers conferred on them by the said last-recited Act, have, by an Act of the Province of Canada passed in the Session of the said Legislature holden in the nineteenth and twentieth years of Her Majesty, :» " to change the con- AND SUPPLEMKNTARY ACTS. 181 stitution of the Legislative Council by rendering the same elective," provided for the election of members of the said Council, and for the gradual substitution of elective for appointed members thereof : And, whereas doubts have been entertained whether it is lawful for the Legislature of Canada, under the powers given to them by the said last- recited Act of Parliament, to provide for the appointment or election of a Speaker of the Legislative Council, and it is expedient that such doubts should be removed, be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : I. It shall be lawful for the Legislature of Canada, by any Act"^ or Acts passed in the manner and subject to the conditions specified in the said last-recited Act of Parlia- ment, to alter the constitution of the Legislative Council of the said Province by providing for the appointment or elec- tion of a Speaker of the said Council ; and for this purpose to vary and repeal, in such manner as to them may seem fit, so much of the hereinbefore recited sections of the said Acts of Parliament, and of the provisions of the said recited or any other Acts of Parliament as relates to the appointment of such Speaker. 182 THE UNION ACT NOTES TO THE UNION ACT AND SUPPLEMENTARY ACTS. 1 This Act is3& 4 Vict. cap. 35. It is reprinted from the Impei-ial "Statutes at Large," London, 1841. Full reports of the discussions on the various stages of the measure in its progress through both Houses of Parliament are given in " Hansard's Parlianieutnry Debates," Third Series, vols. 52, 53, 54, and 55, (I84t)). The occasion of this legislation was the series of political disorders which culminated in the Rebellion of 1837-38. See Note 2G on the "Constitutional Act and Supplementary Acts" (p. 148). The .\ct was based on the recommendations contained in Lord Durham's Report, and is said to have been drafted by Chief Justice Stuart of Lower Canada under the direction of Governor Thomson, afterwards Lord Syden- ham. It was strongly opposed in both the House of Commons and the House of Lords, but as Sir Robert Peel supported Lord John Russell in carrying it through the former, the opposition there was rather on ST)eciftc clatises than on the prin- ciple of the bill. Protests against tlie third reading in the House of Lords were entered on the journals by the Duke of Wellington and Lord Kllenborough, the most prominent grounds in each case being the e.xtent of the united provinces and the want of harmony between their populations. 2 See Lord Durham's Report, and Lord John Russell's speech on his motion for leave to introduce the measure in the House of Commons (Hansard, Third Series, vol. 52, pp. 1323-1354). 8 This proclamation was issued by Lord Sydenham on tlie 5th of February, 1841, and it declared that the union of the Provinces should take effect on the 10th of the same month. The text of the proclnmatiou is given in the .Tournals of the Legislative Assembly for the first session of the first Provincial Parliament of Canada (1841). * The Constitutional .Act, sections ii— xx.xii. (pp. 11'2-123). s See pp. 13G-139. 6 See pp. 142-145. 7 See pp. 106-107. fi The Constitutional Act, 1791. 9 Very little objection was made to life-membership in the course of the debates on the bill in Parliament. Mr. Joseph Hume suggested that a portion of the Council should be chosen by the people, but the suggestion was not supported and was not pressed. Seethe "Union Act Amendment .\ct"of 3854 (pp. 177-179 below), which empowered the Canadian Parliament to alter the Constitution of the Legislative Council. See also the Act passed by the Canadian Parliament in 1856 (19 S: 20 Vict., cap. 140), making the Legislative Council elective. 10 See pp. 136-139. 11 The effect of the operation of sections xiii-xx of the Union Act was to give Upper and Lower Canada each 42 members in the Legislative Assembly. By an Act (16 Vict., cap. 1.52), passed in ia53, under the authority conferred by section xxvi. of the Union .\ct, this number was increased to 65, and the membership of the Assembly then remained unchanged till 1867, when the British North America Act became law. The Statute of 1853 was entitled "An Act to enlarge the Re- presentation of the People of this Province in Parliament," but it also effected an extensive redistribution of seats in the Assembly. It is worthy of note that in the same session a statute was passed extending the electoral franchise and pro- viding a new system of registration of votes. 12 See pp. 136-139. AND SUPPLEMENTARY ACTS. 183 13 The first Parliament of Canada under the Union Act met at Kingston in 1841, but the place of meeting was changed to Montreal, where the second Parliament held its first session in 1844, in accordance with the expressed will of its prede- cessor. After the burning of the Parliament buildings in 1849 the Legislature resolved to meet alternately in Toronto and Quebec and actually did so until the seat of Government became permanently fixed at Ottawa, as the result of the decision of Her Majesty, Queen Victoria, to whom the question had been referred by Parliament for arbitration. This decision was given in 18-58, and in 1866 the Provincial Parliament met for the first and last time in Ottawa. For the reasons which led to the abandonment of Montreal oee Walroud's "Letters and Journals of Lord Elgin," pp. 80-94. The fiction of allowing the Governor to choose the place of meeting of Parliament was kept up to the last under the Union Act (see proclamation naming Ottawa, Journals of Legislative Assembly for 18G6, p. v.l, but it was abolished by the Confedei-ation Act, section 16. which fixed the seat of Government of Canada at Ottawa, subject to the Queen's pleasure. !•» The first Parliament met on the 14th of June, four mouths and four days after the union took effect. See Note 3. 15 This section appeared in the draft bill without the proviso, and when Mr. Charles Buller, who had, as Lord Durham's secretary, aided him in the prepara- tion of his report, objected to the clause as " belosv the dignity of legislation on a great constitutional question," Lord John Russell explained that the intention was simply to requu-e " the legal record of everything " to be in the English lan- guage. At the suggestion of Sir C. Grey the proviso, which now appears as part of the section, was added for the purpose of making it clear that there was no intention to ju-event the use of translations of documents. It should be noted that neither the draft nor the section as finally passed assumed to forbid the use of the French language in debates, and as a matter of fact that language was so used from the beginning, the first Speaker, Mr. Cuvillier, being one of the French members of the first Parliament. On the 19th of June in the first session a series of "Rules" were adopted by the Legislative Assembly for the regulation of its own procedure. Rule 29 is as follows : " That copies of the Journals, translated into the French language, be laid on the table daily, for the use of the members ; and also copies of Speeches from the Throne, Addresses, Messages, and Entries of other transactions and deliberations of the House, when asked for by any two members.' Rule 38 thus enacts : " When a motion is seconded, it shall be read in English and in French by the Speaker, if he is master of the two languages ; if not, the Speaker shall read in either of the two languages most familiar to him ; and the reading in the other language shall be at the table by the Clerk or his Deputy, before debate." In the same session an Act (4 & 5 Vic, cap. 11) was passed to providefor the translation of the Union Act and of the Provincial statutes into the French language, and their circulation among the French people. In the session of 1844-4,5 the Legislative Assembly resolved (Journals p. 84) that all bills and documents submitted to the House be printed in English and French, in equal proportions; but during the same session (Journals p. 265), the Speaker refused a motion written in French, on the ground that to receive it would be a violation of section xli. of the Unicn Act, and on an api^eal to the House his decision was sus- tained. With reference to the repeal of section xli., see pp. 175-176 below. 16 During the session in which the Union Act was passed the Imperial Parlia- ment passed an Act (3 & 4 Vict., cap. 78) dealing with the clergy reserves. Another Imperial Act, and the last (16 & 17 Vict., cap. 21), was passed in ia53, " to authorize the Legislature of the Province of Canada to make provision concerning the clergy reserves in that Province, and the proceeds thereof." Under the authority 184 THE UNION ACT conferred bj' the latter statute and by tlie Union Act, the clergy reserves were secularized in 1&54 by Act of the Canadian Parliament (18 Vict., cap. 2). '7 The right of the Governor to endow rectories under the authority of the Constitutional Act, 1791, was taken away by .\ct of the Canadian Parliament (14 & 15 Vict., cap. 175) passed in 1851 and entitled "An Act respecting Rectories." This Act expressly left the legality of existing endowments to be settled by the courts of law, and a test case was submitted to the Court of Chancery in 185'2. See note 14 to the "Constitutional Act and Supplementary Acts" (p. 147). i« See pp. 104-105. 19 The name given to the Legislatures of Massachusetts and Connecticut. 20 See note 19 to the " Constitutional Act and Supplementary ."Vets" (p. 147). 31 Under the authority of 1 & 2 William IV., cap. 23. See pp. 106-107 above. 23 .\ motion was made in the House of Commons by Mr. Hume to cut down this amount to £2-5,000, and Viscount Howick suggested that the salary of the Governor should not be a charge on the revenues of the colony. Neither of these proposals was entertained by the House. 23 For the condition of Upper and Lower Canada, in the matter of municipal institutions at this date, see Lord Durham's report. The first municipal system, as that term is now use! in this country, was created for Upper Canada in 1841 by Act of the first Parliament (4 & 5 Vict., cap. 10). Lord Sydenham took a warm interest in the measure, and was largely instrumental in securing its enactment. He had previously induced the Special Council of Lower Canada to establish a similar system in that I'rovince, deeming it unlikely that the Legislature of the United Province would do so. See "Life of Lord Sydenham," by Poulett Scrope, pp. 176, 200-205, 21G, 2J2-251. See also Sir Francis Hincks' " Keminiscences," pp. 6.3-G8. a* See p. 68 above. 25 See p. 91 above. 26 The only other Act of the same session dealing with Canadian affairs is the Clergy Reserve Act (3 & 4 Vict., cap. 78). 27 This Act is 11 & 12 Vict., cap. .50. For a brief account of the state of affairs which led to its passage see note 15 above. In the session of 1844-5 (see Journals, pp. 91, 223, 289,300) an address was adopted, praying for the repeal by the Imperial Parliament of "so much of the Union .\ct as enacts that all public records and documents shall be in English only." In a despatch dated Feb. 3rd, 1846 (Legislative Assembly Journals p. 13), Mr. W. E. Gladstone acknowledges the receipt of the ad- dress, states that it had been " laid before the Queen," and informs Gen. Cathcart that " from regard to the wishes thus expressed by Her loyal subjects, Her Majesty is inclined toentertain the prayer of that address, and authorizes you to make a communication accordingly to the Legislative Rodies at the opening of the session." This intimation subdued the agitation, pending the passage of the Act of 1848. Hansard's "Parliamentary Debates" does not give any discussion of the bill in either House except two short si^eeches on the third reading in the House of Lords (Third Series, vol. 100, pp. 509-510), one by Lord Stanley deprecating the tendency the measure would probably have in raising up " a permanent barrier between two portions of the country, whose amalgamation was essential to the welfare of both" ; the other by Earl (irey, containing a plea for " the principle of allowing all their local concerns to be regulated according to the wishes and feel- ings of the people of Canada." Ho added that the measurs had been recommended by " three successive Governors-General." AND SUPPLEMENTARY ACTS. 185 28 The removal of the restriction imposed by the Union Act was announced to the Canadian Parliament on the 18th of January, 1849, in a siieech from the Throne, delivered by Lord Elgin, who warmly sympathized with the policy of allowing the French language to be reinstated. See Walrond's "Letters and Journals of Lord Elgin," pp. 51-57. 29 This Act is 17 & 18 Vict., cap. 118. The text is reprinted from the Imperial " Statutes at Large," Loudon, 1855. It was passed in compliance with an addi-ess to the Queen from the Legislative Assembly of Canada, adopted, after a protracted debate and many divisions, on the second of June, 1853. See Journals of the Legislative Assembly of the session of 1852-5.3, pp. 197, and 922-916. For interesting debates on the Act at various stages of its progress, especially in the House of Lords, see " Hansard's Parliamentary Debates," Third Series, vol. 134, pp. 159> 501, 822, and vol. 135, p. 1319. 30 The Union Act, 1840 (sections iv-s). 31 See the address adopted by the Legislative Assembly of Canada (Journals of 1852-53, pp. 944-946) ; also the debates in the Imperial Parliament referred to in note 29 above. y See Canadian Statutes, 19 & 20 Vict., cap. 140, entitled " An Act to change the constitution of the Legislative Council by rendering the same elective." In com- pliance with the proviso appended to this section the Act was on the 16th of May, 1856, " reserved for the signification of Her Majesty's pleasure," but on the 24th of June of the same year it was assented to by the Queen in Council, and on the 14th of July following it was proclaimed by the Governor-General, Sir Edmund Walker Head. 33 See sections xxviii.-xsix. of the Union Act (p. 15S). A property qualification continued to be required of members of the Legislative Assembly until the latter was brought to an end by the passage of the British North America Act, 1867 (see " Consolidated Statutes of Canada, 1859," cap. 6, ss. 36-37). 34 This Act is 22 & 23 Vict. cap. 10. The text is reprinted from the Imperial " Statutes at Large," London, 1860. 35 Cap. 140. 36 The Legislature of Canada did in 1860 pass an Act providing for the election of the Speaker by the Legislative Council, and the first member so elected was Sir Allan McNab (March 20, 1862.) 186 THE CONFEDERATION ACT THE CONFEDERATION ACT, 1867, AND SUP- PLEMENTARY ACTS. An Act^ for the Union of Cfinndn, Xova Scotia, and Xew Bruns- wick, and the (Tocern)iieitt thereof; and for jiurposes connected thereivith. [29th March, 1867. Whereas the Provinces of Canada, Nova Scotia, and New Brunswick^ have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom :•' And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire : And wliereas on the establishment of the Union by authority of Parliament it is expedient, not only that the Constitution of the Legislative Authority in the- Dominion be provided for, but also that the nature of the Executive Government tliereiu be declared : And whereas it is expedient that provision* be made for the eventual admission into the Union of other parts of British North America : Be it therefore enacted and declared by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: I. — Preliminary. Short title. 1. This Act may be cited as The British Nortli America Act, 1867. Application of 2. The provisions of tliis Act referring to Her Majesty lerriiig to tho ^'^^ Queen extend also to the heirs and successors of Her Queeu. Majesty, Kings and (^)uecns of the United Kingdom of Great Britain and Ireland. AND SUPPLEMENTARY ACTS. 187 II.— Union. 3. It shall be lawful for the Queen, by and with the Declaration of advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation that, on and after a day therein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be one Dominion under the name of Canada ; and on and after that day those three Provinces shall form and be one Dominion under that name accordinglj'.s 4. The subsequent provisions of this Act shall, unless it Construction is otherwise expressed or implied, commence and have pro^^'isi^ons'of' effect on and after the Union, that is to say, on and after Act. the day appointed for the Union taking effect in the Queen's Proclamation ; and in the same provisions, imless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. 5. Canada shall be divided into four Provinces, named Four Pro- Ontario, Quebec, Nova Scotia, and New Brunswick. 6. The parts of the Province of Canada (as it exists at Provinces of the passing of this Act) which formerly constituted re- g^g^y °_ ^ "^ spectively tlie I'rovinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces. The part which formerly'^ constituted tlie Province of Upper Canada shall constitute the Province of Ontario ; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec. ■y. The Provinces of Nova Scotia and New Brunswick Provinces of shall have the same limits as at the passing of this Act.'' and New" '* Brunswick. 8. In the general census of the population of Canada, Decennial which is hereby required to be taken in the year one thousand eight hundred and seventy-one, and in every tenth year thereafter, the respective populations of the four Provinces shall be distinguished. « III. — Executive Power. O^ The Executive Government and authority of and over Declaration of Canada is hereby declared to continue and be vested in the power in the Queen. Queen. 188 THE CONFEDERATION ACT Application of |0. Tlie provisions of this Act referrinj^ to the Governor feniiiR to Gov- General extend and apply to the Governor General for the ernor Geueral. ^j^jg ^,ej„„ ^f Canada, or other the Chief Executive Officer or Administrator, for the time being carrying on the Gov- ernment of Canada on behalf and in the name of the Queen, by whatever title he is designated. Constitution of 11. There shall be a Council to aid and advise in the fo"(fanadaf' Government of Canada, to be styled the Queen's Privy Council for Canada ; and the persons who are to be mem- bers of that Council shall be from time to time chosen and summoned by the Governor General and sworn in as Privy Councillors, and members thereof may be from time to time removed by the Governor General. All powers 12. All powers, authorities, and functions which under be exerc^sefl" ^^y -'^ct of the Parliament of Great Britain, or of the by Governor Parliament of the United Kingdom of Great Britain and advice of Privy Ireland, or of tlie Legislature of Upper Canada, Lower alone*'*'' °^ Canada, Canada, Nova Scotia, or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the advice, or with the advice and consent, of the re- spective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Gov- ernment of Canada, be vested in and exerciseable by the Governor General, with the advice or with the advice and consent of or in conjunction with the Queen's Privy Council for Canada, or any members thereof, or by the Governor General individually, as the case requires, subject neverthe- less (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada.^ Application of 13> The provisions of this Act referring to the Governor Fe'n-hffl'urGov- General in Council shall be construed as referring to the ernor General Governor General acting by and with tlie advice of the Queen's Privy Council for Canada. Power toHer 14, it shall be lawful for the Queen, if Her Majesty authorize Gov- thinks fit, to authorize the Governor General from time to tol^joiln^*^"^ time to appoint any person or any persons, jointly or Deputies. AND SUPPLEMENTARY ACTS. 189 severally, to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise during the pleasure of the Governor General such of the powers, authorities, and functions of the Governor General as the Governor General deems it necessary or expedient to assign to him or them, subject to any limitations or directions ex- pressed or given by the Queen ; but the appointment of such a Deputy or Deputies shall not affect the exercise by the Governor General himself of any power, authority or function. If5. The Command-in- Chief of the Land and Naval Command of Militia, and of all Naval and Military Forces, of and in ^o contiuue to Canada, is hereby declared to continue and be vested in the J',^ vested iu •' the Queeu. Queen. 16. Until the Queen otherwise directs, the seat of Gov- Seat of Gov- ernment of Canada shall be Ottawa.^" Canada. IV. — Legisl.vtive Power. 17. There shall be one Parliament for Canada, consisting Constitution of of the Queen, an Upper House styled the Senate, and the Canada. House of Commons. 18. The privileges, immunities, and powers to be held. Privileges, &c. enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time dehned by Act of the Parliament of Canada, but so that the same shall never ex- ceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the members thereof.^ ^ 10. The jParliament of Canada shall be called together Fu-st Session of not later than six months^'^ after the Union. of Canada. 20. There [shall be a Session of the Parliament of Yearly Session Canada once at least in every year, so that twelve months ment of shall not intervene between the last sitting of the Parlia- Canada, ment in one Session and its first sitting in the next Session.^^ The Senate. 21. The Senate shall, subject to the provisions of this Number of Senators. Act, consist of seventy-two^'*^ members, who shall be styled Senators. 190 THE CONFEDERATION ACT Representa- tion of Pro- vinces in Senate. tJtJ. lu relation to the constitution of the Senate, Canada shall be deemed to consist of three divisions — 1. Ontario; 2. Quebec ; 3. The Maritime Provinces, Nova Scotia and New Bruns- wick; which tliree divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows : Ontario by twenty-four Senators ; Quebec by twenty-four Senators ; and the Maritime Provinces by twenty-four Senators, twelve thereof representing Nova Scotia, and twelve thereof representnig New Brunswick. i^ In the case of Quebec each of the twenty-four Senators representing that Province shall be appointed for one of the twenty four Electoral Divisions of Lower Canada specified in Schedule A. to chapter one of the Consolidated Statutes of Canada. Qualifications of Senator. S«t. The qualification of a Senator sliall be as follows : — (1) He shall be of the full age of thirty years : (2) He shall be either a natural born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Can- ada, Canada, Nova Scotia, or New Brunswick, before the Union, or of the Parliament of Canada aitev the Union : (.S) He shall be legally or equitably seised as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in franc-alleu or in roture, within the Province for which he is appointed, of the value of four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and in- cumbrances due or payable out of or charged on or affecting the same : (4) His real and personal property shall be together worth ^4,000 over and above his debts and liabilities : (5) He shall be resident in the Province for which he is appointed : AND SUPPLEMENTARY ACTS. 191 (6) In the case of Quebec he shall have his real property qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. 24. The Governor General shall from time to time, in Summons of the Queen's name, by instrument under the Great Seal of ^"^ °^' Canada, summon qualified persons to the Senate ; and, sub- ject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator. 2.5. Such persons shall be first summoned to the Senate Summons of as the Queen by warrant under Her Majesty's Royal Sign o'"®* ^°'}^ °^ Manual thinks fit to approve, and their names shall be in- serted in the Queen's Proclamation of Union. i'> 26. If at any time on the recommendation of the Gov- Addition of ernor General the Queen thinks fit to direct that three or flrttin cashes six members be added to the Senate, the Governor General may by summons to three or six qualified persons (as the case may be), representing equally the three divisions of Canada, add to the Senate accordingly. ^^ 27. In case of such addition being at any time made the ^^'^uction of ^, /-I 1 1 11 J o .; Senate to nor- (jrovernor General snail not summon any person to the mal number. Senate, except on a further like direction by the Queen on the like recommendation, itntil each of the three divisions of Canada is represented by twenty-four Senators and no more. 28. The number of Senators shall not at any time ex- Maximum ceedseventy-eight.^s numWof 29. A Senator shall, subject to the provisions of this Tenure of place Act, hold his place in the Senate for life. ^^ Senate. 30. A Senator may by writing under his hand addressed Eesignatiou of to the Governor General resign his place in the Senate, and^^'^'^'^^"^®^^*®" thereupon the same shall be vacant. 31. The place of a Senator shall become vacant in any Disqualiflca- of the following cases : *j,°^ °^ ^^"^■ (1) If for two consecutive Sessions of the Parliament he fails to give his attendance in the Senate : (2) If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or ad- herence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen of a foreign power. 192 THE CONFEDERATION ACT (3) If he is adjudged bankrupt oi* insolvent, or applies for tlie benefit of any law relatinj^ to insolvent debtors, or becomes a public defaulter : (4) If he is attainted of treason or convicted of felony or of any infamous crime : (5) If he ceases to be qualified in respect of property or of residence ; provided, that a Senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the seat of the Government of Canada while holding an office under that Government requiring his presence there. Summons on 32. When a vacancy happens in the Senate by resigna- Seua'te^ '" *'""' fl^'^tli' ^^ otherwise, the Governor General shall by summons to a fit and qualified person fill the vacancy. Questions as to 33. If any question arises respecting the qualification of qualifications Senator or a vacancy in the Senate the same shall be and vacancies •' ill Senate. heard and determined by the Senate. Appointment 34. The Governor General may from time to time, by Senate^''""* instrument under the Great Seal of Canada, appoint a Senator to be Speaker of the Senate, and may remove him and appoint another in his stead. Quorum of 35. Until the Parliament of Canada otherwise provides, Senate. ^^^ presence of at least fifteen Senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise of its powers. Voting in 36. Questions arising in the Senate shall be decided by a Senate. majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. The House of Commons. Constitution of 37. The flouse of Commons shall, subject to the pro- J?i^V,=^i?/ *^°'"" visions of this Act, consist of one hundred and eighty-one IllOUb 111 Canada. members, of whom eighty-two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick. Summoning of 38. The Governor General shall from time to time, in mons^°^^°'^'" tlie Queen's name, by instrument under the Great Seal of Canada, summon and call together the House of Commons. AND SUPPLEMENTARY ACTS. 193 39. A Senator shall not be capable of being elected or of Senators not to sitting or voting as a member of the House of Commons. Commons. 40. Until the Parliament of Canada otherwise provides, Electoral dis- Ontario, Quebec, Nova Scotia, and New Brunswick shall, fom.pi-oyiuces. for the purposes of the election of members to serve in the House of Commons, be divided into Electoral Districts as follows : — (1) Ontario shall be divided into the Counties, Ridings of Counties, Cities, parts of Cities, and Towns enumerated in the first Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered m that Schedule being entitled to return one member. (2) Quebec shall be divided into sixty-five Electoral Districts, composed of the sixty-five Electoral Divisions into which Lower Canada is at the passing of this Act divided under chapter two of the Consolidated Statutes of Canada, chapter seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada of the twenty-third year of the Queen, chapter one, or any other Act amending the same in force atthe Union, so that each such Electoral Division shall be for the purposes of this Act an Electoral District entitled to return one member. (3) Each of the eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to return two members, and each of the other Counties one member. (4) Each of the fourteen Counties into which New Brunswick is divided, including the City and Conuty of St. John, shall be an Electoral Dis- trict ; the City of St. John shall also be a separate Electoral District. Each of those fifteen Elec- toral Districts shall be entitled to return one member. 41. Until the Parliament of Canada^ ^ otherwise pro- Continuance of vides, all laws in force in the several Provinces at the Union fk)n*iaws^until relative to the following matters or any of them, namely, — Parliament of ,, f-a 1.- 7-1- ,.^ ,. . , Canada other- tne qualmcations and disqualifications of persons to be wise provides. elected or to sit or vote as members of the House of 194 THE CONFEDERATION ACT Assembly or Le^'islative Assembly in the several Provinces, the voters at elections of such members, the oaths to be taken by voters, the returning officers, their powers and duties, the proceedings at elections, the periods during which elections may be continued, the trial of controverted elections, and proceedings incident thereto, the vacating of seats of members, and the execution of new writs in case of seats vacated otherwise than by dissolution, — shall re- spectively apply to elections of members to serve in the House of Commons for the same several Provinces. Provided that, until the Parliament of Canada otherwise provides, at any election for a Member of the House of Commons for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British subject aged twenty-one years or up- wards, being a householder, shall have a vote. Writs for first election. 42. For the first election of members to serve in the House of Commons the Governor General shall cause writs to be issued by such person, in such form, and ad- dressed to such returning officers as he thinks fit. The person issuing writs under this section shall have the like powers as are possessed at the Union by the officers charged with the issuing of writs for the election of mem- bers to serve in the respective House of Assembly or Legis- lative Assembly of the Province of Canada, Nova Scotia, or New Brunswick ; and the Returning Officers to whom writs are directed under this section shall have the like powers as are possessed at the Union by the officers charged with the returning of writs for the election of members to serve in the same respective House of Assembly or Legislative Assembly. As to casual vacancies. 43. In case a vacancy in the representation in the House of Commons of any Electoral District happens before the meeting of the Parliament, or after the meeting of the Parliament befoi-e provision is made by the Parliament in this behalf, the provisions of the last foregoing section of this Act shall extend and apply to the issuing and returning of a writ in respect of such vacant District. As to election 41. The House of Commons on its first assembhng House of^Co°m- after a general election shall proceed with all practicable mens. speed to elect one of its members to be Speaker. AND SUPPLEMENTARY ACTS. 195 4>>. In case of a vacancy happeninj^ in the office of As to filling up Speaker by death, resignation or otherwise, the House of offlce'of ^^ Commons shall with all practicable speed proceed to elect Speaker, another of its members to be Speaker. 46. The Speaker shall preside at all meetings of the Speaker to House of Commons. preside. 47. Until the Parliament of Canada otherwise provides. Provision in rill J- jiiriii- case of absence m case oi the absence tor any reason oi the Speaker from of Speaker. the chair of the House of Commons for a period of forty- eight consecutive hours, the House may elect another of its members to act as Speaker,-'' and the member so elected shall during the continuance of such absence of the Speaker have and execute all the powers, privileges, and duties of Speaker. 48. The presence of at least twenty members of the Quorum of Hr /~. 1 11 1 i •. , House uf Com- ouse or Commons shall be necessary to constitute a meet- mens. ing of the House for the exercise of its powers, and for that purpose the Speaker shall be reckoned as a member. 49. Questions arising in the House of Commons shall be Voting in decided by a majority of voices other than that of the ^onl^ °* *^°^" Speaker, and when the voices are equal, but not otherwise, the Speaker shall have a vote. 50. Every House of Commons shall continue for five Duration of years from the day of the return of the writs for choosing mons^ ° *^oin- the House (subject to be sooner dissolved by the Governor General), and no longer. 51. On the completion of the census in the year one Decennial Re- thousand eight hundred and seventy-one, and of each sub- n'^pi^esenta-"^ sequent decennial census, the representation of the four tion. Provinces shall be re-adjusted -i by such authority, in such manner and from such time as the Parliament of Canada from time to time provides, subject and according to the following rules : — (1) Quebec shall have the fixed number of sixty-five members : (2) There shall be assigned to each of the other Pro- vinces such a number of members as will bear the same proportion to the number of its popula- tion (ascertained at such census) as the number sixty -five bears to the number of the population of Quebec (so ascertained): H.C.C. 13 196 THE CONFEDERATION ACT (3) In tlie compntation of the numbor of members fox a Province a fractional part not exceedin<^ one- half of the whole number requisite for entitling the Province to a member shall be disregarded ; but a fractional part exceeding one-half of that number shall be equivalent to the whole number: (4) On any such re-adjustment the nuniber of members for a Province shall not be reduced unless the proi)ortion which the nuniber of the population of the Province bore to the number of the aggregate population of Canada at the then last preceding re-adjustment of the number of members for the Province is ascertained at the then latest census to be diminished by one-twentieth part or up- wards : (4) Such re-adjustment shall not take effect until the termination of the then existing Parliament. Increase of 5S. The number of members of the House of Commons House of Com- may be from time to time increased by the Parliament of mons. Canada, provided the proportionate representation of the Provinces prescribed by this Act is not thereby disturbed. Money Votes; Royal Assent. Appropriation 53, Bills for appropriating any part of the public revenue, or for imposing any tax or impost, shall originate in the House of Commons. ^- Kecomuienda- 54. It shall not be lawful for the House of Commons to votes. adopt or pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been first recom- mended to that House by message of the Governor General in the Session in which such vote, resolution, address, or bill is proposed. -3 Royal assent to 55, Where a bill passed by the Houses of the Parlia- ment is presented to the Governor General for the Queen's assent, he shall declare according to his discretion, but; subject to the provisions of this Act and to Her Majesty's instructions, either that he assents thereto in the Queen's name, or that he withholds the Queen's assent, or that he reserves the bill for the signification of the Queen's pleasure. Disallowance S6. Where the Governor General assents to a bill in the Council of Act Queens name, he shall by the first convenient opportunity AND SUPPLEMENTARY ACTS. 197 send an authentic copy of the Act to one of Her Majesty's assented to by Principal Secretaries of State, and if the Queen in Council eral. within two years after receipt thereof by the Secretary of State thinks fit to disallow the Act, such disallowance (with a certificate of the Secretary of State of the day on which the Act was received by him) being signified by the Governor General, by speech or message to each of the Houses of the Parliament, or by proclamation, shall annul the Act from and after the day of such signification. -^ 57. A bill reserved for the signification of the Queen's Sisniflcation of pleasure shall not have any force unless and until within sure^on^biU*'^ two years from the day on which it was presented to the reserved. Governor General for the Queen's assent, the Governor General signifies, by speech or message to each of the Houses of the Parliament or by proclamation, that it has received the assent of the Queen in Council. -^ ff An entry of every such speech, message, or proclamation shall be made in the Journal of each House, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the Records of Canada. V. — Provincial Constitutions. Executive Power. 58. For each Province there shall be an officer, styled Appointment the Lieutenant Governor, appointed by the Governor Governors of General in Council by instrument under the Great Seal of Provinces. Canada. 59. A Lieutenant Governor shall hold office during the Tenure of office pleasure of the Governor General ; but any Lieutenant Governor*^*^ Governor appointed after the commencement of the first Session of the Parliament of Canada shall not be remove- able within five years from his appointment, except for cause assigned,^ ^ which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not then within one week after the commencement of the next Session of the Parliament. 60. The salaries of the Lieutenant Governors shall be Salaries of fixed and provided by the Parliament of Canada. Oo^ver'nare. 198 THE CONFEDERATION ACT Application of provisions re- ferring to Lieutenant Governor. Oaths. &o., of (ji. Every Lieutenant Governor shall, before assuming Govevncr. the iluties of his office, make and subscribe before the Governor General, or some person authorized by him, oaths of allcf,'iance and office similar to those taken by the Gov- ernor General. 02. The provisions of this Act referrinj,' to the Lieu- tenant Governor extend and apply to the Lieutenant Gov- ernor for the time being of each Province or other the chief executive officer or administrator for the time being carrying on the government of the Province, by whatever title he is designated. Appointment OS. The Executive Council of Ontario and of Quebec officers'for On- ^li^-ll ^^ composed of such persons as the Lieutenant Gov- tario and Que- ernor from time to time thinks fit, and in the first instance b6C. of the following officers, namely : — The Attorney-General, the Secretary and Registi-ar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in (Quebec the Speaker of the Legislative Council and the Solicitor General.'-" Executive Gov 04. The Constitution of the Executive Authority in N(?mScotia ^'^^^^ ^^ ^.he Provinces of Nova Scotia and New Brunswick and New shall, subject to the provisions of this Act, continue as it exists at the Union until altered under the authority of this Act. an. All powers, authorities, and functions which under any Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of Upper Canada, Lower Canada, or Canada, were or are before or at the Union vested in or exerciseable by the respective Governors or Lieutenant Governors of those Provinces, with the advice, or with the advice and consent, of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of members thereof, or by those Governors or Lieutenant Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec, re- spectively, be vested in, and shall or may be exercised by the Lieutenant Governor of Ontario and Quebec re- spectively, with the advice or with the advice and consent of or in conjunction with the respective Executive Councils, Power.s to be exercised by Lieiueniint (Jovernor of Ontario or Quebec with advice alone. AND SUPPLEMENTARY ACTS. 199 or any members thereof, or by the Lieutenant Governor in- dividually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kint;dom of Great Britain and Ireland), to be abolished or altered by the respective Legislatures of Ontario and Quebec. ■-« 6G. The provisions of this Act referring to the Lieu- Application of tenant Governor in Council sliall be construed as referring feri-in« to to the Lieutenant Governor of the Province acting by and Lieutenant „,-n ■ ^ « Governor ui with the advice of the Executive Council thereof. Council. 67, The Governor General in Council may from time to Administra- time appoint an administrator to execute the office and ^"""f^ieu"''^' functions of Lieutenant Governor during his absence, ill- tenant Gover- ness, or other inability. 6§. Unless and until the Executive Government of any Seats of Pro- Province otherwise directs with respect to that Province, ernuients. the seats of Government of the Provinces shall be as follows, namely, — of Ontario, the City of Toronto ; of Quebec, the City of Quebec ; of Nova Scotia, the City of Halifax ; and of New Brunswick, the City of Fredericton.'-^ Legislative Power. 1. — OKTARIO. 69. There shall be a Legislature for Ontario consisting Legislature for of the Lieutenant Governor and of one House, ^° styled the Legislative Assembly of Ontario. 70. The Legislative Assembly of Ontario shall be com- Electoral dis- posed of eighty-two members, to be elected to represent the '''^'*^'^- eighty-two Electoral Districts set forth in the first Schedule to this Act. 31 2.— QUEBEC. 71. There shall be a Legislature for Quebec consisting Legislature far of the Lieutenant Governor and of two Houses, styled the ^' Legislative Council of Quebec and the Legislative Assembl} of Quebec. 72. The Legislative Council of Quebec shall be com- Coustitution of posed of twenty-four members, to be appointed by the council. Lieutenant Governor in the Queen's name, by instrument 200 THE CONFEDERATION ACT Qualiticationof Lepis'.ative Councillors. Resignation, disqualifica- tion, &c. Vacancies. Questions as to vacancies, &c. Speaker of Lesislative Council. Quorum of Legislative Council. Voting in Legislative Council. under the Gi'eat Seal of Quebec, one beinfj; appointed to re- present each of the twenty-four Electoral Divisions of Lower Canada in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otherwise provides under the provisions of this Act.a- 73. The qualifications of the Legislative Councillors of Quebec shall be the same as those of the Senators for Quebec."" 74. The place of a Legislative Councillor of Quebec shall become vacant in the cases, iiiittafix niiitinuii--<. in which the place of Senator becomes vacant.-'* 7'>. When a vacancy happens in the Legislative Council of Quebec, by resignation, death, or otherwise, the Lieu- tenant Governor, in the Queen's name, by instrument under tlie Great Seal of Quebec, shall appoint a lit and (jualitied person to fill the vacancy. 7G. If any question arises respecting the qualification of a Legislative Councillor of Quebec, or a vacancy in the Legislative Council of Quebec, the same shall be heard and determined by the Legislative Council. TT. The Lieutenant Governor may from time to time, by instrument under the Great Seal of Quebec, appoint a member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his stead. 78. Until the Legislature of Quebec otherwise provides, the presence of at least ten members of the Legislative Council, including the Speaker, shall be necessary to con- stitute a meeting for the exercise of its powers. 79. Questions arising in the Legislative Council of Que- bec shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices ai-e equal the decision shall be deemed to be in the negative. Constitution of SO. The Legislative Assembly of Quebec shall be com- Legislative Assembly of Quebec. posed of sixty-five members, to be elected to represent the sixty-five Electoral Divisions or I'istricts of Lower Canada in this Act referred to, subject to alteration-''"' thereof by the Legislature of Quebec : Provided that it shall not be lawful to present to the Lieutenant Governor of Quebec for assent AND SUPPLEMENTARY ACTS. 201 any bill for altering the limits of any of the Electoral Divisions or Districts mentioned in the second Schedule to this Act, unless the second and third readings of such bill have been passed in the Legislative Assembly with the con- currence of the majority of the members representing all those Electoral Divisions or Districts, and the assent shall not be given to such bills unless an address has been pre- sented by the Legislative Assembly to the Lieutenant Gov- ernor stating that it has been so passed. 3.-ONTARIO AND QUEBEC. §1, The Legislatures of Ontario and Quebec respectively First session of ^ •- •' Legislatures, shall be called together not later than six months after the Union. 3*5 82. The Lieutenant Governor of Ontario and of Quebec Summoning of . Legislative As- shall from time to time, in the Queen s name, by instru- semblies. ment under the Great Seal of the Province, summon and call together the Legislative Assembly of the Province. 53. Until the Legislature of Ontario or of Quebec other- Restriction on ., ,. iii-r-vi." election of wise provides, a person accepting or holdmg m Ontario or holders of in Quebec any office, commission, or employment, per- offices. manent or temporary, at the nomination of the Lieutenant Governor, to which an annual salarj% or any fee, allowance, emolument, or profit of any kind or amount whatever from the Province is attached, shall not be eligible as a member of the Legislative Assembly of the respective Province, nor shall he sit or vote as sucli ; but nothing in this section shall make ineligible any person being a member of the Executive Council of the respective Province, or holding any of the following offices, that is to say, the offices of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works, and, in Quebec, Solicitor-General^^, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such office. 54. Until the Legislatures of Ontario and Quebec re- Continuance spectively otherwise provide, all laws which at the Union election laws, are in force in those Provinces respectively, relative to the following matters, or any of them, namely,— the qualifica- tions and disqualifications of persons to be elected or to sit or vote as members of the Assembly of Canada, the qualifications or disqualifications of voters, the onths to be 202 THE CONFEDERATION ACT taken by voters, the lleturning Officers, their powers and duties, the proceedings at elections, the periods during wliicli sncli elections may be continued, and the trial of con- troverted elections'"^ and the proccedinfjs incident thereto, the vacating of the seats of members and the issuiufi; and execution of new writs in case of seats vacated otherwise tlian by dissolution, shall respectively apply to elections of members to serve in the respective Legislative Assemblies of Ontario and Quebec. Provided that until the Legislature of Ontario otherwise provides, at any election for a member of the Legislative Assembly of Ontario for the District of Algoma, in addi- tion to persons qualified by the law of the Province of Canada to vote, every male British subject, aged twenty - one years or upwards, being a householder, shall have a vote. Duration of Legislative Assemblies, Yearly session of Legislature. Speaker, quorum, &c. H-i. Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for four >ears from the day of the return of the writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the Legislative Assembly of Que- bec being sooner dissolved by the Lieutenant Governor of the Province), and no longer. 80» There shall be a session of tlie Legislature of Ontario and of that of Quebec once at least in every year, so that twelve months shall not intervene between the last sitting of the Legislature in each Province in one session and its first sitting in the ne.xt session. W7. Tiie following provisions of this Act respecting the House of Commons of Canada, shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say, — the provisions relating to the election of a Sjjcaker originally and on vacancies, the duties of the Speaker, the absence of the Speaker, the quorum, and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such Legislative Assembly. 4.— Nova Scotia and Now Brunswick. Constitutions MM. The constitution of the Legislature of each of tlie of Legislatures _, ... ,, , -..t -r^ ■ , , i, . of Nova Scotia i rovinces of iNova bcotm and New Brunswick shall, sub- Brunswick ^^^^ *° *'^® provisions of this Act, continue as it exists at AND SUPPLEMENTARY ACTS. 203 the Union until altered under the authority of this Act ; and the House of Assembly of New Brunswick existing at the passing of this Act shall, unless sooner dissolved, con- tinue for the period for which it was elected. 5. — Ontario, Quebec, and Nova Scotia. 89. Each of the Lieutenant Governors of Ontario, Que- Fivst election, bee, and Nova Scotia shall cause writs to be issued for the first election of members of the Legislative Assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such Returning Officer as the Governor General directs, and so that the first elec- tion of member of Assembly for any Electoral District or any subdivision thereof shall be held at the same time and at the same places as the election for a member to serve in the House of Commons of Canada for that Electoral Dis- trict. 6.— The Four Provinces. SO. The following provisions of this Act respecting the Application to Parliament of Canada, namely, — the provisions relating to pvfv^stous^'* ' appropriation and ta.\ bills, the recommendation of monev respecting ' money votes, votes, the assent to bills, the disallowance of Acts, and the &c. signification of pleasure on bills reserved, — shall extend and apply to the Legislatures of the several Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of one year for two years, and of the Province for Canada. YL — Distribution of Legislative Powers. Powers Of' the Parliatneiit. 91. It shall be lawful for the Queen, by and with the Legislative advice and consent of the Senate and House of Commons, parliament of to make laws for the peace, order, and good government of Canada. Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces ; and for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwith- standing anything in this Act) the exclusive legislative 204 THE CONFEDERATION ACT authority of the Parliament of Canada extends to all matters coming within the classes of subjects next here- inafter enumerated ; tliat is to say, — 1. The Public Debt and Property. 2. Tlie reRulation of Trade and Commerce. an '4. Tlio raisin-,' of money by any mode or system of Taxation. ■1. The borrowing of money on the pubhc credit. a. Postal service. (5. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada.*" 9. Beacons, Buoys, Lighthouse-;, and Sable Island. 10. Navigation and Shipping. 11. Quarantine and the establishment and maintenance of Marine Hospitals. 1-2. Sea coast and inland Fisheries.*! 13. Ferries between a Province and any British or Foreign country, or between two Provinces. 14. Currency and Coinage. 1.5. Banking, incorporation of banks, and the issue of paper money. 16. Savings Banks. 17. Weights and .Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal tender. 21. Bankruptcy and Insolvency. 22. Patents of invention and discovery. Zi. Copyrights.t2 24. Indians, and lands i-eserved for the Indixns.43 ■25. Naturalization and .'Miens. 20. Marriage and Divorce. 27. The Criminal Law, except the Constitution of Courts of Criminal .Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establishment. Maintenance, and Management of Peni- tentiaries. 29. Such classes of subjects as are expressly excepted in the enumeration of tne classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces. < And any matter coming within any of the classes of sub- jects enumerated in this section sliall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of sub- jects by this Act assif^ned exclusively to the Legislatures of the Provinces. AND SUPPLEMENTARY ACTS. 205 Exclusive Poiver.-i of Provincial Legislatures. f>'2. In each Province the Legislature may exclusively Subjects of make laws in relation to matters coming within the classes provincial of subjects next hereinafter enumerated ; that is to say, — legislation. 1. The amendment from time to time, notwithstanriing any- thing in this Act, of the Constitution of the Province, except as regards the office of Lieutenant Governor.** 2. Direct Taxation within the Province in order to the raising of a Revenue for Provincial purposes. is 3. The borrowing of money on the sole credit of the Province. 4. The establishment and tenure of Provincial offices and the Elppointment and payment of Provincial officers. r>. The management and sale of the Public Lands belonging to the Province and of the timber and wood thereon. 6. The establishment, maintenance, and management of public and reformatory prisons in and for the Province. 7. The establishment, maintenance, and management of hos- pitals, asylums, charities, and eleemosynary institutions in and for the Province, other than marine hospitals. 8. Municipal institutions in the Proviuce.^e 9. Shop, saloon, tavern, auctioneer, and other licenses in order to the raising of a revenue for Provincial, local, or munici- pal purposes.* 6 10. Local works and undertakings other than such as are of the following classes, — a. Lines of steam or other ships, railways, canals, tele- graphs, and other works and undertakings connecting the Province with any other or others of the Pro- vinces, or extending beyond the limits of the Pi'O- viuce : b. Lines of steamshijis between the Province and any British or foreign country . c. Such works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or moi'e of the Provinces 47 11. The incorporation of comijanies with Provincial objects. 12. The solemnization of marriage in the Province. 13. Property an! civil rights in the Province. *« 14. The administration of justice in the Provnice, including the constitution, maintenance, and organization of Provincial Courts, both of civil and of criminal jurisdiction, and in- cluding procedure in Civil matters in those Courts.* 9 15. The imposition of punishment by fine, penalty, or imprison- ment for enforcing any law of the Province made in rela- tion to any matter coming within any of the classes of subjects enumerated in this section. so 16. Generally all matters of a merely local or private nature in the Province. 20(5 THE CONFEDERATION ACT Educatiou. Lefjislatiou <>$. In and for each Province the Lejjislature may ex- respectiDR i • i i i • , . . education. clusively make laws in relation to education, subject and accordiuf,' to the following provisions : (1) Nothinjj in any such law sliall prejudicially affect any ri^lit or privilege with respect to denomina- tional schools which any class of persons have by law in the Province at the Union. (2) All the powers, privileges, and duties at the Union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the same are hereby extended to the dissentient scliools of the Queen's Protestant and Roman Catholic subjects in Quebec : (3) Where in any Province a system of separate or dis- sentient schools exists by law at the Union or is thereafter established by the Legislature of the Province, an appeal shall lie to the Governor General in Council from any Act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen's subjects in relation to education :''i (4) In case any such Provincial law as from time to time seems to the Governor General in Council retjuisite for the due execution of the provisions of this section is not made, or in case any decision of the Governor General in Council on any appeal under this section is not duly executed by the proper Provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parlia- ment of Canada may make remedial laws for the due execution of the provisions of this section and of any decision of the Governor General in Council under this section."' - Uniformity of Lawn in Ontario, Novn Scotia, and New lirunawich. LegiHlation for 94, Notwithstanding anything in this Act, the Parlia- unifonnitvol , , . , ?..,., laws ill the ment of Canada may make provision for the uniformity of vhices^'"^" all or any of the laws relative to property and civil rights AND SUPPLEMENTARY ACTS. 207 in Ontario, Nova Scotia, and New Brunswick, and of the procedure of all or any of the Courts in those three Pro- vinces ; and from and after the passing? of any Act in that behalf the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making pro- vision for such uniformity shall not have effect in any Pro- vince unless and until it is adopted and enacted as law by the Legislature thereof. ^s Agriculture and Immigration. 95. In each Province the Legislature may make laws in Concun-eut relation to Agriculture in the Province, and to Immigra- powers of '^ _ '=' Leg}slation tion into the Province ; and it is hereby declared that the respecting Parliament of Canada may from time to time make laws ,5.^^"^'* "^ * in relation to Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces ; and any law of the Legislature of a Province relative to Agri- culture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VII. — Judicature. 96. The Governor General shall appoint the Judges of Appointment the Superior, District, and County Courts^* in each Pro- vince, except those of the Courts of F'robate in Nova Scotia and New Brunswick. 97. Until the laws relative to property and civil rights Selection of in Ontario, Nova Scotia, and New Brunswick, and the pro- Ontario &c. cedureof the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected Selection of , IT, 1 -r^ • Judges in from the Bar 01 that Province. Quebec. 99. The Judges of the Superior Courts shall hold office Tenure of T- -,■,-,■ ,,,,, ,1, , office of during good behaviour, but shall be removeable by the judges of Governor General on address of the Senate and House of S"J'^ti°^ Commons. 5 5 208 THE CONFEDERATION ACT Salaries, &c., 100. The salaries, allowances, and pensions of the Judt^es of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the Judj^es thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada. General Court 101. The I'arliameut of Canada may, notwithstanding ppea , c. a^jjytj^ijjg jjj ji^jg ^^^^ from time to time, provide for the constitution, maintenance, and organization of a general Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the Laws of Canada. 5 8 VIII. — Revenues ; Debts ; Assets ; Taxation. Creation of Consolidated Revenue Fund. Expenses of collection, &c. Interest of Provincial public debts. lOS. All duties and revenues'''^ over which the respective Legislatures of Canada, Nova Scotia, and New Brunswick before and at the Union had and have power of appropria- tion, except such portions thereof as are by this Act re- served to the respective J.egislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this Act provided. 103. The Consolidated Revenue Fund of Canada shall be permanently charged with the costs, charges, and ex- penses incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the Governor General in Council until the Parliament otherwise provides. 104. The annual interest of the public debts of the several Provinces of Canada, Nova Scotia, and New Bruns- wick at the Union shall form the second charge on the Con- solidated Revenue Fund of Canada. Salary of Governor General. 105. Unless altered by the Parliament of Canada, the salary of the Governor General shall be ten thousand pounds sterling money^** of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon. AND SUPPLEMENTARY ACTS. 209 106. Subject to the several payments by this Act Ai)i)i-oin-iatiou charj^ed on the Consolidated Revenue Fund of Canada, the time. same shall be appropriated by the Parliament of Canada for the public service. 107. All stocks, cash, banker's balances, and securities Transfer, &c., for money belonging to each Province at the time of the Union, except as in this Act mentioned, shall be the pro- perty of Canada, and shall be taken in reduction of the amount of the respective debts of the Provinces at the Union. 108. The public works and property of each Province, Transfer 9f lumerated in the 1 property of Canada. enumerated in the third schedule to this Act, shall be the ggj^edule. 109. All lands, ■■''' mines, minerals, and rovalties^" belong- Property in ,, , _, . , ,, 1 XT "o ,-• J -NT lands, mines, ing CO the several Provinces of (/anada, Nova bcotiaand iSiew ^q_ Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nos-a Scotia and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the 1 rovince in the same. 110. All assets connected with such portions of the Assets con- public debt of each Province as are assumed by that Pro- provincial vince shall belong to that Province. debts. 111. Canada shall be liable for the debts and liabilities Canada to be of each Province existing at the Union. vincial debts" 112. Ontario and Quebec conjointly shall be liable to Debts of Canada for the amount (if any) by which the debt of the Quebec. Province of Canada exceeds at the Union sixty-two million live hundred thousand dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 113. The assets enumerated in the fourth Schedule to Assets of this Act belonging at the Union to the Province of Canada Qug^gc'^ ^"'^ shall be the property of Ontario and Quebec conjointly. 114. Nova Fcotia shall be liable to Canada for the Debt of amount (if any) by which its public debt exceeds at the °^^ Union eight million dollars, and shall be charged with in- terest at the rate of five per centum per annum thereon. 210 THE CONFEDERATION ACT Debt of New Brunswick. ll.'S. New Brunswick shall be liable to Cana^la for the amount (if anj') by which its public debt exceeds at the Union seven million dollars, and shall be charged with in- terest at the rate of five per centum per annum thereon. PRynient of interest to Nova ~cotia anil New Bnnr-wick. 116. In case the public debt of Nova Scotia and New Brunswick do not at the Union amount to eight million dollars and seven million dollars respectively, they shall re- spectively receive by half-yearlj' payments in advance from the Government of Canada interest at five per centum per annum on the difference between the actual amounts of tlieir respective debts and such stipulated amounts. ^i Provincial jjiiblic iiro- perty. 117. The several Provinces shall retain all their re- spective public property not otherwise disposed of in this Act, subject to tlie right of Canada to assume any lands or public property required for fortifications or for the defence of the countrv. Grants to Provinces. IIS. The following sums shall be paid yearly by Canada to the several Provinces for the support of their Govern- ments and Legislatures : — Ontario Quebec Nova Scotia New Brunswick Dollars. Eighty thousand. Seventy thousand. Sixty thousand. Fifty tliDUsand. Two hundred and si.xty thousand ; and an annual grant in aid of each Province shall be made, equal to eighty cents per head of the population as ascertained by the census of one thousand eight hundred and sixty-one, and in the case of Nova Scotia and New Brunswick, by each subsequent decennial census until the population of each of those two Provinces amounts to four hundred thousand souls, at which rate such grant sluvll thereafter remain. Such grants shall be in full settlement of all future demands" ^ on Canada, and shall be paid half- yearly in advance to each Province ; but the Government of Canada shall deduct from such grants, as against any Province, all sums chargeable as interest on the Public Debt of that Province in excess of the several amounts stipulated in this Act. AND SUPPLEMENTARY ACTS. 211 llO. New Brunswick shall receive by lialf-5'early pay- Fui'ther gi-aut nients in advance from Canada, for the period of ten years Brunswick, from the Union an additional allowance of sixty-three thousand dollars per annum ; but as lon<^ as the Public Debt of that Province remains under seven million dollars a deduction equal to the interest at iive per centum per annum on such deficiency shall be made from that allow- ance of sixty-thi-ee thousand dollars. 130. All payments to be made under this Act, or in dis- Form of charge of liabilities created under any Act of tlie Pro- vinces of Canada, Nova Scotia and New Brunswick re- spectively, and assumed by Canada, shall, until the Parlia- ment of Canada otherwise directs, be made in such form and manner as may from time to time be ordered by the Governor General in Council. ItSl. All articles of the growth, produce, or manufacture Canadian of any one of the Provinces shall, from and after the ^J^""^*^"*"^®^' Union, be admitted free into each of the other Provinces. 122. The Customs and Excise Laws of each Province Coutiuuauce shall, subject to the provisions of this Act, continue in excise laws.^"^ force until altered by the Parliament of Canada. 133. Where Customs duties are, at the Union, leviable Exiiortatiou -, , , . . , r-, aud importa- on any goods, wares, or merchandises in any two Pro- tiou as be- vinces, those goods, wai-es and merchandises mav, from and tween two " - Provuices, after the Union, be imported from one of those Provinces into the other of them on proof of payment of the Customs duty leviable thereon in the Province of exportation, and on payment of such further amount (if any) of Customs duty as is leviable thereon in the Province of importation. 124. Nothing in this Act shall affect the right of New Lumber dues Brunswick to levy the lumber dues'"'- provided in chapter ^icjj fifteen, of title three, of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues ; but the lumber of any of the Provinces other than New Brunswick shall not be subjected to such dues. 125. No lands or property belonging to Canada or any Exemption of T. • 1 11 1 T ui / * \- 'public lands, Province shall be liable to taxation. &c. ii.c.c. 14 212 THE CONFEDERATION ACT Provincia; 126. Such portions of the duties and revenues over Oonsohdated , • , , ■ , • i Kevemie Fund, which the respective Legislatures of Canada, Nova Scotia, and New Brunswick liad before the Union power of ap- propriation as are by this Act reserved to the respective Governments or Legislatures of the Provinces, and all duties and revenues raised by them in accordance with the special powers conferred upon them by this Act, shall in each Province form one Consolidated Revenue Fund to be appropriated for the public service of the Province. IX. — MlSCKLL.\NE0US PROVISIONS. As to Legisla- tive Council- lors of Pro- vinces becom- ing Senators. Oath of allegiance, &c. Continuance of existing laws, courts, officers, &c. General. 1'27. If any person being at the passing of this Act a Member of the Legislative Council of Canada, Nova Scotia, or New Brunswick, to whom a place in the Senate is offered, does not within thirty days thereafter, by writing under his hand, addressed to the Governor General of the Province of Canada, or to the Lieutenant Governor of Nova Scotia or New Brunswick (as the case may be), accept the same, lie shall be deemed to have declined the same ; and any person who, being at the passing of this Act a member of the Legislative Council of Nova Scotia or New Brunswick, accepts a place in the Senate, shall thereby vacate his seat in audi Legislative Council."'' 128. Every member of the Senate or House of Com- mons of Canada shall before taking his seat therein, take and subscribe before the Governor General or some person authorised by him, and every member of a Legislative Council or Legislative Assembly of any Province shall before taking his seat therein, take and subscribe before the Lieutenant Governor of the Province or some person authorized by him, the oath of allegiance contained in the fifth Schedule to this Act; and every member of the Senate of Canada and every member of the Legislative Council of Quebec shall also, before taking his seat therein, take and subscribe before the Governor General or some person autliorized by him, the declaration of qualification contained in the same Schedule. 129. Except as otherwise provided by this Act, all laws in force in Canada, Nova Scotia or New Brunswick at the Union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers and authorities, and all AND SUPPLEMENTAKY ACTS. 213 officers, judicial, administrative and ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made, subject nevertheless (except with respect to such as are enacted by or exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the respective Province, according to the authority of the Parliament or of that Legislature under this Act. 130. Until the Parliament of Canada otherwise pro- Transfer of vides, all officers of the several Provinces having duties to ^~^^ *** ■discharge in relation to matters other than those coming within the classes of subjects by this Act assigned ex- clusively to the Legislatures of the Provinces shall be ^ officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities, and penalties as if the Union had not been made. 131. Until the Parliament of Canada otherwise pro- Appointment vides, the Governor General in Council may from time to ^^^ otncera. time appoint such officers as the Governor General in Council deems necessary or proper for the effectual execu- tion of this Act. 133. The Parliament and Government of Canada shall Ti-eaty obliga- have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire, towards foreign countries, arising under treaties between the Empire and such foreign coun- tries. s* 133. Either the English or the French language may be Use of English used by any person in the debates of the Houses of the ^^nguages. Parliament of Canada and of the Houses of the Legislature of Quebec ; and both those languages shall be used in the respective records and journals of those houses ; and either of those languages may be used by any person or in any pleading or process in or issuing from any Court of Canada ■established under this Act, and in or from all or any of the Courts of Quebec. 214 THK CONFKDKrariON ACT Appointment of executive officers for Ontario and Quebec. Poweve, duties, &c., of executive officers. The Acts of the rarliamcnt of Canada and of the Legis- lature of Quebec shall be printed and published iu both those languages."'"' Ontario and Quebec. 134. Until the Legislature of Ontario or of Quebec otherwise provides, the Lieutenant Governors of Ontario and Quebec may each appoint under the Great Seal of the t'rovince the following officers/''' to hold office during plea- sure, that is to say, — the Attorney General, the Secretary and Registrar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and, in the case of Que- bec, the Solicitor General ; and may, by order of the Lieu- tenant Governor in Council, from time to time prescribe the duties of those officers and of the several departments over which they shall preside or to which they shall belong, and of the officers and clerks thereof ; and may also appoint other and additional officers to hold office during pleasure, and may from time to time prescribe the duties of those officers, and of the several departments over which they shall preside or to which tliey shall belong, and of the officers and clerks thereof. 135. Until the Legislature of Ontario or Quebec other- wise provides, all rights, powers, duties, functions, re- sponsibilities or authorities at the passing of this Act vested in or imposed on the Attorney General, Solicitor General, Secretary and Registrar of the Province of (^anada, Minister of Finance, Commissioner of Crown Lands, Com- missioner of Public "Works, and Minister of Agriculture and Receiver General, by any law, statute or ordinance of Upper Canada, Lower Canada, or Canada, and not re- pugnant to this Act, shall be vested in or imposed on any officer to be appointed by the Lieutenant Governor for the discharge of the same or any of them ; and the Com- missioner of Agriculture and Public Works shall perform the duties and functions of the office of Minister of Agri- culture at the passing of this Act imposed by the law of the Province of Canada, as well as those of the Commissioner of I'ublic Works. Great Seals. 1JI6. Until altered by the Lieutenant Governor in Council, the Great Seals of Ontario and Quebec respectively shall be the s:ime, or of the same design, as those used in AND SUPPLEMENTARY ACTS. 215 the Provinces of Upper Canada and Lower Canada re- spectively before their Union as tlie Province of Canada. 137. The words " and from thence to the end of the Coustructiou then next ensuing Session of the Legislature," or words to Acts!^^°^^"^^ the same effect, used in any temporary Act of the Province of Canada not expired before the Union, shall be construed to extend and apply to the next Session of Parliament of Canada, if the subject matter of the Act is within the powers of the same, as defined by this Act, or to the next Sessions of the Legislatures of Ontario and Quebec re- spectively, if the subject matter of the Act is v/ithin the powers of the same as defined by this Act. 138. From and after the Union, the use of the words As to errors in " Upper Canada " instead of " Ontario," or " Lower Can- ii3.mes. ada " instead of "Quebec," in any deed, writ, process, pleading, document, matter or thing, shall not invalidate the same. 13S>. Any Proclamation under the Great Seal of the As to issue of Province of Canada issued befoi-e the Union to take effect before'l^ion* at a time wliich is subsequent to the Union, whether re- *9 *''''?,™.®°'^® . . after Union, lating to that Province, or to Upper Canada, or to Lower Canada, and the several matters and things therein pro- claimed shall be and continue of like force and effect as if the Union had not been made. IJO. -Any Proclamation which is authorized by any Act As to issue of of the Legislature of the Province of Canada to be issued af^ter L™iolf " under the Great Seal of the Province of Canada, whether relating to that Province, or to Upper Canada, or to Lower Canada, and which is not issued before the Union, may be issued by the Lieutenant Governor of Ontario or of Que- bec, as its subject matter requires, under the Great Seal thereof ; and from and after the issue of such Proclama- tion the same and the several matters and things therein proclaimed shall be and continue of the like force and effect in Ontario or Quebec as if the Union had not been made. .141. The Penitentiary of the Province of Canada shall, Penitentiary, until the Parliament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec. 216 THE CONFEDERATION ACT Arbitration respecting debts, &c. 1 i'2. The division and adjustment of the debts, credits, liabilities, properties, and assets of Upper Canada and Lower Canada shall be referred to the arbitrament of three arbitrators, one chosen by the Government of Ontario, one by the Government of Quebec, and one 1)y the Government of Canada ; and the selection of the arbitrators shall not be made until tlio Parliament of Canada and the Legis- latures of Ontario and Quebec have met ; and the arbitrator chosen by the Government of Canada shall not be a resident either in Ontario or in Quebec."^ Division of records. 14;{. The Governor General in Council may from time to time order that such and so many of the records, books, and documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec, and the same shall henceforth be the property of that Province ; and any copy thereof or extract therefrom, duly certified by the officer having,' charge of the original thereof shall be admitted as evidence. Constitution of townships in Quebec. 144. The Lieutenant Governor of Quebec may from time to time, by Proclamation under the Great Seal of the Province, to take effect from a day to be appointed therein, constitute townships in those parts of the Province of Quebec in whicli townships are not then already con- stituted, and fix the metes and bounds thereof. X. — IXTEIlCOLONI.\L R.VILWAV. Duty of Gov- ernment and Parliament of Canada to make railway herein described. 14>?. Inasmuch as the Provinces of Canada, Nova Scotia, and New Brunswick have joined in a declaration that the construction of the Intercolonial Kailway is- essential to the consolidation of the Union of British North America, and to the assent thereto of Nova Scotia and New Brunswick, and have consecjuently agreed that provision should be made for its immediate construction by the Gov- ernment of Canada : Therefore, in order to give effect to that agreement, it shall be the duty of the Government and Parliament of Canada to provide for the commencement within six months after the Union, of a railway connecting the River St. Lawrence with the City of Halifax in Nova Scotia, and for the construction thereof without inter- mission, and the completion thereof with all practicable speed. AND SUPPLEMENTARY ACTS. 217 XI. — Admission of Other Colonies. 146. It shall be lawful for the Queen, by and with the Power to advice of Her Majesty's Most Honourable Privy Council, foi^^tjiand^'&c on Addresses from the Houses of Parliament of Canada, into the Union, and from the Houses of the respective Legislatures of the Colonies or Provinces of Newfoundland, Prince Edward Island, and British Columbia, to admit those Colonies or Provinces,"* or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert's Land and the North-western Territory, "^ or either of them, into the Union, on such terms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act ; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. 147. In case of the admission of Newfoundland and As to repre- Prince Edward Island, or either of them, each shall be Ifg^'^fouTdUnd entitled to a representation in the Senate of Canada of four and Prince Ed- members, and (notwithstanding anything in this Act) in in Senate. case of the admission of Newfoundland the normal number of Senators shall be seventy-six and their maximum num- ber shall be eighty-two ; but Prince Edward Island when admitted shall be deemed to be comprised in the third of the three divisions into which Canada is, in relation to the constitution of the Senate, divided by this Act, and accord- ingly, after the admission of Prince Edward Island, whether Newfoundland is admitted or not, the representation of Nova Scotia and New Brunswick in the Senate shall, as vacancies occur, be reduced from twelve to ten members re- spectively, and the representation of each of those Pro- vinces shall not be increased at any time beyond ten, except under the provisions of this Act for the appointment of three or six additional Senators under the direction of the Queen. '7 218 THK CONFEDERATION ACT SCHEDULES. The FIRST SCHEDULE. Flectoral Districts of Ontario. A Existing Electoral Divisions. Counties. 1. Prescott. 2. Glengary. 3. Stormoiit. 4. Dundas. .0. Russell. 6. Carleton. 7. Prince Edward. 8. Haltciii. 9. Essex. RiijiJiGs OK Counties. 10. North Riding of Lanark. 11. South Riding of Lanark. 12. North Riding of Leeds and Nmth itiding of (4rpnville. VX South Riding of Leeds. 14. South Riding of (irenville. 1."). East Riding of Northumberland. in. West Riding of Northumberland (excepting therofrDUi tiie Town- ship of South Monaghan). 17. East Riding of Durham. 15. West Riding of Durham. 19. North Riding of Ontario. 20. South Riding of Ontario. 21. East Riding of York. 22. West Riding of Y(^rk. 23. North Riding (jf York. 24. North Riding of Went\v.)rth. 25. South Riding of Wentworth. 2C.. Ea.st Riding of Elgin. 27. West Riding of Elgin. AND SUPPLEMENTARY ACTS. 219 28. North Riding' of Waterloo. 2!). South Riding of M'aterloo. 30. North Riding of Brant. 31. South Riding of Brant. 32. North Riding of Oxford. 33. South Riding of Oxford. :U. East Riding of Middle.se.K. CiTiE.s, Farts of Cities, and Towns- 35. West Toronto. 36. East Toronto. 37. Hamilton. 38. Ottawa. 39. Kingston. 40. London. 41. Town of Brocks ille, with the Township of Elizabethtown thereto attached. 42. Town of Niagara, with the Township of Niagara thereto attached. 43. To-wn of Cornwall, with the Township of Cornwall thereto attached. B New Electoral Divisions. 44. The Provisional Judicial District of Algoma. The County of Bruce, divided into two Ridings, to be called respectively the North and South Ridings : — 45. The North Riding of Bruce to consist of the Townships of Bury, Lindsay, Eastnor, Albemarle, Amable, Arran, Bruce, Elderslie, and Saugeen, and the Village of Southam]jton. 46. The South Riding of Bruce to consist of the Townships of Kin- cardine (including the Village of Kincardine), Greenock, Brant, Huron, Kinloss, Culross, and Carrick. The County of Huron, divided into two Ridings, to be called respectively the North and South Ridings : — 47. The North Riding to consist of the Townships of Ashfield, Wawa- nosh, Turnberry, Howick, Morris, Grey, Colborne, Hullett, including the Village of Clinton and McKillop. 48. The South Riding to consist of the Town of Goderich and the Town- ship of Goderich, Tuckersmith, Stanley, Hay, Usborne, and Stephen. 220 THE CONFKDERATION ACT The County of Miodi.eskx, divided iiiti) three Ridings, to be callee called re- Ki>ectively North, South and Centre Ridings : — 58. The North Riding to consist of the Townshii)s of Amarantli, Arthur, Luther, Minto, Maryborough, Peel, and the Village of Mount Forest. 59. The Centre Riding to consist of the Townships of Garafraxa, Erin, Eramosa, Nichol and Pilkington, and the Villages of Fergus and Flora. 60. The South Riding to consist of the Town of (luelph, and the Town- ships of Guelph and Puslinch. AND SUPPLEMENTARY ACTS. 221 The County of Norfolk, divided into two Ridings, to be called respectively the South and North Ridings : — (51. The (South Riding to consist of the Townshii)s of Chai-lotteville- Houghton, Walsinghain, and Wood house, and with the G(>re thereof. 62. The North Riding to consist of the Townships of Middleton, Town, send, and Windham, and the Town of Simcoe. 63. The Count}' of Haldimaxd to consist of the Townshiiw of Oneida, Seneca, Cayuga North, Cayuga South, Rainhaui, Walpole, and Dunn. 64. The County of Monck to consist of the Townships of Camborough and Moulton and Sherbrooke, and the Village of Dunnville (taken from the County of Haldimand'i, the Townships of Caistor and (iainsborough (taken from the County of Lincoln), and the Townships of Pelham and Wainfleet (taken from the County of Welland). 65. The County of Lincoln' to consist of the Townships of Clinton, Grantham, Grimsby, and Louth, and the Town of St. Catharines. 66. The County of Welland to consist of the Townships of Bertie, Crow- land, Humberstone, Stamford, Thorold, and Willoughby, and the Villages of Chijjpewa, Clifton, Fort Erie, Thorold, and Welland. 67. The County of Peel to consist of the Townships of Chinguaoousy, Toronto, and the Gore of Toronto, and the Villages of Brampton and Streets ville. 68. The County of Cardwell to consist of the Townships of Albion and Caledon (taken from the County of Peel), and the Townships of Adjala and Mono (taken from the County of Simcoe). The County of Simcoe, divided into two Ridings, to be called respectively the South and the North Ridings : — 69. The South Riding to consist of the Townships (jf West Gwillimbury, Tecumseth, Innisfil, Essa, Tossorontio, Mulmur, and the Village of Bradford. 70. The North Riding to consist of the Townships of Nottawasaga, Sun- nidale, Vespra, Flos, Oro, Medonte, Orillia, and Matchedash, Tiny and Tay, Balaklava and Robinson, and the Towns of Barrie and Collingwood. The County of Victoria, divided into two Ridings, to be called respectively the South and North Ridings : — 71. The South Riding to consist of the Townships of Ops, Mariposa, Emily, Verulam, and the Town of Lindsay. 72. The North Riding to consist of the Townships of Anson, Bexley, Garden, Dalton, Digby, Eldon, Fenelon, Hindon, Laxton, Lutter- worth, Macaulay and Draper, Somerville and Morrison, ]Muskoka, Monck and Watt (taken from the County of Simcoe), and any other surveyed Townships lying to the north of the said North Riding. 222 THE CONFEDERATION ACT The C(ninty of Pkteruokouch, divided into two Kiding.s, to be called re- siK'Ctively the West and East Ridings : — 7:?. Tlic West Riding to consist of tli*- Townshijw of South Monaghan (taken from the County of Northumberland), Ncjrth Monaghan, Smith, and Ennismore, and the Town of Peterborough. 74. The East Riding to ccmsist of the Townships of Asphodel, Belmont and Methuen, Douro, Dunnner, Galway, Harvey, Minden, Stanhojie and Dysart, Otonabee and Snowden, and the Village of Ashburnham, and anj' other survej-ed Townsliips lying to the north of the said East Riding. The County of Hastings, divided into three Ridings, to be called re- spectively the West, East, and North Ridings : 75. The West Riding to consist of the Town of Belleville, the Township of Sydney, and the Village of Trenton. 70. The East Riding to consist of the Townships of Thurlow, Tyendi- naga, and Ilungerford. 77. The North Riding to consist of tlie T(»wnships of Rawdon, Hunting- don, Macioc, Elzevir, Tudor, Marmora, and Lake, and the Village of Stirling, and an/ other surveyed Townships lying to the north of the said North Riding. 78. The Comity of Lennox to consist fif the Townships of Richmond, Adolphustown, North Fredericksburgh, Soutli Frcdericksburgh, Ernest Town, and Amherst Island, and the Village of Napanee. 7!i. The County of Addington to consist of the Townships of Camden, Portland, Sheffield, Hincliinbrooke, Kaladar, Kfsnnebec, Olden, Oso, Anglesea, Barrie, Clarendon, Palmerston, Effingliam, Abinger, Miller, Canonto, Denbigh, Loughborough, and Bedford. 80. The County of Frontenac to consist of the Townships of Kingston, Wolfe Island, Pittsburgh and Howe Island, and Storrington. The t^ounty of Renfrew, divided into two Ridings, to be called respectively the South and North Ridings : — 81. The South Riding to consist of the Townships of McNab, Bagot, Blithfield, Brougham, Hcrton, Admaston, (Jrattan, Matawatchan, (iriftitli, Lyndoch, Raglan, Radcliffe, Brudenell, Sebastopol, and the Villages of Amprior and Renfrew. 82. The Nortli Riding to consist of the Townships of Ross, Brondey, West- meath, Stafford, Pembroke, Wilberforce, Alice, Petewawa, Buchanan, Soutli Algona, North Algona, Eraser, McKay, Wylie, Rolph, Head, Maria, Clara, Hagarty, Sherwood, Burns, and Ricliards, and any surveyed Townships lying north-westerly of the said North Riding. Every Town and incorporated Village existing at the LTnion, not specially mentioned in this Schedule, is to be taken as part of the County or Riding within which it is locally situate. AND SUPPLEMENTARY ACTS. 223 The SECOND SCHEDULE. Electoral Districts of Quebec specially fi.red. Counties of- Pontiac. Ottawa. Argonteiiil. Hunting'ton. Missisquoi. Brome. ShefTord. Stanstead. Town of Sherbrooke. Compton. Wolfe and Richmond. Mesfantic. The THIRD SCHEDULE. Provincial Puhlir JCorks and I'ropertij to be the Property of Canada. 1. Canals, with Land and Water Power connected therewith. '2. Public Harbours. S. Lighthouses and Piers, and Sable Island. 4. Steamboats, Dredges, and public Vessels. T). Rivers and Lake Improvements. (). Railways and Railway Stocks, Moi-tgages, and other Debts due by Rail- way Companies. 7. Military Roads. ' 8. Custom Houses, Post Offices, and all other Public Buildings, except such as the Government of Canada ap)oi"oi)riate for the use of the Pro- vincial Legislatures and Governments. 9. Property transferred by the Imperial Government and known as Ordnance Property. 10. Armouries, Drill Sheds, Military Clothing, and Munitions of Wai-, and Lands set apart for general public purposes. The FOURTH SCHEDULE. Assets to be the Property of Ontario and Quebec conjointly. Upper Canada Building Fund. Lunatic Asylums. Normal School. 224 THE CONFEDERATION ACT Court Houses, ^ in Aylmer. r Lower Canada. ]Montrt>al. Kanicuraska. Law Society, Upper Canada, ^lontreal Turnpike Trust. I'niversity Permanent Fund. Koyal Institution. Consolidated INIunicipal Loan Fund, Upper Canada. Consolidated IMunicijial Loan Fund, Lower Canada. Agricultural Society, Upper Canada. Lower Canada Legislative Grant. (.Quebec Fire Loan. Tainiscouata Advance Account. Quebec Turnpike Trust. Education — East. Building and Jury Fund, Lower Canada. Municlijalities Fund. Lower Canada Superior Education Income Fund. The FIFTH SCHEDULE. Oath ok Alleuia.nce. I, A.Ji. do swear, That I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. uXute. — The name of the King or Queen of the United Kingdom of Great Britain, and Ireland for the time being is to be substituted frmn time to time, with proper terms of reference thereto. Declaration of Qualification. I, A.B. do declare and testify, That I am by law duly qualified to be ap- pointed a member of the Senate t>f Canada [or as the case may lie], and that I am legally or equitably seised as of freehold for my own u.se and benefit of lands or tenements held in free and common socage {or seised or possessed for my own use and benefit of lands or tenaments held in franc-alleu or in roture (as the case may be),] in the Province of Nova Scotia [or as the case may 6e] of tlie value of four thousand dollars over and above all rents, dues, debts, mortgages, charges, and incumbrances due or ])ayable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said lands and tenements or any part thereof for tlie purpose of enabling me to become a member of the Senate of Canada [or as the cane m ly be\ and that my real and personal property are together worth four thousand dollars over and above my debts and liabilities. AND SUPPLEMENTARY ACTS. 225 Confederation Act Amendment Act, 1871. An Act'''-' respectimj the KstabUslnnent of Provinces in the Dominion of Canada. [29th Jdnb, 1871. Whekeas''3 doubts have been entertained respecting the powers of the Parliament of Canada to establish Provinces in territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the repre- sentation of such Provinces in the said Parliament, and it is expedient to remove such doubts, and to vest such powers in the said ParHament : Be it enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords, Spiritual and Temporal, and Commons in this present Parliament assembled, and by the authority of the same, as follows : — 1. This Act may be cited for all purposes as The British Short title. North America Act, 1871. S. The Parliament of Canada may from time to time Parliament of establish new Provinces in any territories forming for the establish new time being part of the Dominion of Canada, but not in- Provinces and , provide for the eluded in any Province thereof, and may, at the time of constitution, such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order and good government of such Province, and for its representation in the said Parlia- ment. 3. The Parliament of Canada may from time to time. Alteration of with the consent of the Legislature of any Province''* of the provinces, said Dominion, increase, diminish, or otherwise alter the limits of such Province, upon such terms and conditions as may be agreed to by the said Legislature, and may, with 226 THE CONFEDERATION ACT the like consent, make provision respectiiif^ the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby. Parliament of 4. The Parliament of Canada may from time to time legislate for make provision for the administration, peace, order, and any territory j/Qod government of any territory'?'' not for the time beins^ in a Province, included in any Province. Confirmation of Acts of Parliament of Canada. 32-:J3 V. c. a. 33 V. c. 3. Limitation of powers of Parliament of Canada to legislate for an established Province. 5. The following Acts passed by the said Parliament of Canada, and intituled respectively : " An Act for the temporary government of Rupert's Land and the North- Western Territory when iini ted with Canada ; " and " An Act to amend and continue the Act thirty -two and tliirty-three Victoria, chapter three, and to establish and provide for the government of the Province of Manitoba," shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they re- spectively received the assent, in the Queen's name, of the Governor General of the said Dominion of Canada. tt- Except as provided by the third section of tliis Act, it shall not- be competent for the Parliament of Canada to alter the provisions of the last mentioned Act of the said Parliament in so far as it relates to the Province of Mani- toba, or of any other Act hereafter establishing new Pro- vinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the (jualification of electors and members of the Legislative Assembly, and to make laws respectnig elections in the said Province. AND supplemp:ntary acts. 227 Confederation Act Amendment Act, 1875. An Acf^ to remove certain thmlits with respect to the powers of the P((rliiunent of Canada, under Section IS of the British North America Act, 1867. [1'.)th July, 1875. Whereas by section 18 of The British NortJi America Act, 1867, it is provided as f oUows : - " The privileges, im- munities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof." And whereas doubts '^'^ have arisen with regard to the power of defining by an Act of the Parliament of Canada, in pursuance of the said section, the said privileges, powers or immunities ; and it is expedient to remove such doubts : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — 1. Section 18 of TIte British North America Act, 1867, is Substitution hereby repealed, without prejudice to anything done under f^j. ggg^jQjj jg that section, and the following section shall be substituted of 30 and 31 V. for the section so repealed : — The privileges, immunities, and powers to be held, en- joyed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the H.O.C 15 228 THE CONFEDERATION ACT Confirmation of Act of Parliament of Canada. Short title. Parliament of Canada, but so that any Act of the Parlia- ment of Canada delining such privileges, immunities and powers shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parlia- ment of the United Kingdom of Great Britain and Ireland, and by the members thereof. 2. The Acfs of the Parliament of Canada passed in the thirty-first year of the reign of her present Majesty, chapter twenty-four, intituled An Act to provide for oaths to ^uitnesses heini) administered in certain casc-i for the purposes of either House oj Parliament, shall be deemed to be valid, and to have been valid as from the date at whicli the royal assent was given thereto by the Governor General of the Dominion of Canada. 3. This Act may be cited aa The Parliament of Canada Act, 1875. AND SUPPLEMENTARY ACTS. 229 Confederation Act Amendment Act, 1886. An Act''^ respecting the Representation in the Parliament of Canada of Territories which for the time being form part of the Dominion of Canada, but are not included in any Province. [25th June, 1886. Whereas it is expedient to empower the Parliament of Canada to provide for the representation in the Senate and House of Commons of Canada, or either of them, of any territory whicli for the time being forms part of the Do- minion of Canada, but is not included in any Province : Be it therefore enacted by the Qneen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in the present Parliament assembled, and by the authority of the same, as follows : — 1. The Parliament of Canada may from time to time Provision by make provision for the representation in the Senate and canada^for ° House of Commons of Canada, or in either of them, of any representation ,,, , . ,. , i.j,tnO^ territories, territories which for the time being form part of the Do- minion of Canada, but are not included in any Province thereof. 2, Any Act passed by the Parliament of Canada before Effect of Acts the passing of this Act for the purpose mentioned in this of Canada. Act shall, if not disallowed by the Queen, be, and shall be deemed to have been, valid and effectual from the date at which it received the assent, in Her Majesty's name, of the Governor-General of Canada. It is hereby declared that any Act passed by the Parlia- ment of Canada, whether before®" or after the passing of this Act, for the purpose mentioned in this Act, or in The British 34 and 35 V, North America Act, iS7i, has effect, notwithstanding any-'''^^' thing in The British North America Act, 1867, and the nura- 3° ^^^ "^^ "^• " c. 3. bersi of Senators or the number of Members of the House of 230 THK CONFEDERATION ACT Commons specified in the laat-mentioned Act is increased by the number of Senators or of Members, aa the case may be, provided by any such Act of tfie Parliament of (Canada for the representation of any provinces or territories of Canada. Short title and ;|^ 'j^i^i^ ^.ct mav be cited as The Briti.'^h ^orth America construction. Act, 1886. 30and:nv. This Act, and The British North America Act, 1867, &r\d 34 and 35 V. ^'''* British North America Act, 1871, shall be construed to- c- 38. i^ether, and may be cited together as The British North America Acts, 1867 to 1886. AND SUPPLEMENTARY ACTS. 231 NOTES TO THE CONFEDERATION ACT. 1 This Act is reprinted from the collection of " Public General Statutes " issued with the " Law Reports," Vol. II, London, 18G7. The text has been carefully compared with that found in the collection of " Public General Acts " issued by the Queen's Printers, London, 1867, and also with that found in the " Statutes at Large," London, 1868. The only difference amongst these various editions is in the marginal notes, and as the first two agree, they have been here followed. The Act is 30 Vict. cap. 3 in the " Law Reports," and also in the " Public General Statutes"; it is 30 & 31 Vict, cap 3 in the "Statutes at Large". In the official re- prints of the Act, prefixed or appended to the Revised Statutes of Ontario, Quebec. Nova Scotia. New Brunswick, and Manitoba, the notation of the "Statutes at Large " has been followed. For a full report of the debates on the measure in its progress through the Imperial Parliament see "Hansard's Parliamentary Debates," third series, vol. 185, pp. 5.57, 804, 1011, 1164, and 13L0. The ordinary Canadian histories give a sufficiently detailed narrative of the events which led to the con- federation of the leading Provinces of British North America. For a full and valuable account of the Quebec conference of 1864, see " Confederation of Canada," (Vol. I.; Toronto, 1872) by Hon. John Hamilton Gray, one of the delegates repre- senting New Brunswick. The debates in the Canadian Parliament, in the session of 1863, on the motion to adopt the " Quebec Resolutions," were jii-inted in a single volume under the title of "Parliamentary Debates on the subject of the Confed- eration of the British North American Provinces." (Quebec, 1865). This collection of speeches by the foremost statesmen of Canada, is indispensable to the student of this part of Canadian constitutional history. For the text of the Quebec Resolutions see Appendix F. '•i In Canada and Nova Scotia the question was never submitted to popular vote In New Brunswick a genei'al election was held to decide the matter. 3 Prof. Dicey in his " Introduction to the Law of the Constitution " (Chapter III, p. 155 of the third edition) says: " The preamble to the British North America Act, 1867, asserts with official mendacity that the Provinces of the present Dominion have expressed their desire to be united into one Dominion ' with a constitution similar in principle to that of the United Kingdom.' If preambles were intended to express the truth, for the word 'Kingdom' ought to have been substituted ' States,' since it is clear that the constitution of the Dominion is modelled on that of the Union." For a useful comparison between the constitution of Canada and that of the United States see Dr. Bourinot's " Canada and the United States " (Transactions of the "Royal Society of Canada " for 1890), and his paper under the same title in the Scottish Raview for July, 1890. See also " Parliamentary Govern- ment in Canada, by the Hon. C. C. Colby, M P., and the Laiv Quarterly Review, Vol. Ill, No. 10, p. 204. 4 See Sections 146 and 147 of this Act. s By Royal Proclamation, issued from Windsor Castle on the twenty-second of May, 1867, the first of July following was declared to be the day on which the Confederation Act should go into operation. Lord Monck, the last Governor- General of the Province of Canada under the Union Act of 1840, was appointed the first Governor-General of the Dominion of Canada under the Confederation Act of 1867, and on the first of July of that year he announced his appointment to the people of Canada Ly proclamation. The texts of these two documents are prefixed to the Journals of the first session (1867-68^ of the House of Commons of Canada.. 232 THE CONFEDKRATION ACT « See Constitutional Act, 1701, Section II. (p. 112 al)Ove). For the legal definition of the present boundary between Ontario and Quebec, see the Imperial Act. 52 & 53 Vict, cap 28, entitled the " Canada (Ontario Boundary) Act, 1889 " (Appen- dix B.) 7 For the boundaries of Nova Scotia and New Isrunswick see Appendix B. 8 The population of each Province in the Dominion in 1871 and 1881 was as follows :— 1871. 1881. Ontario 1,620,851 1.923,22S Quebec 1,191,.516 1,359,027 Nova Scotia 387,800 440,.572 New Brunswick 285,594 321,233 Manitoba .■■— ■■ 05,954 British Columbia 49,4.59 Prince Edward I'd 108,891 Territories 56,446 Total 3.485,761 4.324,810 9 For a full account of the relation sustained by tho Governor-General to the Impei-ial Government on the one hand and to his own Privy Council on the other, see Todd's " Parliamentary Government in the British Colonies," pp. 76-125. On the exercise of the prerogative of mercy, see ibid, pp. 251-274. 10 See Note 13 to the Union .Act, 1810, above. 11 Section 18 of "The British North America Act, 1867," was repealed by " The Parliament of Canada Act, 1875," and a new section substituted (see p. 227). 12 The first Parliament of the Dominion of Canada met on the 7th of November, 1867. 13 For the duration of Parliament see section 50. 14 This number has been increased to 80 by subsequent legislation, three of the additional members representing Manitoba (Statutes of Canada, .33 Vict. cap. 3, sec. 3; Kev. Stat, of Canada, 1SS6, cap. 12) ; three representing British Columbia (Stat. of Can., 1872, p. Ix.xxviii); and two representing the Northwest Territories i Stat, of Can., .50 & 51 Vict. cap. 3. For confirnatory Imperial legislation see p. 226 and p. ^D below. See section 147 as to the representation of Prince Edward Island in the Senate. 15 Compare section 147. »6 See Journals of House of Commons for 1867-65, pp. v-vii. 17 See Todd's " Parliamentary Government in the Britisli Colonies," pp. 161-165, for a brief account of an application made in 1873 by the Canadian to the Imperial Government for the addition of si.x members to the Senate. See also Senate Debates for 1877. pp. 81-94; Commons Debates, same year, p. 371; and Senate Jouraals, same year, pp. 139 131. i8 See Note 14 above. >9 For the state of the law in regard to these matters in the Province of Canada prior to Confederation see " Consolidated Statutes of Canada," 1859, pp. 1-154, and Canadian Statutes 23 Vict. cap. 17; 27 Vict. c. 8; 27 & 28 Vict. cap. 54; and 29 Vict. cap. 1. The trial of controverted elections to the House of Commons was trans- ferred to the Courts of law by Dominicn Statute 36 Vict. cap. 23. This was replaced toy 37 Vict. cap. 10, the validity of which was in 1879 declared by the Supreme AND SUPPLEMENTARY ACTS. 233 Court of the Dominion (3 Can Sup. Court Reports ; Cartwright's Cases, Vol. I, p. 167), and afterwards affirmed by the Privy Council (5 Appeal Cases, 159). The trial of controverted elections to the Legislative Assembly of Ontario waa trans- ferred to the Provincial Superior Courts by Ontario Statute, 34 Vict. cap. 3. 20 The office of Deputy Speaker was created in 1885 by Dom. Stat- 48 & 49 Vict. cap. 1. 21 After the census of 1871 the representation was re-adjusted by Dom. Stat. 35 Vict. cap. 13. After the census of 1881 it was re-adjusted by Dom. Stat. 45 Vict, cap. 3. 22 See May's " Parliamentary Practice," chapter on " Supply and Ways and Means"; and Bourinot's "Parliamentary Procedure and Practice," chapter on •' Committees of Supply and Ways and Means." 23 Prior to the passage of the Union Act, 1840, (see. 57) there was no such restric- tion. See Scrope's 'Life of Lord Sydenham," p 203, and Lord Durham's Report (p. 34 of the British Parliamentary Edition). 24 See Todd's "Parliamentary Government in the British Colonies," pp. 139-151. 25 See Note 24. 26 The only Lieutenant-Governor removed under tlie authority of this section was the Hon. Luc Letellier, whose dismissal from the Lieutenant-Governorship of Quebec took place in 1S7D. For a suncint and lucid account of this important case see Todd's "Parliamentary Government in the British Colonies," pp. 405-428. See also Journals of the House of Commons of Canada, 1879, p. 85 ; Dom. Sess. Papers, vol. xii. No. 19; Dom. Sess. Papers, vol. xii, Nos. 18, and 18a; and Debates of the House of Commons of Canada, 1879, pp 251-409. 27 Since 1837 there have been added to the Executive Council of Ontario, a Minister of Education (39 Vic. cap. 16;, and a Minister of Agriculture (51 Vict, cap. 8). 23 As to the office of Lieutenant-Governor in Ontario and Quebec see Ont. Stat. 51 Vict. cap. 5; Quebec Stat., 52 Vict. cap. 13; and the judgment of Chancellor Boyd, delivered in 1890, at Osgoode Hall, in the case of " Attorney-General of Canada v. Attorney-General of Ontario. 29 The seat of Government of Manitoba is Winnipeg; of British Columbia, Victoria; of Prince Edward Island, Charlottetown ; and of the Northwest Terri- tory, Regina. 30 Of the four Provinces which entered into Confederation in 1867, Ontario alone had only one legislative chamber. Quebec was provided with two under section 71 of this Act, and Nova Scotia and New Brunswick retained each the two it had. Of the other Provinces which now form i^art of the Dominion Prince Edward Island retains the two chambers which it had before its admission ; Manitoba was provided with a second chamber by the Dominion Statute (33 Vic. cap. 3), which created the Province; but it was abolished by Act of the Manitoba Legislature (33 Vict. cap. 28). British Columbia occupied at the time of its admission into the Dominion a peculiar position. From 1849 to 1859 Vancouver Island was placed under the control of the Hudson Bay Company, the Governor of the colony being appointed by the British Government. The first Governor, Mr. Blanshard, ap- pointed a legislative council of three members, and in 18.56 his successor. Governor Douglass, by direction of the Secretary for the colonies, Mr. Labouchere, gave the people an opportunity of electing their first Parliament, which was made up of seven members. These two chambers continued till the union of Vancouver 234 THE CONFEDERATION ACT iRland with British Cohimbia in 18G6, the Legislative Council having been in 186S maile partly elective. The original Province of British Columbia, which was under the same Governor with Vancouver Island from 185S to 18G-1, was in the latter year granted a separate establishment, consisting of a Governor and an appointed Leijislative Council. The expense of this arrangement brought about a union in 18CG under a government similar in fcn-m to that of British Columbin, namely, a Governor and an appointed Council, and this was replaced in 1871 by a constitution similar to that of Ontario, with a view to the admission of the Province into the Dominion. The statute or ordinance making this change is No. H? in the " Laws of British Columbia (Revised), 1871." See also Macfie's "Vancouver Island and British Columbia," chap, .xiii, (London, 186.5). Tlie present constitution of British Columbia is contained in chap. 2-2 of the " Consolidated Acts, 1888." ^i The representation in the Ontario Legislative .Vssembly was re-adjiisted in 1874 by the statute ;iS Vict. cap. 2, which increased t)ie membership to 88. It was again re-adjusted in 188") by the statute 48 Vict. cap. 2, which increased the mem- bership to 90. By ,52 Vict., cap. 2, the number was increased to 91. . 3= No change has been made by the Quebec Legislature in this part of the Pro- vincial constitution. 1^ Sec. 23 above. ^4 Sec. 31 above. ■X, In 1890 the Quebec Legislature passed an Act (.53 Vict . cap. 3), increasing the membership of the Legislative Assembly to 72. :ir. The Legislature of each of these Provinces met for the first time on the 27th of December, 18G7. S7 For the law securing the independence of the members of the Legislative Assembly of Ontario, see Revised Statutes of Ontario, 1887, cap. 11., ss. G-14. For the corresponding law for the Province of Quebec, see Revised Statutes of Quebec, 1888, articles 136-144. w The following statutes embody the law of Ontario in relation to the matters specified in this section : As to the ijualiflcntion of meniliers of the Legislative Assembly, R. S. 0-, 1HS7, cap. 9, s. 3 ; as to disqunlification of members, ibid cap. 2, ss. G-14 ; as to qualification of voters at legislative elections, 51 Vict., cap, 4 (the Manhood Suffrage Act) ; as to all proceedings at elections, R. S. O., 1887, cap. 9 ; as to the trial of controverted elections, R. S. O., 1887, cap. 10 ; as to vacancies, R. S. C, 1887, cap. 11. The following statutes embody the law of Quebec on the same points : As to eligibility and disqualification of uieuibers of the Legislative Assembly, R. S. Q., 18^8, articles 95-99 ; as to the qualification of voters, 52 Vict., cap. 4 ; as to proceedings at elections, R. S. Q., 1888, cap. 2 ; as to con- troverted elections. R. S. Q., 1888, cap. 3 ; and as to vacancies, R. S. Q., 1888, articles 100-^08. The Ontario Legislature by the Statute 42 Vict. cap. 4, subsequently amended by 48 Vict. cap. 2, fixed more definitely the limits of the four-year term. By the Statute 44-45 Vict. cap. 7, the Quebec Legislature extended the term to five years for that Province ii!i For the interpretation of the phrase " trade and commerce," by the Courts, see Cartwright's " Cases on the British North .Vmerica -Act, 1867." Two of the most important decisions are those given by the Privy Council in the Citizens and the Queen Insurance Companies v. Parsons (Vol. I., p. 265), and Hodge v. the Queen (Vol. III., p. 144) Amongst other cases illustrating ihis point are Beard V. Steele (Vol. I , p. (583), Harris v City of Hamilton (I., 7.5G), Noel v. Co. of Richmond (II., 2401, Angus V. City of Montreal (II., .Jii.ji, Mallette v. City of Montreal (II., 340), and Cote v. Watson (II., 343). AND SUPPLEMENTARY ACTS. 285 40 See the case of Leprohon v. City of Ottawa (Cartwright I , 592). 41 As to the nature of the control here vested in the Dominion Government over inland fisheries, see the case of Queen v. Robertson (Cartwright II., 65). 42 See the decision given by the Ontario Court of Appeal in Smiles v. Belford (Cartwright, I., 576). 13 The term " reserved " was judicially interpreted by the Privy Council in the case of the St. Catharines Milling and Lumber Co. v. the Queen (Appeal Reports XIV., 46). See also Church v. Fenton (Cartwright I., S31), and the same case in the Ontario Appeal Reports (IV., 159). 44 On the judicial interpretation of the phrase "direct taxation," see Angers v. Queen Insurance Co. (Cartwright, I., 117), and Attorney-General of Quebec v. Reed (Cartwright III., 190. 43 A number of judicial decisions have b^en given to determine the signification of the term " municipal institutions," including many of the so-called " liquor" cases. See amongst others Leprohon v. i ity of Ottawa (Cartwright, I., 592), Slavin V. Orillia (Cartwright, I., 088), Harris v. City of Hamilton (Cartwright, I., 756> Three Rivers v. Suite (Cartwright, II ,2su). Ex imrte Pillow (Cartwright, III., 357), Windsor v. Commercial Bank (cartwright, III, 877), and Hodge v. the Queen (Cartwright, III.. 144). 46 The decided cases under this sub-section are numerous. See amongst others, the following in Cartwright's collection : Severn v. the Queen (I., 414), Regina v^ Boardmau (I., 076), Russell v. the Queen (II., 12), Noel v. Co. of Richmond (II., 246), Three Rivers V. Suite (II., 2S0), Ex jmrte Leveillg (II.,349), Blouin v. Quebec (II., 368), Hart V. Mississquoi (II., 3S2), Cooey v. Brome (II., 385), De St. Aubyn v. Lafrance (II., 392), Keefe v. McLennan (II., 400), Regina v. Kings Co. Justices (II., 499), Regina v. Frawley (II., .580), Regina v. Brittle (II , 606), Regina v. Lake (II., 610), Hodge v. the Queen (III., 144), Poulin v. Quebec (III., 230), and Griffith v. Rioux (III., 348). 47 For interpretative decisions see the following cases : Bourgoin v. The Mont- real, Ottawa and Occidental R.R. (Cartwright, I., 233), Credit Valley R.R. v. G. W. R.R. (I., 822), Macdougall v. Union Navigation Co. (I., 228), Regina v. Mohr (II., 257), Monkhouse v. Grand Trunk R.R. (III., 289). See also Dom. Statute 46, Vict., cap. 24, s. 6, and Revised Statutes of Canada, 1886, cap. 109, s. 121. 48 Many decisions have been given by the Courts involving a definition of this phrase, amongst others the following, all of which will be found in Cartwright'.^ collection: Gushing v. Dupuy (I., 252), Citizens and Queen Insurance Companies- V. Parsons (I., 265j, Dobie v. Temporalities Board (I., 3.51), Re Goodhue (I., .560), Crombie v. -Jackson (I., 685), Jones v. Canada Central R.R. Co. (I., 777), Smith v. Merchants Bank (I., 828), The Queen v. Robertson (II., 65), McClanaghan v. St. Anne's Mutual Building Society (II., 237), Cleveland v. Melbourne and Brompton Gore (II., 241), Bennett v. The Pharmaceutical Association of Quebec (II., 250), Loranger v. Colonial Building and Investment Association (III., 118), Re Windsor and Annapolis R.R. (III., 387). 49 The following, in Cartwright's collection, are some of the many cases decided under this sub-section: Regina v. Coote (I., .57), Valin v. Langlois (I., 15S), Lenoir v. Ritchie (I., 4§8), The Picton (I., 5.57). Regina v. Roddy (I., 709), Regina v. Amer (I., 722), Regina v. Lawrence (I., 742), Re Squier (I., 789), The Queen v. Reno and Anderson (I., 810), .\ttorney-General v. Niagara Falls Bridge Co. (I., 813), Pope v. Griflath (II., 291), Page v. Griffith (II., :30S), Cot6 v. Chauveau (IL, 311), Regina v. Horner (II., 317), Ex parte Papin (II., 320), Page v. Griffith (II., 324), Regina v. Bennett (II., 634), Wilson v. McGuire (II., 665), Gibson v. Macdonald (III., .319). 236 THE CONFEDERATION ACT 50 Several judgineiits in decided cases contain dicta illustrative of this sub- section. In the recent and important case of the Attorney-General of Canada v. the Attorney-(iene>'al of Ontario it was decided by Chancellor Hoyd that an Act of the Ontario Le-jislature (51 Vict. cap. .'5), authorizing the Lieutenant-Governor to commute and remit sentences for offences against the laws of tlie Province or offences over which the legislative authority of the Province extends, was within the constitutional competence of the Legislature. See note 28 above. 51 Such an appeal was made by Roman Catholic inhabitants of New Brunswick against the Scliool Act passed by the Legislature of that Province in 1871. The Govornor-General-iu-Council decided that there was no ground for interference, and the statute went into operation. See Todd's " Parliamentary Government in the British Colonies," pp. 34G-350 ; and Dom. Sess. papers, 1877, No. 89. A similar appeal was made by Roman Catholic inhabitants of Prince Edward Island against the School Act passed by the Legislature of that Province in 1877, with a similar result. In 1890 the Legislature of IManitoba passed two Acts (chapters 37 and 38 of 53 Victoria), the former abolisliing the dual Board of Education and the dual Superiutendency of Public Instruction, the latter creating a single public school system instead of the dual system which had up to that time existed by law. 52 The Parliament of Canada was appcaloil to in the New Brunswick case (see note 51), but no remedial legislation was granted. See Todd's " Parliamentary Government in the British Colonies " pp. 3-16-.350, and Dom Kess. Papers, 1874, No. 25. ' 58 Nothing has been done to bring about the uniformity here provided for. 54 No provision having been made in the British North America Act for the removal of County Court Judges, the Dominion Parlixment in 18S2 passed an Act (45 Vict., cap. 12) dealing witli the matter. 65 For proceedin'zs taken in the House of Commons under this section, but not carried so far as to secure the removal of the judge who was assailed, see the case of Judge Lafoutaine of Quebec (Commons Journals of 1867-C8, pp. 297, 344 and 398 : and of 1869, pp. 135 and 247) ; the case of Judge Loranger of Quebec (Commons Journals of 1877, pp. 20. 25, 36, 2.'58, and Appendix No. 3) ; and the case of Chief Justice Wood of Manitoba, (Common Journals of 1882, pp. 176, 192, 355; Sessional Papers of 1882, No. 106; and "Debates of the House of Commons," pp. 1234-1237). '6 Prior to 1875 the only Court of Appeal against the judgments of Provincial Courts was the Judicial Committee of the Imperial Privy Council. In that year the Dominion Parliament passed an Act (38 Vict. cap. 11) "to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada," and in the follow- ing year an Act (39 Vict. cap. 26) was passed "to make further provision in regard to the Supreme Court and the Exchequer Court of Canada." In the case of Valin v. Langlois (SupremeCourt Reports, Vol. III., and Cartwright's cases Vol. I., p. 158), Supreme Court, and afterwards the Privy Council, decided that the trial of Dominion controverted elections properly devolved on the Provincial Courts. For a movement to repeal the Supreme Court Act, see Commons Journals of 1882, p. 297. 7 This was one of the great obstacles to bringing about the union of 1867. See the Resolutions of the Quebec Conference of 1864, (Appendix F), and Gray's •' Con- federation " of Canada, Vol. I. pp. 61-62. 5« In the fli'st session of the Dominion Parliament a bill was passed " to fix the salary of the Governor-General," and by it the £10,000 was reduced to £6,500. It AND SUPPLEMENTARY ACTS. 237 ■was reserved "for the signification of Her Majesty's pleasure," and the message ■withholding her assent is printed as No- 73 of the Sessional Papers of 1869. 59 Including lands acquired by treaty from Indian tribes subsequent to Confed- eration, f^ee the case of the St. Catharines Milling and Lumber Co. v. the Queen, (English Appeal Reports, vol. xiv., p. 46 ) fio The term " royalties " has been authoritatively defined by the Privy Council in the Mercer Case (Cartwright, vol. 3, pp. 6-15) so as to include escheats. 61 This financial settlement has been several times disturbed. " Better terms " were conceded to Nova Scotia in 1869 (Dom. Statutes, 32 & 33 Vict. cap. 3). In 1873 an Act was passed (36 Vict. cap. 30), to readjust the amounts of the Provincial debts for which the Dominion became liable, and an Act was passed the following year (37 Vice. cap. 3), confirming the " better terms " settlement made with Nova Scotia in 1869. An Act was passed in 1881 (47 Vict. cap. 53) " to re-adjust the yearly ■subsidies allowed by Canada to the several Provinces." In 1885 8^ Act (48 & 49 Vict. cap. 4) was passed authorizing the Governor-in-Council to make advances to Provinces on certain conditions. The laws relating to subsidies were consolidated in the Revised Statutes of Canada, 1886, cap 46. The Province of Manitoba was •created in 1870, with certain financial arrangements {S3 Vict. cap. 3. sec. 25). These arrangements were re-adjusted by 45 Vict. cap. 5, and again by 48 & 49 Vict. cap. 50 : and the latter statute was " explained " by 49 Vict. cap. 8. For the financial terms on which Prince Edward Island was admitted into Canada see the Address to the Queen adopted by the Dominion Parliament in 1873 (Com. Journals, vol. vi. p. 403). In 1887 an Act (50 & 51 Vict. cap. 8) was passed to increase the subsidy to that Pro- evince. The financial arrangements made with British Columbia on her entrance into the Dominion are contained in the address to the Queen in the Commons Journals for 1871, p. 194. 62 The adoption of the Treaty of Washington in 1871 rendered it neeessary to abolish these "lumber dues," and an Act was passed by the Parliament of Canada (36 Vict. cap. 41), providing compensation to New Brunswick. 63 Ontario had no Legislative Council under the Confederation Act, and members •of the Quebec Legislative Council have since served as members of Senate without vacating their seats in the Council. The same exemption from disability was allowed to the members of the Manitoba Legislative Council. In relation to dual membership of the House of Commons and of a Provincial Legislature see Dom. Statutes 35 Vict. cap. 15, and 36 Vict. cap. 2. ■ 64 These powers were exerci.sed in the case of the Washington Treaty of 1871 ^Dom. Stat. 35 Vict. cap. 2). In the negotiation of that treaty Canada was repre- sented by Sir John Macdonald ; in the negotiations of the abortive ireaties of 1874 and 18 38, the representatives of Canada were respectively the Hon. George Brown and Sir Charles Tupper. 63 The Parliament of Canada subsequently authorized the use of both languages in the Legislature of Manitoba (,33 Vict. cap. 3), and in the Legislative Council of the North-West Territories (43 Vict. cap. 2.5, sec. 94 ; Rev. Stat, of Canada, 1886, cap. 50, sec. 110). The Manitoba Legislature in 1890 abolished the use of the French language in its proceedings (53 Vict. cap. 14), and in the session of 1890 the Canadian House of Commons declf^red it "expedient and proper" that the Legislative Assembly of the NorLh-West Territories should have, after next general election of the Assembly, the right to decide for itself the question of its continued use (Com. Journals. 1890, pp. 106-108). 66 The Ontario Legislature in 1872 authorized the increase of the Executive ■Council to six members (35 Vict. cap. 3, see. 6), but did not add to the number of 238 THE CONFEDERATION ACT executive departments till 1876, wh^n tlic office of Minister of Education was created (39 Vict , cap. IHI. In 1868 the limitation to six was removed, and the Depart- ment of ARriculture was placed in charRe of a " Minister " (51 Vict. cap. 8). In Quehec the membership of the Executive Council is fixed by the Kevised Statutes of 1688 (sec. 593), as follows : President of Council, Attorney-General, Provincial Secretary. Provincial Treasurer, Commissioner of ("rown Lands, Commissioner of Agriculture, and Commissioner of Public Works. «7 The arbitrator chosen by the Government of Ontario was the Hon. (more recently Sir) David Lewis Macpherson. of Toronto ; by the Government of Quebec, the Hon. Charles Dewey Day. of Quebec ; and by the Government of Canada, the Hon. .John Hamilton Gray, then of st. John, X.B., afterwards Chief .Justice of British Columbia. See Ont. Sess. Papers, No. 27 of 1873, and No. 42 of 1878 for (1) a full account of all the proceedings of the arbitrators down to the time of their award on the :!rd of Septeml>er. 1870; (2) the text of the award itself; i3, all the corres- pondence resulting from its rei)udiation by successive Executive Councils of Que- bec ; (■() the proceedings preliminary to the submission of a "special case " to the Imperial Privy Council ; and (.J) the final decision of that body on the 11th of March, 1S78, declaring the award to be binding. 6ft For proceedings of the House of Commons in connection with the adoption of the address for the admission of Uriti-^h Oohniibia. and for the text of the address itself see Com. Jour, for 1871. pp, 182-203. The Order of Her Majesty in C'ouncil declaring the union of Canada and British Columbia will be found on pp. Ixxxiv- cvii of the Statutes of Canada for 1K72. The proceedings of the House of Commons in connection with tlie admission of Prince F^dward Island are given on pp. 401-405 of Com. Jour, for 187.!, and the Imperial Order-in-Councii on pji. ix-xxiii of the Statutes of Canada for the same year. ts For the text of the Order of Her Majestyin-^ouncil annexing "Rupert's Land and the N^rth-Western Territory " to the Dominion of Canada, see Can Stat, of 1872, pp. Ixiii— Ixxxiii. The Order is dated, Windsor, June 23, 1870, and has appended to it the terms and conditions of the surrender of the territory by the Hudson's Bay Company. 70 See Note 14 above. 71 -As to the nature of these "assets." and the manner in which they have been finally disposed of, as between Ontario and Quebec, see Ontarij Sessional Poiiers of 1873, Nos. 27 and 37 ; and of 1878, No. 42. 72 This Act is 31-35 Vict. cap. 28. The text is rei)rinted from " The Public General Statutes " in the "Law Reports, Vol. VI., 1871," but it has been compared with the text in "The Public General Acts" published by the Queen's Printers, London. 1H71. Tlie Earl of Kimlierley made in tlie House of Lords a brief state- ment of the reasons for introducing the bill (Hausai'd, Third Series, Vol. 20G, p. 1171) 7;t The "doubts" here mentioned were raised in the Canadian Parliament. According to Lord Kimberley (see vote 72 above) the Law Officers of the Crown believed the Acts specified in section 5 of this Act to be within the competency of the Dominion Parliament to pass. 74 The limits of Manitoba were enlarged by the joint action of the Dominion Parliament and the Manitoba Legislature in 1881. See Manitoba Statutes, 44 Vict., CO. 1 and VI.; Dom. Stat., 41 Vict. cap. 14 and Rev. Stat Can., 188C,, cap. 47. AND SUPPLEMENTARY ACTS. 239 75 Such provision is made by Chapters 50-54 of the Rev. Stat. Can. 1886. Amongst previous enactments are the following : 38 Vict. cap. 49 ; 39 Vict. cap. 21 ; 41 Vict, cap. 15 ; 47 Vict. cap. 23 ; 48 & 49 Vict. cap. 51 ; 49 Vict. cap. 25. 76 This Act is 38 &39 Vict. cap. 38. The text is reprinted from " The Public General Statutes," issued with " The Law Reports," London, 1875. The occasion of its passage was the opinion expressed by the Law Officers of the Crown in 1S73 that the statute (36 Vict. cap. 1) passed by the Canadian Parliament in the first session of that year " to provide for the examination of witnssses on oath by Committees of either House " was beyond the comijetence of that Parliament, under sec. 18 of the British North American Act. The Statute was in consequence disallowed by Her Majesty, and the inquiry into cert lin charges respecting the Pacific Railway, to facilitate which the iiassage of the Act was deemed necessary, was entrusted to a Royal Commission. See Com. Jour.. 1873, (first session) pp. 115. 137, 166, 267 ; and correspondence respecting the disallowance, Com. Jour., 1873, (second session) pp. .5 — 12 In the latter volume (pp. 12—119) will be found the narrative of the case sent by the Governor-General, Lord Dufferin, to the Colonial Secretary, Lord Kimberley. The Appendix to the same volume contains the l{ei)ort of the Royal Commission above mentioned. 77 The "doubts" here mentioned ceem to have arisen chiefly in the Senate (Com. Journals, 1873, second session, p. 6). See Ibid., pp. 7-10, for the opinions of Lord Dufferin, Sir John Macdouald, Alpheus Todd, and the Law Oflicers of the Crown. 78 This Act is entitled " An Act to provide for Oaths being administered in certain cases for the purposes of either House of Parliament." The first section is as follows : •' Witnesses may be examined upon oath at the Bar of the Senate, and for that purpose the Clerk of the House may administer an oath to any such witness." The second and third sections empower committees of the two Houses, respectively, to take evidence on oath as to matters relating to Private Bills. The Colonial Secretary (Com. Journals of 1873, second session, pp. 10-11), points out that the first section, in view of the opinion of the Crown Law Ofiicers on the Oaths Act of 1873, is "void" under section 2 of the " Colonial Laws Validity Act," 18G5. See pp. 241-243 below. 79 This Act is 49 & 50 Viet., cap. 35. The text is reprinted from "The Public General Statutes," issued with "Tlie Law Reports," London, 1886. As to the neces- sity of this statute see sections 2 and 5 of the "British North America Act, 1871, ' pp. 225-223 above. 80 The Act passed by the Dominion Parliament giving representation therein to the North-West Territories ('an. Stat. 49 Vict., cap. 24), was assented to by the Governor-General on the 2nd of June, 1886. See date of assent to tnis Act above. 81 See Note 14 above. 240 THE COLONIAL HABEAS CORPUS ACT. COLONIAL HABEAS CORPUS ACT, 1862. An Act^ respectimj the issue of Writs of Habeas Corpus out of Kniiland into Her Majesty's Possessions abroad. [16th May, 1862. Whereas it. is expedient that writs of Habeas Corpus- should not issue out of England into any colony or foreign dominion of the Crown, where Her Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execu- tion thereof throughout such colony or foreign dominion : Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : Writ not to 1. No writ of Habeas Corpus shall issue out of England, ony,&c.,haviug by authority of any judge or court of justice therein, into Court author- colony or foreign dominion of the Crown, where Her izecl to grant j j o . same. Majesty has a lawfully established court or courts of justice having authority to grant and issue the said writ, and to ensure the due execution thereof throughout such colony or dominion. Not to affect 2. Provided, that nothing in this Act contained shall right of appeal. ^^^^^ ^^ interfere with any right of appeal to Her Majesty in Council now by law existing. 1 This Act is 25 & 26 Vict., cap. 20. The text is reprinted from the " Statutes at Large," vol. xxv, London, 1862. COLONIAL LAWS VALIDITY ACT, 180.5. 241 COLONIAL LAWS VALIDITY ACT, 1865. An Act'^ to remove Doubts as to the VaUditij of Colonial Laivs. [29th June, 186.5. Whereas doubts have been entertained respecting the validity of divers laws'^ enacted, or purporting to be enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the powers of such Legislatures ; and it is expedient that such doubts should be removed : Be it hereby enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : — 1. The term " colony "^ shall in this Act include all of Definitions : Her Majesty's Possessions abroad, in which there shall .. colony." exist a legislature as hereinafter defined, except the Cliannel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty, under or by virtue of any Act of Parliament for the government of India ; 'J'he terms "Legislature" and "Colonial Legislature "" Legislature." shall severally signify the authority (other than the Imperial jgia'ture ": ^^ Parliament or Her Majesty in Council), competent to make laws for any colony ; The term " Representative Legislature " shall signify " Representa- any Colonial Legislature which shall comprise a legislative ture ; "' body of which one-half are elected by inhabitants of the colony ; The term " Colonial Law" shall include laws made for " Colonial any colony, either by such Legislature as aforesaid or by Her Majesty in Council ; An Act of Parliament, or any provision thereof, shall, in Act of Parlia- construing this Act, be said to extend to any colony when it ^42 COLONIAL LAWS VALIDITY ACT, I860. when to extend is made applicable to such colony by the express words or to Colony : . , „ . . ^ , necessary intendment of any Act of Parliament ; "Governor:" The term "Governor" shall mean the officer lawfully administering the Government of any colony ; teut"**^^ ^^^ ■^'^'^ ^^^^'^ '' I^^"<^i's Patent " shall mean letters patent under the great seal of the United Kingdom of Great Britain and Ireland. Colonial Law 2. Any colonial law, which is or shall be repugnant to repiiijuancy. tlie provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and in- operative.^ Colonial Law J|. No colonial law shall be, or be deemed to have been, when not void . , . ^. ,, , , ,, , lor repug- void or inoperative on the ground of repugnancy to the law nancy. qJ England, unless the same shall be repugnant to the pro- visions of some such Act of Parliament, order, or regula- tion, as aforesaid. Colonial Law 4. No colonial law, passed with the concurrence of or consistency assented to by the Governor of any colony, or to be here- with iustruc- after so passed or assented to, shall be, or be deemed to tious. ^ ' have been, void or inoperative by reason only of any in- structions with reference to such law, or the subject thereof, which may have been given to such Governor, by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such in- structions may be referred to in such letters patent, or last- mentioned instrument. Colonial Legis- 5 Every colonial Legislature shall have, and be deemed latnres may ,, . . , , i ,. ,, .,....-,. ^. establish, «S:c.. at all times to have had, full power within its jurisdiction Courts of law. ^^ establish courts of judicature, and to abolish and re- constitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein'' ; and every representative Legislature shall, in re- COLONIAL LAWS VALIDITY ACT, 1865. 243 spect to the colony under its jurisdiction, have, and be Representa- , , , 1 I. ,1 11 tive Legisla- deeraed at all times to have had, full power to make laws ture may alter respecting the constitution, powers, and procedure of such Constitution. Legislature ; provided that such laws shall have been passed in such manner and form as may from time to time be required, by any Act of Parliament, letters patent. Order in Council, or colonial law for the time being in force in the colony. 6. The certificate of the clerk or other proper olficer of a Certified co- legislative body in any colony to the effect that the docu- be^lvidence ment to which it is attached is a true copy of any colonial tl^at they are properly pas- law assented to bv the Governor of such colony, or of any sed. bill reserved for the signification of Her Majesty's pleasure by the said Governor, shall be prima facie evidence that the document so certified is a true copy of such law or bill, and, as the case may be, that such law has been duly and properly passed and assented to, or that such bill has been duly and properly passed and presented to the Governor ; and any proclamation, purporting to be published by Proclamation authority of the Governor, in any newspaper in the colony of assent and to which such law or bill shall relate, and signifying Her ' Majesty's disallowance of any such colonial law, or Her Majesty's assent to any such reserved bill as aforesaid, shall he prima facie evidence of such disallowance or assent. And whereas doubts are entertained respecting the validity of certain Acts enacted, or reputed to be enacted, by the Legislature of South Australia : Be it further enacted as follows : 7. AH laws or reputed laws enacted or purporting to have been enacted by the said Legislature, or by persons or bodies of persons for the time being acting as such Legis- Legislature of lature, which have received the assent of Her Majesty in South Aus- tralia to be Council, or which have received the assent of the Governor valid. of the said Colony in the name and on behalf of Her Majesty, shall be and be deemed to have been valid and effectual from the date of such assent for all purposes what- ever ; provided that nothing herein contained shall be deemed to give effect to any law or reputed law which has been disallowed by Her Majesty, or has expired, or has been lawfully repealed, or to prevent the lawful disallowance or repeal of any law.^ H.C.C. 16 disallowance. 244 COLONIAL LAWS VAT,lI)ITy ACT, IS*)",. NOTES TO THE COLONIAL LAWS VALIDITY ACT, 1865. 1 This Act is 28 & 29 Vict. cap. 6:5. Tho te.xt is reprinted from the " Statutes at Large," vol. x.wii, London, lHC>r). Tlie Kntjlisli " Hansard " is silent as to the reasons given in tlie British Parliament for enacting it. In point of importance, as a charter of colonial liberties, it must be allowed a place alongside of Lord Mansfield's judgment in the Grenada ('aso. See pp. 79-S9 above. - .\mongst tho '" laws," the vwlidityof which was questioned, were " divers .'Vets " passed by the Legislature of South -\ustralia "for the purpose of altering the constitution of the Legislative Council and House of .Assembly," of that colony (see section 7 below), and with a view to set at rest the doubts that had been raised the Britisli Parliament passed an Act (2G & 27 Vict. cap. S4) " to confirm certain Acts of Colonial Legislatures," thus making it general in its operation. The text of this statute is obviously a prelude to the " Colonial Laws Validity Act." It is as follows:— 1 " In this Act of Pai'liament the term 'Colonial Legislature' shall mean the authority (other than Her Majesty-in-Council) competent to make laws for any of Hi!r Majesty's possessions abroad, except India, tho Channel Islands, and the Isle of Man. The term ' Governor ' shall mean the officer lawfully admin- istering the Government of any colony. 2 All laws heretofore passed or purporting to have been passed by any colonial Legislature with the object of declaring or altering the constitution of such Legislature, or of any branch thereof, or the mode of appointing or electing the members of |the same, shall have, and be deemed to have had, from the date at which tho same shall have received the assent of Her Majesty or of the Governor of the colony on behalf of Her Majesty, the same force and effect for all purposes whatever as if the said Legislature had possessed full powers of enacting laws for the objects aforesaid, and as if all formalities and conditions by Act of Par- liament or otherwise jjrescribed in respect of the passing of such laws had been duly observed." 3 See Tarring's " Chapters on the Laws relating to the Colonies" (pp. 1-2) lor a legal definition of the term " colony." I See Note 78, p. '^id, foran illustration of the nullification of a Canadian Statute pro tanto on the ground of " repugnancy." The Acts passed for the regulation of copyright in Canada affoi-d other illustrations of the operation of tho same prin- ciple. The Imperial Copyright .Act of 1812 (5 & C Vict. cap. 45) is made applicable to "all the colonies, settlements, and possessions of tho Crown, which now are, or hereafter may be acquired." In 1872 the Canadian Parliament passed a Copy- right Bill, to which, after it had been reserved for Her Majesty's pleasure, her assent was refused on the ground that some of its provisions conflicted with those of the Imperial Copyright Act. See Dom. Sess. Papers, 1875, No. 28. The Canadian I'arliament in 1875 passed a Copyright Act which would also have been nullified on the ground of "repugnancy," had itV)oen assented to in the usual way; but the Imperial Parliament in the same year passed an Act (:t8&;W Vict. cap. 5'.i) author- izing Her Majesty to give assent by Order-in-Oouncil, which was subsefjuently done. In tho case of Smiles v. Belford, (Ont. Chancery Reports, vol. 23, pp. 590-C05 ; Ont. Appeal Reports, 1870-77, pp. 430-1-15), it was decided that the Canadian Act of 1S75 did not impair tho British author's right under the Imperial .Vet of 1812. s Compare the action of the first Parliament of Upper Canada in repealing part of tho Quebec Act of 1774, and passing an Act which made the " Laws of Eng- land" instead of the " Laws of Canada," "the rule of decision in all matters of controversy relative to property and civil rights." * See Note 2 above. Canada had in 1854 been expressly authorized to alter. the constitution of her Legislative Council and had done so. (See pp. 177-179 above.) GOVERNOR GENERAL'S COMMISSIONS AND ROYAL INSTRUCTIONS.^ I. Commission and Instructions' of Viscount Monck^ 1867. Draft of a Commission to he passed under the Great Seal of the United Kim/dom, appointinq Viscount Monck to be Governor- General of Canada, on aiid after the first day of July, 1867. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, to our Right Trusty and Well-beloved Cousin, Charles Stanley, Viscount Monck,— Greeting : I. Whereas We did, by divers Letters Patent, under the Grea^ Seal of Our United Kingdom of Great Britain and Ireland, bearing date severally at Westminster the second day of November, one thousand eight hundred and sixty-one, in the Twenty-fifth year of Our Reign, constitute and appoint you, Our Right Trusty and Well-beloved Cousin, Charles Stan- ley, Viscount Monck, to be, during Our pleasure. Our Captain General and Governor m Chief in and over Our Province of Canada, and in and over the Province of Nova Scotia and its Dependencies, 3 and in and over the Province of New Brunswick, and also Governor General of all Our Provinces in North America and of the Island of Prince Edward,* as by the said several recited Letters Patent, relation being thereunto had, may more fully and at large appear : And whereas by an Act of Parliament passed in the Thirtieth year of Our Reign, intituled, " The British North America Act, 1867," it is, amongst other things, enacted that it shall be lawful for Us, by and with the advice of Our Privy Council, to declare, by Proclamation, that, on and after a day therein appointed, not being more than Six Months after the passing of the said Act, the Provinces of Canada, Nova Scotia and New Brunswick, shall form and be One Dominion, under the name of Canada ; and on and after that day those three Provinces shall form and be One Dominion under that name, accordingly, and that Canada shall be divided into Four Provinces, named Ontario, Quebec, Nova Scotia, and New Brunswick : 246 governor-general's commission And wliereas We did, on the twenty-second day of May, one thousand eight hundred and sixty-seven, by and with the advice of Our Privy Council, declare by Proclamation'' that, on and after the first day of July, one thousand eight hundred and sixty-seven, being within six months after the passing of the said Act, the Provinces of Canada, Nova Scotia, and New Brunswick, should form and be One Dominion, under the name of Canada : Now know You, that We do by these Presents declare Our pleasure to be, that the said recited Letters Patent, and every clause, article and thing therein contained, shall be, and they are hereby declared to be Revoked and Determined, on the said first day of July, one thousand eight hundred and sixty- seven : And further Know You, that We, reposing especial Trust and Confi- dence in the prudence, courage and loyalty of you, the said Charles Stanley, Viscount Monck, of Our special Grace, certain knowledge and mere motion, have thought fit to constitute and appoint, and do by these Presents constitute and appoint you to be, on and after the said first day of July, one thousand eight hundred and sixty-seven, during Our pleasure. Our Governor General of Canada ; and We do hereby authorize, empower, require and command you thereafter, in due manner to do and execute all things that shall belong to your said Command and the Trust We have reposed in you, according to the several powers, provisions, and directions granted or appointed you by virtue of this Our Commission, and of the said recited Act of Parliament, and according to such instructions as are herewith given to you," or which may from time to time hereafter be given to you, m respect of the said Dominion of Canada, under Our Sign Manual and Signet, or by Our Order in Our Privy Council, or by Us, through one of Our principal Secretaries of State, and according to such laws as are or shall be in force within Our said Dominion. II. And We do hereby authorize and empower you to keep and use the Great Seal of Canada, for the sealing of all things whatsoever that shall pass the said Seal. III. And We do further authorize and empower you to exercise all such powers as We may be at any time entitled to exercise, in respect of the constitution and appointment of Judges ; and, in cases requisite, Commissioners of Oyer and Terminer, Justices of the Peace, and other necessary Officers and Ministers of Our said Dominion of Canada, for the better administration of Justice, and putting the Laws into execution.'^ IV. And We do hereby give and grant unto you, so far as We lawfully may, full power and authority, upon sufficient cause to you appearing, to remove from his Office, or to suspend from the exercise of the same, any AND ROYAL INSTEUCTIONS. 247 person exercising any office or place within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may be granted by Us, in Our name or under Our authority. V. And We do hereby give and grant unto you full power and author- ity, when you shall see cause, in Our name and on Our behalf, to grant to any offender convicted of any crime in any Court, or before any Judge, Justice or Magistrate within Our said Dominion, a Pardon, either free or subject to lawful conditions, or any respite of the execution of the sentence of any such offender, for such period as to you may seem fit ; and to remit any fines, penalties or forfeitures, which may become due and payable to Us.s VI. And We do hereby authorize you to exercise, from time to time, as you may judge necessary, all powers belonging to Us, in respect of Assembling or Proroguing the Senate or the House of Commons of Our said Dominion, and of Dissolving the said House of Commons ; and We do hereby give the like authority to the several Lieutenant Governors for the time being, of the Four Provinces in Our said Dominion, with respect to the Legislative Councils or the Legislative or General Assem- blies of those Provinces respectively. VII. And We do by these Presents authorize and empower you, within our said Dominion, to exercise all such powers as We may be entitled to exercise therein, in respect of granting Licenses for Marriages, Letters of Administration and Probates of Wills, and with respect to the custody and management of Idiots and Lunatics, and their Estates ; and to Present anj- person or persons to any Churches, Chapels or other Ecclesiastical Benefices, within Our said Provinces of Nova Scotia and New Brunswick, to which We shall from time to time be entitled to Present. VIII. And whereas, by the said recited Act, it is amongst other things enacted, that it shall be lawful for Us, if We think fit, to authorize the Governor General of Canada to appoint any person or persons jointly or severally to be his Deputy or Deputies within any part or parts of Canada, and in that capacity to exercise, during the pleasure of the Governor General, such of the powers, authorities and functions of the Governor General as he may deem it necessary or expedient to assign to him or them, subject to any limitations or directions from time to time expressed or given by Us ; now We do hereby authorize and empower you, subject to such limitations and directions as aforesaid, to appoint any person or persons jointly or severally, to be your Deputy or Deputies within any part or parts of Our Dominion of Canada, and in that capacity to exercise, during your pleasure, such of your powers, func- tions and authorities as you may deem it necessary or expedient to 248 governok-gknkual's commission assign to him or them : Provided ahvays, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority, or function by you, the said Charles Stanley, Viscount Monck, in person. IX. And in case of your death, incapacity, or absence out of Our said Dominion of Canada, We do by these Presents <;ive and grant, all and singular, the powers and authorities herein to you granted to Our Lieutenant Governor for the time being of Our said I-)ominion of Canada, or in the absence of any such Lieutenant Governor to such person as we may by Warrant under Our i^ign Manual and Signet, appoint to be the Administrator of the Government of Our said Dom- inion, or in the absence of any such Lieutenant Governor or person aa aforesaid, to the senior Military Officer for the time being in command of Our regular forces in our said Dominion, such powers and authorities to be by him executed and enjoyed during Our pleasure. X. And We do hereby require and command all Our Officers and Ministers, civil and military, and all other tlie inhabitants of Our said Dominion of Canada, to be obedient, aiding, and assisting unto you in the e.xecution of this Our Commision, and of the powers and authorities herein contained. Draft of lnstr7t(tions to he fiaxseil under the Iioi/ul Sitjti Manual and Sifpiet to Viscount Monck, Governor-deneral of Canada. Instructions to Our Plight Trusty and Well-beloved Cousin, Charles Stanley, Viscount Monck, Our Governor-General of Canada, or, in his absence, to Our Lieutenant-Governor or the Oflker Administering the Government of Our Dominion of Canada for the time being. Given at Our Court at Balmoral, this First day of June, 18G7, in the Thirtieth Year of Our Peign. I. Whereas, by Our Commission, uncier the Great Seal of Our United Kingdom of Great Britain and Ireland, bearing even date herewith. We have constituted and appointed you, the said Charles Stanley, Viscount Monck, to be, on and after the first day of July, 1867, during Our pleasure, Our Governor General of Canada : And have rciiuired you to do and execute all things that shall belong to your said command, according to the several powers, provisions, directions, and instructions therein men- tioned, and particularly according to such instructions as should be therewith given to you : AND ROYAL INSTRUCTIONS. 249 Now, therefore, by these Our instructions, under Our Sign-Manual and Signet, being the said last-mentioned instructions. We do declare Our will and pleasure to be, that on or immediately after the said First day of July, 1867, you do publish Our said Commission in Our Dominion of Canada, and do take the Oath^ appointed to be taken by an Act passed in the Twenty -first and Twenty-second Year of Our Reign, intituled, "An Act to substitute one Oath for the Oaths of Allegiance, Supremacy, and Abjuration, and for the relief of Her Majesty's subjects professing the Jewish religion " ; and likewise that you take the usual Oath for the due execution and performance of the Office and Trust of Our Governor- General of Our said Dominion, and for the due and impartial Adminis- tration of Justice ; which said Oaths the Judges of Our Supreme Courts of Record within our said Dominion, or any three or more of such Judges, have hereby full power and authority, and are required to tender and aaminister unto you. II. And We do hereby give and grant unto you full power and author- ity from time to tiine, and at any time hereafter, by yourself or by any other person to be authorized by you in that behalf, to administer to all and every person or persons as you shall think fit, who shall hold any office or place of trust or profit, or who shall at any time or times pass into Our said Dominion of Canada, or who shall be resident or abiding therein, the Oath commonly called the Oath of Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any Laws or Statutes in that behalf made and provided. III. And to the end that Our Privy Council^" for Canada may be assist- ing to you in all affairs relating to Our Service, you are to communicate to them these Our Instructions, and any additional instructions which may be in like manner hereafter given to you by Us. IV. And We do hereby declare, and it is Our Pleasure, that Our said Privy Council shall not proceed to the despatch of business unless duly summoned by your authority, nor unless four Members of the said Coun- cil be present and assisting at the meetings at which any such business shall be despatched. And We do further direct, that if, in any case you see sufficient cause to dissent from the opinion of the major part or of the whole of Our said Privy Council so pi-esent, it shall be competent to you to execute the powers and authorities vested in you by Our said Commission, and by these Our Instructions, in opposition to such their opinion" ; it being, nevertheless. Our Pleasure, that in every case it shall be competent to any Member of Our said Privy Council to record at length, on the Minutes of Our said Council, the grounds and reasons of any advice or opinion he may give upon any question brought under the consideration of such Council. 250 governor-general's commission V. And it is Our Pleasure and you are hereby authorized to appoint by an instrument under the Great Seal of Canada, one Member of our said Privy Council to preside in your absence, and to remove him and appoint another in his stead. And if, durinj» your absence, the Member so appointed shall also be absent, then the senior Member of the Privy Council, actually present shall preside, the seniority of ihe IMembers of the said Council being regulated according to the date or order of their respective appointment thereto. VI. And We do further direct and command that a full and exact Journal or Minute be kept of all the Deliberations, Acts, Proceedings, Votes, and Resolutions of Our said Privy Council; and that at each Meeting of the said Council the Minutes of the last preceding Meeting shall be read over, confirmed, or amended, as the case may require before proceeding to the despatch of any other business. VII. And for the execution of so much of the Powers vested in you by virtue of tlie " British North America Act, 1867," as relates to the declaring either that you Assent in Our Name to Hills passed by the Houses of the Parliament, or that you withhold Our Assent therefrom, or that you Reserve such Bills for the signification of Our pleasure thereon, it is Our Will and Pleasure that when any Bill is presented to you for Our Assent of either of the classes hereinafter specified, you shall (unless you shall tliink proper to withhold Our Assent from the same) Reserve the same for the signification of Our pleasure thereon ; Subject, neverthe- less, to your discretion, in case you should be of opinion that an Urgent Necessity exists, requiring that such Bill be brought into immediate operation ; in which case you are Authorized to Assent to such Hill in Our Name, transmitting to Us by the earliest opportunity the Bill so Assented to, together with your reasons for assenting thereto; that is to say: 1. Any Bill for the Divorce of Persons joined together in Holy Matri- mony. 2. Any Bill whei'eby any Grant of Land or Money, or other Donation or Gratuity, may be made to yourself. 3. Any Bill whereby any Paper or other Currency may be made a Legal Tender, except the Coin of the Realm, or other Gold or Silver Coin. 4. Any Bill imposing Differential Duties. 5. Any Bill, the Provisions of whicli shall appear inconsistent with obligations imposed upon Us by Treaty. 6. Any Bill interfering with the discipline or control of Our Forces in Our said Dominion bv land and sea. AND ROYAL INSTRUCTIONS. 251 7. Any Bill of an extraordinary nature and importance, whereby Our Prerogative, or the rights and property of Our subjects not residing in Our said Dominion, or the trade and shipping of the United Kingdom and its dependencies, may be prejudiced. 8. Any Bill containing provisions to which Our Assent has been once refused, or which has been disallowed by Us. VIII. You shall take care that all laws assented to by you in Our name, or reserved for the signification of Our pleasure thereon, be duly transmitted to Us with such explanatory observations as the nature of each law may require, and you are also to transmit fair Copies of the Journals and Minutes of the Proceedings of the said Houses of the Par- liament, which you are to require from the Clerks or other proper Officers in that behalf of the said Houses of the Parliament. IX. And whereas We have by Our said Commission given and granted unto you full po%ver and authority, when you shall see cause, to pardon offenders convicted of any crime, and to remit Fines, Penalties, and For- feitures ; Now We do hereby enjoin you to call upon the Judge presiding at the trial of any offenders to make to you a written report of the cases of all persons who may from time to time be condemned to suffer death by the sentence of any Court within Our said Dominion, and such reports of the said Judge shall by you be taken into consideration at the first meeting thereafter which may be conveniently held of Our said Privy Council for Canada ; and you shall not pardon any such offender unless it shall appear to you expedient so to do, upon receiving the advice of Our said Privy Council therein, but in all such cases you are tD decide whether to extend or withhold a pardon, according to your own deliberate judgment whether the Members of Our said Privy Council concur there- in, or otherwise ; Entering, nevertheless, on the Minutes of the said Council, a Minute of your reasons at length, in case you should decide any such question in opposition to the judgment of the majority of Members thereof. 1 ^ X. It is Our further will and pleasure that all commissions to be granted by you to any person or persons to be Judge, Justice of the Peace, or other necessary Officer, unless otherwise provided by law, be granted during Our pleasure only. XI. And whereas by Our said Commission We have authorized you to present any person or persons to any Church, Chapel, or other Ecclesias- tical Benefice, within our said Provinces of Nova Scotia and New Bruns- wick, to which We may from time to time be entitled to present. We do declare Our will and pleasure to be that you do not present any Minister 252 GOVERNOR- general's COMMiasiON of the United Church of En<^land and Ireland to any Ecclesiastical Benefice without a Certificate from the Bishop for the time being of the Diocese in which such presentation is made, or his Commissary, of his bein^ conformable to the doctrine and discipline of the said Church. And it is Our will and pleasure that the person so presented shall be instituted by the said Bishop, or his Commissary duly authorized by him. XII. And whereas you will receive through one of Our principal Secretaries of State a Book of Tables in blank (commonly called the " Blue Book " ) to be annually filled up with certain Keturns relative to the Revenue and Expenditure, Militia, Public Works, Legislation, Civil Establishment, Pensions, Populations, Schools, Course of Exchange, Imports and Exports, Agricultural Produce, Manufactures, and other matters in the said " Blue Book " more particularly specified, with reference to the state and condition of Our said Dominion of Canada ; Now We do hereby signify Our pleasure that all such Returns be accurately prepared and punctually transmitted to Us through one of Our principal Secretaries of State. XIII. And whereas great prejudice may happen to Our service and to the security of Our said Dominion by the absence of the Governor General, you shall not. upon any pretence whatever, quit the said Dominion without having first obtained leave fi-om Us for so doing, under Our Sign-Manual and Signet, or through one of Our principal Secretaries of State. AND ROYAL INSTKUCTIONS. 253 2. Letters- Patent'' and Instructions, 1878. Draft of Letters- Patent passed under the Great Seal of the United Kinffdom, constitutinrj the Office of Gox^ernor- General of the Dominion of Canada. Letters-Patent, ] Dated 5th October, 1878.) Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India ; To all to whom these Presents shall come. Greeting : Whereas We did, by certain Letters-Patent under the Great Seal of Our United Kingdom of Great Britain and Ireland, bearing date at Westminster the Twenty-second day of May, 1872, in the Thirty-fifth Year of Our Eeign, constitute and appoint Our Eight Trusty and Right Well-beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin. Knight of Our Most Illustrious Order of Saint Patrick, Knight Com- mander of Our Most Honorable Order of the Bath (now Knight Grand Cross of Our Most Distinguished Order of Saint Michael and Saint George), to be Our Governor-General in and over Our Dominion of Canada for and during Our will and pleasure : And whereas by the 12th section of " The British North America Act, 1867," certain powers, authorities, and functions were declared to be vested in the Governor-General : And whereas We are desirous of making effectual and permanent provision for the office of Governor-General in and over Our said Dominion of Canada, without making new Letters- Patent on each demise of the said Office: Now know ye that We have revoked and determined, and by these pi'eaents do revoke and determine, the said recited Letters-Patent of the Twenty-second day of May, 1872, and every clause, article and thing therein contained : And further know ye that We, of our special grace, certain know- ledge, and mere motion, have thought fit to constitute, order, and declare, and do by these presents constitute, order, and declare that there shall be a Governor-General (hereinafter called Our said Gover- nor-General) in and over Our Dominion of Canada (hereinafter called Our said Dominion), and that the person who shall fill the said Office of the Governor-General shall be from time to time appointed by Commission under our Sign-Manual and Signet. And we do hereby 254 oovernor-general's commission authorize and coininand Our said Goveri.or-General to do and execute, in due manner, all things that shall belonfj to his said command, and to tiie trust We have reposed in him, accordinj^ to the several powers and authorities granted or appointed him by virtue of " The British North America Act, 1867," and of these present Letters-Patent, and of such Com- mission^'i as may be issued to him under Our Sign-Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by us through one of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. II. And We do hereby authorize and empower Our said Governor- General to keep and use the Great Seal of Our said Dominion for sealing all things whatsoever that shall pass the said Great Seal. III. And We do further authorize and empower Our said Governor- General to constitute and appoint, in Our name and on Our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Olficers and Ministers of Our said Dominion, as may bo lawfully con- stituted or appointed by Us.^'^ I\'. And We do further authorize and empower Our said Governor- General, so far as we lawfully may, upon sufficient cause to him appear- ing, to remove from his office, or to suspend from the exercise of the same, any person exercising any office within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may '>e granted, by Us in Our name or under Our authority. V. And We do further authorize and empjwer Our said Governor- General to exercise all powers lawfully belonging to us in respect of the summoning, proroguing, or dissolving the I'arliament of Our said Do- minion. >'"> VI. And whereas by " The British North America Act, 1857," it is amongst other things enacted, that it shall be lawful for Us, if We think fit, to authorize the Governor-General of Our Dominion of Canada to appoint any i)erson or persons, jointly or severally, to be his Deputy or Deputies witliin any part or parts of Our said Dominion, and in that capacity to exercise, during the pleasure of Our said Governor-General, such of the powers, authorities, and functions of Our said Governor- General as ho may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time expressed or given by Us : Now We do hereby authorize and em- power Our said Governor-General, subject to such limitations and direc- tions as aforesaid, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Do- AND ROYAL INSTRUCTIONS. 255 minion of Canada, and in that capacity to exercise, during his pleasure, such of his powers, functions, and authorities as he may deem it neces- sary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority or function by Our said Governor-General in person. VII. And We do hereby declare Our pleasure to be that, in the event of the death, incapacity, removal, or absence of Our said Governor- General out of Our said Dominion, all and every the powers and authorities herein granted to him shall, until Our furtlier pleasure is signified therein, be vested in such person as may be appointed by Us under Our Sign-Manual and Signet to be Our Lieutenant-Governor of Our said Dominion ; or if there shall be no such Lieutenant-Governor in Our said Dominion, then in such person or persons as may be appointed by Us under Our Sign-Manual and Signet to administer the Government of the same ; and in case there shall be no person or persons within Our said Dominion so appointed by Us, then in the Senior Officer for the time being in command of Our regular troops in Our said Dominion: Pro- vided that no such powers or authorities shall vest in such Lieutenant- Governor, or such other person or persons, until he or they shall have taken the oaths appointed to be taken by the Governor- General of Our said Dominion, and in the manner provided by the Instructions accom- panying these Our Letters-Patent. VIII. And We do hereby require and command all Our Officers and Ministers, Civil and Military, and all other the inhabitants of Our said Dominion, to be obedient, aiding and assisting unto Our said Governor- General, or, in the event of his death, incapacity, or absence, to such person or persons as may, from time to time, under the provisions of these Our Letters-Patent, administer the Government of Our said Do- minion. IX. And We do hereby reserve to Ourselves, Our heirs and successors, full power and authority from time to time to revoke, alter or amend these Our Letters-Patent as to Us or them shall see ai meet. X. And We do further direct and enjoin that these Our Letters- Patent shall be read and proclaimed at such place or places as Our said Gov- ernor-General shall think fit within Our said Dominion of Canada. In Witness whereof We have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the Fifth day of October, in the Forty-second Year of Our Eeign. By Warrant under the Queen's Sign-Manual. C. ROMILLY. 256 govkunor-oknbiiai.'h (ximmission Pnift of Instrurtiinia jiasscd. under the Hdi/al Sif|n-^famMl and Si'inet to the GDreDiDr-deiierdl 'iiiiiiii(in of Cunada. Dated 5th October, 187S. VICTORIA R. Instructions to Our Governor-General in iind over Our Dominion of Canada, or, in his absence, to Our Lieutenant-Governor or the Officer for the time beinj,' administerin.t? the Government of Our said Do- minion. Given at Our (Jourt at Bahnoral, this Fifth day of October, 1878, in he Forty-second year of Our Rei<»n. Whekeas by certain Letters-Patent bearing even date herewith, We have constituted, ordered, and declared that there shall be a Governor- General (hereinafter called Our said Governor-General) in and over Our Dominion of Canada (hereinafter called Our said ]3ominion), and We have thereby authorized and commanded Our said Governor- General to do and execute in due manner all things that shall belong to his said command, and to the trust We have reposed in hini, according to the several powers and autliorities granted or appointed him by virtue of the said Letters-Patent and of such Commission as may be issued to him under Our Sign-Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion : Now, therefore, We do, by these, Our Instructions under Our Sign- Manual and Signet, declare Our pleasure to be that Our said Governor- General for the time being shall, with all due solemnity, cause Our Commission, under Our Sign-Manual and Signet, appointing Our said Governor-General for the time being, to be read and ))ublished in the presence of the Chief Justice for the time being, or other Judge of the Supreme Court of Our said Dominion, and of the members of the Privy Council in Our said Dominion : And Wo do further declare Our pleasure to be that Our said Governor- General, and every other officer appointed to administer the Government of Our said Dominion, shall take the Oathi' of Allegiance in the form provided by an Act passed in the Session holden in the thirty-first and thirty-second years of Our Reign, intituled : "An Act to Amend the Law relating to Promissory Oaths ;" and likewise that he or they shall take the usual Oath for the due execution of the Office of Our Governor- General in and over Our said Dominion, and for tlie dm; and impartial administration AND ROYAL INSTRUCTIONS. 257 of justice ; which Oaths the said Chief Justice for the time being, of Our said Dominion, or, in his absence, or in the event of his being othprwise incapacitated, any Judge of the Supreme Court of Our said Dominion shall, and he is hereby required to tender and administer unto him or them. II. And We do authorize and require Our said Governor- General from time to time, by himself or by any other person to be authorized by him in that behalf, to administer to all and to everj' persons or person as he shall think fit, who shall hold any ofl&ce or place of trust or profit in Our said Dominion, the said Oath of Allegiance, together with such other Oath or Oaths as may from time to time, be prescribed by any Laws or Statutes in that behalf made and provided. III. And We do require Our said Governor- General to communicate forthwith to the Privy Council for Our said Dominion these Our Instruc- tions, and likewise all such others from time to time as he shall find con- venient for Our service to be imparted to them. IV. Our said Governor-General is to take care that all laws assented to by him in Our name, or reserved for the signification of Our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cases as may seem to him neces- sary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such Laws ; and he shall also transmit fair copies of the .Journals and Minutes of the proceedings of the Parliament of Our said Dominion, which he is to require from the clerks, or other proper officers in that behalf, of the said Parliament. V. And We do further authorize and empower Our said Governor- General, as he shall see occasion, in Our name and on Our behalf, when any crime has been committed for which the offender may be tried within Our said Dominion, to grant a pardon to any accomplice not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender ; and further, to grant to any offender convicted of any crime in any Court, or before any Judge Justice, or Magistrate, within Our said Dominion, a pardon, either free or subject to lawful conditions, or any respite of the execution of tlie sentence of any such offender, for such period as to Our said Governor- General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to Us. Provided always, that Our said Governor-General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or re- mission of sentence that the offender shall be banished from or shall absent himself from Our said Dominion. And We do hereby direct and 258 governor-general's commission enjoin that Our said Governor-General shall not pardon or reprieve any such offender without first receiving in capital cases the advice of the Privy Council for Our said Dominion, and in other cases the advice of one, at least, of his Ministers ; and in any case in which such pardon or reprieve might directly affect the interests of Our Empire, or of any country or place beyond the jurisdiction of the Government of Our said Dominion, Our said Governor-General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. is VI. And whereas great prejudice may happen to Our service and to the security of Our said Dominion by the absence of Our said Governor- General, he shall not, upon any pretence whatever, quit Our said Do- minion without having first obtained leave from Us for so doing under Our Sign-Manual and Signet, or through one of Our Principal Secretaries of State. V.R. 3. Commission^'' of the Marquis of Lome, 1878. Draft of a Commission passed under the Royal Sign-Manual and Siffnet, appointing the Right Hono^irahle the Marquis of Lome, K.T., (jf.C.M.G., to be Governor- General of the Dominion of Canada, Dated 7th October, 1878. VICTORIA R. VicTOKiA, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India, To Our Right, Trusty, and Well-beloved Councillor Sir John Dodolas Sutherland Campbell (commonly called the Marquis of Lome), Knight of Our Most Ancient and Most Noble Order of the Thistle, Knight Grand Cross of Our Most Distinguished Order of St. Michael and St. George, Greeting: Wk do, by this Our Commission under Our Sign-Manual and Signet, appoint you, the said Sir John Douglas Sutherland Campbell (commonly AND ROYAL INSTRUCTION. 25S) ■called the Marquis of Lome), until Our further pleasure shall be signified, to be Our Governor-General in and over Our Dominion of Canada during Our will and pleasure, with all and singular the powers and authorities granted to the Governor-General of Our said Dominion in Our Letters- Patent under the Great Seal of Our United Kingdom of Great Britain and Ireland, constituting the Office of Governor, bearing date at West- minster the Fifth day of October, 1878, in the Forty -second year of Our Reign, which said powers and authorities We do hereby authorize you to exercise and perform, according to such Orders and Instructions as Our said Governor- General for the time being hath already or may hereafter receive from Us. And for so doing this shall be your Warrant. II. And We do hereby command all and singular Our officers, Ministers, and loving subjects in Our said Dominion, and all others whom it may concern, to take due notice hereof, and to give their ready obedience accordingly. Given at Our Court at Balmoral, this Seventh day of October, 1878, in the Forty-second year of Our Reign. By Her Majesty's Command, M. E. HICKS-BEACH. H.O.C. 17 260 GOVERNOR- general's COMMISSION NOTES TO GOVP^RNORS COMMISSIONS. 1 The changes which took place in 1h7S in the form of the Commission to the- Governor-General of Canada, and also in the Instructions accompanying the- Commission, made it necessary to introduce these documents from two different periods. Those issued to Lord Monck are selected because he was the first Governor-General of the Dominion of Canada, and those issued to Lord Lome, because he was the first appointed after the changes above referred to were made. The changes themselves can easily be ascertained by a comparison of thp texts, and a lucid account of the circumstances wliich led to them will be found m Todd'R- " Parliamentarj' Government in the British Colonies," pp. 77-90. These docu- ments may be usefully conjpared with the Commission issued to Governor Cornwallis, of Nova Scotia, in 1749 (pp. 9-10 above), and the Commission issued to- (lovernor Murray, of Quebec, in 17r>5 (pp. 74-77 above). Ijord Monck's "Commis- sion" and "Instructions," lst;7, are reprinted from the Dom. Sess. Papers of 1>>C7. No. 22. •2 The •' Commission " and " Instructions'' issued to Lord Monck in 1861 do not differ materially from those issued to Sir .John Young (afterwards Lord Lisgari in 1868, and to Lord Duffcrin in 1872. * The most important was Cape Breton. 1 Lord Monck did not actually administer tlie;(iovernment in Nova Scotia, Sew Brunswick, and Prince Edward Island, each of which had its own Lieutenant- (lovernor, while the '" Province of Canada " under the Union Act of 1840 had none. Iiord Durham had come to Canada in 1838, after having been appointed " by five several Commissions" Governor of each of the Provinces of Lower Canada, Upper Canada. Nova Scotia, New Brunswick, and Prince Edward Island; by an additional Commission he had been created " Governor-General of all the Provinces on the (Jontinent of North America and of the Islands of Prince Edward and Newfound- land," each of the Provinces except Lower Canada, which was administered by Lord Durham himself, having its own Lieutenant-Governor. For the text ot his Commission as Governor-General see Christie's " History of Lower Canada," vol. v., pp. 149-1.')2. Sir George Arthur, then Lieutenant-Governor of Upper Canada, was the last who held that office. The successors of Lord Durham, prior to Lord Monck's appointment, were (1) Charles Edward Poulott Thompson (afterwards Lord Sydenham), whose Commission appointed him in 1839 " Governor-General of British North .-Vmerica, and Captain-General and Governor-in-Chicf in and over the Provinces of Lower Canada and Upper Canada, Nova Scotia, New Brunswick, and the Island of Prince Edward"; (2) Sir Charles Bagot, 1842; (3) Sir Charles (afterward Lord) Metcalfe, 1K43; Mrl.or.l Ulgin. 184f.: and (5) Sir Edmund Walker Head, ia54. 5 See Note 5, p. 231 above. !■ See pp. 248-2.52 above. 7 This and the five following sections of the Commission must be read in the light of the discussions of a quarter of a century before on the subject of " Respon- sible Government." See Appendix E. .A good account of the crisis precipitated by Lord Metc.tlfe's action in 1843 in appointing an officer connected with the administration of justice without consulting his Executive Council, the Lafon- taine-Baldwin Ministry, will be found in Dent's " Canada since the Union of 1841,* Tol. I., pp. 320-351. See also Sir Francis Hincks' " Reminiscences." AND ROYAL INSTRUCTIONS. 261 " The last exercise of this prerogative by a Canadiau Governor, without the advice of his responsible Ministers, was by Lord Dufferin in the case of Ambrose Lepine, in 1875. The death sentence pronounced upon him for complicity ha the murder of Thomas Scott during the Red River rebellion of 1869-70 was commuted to two years' imprisonment with permanent deprivation of political rights, and Lord Dufferin, in an oflticial communication to the then Minister of Justice, stated that he acted " under the Royal Instructions, which authorize the Governor- General in certain capital cases, to dispense with the advice of his Ministers, and to exercise the prerogative of the Crown according to his independent judgment and on his own personal responsibility." .\s to the " Instructions " here cited, see p. 251 above. Lord Dufterin's official letter to the Minister of Justice will be found in the " Canada Gazette Extra " of Juno 19, 1875, and in Dom. Sess. Papers for 1875. No. 11. An accurate summary of the whole case, together with a discus- sion of the administration of the prerogative of mercy in other self-governing colonies is given in Todd"s " Parliamentary Government in the British Colonies," pp. 251-274. Compare Section V. of the " Royal Instructions " of 187>S (pp. -ioT-SSS above). The Lepine commutation case was discussed with approbation in the House of Lords (Hansard. Third Series, vol. 22:^, pp. 1065- 1077). 9 Comi)are the " Royal Instructions" of 1878 ip. 25(5 above). 10 This term was introduced into Canada l)y the Confederation Act, 186T (section 11). 11 See Note 7 above. Compare on this point the " Royal Instructions " of 1878 (pp. 256-258, above). See also Todd's " Parliamentary Government in the British Colonies " ipp. :«l-34:i) ; Dora. Sess. Papers for 187G, No. 116 ; iMd for 1877, No. 89 ; and ib-td for 1879, No. 181. As to the effect of refusal of advice by a Governor, note the precedent set by the Lafontaine-Baldwin Ministry in 184:^. I'-J See Note 8 above. i:s Prior to the issue of these "Letters-Patent" there was no permanently con- stituted office of " Govei-nor-General " of Canada, each successive Governor having been appointed by a special " Commission " which defined his functions, and informed by special "Instructions" as to the manner in which he should discharge them. .\s to the course of events which led to the issue of these " Letters-Patent" making the office a permanent one, and to the issue of per- manent " Royal Instructions" to accompany them, see Todd's "Parliamentary Government in the British Colonies " ipp. 77-90); Dom. Sess. Papers, 1877, No. 13; ibid, 1879, No. 181 ; and Hansard, Third Series, vol. 244, p. 1312. The documents are reprinted from the Dom. Sess. Papers of 1879, No. 14. 14 See " Commission '' to Lord Lome (pp. 2.5S-2-59 above). 15 See Note 7 above. 16 For a useful discussion of the relation of % Governor to his responsible Minis- ters in regard to the matters here enumerated, see Todd's "Parliamentary Government in the British Colonies." pp. 460-575. 17 Compare the " Royal Instructions," p. 249 above. i« See Note S above. The whole subject of the exercise of the prerogative of mercy is discussed in Todd's "Parliamentary Government in the British Colonies," pp. 2:51-274. See also Dom. Sess. Papers, 1876. No. 117 ; ibid, 1877, No. 13 ; and ibid, 1879, No. 181. 19 With the office of Governor-General permanently constituted under the " Letters-Patent" of 1878 nothing beyond a brief Commission referring to the " Letters-Patent " is necessary to the appointment of a new incumbent. The successors so far of Lord Lome, have been (1) Lord Lansdowne, whose Com- 262 governor-general's commission and instructions. mission is dated August IHth, 1883, and (2) Lord Stanley of Preston, the date of wliose Coniniissiou is May 1st, 1888. •20 Some changes have been made in the form of the Commission since 1878, and to show their nature the Commission to Lord Stanley of Pi-eston is here given from the official printed copy: " We do by this Our Commission under our Sign Manual and Signet appoint you, the said Frederick Arthur, Haron Stanley of Preston, to be during our pleasure our Governor-General in and over our Dominion of Canada, with all the powers, rights, privileges, and advantages to the said office belong- ing or appertaining. II. And we do hereby authorize, empower, and command you to exercise and perform all and singular tlio powers and directions contained in our Letters-Patent under the Great Seal of our United Kingdom of Great Britain and Ireland, bearing date at Westminster, the fifth day of October, 1878, constituting the said office of Governor-General, or in any other Letters- Patent adding to, amending, or substituted for the same, according to such orders and instructions as our Governor-General for the time being hath already received from us, or as you shall hereafter receive from us. III. And, further, we do hereby appoint that so soon as you shall have taken the prescribed oaths, and have entered upon the duties of your office, this our present Commission shall supersede our Commission under our Sign Manual and Signet bearing date the eighteentli day of August, 188:!, in the forty-seventh year of our reign, appointing our right trusty and entirely beloved cousin, Henry Charles Keith, Marquis of Lausdowne, now Knight Grand Cross of our most distinguished Order of Saint Michael and St. George, to be our Governor-General of our Dominion of Canada. IV. And we do hereby command all and singular our Officers, Ministers, and loving subjects in our said Dominion, and all others whom it may con- cern, to take due notice hereof, and to give their ready obedience accordingly. Given at our Court at Windsor, this first day of May, 1888, in the fifty-first year of our reign. By Her Majesty's command. Knutsfohd." APPENDIXES, APPENDIX A. EXTRACTS FROM TREATIES^ RELATING TO CANADA, PRIOR TO AND INCLUDING THE YEAR 1783. 1. The Treaty of Ryswick, 1697. VII. The Most Christian King- sliall restore to the said King'' of Great Britain all countries, islands, forts, and colonies, wheresoever situated, which the English did possess before the declaration of this present war. And in like manner the King of Great Britain shall restore to the Most Christian King all countries, islands, forts, and colonies, wheresoever situated, which the French did possess before the said declaration of war ; and this restitution shall be made an both sides %\ ithiii the space of six months, or sooner if it can be done. VIII. Commissioners shall be appointed on both sides to examine and •determine the rights and pretensions which either of the said kings hath to the places situated in Hudson's Bay^ : but the possession of those places which were taken by the French, during the peace that preceded this present war, and were retaken by the English during this war, shall be left to the French, by virtue of the foregoing article. ...... 2. The Treaty of Utrecht', 1713. 3. The Treaty of Aix-la-Chapelle, 1748. V. All the conquests that have been made since the commencement of the war, or which, since the conclusion of the preliminary articles, signed on the 30th of April last, may have been or shall be made, either in Europe, or the East or West Indies, or in any other part of the world whatsoever, being to be restored without exception, in conformity to what was stipulated by the said preliminary articles and by the declaration since signed ; the high con- 1 The text of these extracts is taken from Chalmer's " Collectiou of Treaties between Great Britain and other Powers," London, 1790. 2 Lewis XIV. :^ William III. * See Note 4 to the Treaty of Utrecht (p. 6). * For extracts from this Treaty relating to Canada see pp. 3-5 above. 266 APPENDIX A. tractinp parties' engage to give orders immediately for proceeding to that restitution. ............ IX. . . Whereas it is not po.ssible, considering the (li.stance of the countries, that what relates to America should be effected within the same time,2 or even to fix tlie time of its entire execution, His FJritannic Majestj likewise engages on his part to send to His Most Christian Majesty, imme- diately after the exchange of the ratifications of the present treatj', two pers(ms of rank and consideration, who shall remain there as hostjigcs, till there shall be received a certain and authentic account of the restitution of Isle Royal, called Cape Breton, and of all the conquests which the arms or subjects of His Britannic Majesty may have made, before or after the signing- of the preliminaries, in the East or West Indies. ..... Provided, nevertheless, that Isle Royal, called Cape Breton, shall be restored, with all the artillery and warlike stores which sliall have been found therein on the daj' of its surrender, conformably to the inventories which liave been made thereof, and in the condition that the said place was in on the said day of its surrender. 4. The Treaty of Paris', 1763. 5. The Treaty of Versailles', 1783. IV. His Majesty, the King of Great Britain, is maintained in his right to the I.sland of Newfoundland, and to the adjacent islands, as the whole were a.ssured to him by the thirteenth article of the Treaty of Utrecht ; excepting- the Islands of St. Pierre and Miquelon, wliich are ceded in full right, by the present treaty, to His Most Christian Majesty. V. His Majesty the Most Christian King, in order to prevent the quarrel* which have liitherto arisen between the two nations of Kngland and France, consents to renounce the right of fishing, which belongs to him in virtue of the aforesaid article of the Treaty of Utrecht, from Cape Bonavista to Cape St. John, situated on the eastern coast of Newfoundland, in fifty degrees north latitude ; and His Majesty the King of (jlreat Britain consents (m his part that th(^ fishery assigned to the subjects of His Most Cliristian Majesty, t beginning at the said Cape St. John, passing to the nortii, and descending by the western coast of the Island of Newfoundland, shall extend to the place called Cape Raye, situated in forty-seven degrees fifty minutes latitude. The French fishermen shall enjoy the fishery which is assigned to them by the 1 So far as Canada was concerned, George II. of Great Britain and Lewis XV. of France. 2 Six weeks. 3 For extracts from this Treaty relating to Canada, see pp. K1-C5 above. i This treaty was signed at Versailles on the .3rd of September, 178'J, by the Duke of Manchester, represeuting George III. of Great tlritain, and the Count de Ver- genues, representing Lewis XVI. of France. TREATIES RELATING TO CANADA. 267 present article, as they had the right to enjoy that which was assigned to then* by the Treaty of Utrecht. VI. With regard to the fishery in the gulph of St. Lawrence, the French shall continue to exercise it conformably to the fifth article of tlie Treaty of Paris.i XX. As it is necessary to appoint a certain period for the resti tutions and evacu- ations to be made by each of the high contracting parties, it is agreed that the King of Great Britain shall cause to be evacuated the islands of St. Pierre and Miquelon, three months after the ratification of the present treaty, or sooner, if it can be done. . . . ........ 6. The Treaty of Paris,' 1783. I. His Britannic Majesty acknowledges the said United States, viz.. New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, to be free, sovereign, and independent states ; that he treats with them as such ; and for himself, his heirs and successors, relinquishes all claims to the government, propriety, and territorial rights of the same, and every part thereof. II. And that all disputes which might arise in future on the subject of the boundaries of the said United States may be prevented, it is hereby agreed and declared that the following are and shall be their boundaries, viz., from the north-west angle of Nova Scotia,'^ viz., that angle which is formed by a line drawn due north, from the source of Saint Croix river to the Highlands) along the said Highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the northwesternmost head of Connecticut river; thence down along the middle of that river to the forty-fifth degree of north latitude ; from thence by a line due west on said latitude until it strikes the river Iroquois or Cataraquy^ ; thence 1 Of 1763. See p. 62 above. 2 On the 30th of November, 1782, " provisional articles of peace and recoucili- ation " between Great Britain and the United States, were signed at Paris, but it wasagi-eed that the formal treaty between the two powers should not be "concluded until terms of peace should be agreed upon between Great Britain and France." The tieaty of Pai'is was therefore signed on the 3rd of September, 1783, immediately after the signing of the Treaty of Versailles. (See note 4, p. 266). The contracting powers were George III. of Great Kritain, and " the United States of America " ; the former being represented by David Hartley M. P., and the latter by John Adams of Massachusetts, Benjamin Franlilin of Pennsylvania, and John Jay of New York. 3 Nova Scotia at this time, and until 1784, included New Brunswick. See Com- mission to Gov. Carleton, pp. 22-23. * Now the St. Lawrence. *268 APPENDIX A. nlong tlit> midfllf of said river into Luke Ontario ; tliroufirh tlio midHlp of said lake, until it strikes the connuunication by water tetween that lake and Lake Erie; thence along the middle of said communication into Lake Erie ; through the middle of said lake, until it arrives at the water-communication- between that lake and lake Huron ; thence along the middle of .said water-communica- tion into the lake Huron ; thence through the middle of said lake to thewater- comnumication l)etween that lake and Lake Suijerior ; thence through Lake tSuperi ir, nortliward of the isles Royal and Phelipeaux, to the Long Lake ; thence through the middle of said Long Lake, and the water-communication between it And the Lake of the Woods, to the said Lake of the Woods ; thence through the said lake to the most northwestern jjoint thereof, and from thence cm a due west course to the river Mississippi ; thence by a line to be drawn along the middle of the said river Mississippi, imtil it shall intersect the northernmost part of the thirty-first degree of north latitude : — South, by a line to be drawn due east from tlie determination of the line last-mentioned, in the latitude of thirty -one degrees north of the equator, to the middle of the river Apalachicola or Catahouche ; thence along the middle thereof to its junction with the Flint river; thence strait to the heatl of St. Mary's river, and thence down along the middle of St. Mary's river to the Atlantic Ocean :— East, by a line to be drawn along the middle of the river St. Croix, from its mouth in the Bay of Fundy to its .source ; and from its source directly north to the aforesaid Highlands, which ■divide the rivers that fall into the Atlantic Ocean from tho.se which fall into the river St. Lawrence : comprehending all islands within twenty league/S of any part of the shores of the United States, and lying between lines to be drawn due east from the points where the aforesaid boundaries between Nova Scotia on the one part, and East Florida on the other, shall resi)eotively touch the Bay of Fundy, and tlie Atlantic Ocean ; excepting such islands as now are, or heretofore have been, within the limits of the said Province of Nova Scotia. III. It is agreed, that the people of the United States shall continue to enjoy unmolested the right to take fish of every kind on the Grand Bank and on all the other banks of Newfoundland : also in the guli)h of St. Lawrence, and at all other places in the sea, where the inhabitants of both countries used at any time heretofore to fish. And also that the inhabitants of the United States .shall have liberty to take fisli of every- kind cm such part of the coast of New- foundland, as British fisliermen shall use (but not to dry or cure the .same on that island) and also on the coa.sts, bays, and creeks of all other of his Britannic Majesty's d(jminions in America ; and that the American fishermen -shall have liberty to dry and cure fisli m any of the unsettled bays, harbours, and creeks of Nova Scotia, Magdalen islands, and Labrador, so long as the .same shall remain unsettled ; but .so soon as the sa'ne, or either of them, shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such settlement, without a previous agreement for that purpose with the in- habitants, proprietors, or possessors of the ground. IV. It is agreed, that creditors on either side shall meet with no lawful im- pediment to the recovery of the full value in sterling money of all bona Ade debts heretofore contracted. TRKATIES RELATING TO CANADA. 269 V. It is agreed, that the Congress shall earnestly recoinnaend it to the legislatures of the resiieetive states, to provide for the restitution of all ♦-states, rights, and properties which have been confiscated, belonging to real British subjects ; and also of the estates, rights, and properties of persons resident in districts in the possession of His Majesty's arms, and who have not borne arms against the said United States ; and that persons of any other description shall have free liberty to go to any part or parts of any of the Thirteen United States, and therein to remain twelve months unmolested in their endeavours to obtain the restitution of such of their estates, rights, and properties as may have been confiscated ; and that Congress shall also earnestly recommend to the several states a re-consideration and revision of all acts or laws regarding the premises, so as to render the said laws or acts perfectly consistent, not only with justice and equitj% but with that spirit of concilia- tion, which, on the return of the blessings of peace, should universally pre- vail. And that Congress shall also earnestly recommend to the several states, that the estates, rights, and properties of such last mentioned persons shall be restored to them, they refunding to any persons who may be now in possession the bona Jide price (where any has been given) which such persons may have paid on purchasing anj- of the said lands, rights, or properties since the confiscation. And it is agreed, that all persons who have any interest in confiscated lands, either by debts, marriage settlements, or other- wise, shall meet with no lawful impediment in the prosecution of their just rights.' VI. That there sliall be no future confiscations made, nor any prosecutions commenced against any person or persons, for or by reason of the part which he or they may have taken in the present war ; and that no person shall on that account suffer any future loss or damage, either in his person, liberty or property ; and that those who may be in confinement on such charges at the time of the ratification of the treaty in America, shall be immediately set at liberty, and the prosecutions so commenced be discontinued. VII. There sliall be a firm and perpetual peace between His Britannic Majesty and the said states, and between the subjects of the one and the citizens of the other, wherefore all hostilities, both by sea and land, shall 1 Some idea of the character of the laws passed by State Legislatures dealing with the estates of persons who had adhered to the Royalist cause during the Revolutionary war may be formed by reading the titles of Acts passed by the Legislature of New York. In 1779 there was passed '' An Act for the forfeiture and sale of the estates of persons who have adhered to the enemies of this State, and for declaring the sovereignty of the people of this State, in respect to all proijerty within the s&,me." In 1780 an Act was passed approving of the Act of Congress of the same year relative to the finances of the United States, and providing that the lands " forfeited by the attainder of Sir John Johnson " and others should be ■' mortgaged and bound for the redemption and security" of New York's proportion of the new national " bills of credit." Several Acts, dealing further with forfeited estates, were passed between 1780 and 1785. In 1782 an Act was passed enabling debtors to discharge in depreciated currency debts due to creditors who had taken refuge within the British lines. In 1778 an Act was passed authorizing " Com- missioners for Conspiracies" to require neutral or suspected persons to acknow- ledge on oath the independence of the State of New York, and declaring those who refused to be guilty of "misprision of treason." 270 APPENDIX A. from henceforth cease : all prisoners on both sides shall be set at liberty ; anrl His Britannic Majesty shall with all convenient si)eed, and without causing- any destruction or the carrying away any negroes, or other property of the American inhabitants, withdraw all his armies, garrisons,' and fleets from the said United States, and from every port, place, and Iiarliour within the- same ; leaving in all fortifications the American artillery that may be therein ; and shall also order and cause all archives, records, deeds, and papers belong- ing to any of the said states, or their citizens, which in the covu'se of the war may have fallen into the hands of his officers, to be forthwith restored and delivered to the proper states and persons to whom they belong. VIII. The navigation of the river Mississii)pi, from its source to the ocean, shall for ever remain free and open to the subjects of Great Britain and the citizens of the United States. IX. In case it should so hai)pen that any jjlace or territory belonging to Great Britain, or to the United States, should have been conquered by the arms of either, from the other, V)efore the arrival of the said provisional articles in America, it is agreed that the same shall be restored without diffi- culty, and witlioiit requiring any compensation. X. The solemn ratifications of the present treaty, expedited in good and' due form, shall be exchanged between the contracting parties in the sp:u!e of six months, or sooner if possible, to be computed from the day of the signature of the present treaty. 1 British gaiTisous continued to occupy the forts within the United States at Niagara. Detroit, Mackinac, and otlier frontier posts, until the Jay Treaty was. concluded in 171)4. BOUNDARIES OF CANADIAN PROVINCES. 271 APPENDIX B. BOUNDAEIES OF CANADA, AND OF THE CANADIAN PROVINCES. I. The Province of Nova Scotia. This Province, with the exception of Cape Breton, was surrendered to Great Britain by France under the Treaty of Utrecht, 1713, i but its boun- daries were left to be determined by " Commissioners " appointed by each Government within a year.- The provision respecting delimitation was not carried out, and in 1720 Major (afterwards Governor) Mascarene prepared for the infonnation of the Lords of Trade and Plantations a description^ of Nova .Scotia from which the following extract is taken : The boundaries having as yet not been agreed on between the British and French Governments in these i)arts as stipulated in the 10th article of the Treaty of Utrecht, no just ones can be settled in this description. The extent of the Province of Nova Scotia or Acadie, according to the notion the Britains have of it, is from the limits of the Government of Massachusetts Bay in New England, or Kennebeck River, about the 44th degree north latitude, to Cape de Roziers on the south side of the entrance of the River of St. Lawrence in the 44th degree of the same latitude, and its breadth extends from the eastermost jjart of the Island of Cape Breton to the south side of the River St. Lawrence. Out of this large tract the French had yielded to them at the above treaty the islands situated at the mouth of the River St. Lawrence and in the Gulph of the same, with the Island of Cape Breton.^ An unsuccessful attempt was made by the appointment of " Commissaries " under the Treaty of Aix-la-Chapelle, 1748, to settle the question of the Acadian boundaries, Governor Shirly, of Massachusetts, representing the British Government.'^ The western and northern boundaries of Nova Scotia 1 See p. 4 above. ■■J See p. 3 above. •*< "Nova Scotia Archives," pp. 39-40. i See pp. 4-5 above. s Haliburton's History of Nova Scotia, vol, I-, pp. 142-149. 272 APPENDIX B. remainctl undeteniiiiHHl until the IJritish cuiujucst of Caiiada, and tlu- sur- render of the whole country under the Treaty s hv liiid givt-n the inforinatiun that Louisiana extended on one side " to the carrying jilace of the Miamis, which is the height of the lands, whose rivers run into the Oualuichc ; and on the other to tlie head of the river of the Illinois." (Jen. Haldinuind, the officer above referred to, in a letter to (xen. Amherst, commenting on the letter of the Marquis de Vandrcuil, states that in the presence of the latter before he left Montreal and without any protest from him, he drew a pencil line on a map which carried the limits of Canada from the source of the Illinois River to the Mississippi and thence northward to Ked T^ake, and up the Ohio and Wabache from the junction of the former with the Mississippi. ^ This would seem to include in the ceded territory the States of Michigan, Wisconsin, Illinois, and jiarts of Indiana and Minnesota, as well as the territory east of tlie Wabash and north of the Ohio. By the Royal Proclamation of 1703 the ('astern [)art of Canada was includt-d in the new Province of Quebec,^ and by the C^uebec Act of 1774 this Province was enlarged so as to be quite as extensive as Canada was in the concep- tion of Gen. Haldimand.'^ A new southern bomidary was given to Quebec by the Treaty of Paris of 1783. the most important change being the severance from the Province of all the region south of Lakes Erie and Ontario as far as the Ohio, and of all west of Lakes Huron and St. (^lair as far west as the Mississippi.'* In 1791, by Order-in-Council,'' in connection with the passing of the Constituticmal Act, Quebec was divided into Upper and Lower Canada, the dividing line being thus defined : " To commence at a stone boundary on the north bank of the Lake St. Francis, at the cove west of Pointe an Boudet, in the limit between the Town- sliip of Lancaster and the Seigneurie of N(nv lidnsufiiil, running along the said limit in the direction of north thirty-four degrees west to the westernmost angle of the said Seigneurie of New Longueuil, thence along the north- western boundary of the Seigneurie of Vaudreuil. running north twenty-five degrees east until it strikes tlie Ottawa river, to ascend the said river into the Lake Tomiscaming, and from tlie head of the said lake, by a line drawn due north mitil it strikes the boundary line of Hudson's Bay, including all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or kncjwn by the name of Canada.'" In the Jay treaty of 1794 an effort was made to define the boundary between British America and the United States more accurately than had been done by the second article of the Treaty of Paris, 1783." Article IV. of the Jay treaty provided a method of locating the boundary west from the Lake of 1 An English translation of this letter is published in full in the " Documents" ■which made part of the Outario boundary case before the Privy Council in 1884 (pp. 519.520). The original French text is f,'iveu in Kanisay's Report on the boundaries of Ontario (Appendix to Commons Journals of 1H80, pp. 233-234). 'i See p. 67 above. s See pp. 90-91 above, and Gov. Carloton's Commission (Ontario Boundary case 1884, pp. 375-370). * Treaty of Paris, 1783 (pp. 267-208 above). 5 " Documents " in Ontario Boundary case, 1881 (p. 400). s See Note 4 above. BOUNDARIES OF CANADIAN PROVINCES. 275 the Woods in the event of its being ascertained that the Mississippi did not extend so far north as a due west line from its north-west angle. Article V. provided for the appointment of three Commissioners to decide what river was meant b3' the " St. Croix," mentioned in the Treaty of 1783. The Treaty of Ghent, 1814, contained further provisions for the accurate definition of the same boundary. Article V. provided for the appointment of two Commissioners to "ascertain and determine " the points mentioned in the Treaty of 1783 between the mouth of the St. Croix and the intersection of the St. Lawrence by the 45th parallel of latitude. Article VI. provided a similar method for ascertaining the precise location of the boundary through the River St. Lawrence and the great lakes to the " water communication " between Lake Huron and Lake Superior ; and Article VII. made similar provision for ascertaining the boundary between the same " water communi- cation " and " the most north-western part of the Lake of the Woods." In 1822 the Commissioners^ under Article VI. of the Treaty of Ghent gave a decision, the text of which minutely describes the international boundary from a "stone monument,- 1840 yards distant from the stone church in the Indian village of St. Regis," on the south bank of the St. Lawrence, to "the foot of the Neebish rapids," in the River St. Mary, which is the outlet of Lake Superior. This boundary line is described with reference mainly to the islands amongst which it passes, and which are especially numerous in the ' ' Thousand Islands " archipelago. The utmost care is taken to name or number all the islands adjacent to it in the St. Lawrence River proper, in the Niagara River, at the west end of Lake Erie, in the Detroit and St. Clair Rivers, and in the River St. Mary as far as the Neebish Rapids, which the Commissioners made the terminus of their survey. The Convention of London, 1827,^ provided for a reference of the matter dealt with by Article V. of the Treaty of Ghent " to some friendly sovereign or state," but no precise and detailed definition of the boundary between the head waters of the St. Croix and the intersection of the St. Lawrence by the 45th parallel of latitude was given until it was embodied in the first article of the Ashburton Treaty of 1842. The second article of the same treaty gave a detailed description of the boundary from the Neebish Rapids up the River St. Mary, amongst the islands of Lake Superior to the mouth of Pigeon River, and thence to the ' ' northwestern point " of the Lake of the Woods. "* By these various conventions and awards the southern boundary of Quebec and Ontario was permanently determined from the "northwest angle of Nova Scotia" (now New Brunswick) westward to the "northwest angle" of the 1 Peter B. Porter and Anthony Barclay. 2 Erected in 1817. 3 October 20. There was another convention agi-eed to on the 6th of August of the same year, dealing with the disputed territory west of the Rocky Mountains. For a good account of the state of the boundary controversy at this time see Bouchette's " British Dominions in North America," London, 1832. 4 The Commissioners who had been appointed to settle this part of the boun- dary under Article VII. of the Treaty of Ghent differed hopelessly on some parts of the route. Their report is given in full in Hertslet's " Treaties," vol. XIII., pp. 892-913. H.C.C. 18 276 APPENDIX B. Lake of tlie Woods. By tht! unaiiimoiis award of tliree arbitrators' in 1S7S the western and northern boundaries of Ontario were given in detail from the last mentioned angle by way of the English and Albany rivers to Hudson's Bay where its shore ia intersected by a line drawn due north fnini Lake Temiscaniing.'^ The Imperial I'rivy Council in 18S4 made an indejiendent award^ under a joint reference by the Governments of Ontario and Manitoba, \irtually confirming the award of 1878 pro lantn. Both of these decisions were superseded by the passage of an Imperial Acf* in lS8ft, in response to the subjoined address from both Houses of the Dominion Parliament. The preamble to the Act states that the (iovernment of Ontario have assented^ to the boundaries specified in tlie address, that the bc^undary between Ontario and Quebec is identical with the one fixed by the proclamation" of the (xovemor-Cieneral in November, 1791, and that tlie boundary between Ontario and Manitoba is identical with the one found correct by the Privy Council in 1884. The address above referred to contains the details of the westerly, northerly, and easterly boundaries of Ontario, which are thus made legally valid, as follows : We, your Majesty's most dutiful and loyal subjects, the Senate and Commons of Canada, in Parliament assembled, humbly approach your ^lajesty with tiie request that your Majesty may be graciously pleased to cause a measure to be submitted to the Parliament of the United Kingdom, declaring and providing the following to be tlu^ westerly, northerly, and easterly boundaries of the Province of Ontario, that is to say : — Commencing at the point where the international boundary between the United States of America and Canada strikes the western shore of Lake .Superior, thence westerly along the said boimdary to the northwest angle of the Lake of the Woods, thence along a line drawn due north until it strikes the middle line of the course of the river discharging the waters of the lake called Lake Seul or the Lcmely Lake, whether above or below its confluence with the stream flowing from the Lake of the Woods towards Lake Winnipeg, and thence proceeding eastward from the point at which the before-mentioned line strikes the middle line of the course of the river last aforesaid, along the middle line of the course of the same river (whether called by the name of the English River or, as to the part below the confluence, by the name of the River Winnijjeg) up to Lake Seul or the Lonely Lake, and thence along the middle line of Lake Seul or Lonely Lake to the head of that lake, and thence by a straight line to the nearest point of the middle line of tiie waters of Lake St. 1 Sir Francis Hincks acting for the Doniinion of Canada, Chief Justice Harrison for the rroviuce of Ontario, and Sir Edward Thornton as referee. See Ontario Sessional Papers of 1879, No. 22. 2 See Order-in-Couucil of 1791, dividing Quebec into Upper and Lower Canada, p. 274 above. 8 Ontario Sessional Papers for 1885, No. 8, and Dom. Sess. Papers for 1886> No. 12.3 b. ■1 Known as " The Canada (Ontario Boundary) Act," 52 and 53 Vict. cap. 28. ■> See Revised Statutes of Ontario, 1887, cap. 4 ; and Ont. Stat. 42 Vict. cap. 2. 6 The proclamation fixes the boundary in a general way from Lake Temis- caming to Hudson's Bay. In 1874 the Ontario Legislature passed an Act (38 Vict- cap. 5), which makes provision for a determination of the boundary in detail. A similar .\ct was passed in the same year by the Quebec Le^islatiire (38 Vict, cap. 6i, Ijut thouRh each of these statutes has been re-enacted (K. S. O., 1S77, cap. 3; K. S O., 18S7, cap.3; and K. S. Q., 1888, Title I., cap. l.i the Dominion Parlia- ment has not taken any steps to establish the line of boundary agreed upon by the Provinces. BOUNDARIES OF CANADIAN PROVINCES. 277 Joseph, and thence along that middle line until it reaches the foot or outlet of that lake, and thence along the middle line of the river by which the waters of Lake St. Joseph discharge themselves to the shore of the part of Hudson's Bay commonly known as James' Bay, and thence south-easterly following upon the said shore to a point where a line drawn due north from the head of Lake Temiscamingue would strike it, and thence due south along the said line to the head of the said lake, and thence through the middle channel of the said lake into the Ottawa River, and thence descendingr along' the middle of the main channel of the said river to the intersection by the prolongation of the western limits of the Seigneurie of Rigaud, such main channel being as indicated on a map of the Ottawa Ship Canal Survey made by Walter Shanly, C.E., and approved of by an Order of the Govemor-General-in-Council, dated the twenty-first July, one thousand eight hundred and eighty-six ; and thence southerlj- following the said westerly boundary of the Seigneurie of Rigaud to the southwest angle of the said Seigneurie, and then southerly along the western boundary of the augmentation of the township of Newton to the northwest angle of the Seigneurie of Longueuil, and thence south-easterly along the south-western boundary of the said Seigneurie of New Longueuil to a stone boundary on the north bank of the Lake St. Francis at the cove west of Point au Baudet, such line from the Ottawa River to Lake St. Francis being as indicated on a plan of the line of boundary between Upper and Lower Canada, made in accordance with the Act 23 Victoria, chaper 21, and approved by Order of the Governor-General-in-Council, dated the ICth of March, 1861. The easterly boundary of Ontario is the westerly boundary of Quebec, and the southerly boundary of that Province is fixed by the Ashburton Treaty, 1842, on the side of the United States, and by Imperial Statute^ on the side of New Brunswick. On the east Quebec is bounded by the Gulf of St. Lawrence and Labrador and its northerly boundary is still undetermined as a whole, but is fixed as to its western extremity at the point where the due north line from Lake Temiscaming intersects the south shore of Hudson's Bay.2 4- The Province of Manitoba. The boundary between the then Province of Quebec and the United States, as fixed by the Treaty of Paris of 1783, stopped at the Mississippi.* Article 1 See pp. 272-273 above. 2 By the Royal Proclamatiou of 1763 the River St. John was made the easterly limit of the Province of Quebec on the north shore of the St. Lawrence, all the rest of that shore aud of the Atlantic coast of Labrador to Hudson's Straits being, with Auticosti and the other islands in the Gulf of St. Lawrence, annexed to Newfoundland. Labrador, the north shore of the river and Gulf of St. Lawrence, and the islands in the gulf, were all transferred to Quebec by the Quebec .4.ct of 1774. They remained part of Quebec till 1791 aud part of Lower Canada till 1809, in which year the Imperial Parliament passed au Act (49 George III. cap. 271, which re-annexed to Newfoundland, with the exception of the " Madelaine " islands, all that had been added to it by the Proclamation of 1763. The Imperial Parliament passed an Act in 182.5 (6 George IV. cap. 59), restoring to Lower Canada part of what had been thus taken from it in 1807, including the Island of .4nticosti and so much of the north shore of the river and Gulf of St Lawrence as " lies to the westward of a line to be drawn due north and south from the bay or harbour of Ance Sablon, inclusive, as far as the fifty-second degree of north latitude." Though the northern boundary of Quebec has never been defined it is worthy of remark that the fifty-second parallel is further north than the intersection of the south shore of Hudson's Bay by the due uorth line from Lake Temiscaming. 3 See p. 268 above. 278 APPENDIX B. IV. of the Jay Treaty of 1794 provided for a survey of that river from below the falls of St. Anthony (IMinneajxili.s) for the purirose of ascertaining wluither it extended far enough north to intercept a due west line from the northwest angle of the Lake of the Woods. ]>y the London Convention of 1818 : "It is agreed that a line drawn from the most nortln\cstern ix)int of the Lake of tlie Woods along the 4I)th parallel of nortli latitude, (jr if the said point shall not he in the 4!)th jiarallel of north latitude then tliat a line drawn from the said point due north or south, as the case may he, until the said line shall intersect tiie said parallel of north latitude, and from the jioint of such intersection duf! west alonj: and with t\w said parallel, shall he the line of de- marcation between the territories of tlie UnitedStates and those of his IJritannic Majesty, and tliat ttie said line shall form tlie nortliern boinidary of the said territories of the United States and the southern bo\uidar.y of the territories of his Britannic Majesty, from the Lake of the Woods to the Stonyi Moun- tains. The western, iKjrthern, and eastern boundaries of Manitoba have been twice defined by the Parliament of Canada, (1) by the Act^ which created the Province in 1870, and (2) by the Act"* which enlarged its area and extended its boundaries in 1881. By the definition in the latter statute Manitoba extend.s from the United States boundary on the south to " the twelfth base line in the 8y.steni of Dominion Land Surveys " on the north, and from the line between the twenty-ninth and thirtieth ranges of townships west of the first principal meridian on the west, to a line drawn due north from the point where the Ontario boundary intersects that of tlu; United States on the east. 5- The Province of British Columbia. When by the London Convention of 1813 the 4!)th i)arallel of north latitude was fixed as the international boundary the region west of the Rocky Moun- tains was comparatively unknown, and neither Great Britain nor the Ifnited States was in undisi>nted ])ossession of it. By the .same conventicm (Article III.) it was arranged that the ccmimercc and navigation of the whole Pacific slope should be "free and open" to the citizens of both countries for ten years. In 1825, by Articles III. and IV. of the Treaty of St. Petersburgh, it was agreed between Great Britain and Russia that the boundary of Alaska should begin at Prince of Wales Island in .54 degrees 40 minutes north latitude, run up the Portland Channel to the Hdth degree, thence pass along the summit of the mountain chain till it intersected the 141st meridian, and then follow that meridian to the " Frozen Ocean." 1 Now " liocky " Mountains. •■i Dom. Stat. 33 Vict. cap. 3. » Dom. btat. a Vict. cap. 14; li. S. C, 1886, cap 47. BOUNDARIES OF CANADIAN PROVINCES. 279 In 1827 (Aug. 6) a convention was adopted at London between Great Britain and the United States by which the agreement of the third article of the Convention of 1818 was "indefinitely extended and continued in force," and it continued in force until superseded by the Treaty of Washington, 1846, which provided that the 49th parallel should be the international boundary from the Rocky Mountains " to the middle of the channel which separates the continent from Vancouver's Island, and thence southerly through the middle of the said channel, and of Fuca's straits to the Pacific Ocean. " Further knowledge of this " channel " brought to light the fact that there are two channels, the Rosario Strait on the United States side of the San Juan archipelago, and the Canal de Haro on the British side of it. The dis- pute as to which was the one meant in the treaty of 1846 was settled by an award of the Emperor of Germany under a provision of the Treaty of Washington, 1871, and in favour of the United States contention. The Canal de Haro is now, therefore, a part of the boundary. By Imperial Statute ^ Vancouver's Island was in 1849 made virtually a self- governing colony. A similar status was in 1858 ^ conferred on British Columbia, the Act of the British Parliament giving it boundaries as follows : On the south " the frontier of the United States " ; on the east the " main chain of the Rocky Mountains"; on the north "Simpson's river and the Finlay branch of the Peace " ; on the west the Pacific Ocean, Queen Char- lotte's Island being included. In 1863, by Imperial Statute, ^ the boundaries at present in existence were thus fixed : "British Columbia shall * * * * be held to comprise all such terri- tories within the d(jminions of Her Majesty as are bounded to the south by the territories of the United States of America, to the west by the Pacific Ocean and the frontier of the Russian territories in North America, to the north by the sixtieth parallel of north latitude, and to the east, from the boundary of tlie United States northwards by the Rocky Mountains and the one hundred and twentieth meridian of west longitude, and shall include Queen Charlotte's Island and all other islands adjacent to the said territories, except Vancouver's Island and the islands adjacent thereto." Vancouver's Island became part of British Columbia in 1866,^ and five years later the united colony became a Province of the Dominion of Canada. 6. The North-West Territories. This title^ is applied to the whole region fonnerly known as "Rupert's Land " and the " North-West Territory,"' except the Province of Manitoba 1 12 & 13 Vict. cap. 48. 2 By 21 & 22 Vict. cap. 99. 3 26 & 27 Vict. cap. 83. * See Note 30, p. 233 above. « See Dom. Stat. 43 Vict. cap. 25 ; R. S. C. 18S6, cap. ,50. 280 APPENDIX B. and the District of Kccwatin.^ It is boinulcd on the south Ijy tiic 4'Jth parallfl of north latitude ; on the west by the Kockj' Mountains, the 120th meridian, the (JOth parallel of north latitude west to Alaska, and the 141st meridian to the Arctic Ocean ; and on the east liy the western boundaries of Manitoba^ and the District of Keewatin.-'' Politically the " Northwest Ter- ritories " is a unit, there being but one Lieutenant-Governor and one Legisla- tive Assembly for the whole territory ; but the southern portion of it has been divided^ into four "provisional districts '' — Assiniboia, Alberta, Saskatchewan, and Athabasca. 7. The Dominion of Canada. A synthesis of the boundaries of the various Provinces, as given above, furnishes the data for a description of the boundary of the Dominion as a whole. Beginning at the intersection of the shore of the Arctic Ocean by the 141st meridian, the Arctic and Atlantic Oceans form the boundary as far as Hudson's Straits. Labrador,' the (iulf of St. Lawrence and the Atlantic Ocean, continue it as far as Cape Sable, including the Magdelene Islands, Anticosti, Prince Edwai'd Island, Cajjc Breton, Sable Island and all other islands within six leagues'' of the coast in the (iulf of St. Lawi-ence, and within forty leagues of the Atlantic coast of Nova Scotia.^ From Cape Sable to the mouth of the St. Croix River the boundary is a line drawn across the entrance of the Bay of Fundy," .so as to give the Grand Manan grouj) of islands and most of those in Passamoquoddy Bay to Canada.'' It follows the St. Croix to its source, ^'^ runs due Hf)rth to the St. .John, and then passes by a very irregular route to the intersection of the soutli bank of the St. Lawrence 1 For the boundaries of Keewatin, see Dom. Stat. .39 Vict. cap. 21 ; R.S.C. 1886, cap. 53. 2 See p. 278 above. » This is a line duo north to the Arctic ocean from "Cedar Portage," at the head of Lake Wiunipet^osis. * Hv order of the Governor-General in Council, on the 8th of May, 1882 Seo Dom. Sess. Paper of 1882. No. 172. •'• See Note 2, p. 277. On the 31st of July, 18K0, an Imperial Order-in-Council was passed in the following terms: " From and after tlie first day of September, 18S0, all Hritish territories and possessions in North America, not already included within the Dominion of Canada, and all islands adjacent to any of such territories or possessions, shall (with the exception of the Colony of Newfoundland and its dependencies) become, and be annexed to, and form part of, the said Dominion of Cana Commission to Gov. Paterson, pp 21-22 above. T Article II of the Treaty of Paris, 1783, pp. 267-268 abOTe. • Gov. Paterson's commission, pp. 21-22 above. » .Vrticle IV. of the Treaty of Ghent, 1811; and Decision of the Commission under that article, Ncjv. 24tli, 1817. 10 Article II. of the Treaty of Paris, 1783; Article V. of the Jay Treaty of 1794; ex- planatory article added to the Jay Treaty in 1798; the Convention of London, September 29th, 1827. BOUNDARIES OF CANADIAN PROVINCES. 281 by the 45th parallel, i From that point it follows the navigable channel of the St. Lawrence to Lake Ontario, passes through that lake, the Niagara River, Lake Erie, Detroit River, Lake St. Clair, River St. Clair, Lake Huron and the lower part of the St. Mary River to the foot of the Neebish Rapids. 2 From the Neebish Rapids the boundary is continued up the St. Mary River to and through Lake Superior to the mouth of Pigeon River, thence by way of Rainy Lake and Rainy Rivei' to the northwest angle of the Lake of the Woods. -^ From the northwest angle of the Lake of the Woods the boundary runs due south to the 49th parallel and along that parallel to the Strait of San Juan de Fuca, and througli it to the Pacific Ocean. * The western boundary of the Dominion is the Pacific Ocean and the Port- land Channel to the inland terminus of the latter, the Rocky Mountains to their intersection by the 141st meridian, and that meridian to the Arctic Ocean. 5 1 Article I. of the Ashburton Treaty, 1842. •2 Article II. of the Treaty of Paris, 1783; Article VI. of the Treaty of Ghent, 1814 ; Decisiou of the Commissioners under the last mentioued Article, made at Utica, June 18th, 1822. < Article II. of the Treaty of Paris, 1783; Article IV. of the Jay Treaty of 1794; Article VII. of the Treaty of Ghent, 1814 ; Article II. of the Ashburton Treaty, 1842, ■4 Article II. of the Convention of London, October 20th, 1818; Article I. of the Treaty of Washington, 184G; Article XXXV. of the Treaty of Washington, 1871; Award of the Emperor of Germany, October 21st, 1872. 5 Articles II. and III. of the Treaty of St. Petersburg, 1825. 282 APPENDIX C. APPENDIX C. I. EXTRADITION OF FUGITIVE CRIMINALS. Fugitive criminals may be surrendered by one country at the request of another, in accordance with intei-national comity ;i they must be surrendered by one country at the demand of another, if both countries have agreed by treaty to make such surrenders. Extradition is now for the most part a matter of treaty arrangement among civilized nations. As between Great Britain and tlie United States, tlie (mly treaty provisions heretofore adopted are the following : I. The Jay Treaty," London, 1794- Article XXVII. It is further agreed that Uis Majesty and the United .States, on mutual requisitions by them respectively, or by their respective ministers or officers authorized to make the same, will deliver up to justice all persons, who, being charged with murder or forgery,^ committed within the jurisdiction of either, shall seek an asylum within any of the countries of the other, provided that this shall only be done on such evidence of criminality, as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his ap[)rehension and commitnieiit for trial, if the offence had there been committed. The expense of such apprehension and delivery shall be borne and defrayed by those wlio make the requisition and receive the fugitive.' 1 For a lucid discussion of this ground of surrender, see Spears "Law of Extra* dition," Chapter I ; Clarke's "Law of Extradition," Tbird Edition, Chapter I. 2 See Clarke's "Law of Extradition," Chapter IIL s Compare the list of crimes in the Asliburtou Treaty of 1842. * By Article XXVIII. of tlio same Treaty, it was provided that Article XXVII. slioukl remain in force for only twelve years. The strained relations between the two powers prevented its renewal. Each of the treatises mentioned in Note 1, gives some account of the difficulty thrown in the way of its operation by the want of legislation to give it effect. EXTRADITION AND FISHERIES. 283 2. The Ashburton Treaty/ Washington, 1842. Article X. It is agreed that the United States and Her Britannic Majesty shall, upon mutual requisition by them, or their ministers, officers, or authori- ties, respectively made, deliver up to justice all persons who, being charged with the crime'^ of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or shall be found within the territories of the other ; provided that this shall only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged shall be found, would justify his apprehension and commitment for trial, if the crime or offence had there been committed ; and the respective judges and other magistrates of the two governments shall have power, jurisdiction, and authority, 3 upon complaint made under oath, to issue a warrant for the apprehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered ; and if, on such hearing, the evidence be deemed sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may iss\xe for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and defrayed by the party who makes the requisition, and receives the fugitive. T^j * ♦ » * r^^^ tenth article shall continue in force until one or the other of the parties shall signify its wish to terminate it, and no longer.^ 1 For an account of the Holmes case, which was the occasion of Article X. of the Ashburton Treaty, see Spears' "Law of Extradition," Chapter II., and Clarke's "Law of Exti-adition," Chapter III. 2 Compare this list of extradition crimes with the list in the Jay Treaty above. The two treatises specified in Note 1 contain ample data for arriving at a defini- tion of these terms. 3 Two alleged criminals were extradited under this treaty by the United States authorities at the request of the British Government, before any statute was enacted by Congress to give it effect. This was done in 1848 (9 U. S. Statutes at Large, 302). This Act was supplemented by another in 18fiO (U. S. Statutes at Large, 84), and by subsequent enactments of less importance. In 1843 an Act (6 & 7 Vict. cap. 76) was passed by the British Parliament to give effect to the tenth Article of the Ashburton Treaty, and this was supplemented by two later Acts (8 & 9 Vict. cap. 120, and 29 & 30 Vict, cap 121). These three Statutes were all repealed by "The Extradition Act, 1870" which is still in force. The Canadian Statutes dealing with this subject are "The Extradition Act, 1877" (40 Vict. cap. 25;; an Act passed in 1882 (4,5 Vict. cap. 21) to amend the A.ct of 1877 ; the consolidation of these two Acts in the Revised Statutes of Canada, 1&S6 (cap. 142); and an Act (52 Vict, cap. 36) passed in 1889 to provide for the extradition of criminals to countries between which and Great Britain no extradition treaty exists. * The Ashburton Treaty was virtually suspended for a short time in 1876 as the result of a difference of opinion between the British and United States Govern- ments ovei its working. (Spear's " Law of Extradition," cases of Caldwell, Law- rence, and Winslow.) 284 APPENDIX C. II. STIPULATIONS WITH FRANCE RESPECTING FISHERIES. 1. The Treaty of Utrecht, 1713' 2. The Treaty of Paris, 1763' 3. The Treaty of Versailles, 1783." British Declaration,'^ Vermilles, 1783. * * * In order that the fishennen of the two nations may not give cause for daily quarrels, His Britannic Majesty will take the most positive measures for preventing his subjects from interrupting, in any manner, by their com- petition, the fishery of the French, during the temporary exercise of it which is granted to them, upon the coasts of the Island of Newfoundland ; and he will, for this purpose, cause the fixed settlements which shall be formed there to be removed. His Britannic Majesty will give orders, that the French fishermen be not incommoded, in cutting the wood necessary for the re]«iir of their scaffolds, huts, and fishing vessels. The thirteenth article of the Treaty of Utrecht, and the method of carrying on the fishery, which has at all times been acknowledged, shall be the plan upon which the fishery shall be carried on there ; it shall not be deviated from by either party ; the French fishermen building only their scatfolds, confining themselves to the repair of their fishing vessels, and not wintering there ; the subjects of His Britannic Majesty, on their part, not molesting in any manner the French fishermen during their fishing, nor injuring their scaffolds during their absence. The King of Great Britain, in ceding the islands of St. Pierre and Miquelon to France, regards them as ceded for the purpose of serving as a real shelter to the French fishermen, and in fidl confidence that these possessions will not become an object of jealousy between the two nations ; and that the fishery between the said islands and that of Newfoundland shall be limited to the middle of the channel. French Counter-Declaration,* Versailles 1783. * * * The King of Great Britain undoubtedly places too much con- fidence in the uprightness of His Majesty's intentions, not to rely upon his constant attention to prevent the islands of St. Pierre and Miquelon from becoming an object of jealousy between the two naticms. As to the fishery on the coasts of Newfoundland, whicli has been the object of the new arrangements settled by the two sovereigns upon this matter, it is sufficiently ascertained by the fifth article of the treat}' of jjeace signed this 1 See Articles XII.-XIII., pp. 4-5 above. 2 See Articles V.-VI., pp. 62-6:!, above. 8 See Articles IV.-VI., pp. '266-'267 above. •* Signed on tlie same day with tlie Treaty of Versailles, 1783. Both the treaty and the declarations were annulled by the outbreak of the war in 179.'J. EXTRADITION AND FISHERIES. 285 day, and by the declaration likewise delivered to-day by His Britannic Majesty's Ambassador Extraordinary and Plenipotentiary ; and His Majesty declares that he is fully satisfied on this head. In regard to the fishery between the island of Newfoundland and those of St. Pierre and Miquelon, it is not to be carried on by either party but to the middle of the channel ; and His Majesty will give the most positive orders that the French fishermen shall not go beyond this line. His Majesty is fimily persuaded that the King of Great Britain will give like orders to the English fishermen. 1 4. Treaty of Paris, 1814. XIII. The French right of fishery upon the Great Banks of Newfoundland, upon the coasts of the island of that name, and of the adjacent islands in the Gulph of St. Lawrence, shall be replaced"- upon the footing s in which it stood in 1792. III. TREATY STIPULATIONS WITH THE UNITED STATES RESPECTING FISHERIES. 1. Treaty of Paris, 1783.' 2. Convention of London, 1818. I. Whereas differences have arisen respecting the liberty claimed by the United States, for the inhabitants thereof, to take, dry, and cure fish, on cer- tain coasts, bays, harbours, and creeks, of his Britannic Majesty's dominions in America, it is agreed between the high contracting parties, that the inhabi- tants of the said United States shall have forever, in common with the subjects of his Britannic Majesty; the liberty to take fish of every kind on that part of the southern coast of Newfoundland which extends from Cape Ray to the Rameau Islands, on the western and northern coast of Newfoundland, from 1 In 1788 the British Parliament passed an Act (28 George III. cap. 35) " to carry into effect the Treaty of Peace with Prance of 1783, and the declaration annexed thereto, relative to the Newfoundland fishery." The preamble to this Statute recites Article XIII. of the Treaty of Utrecht (1713), Article V. of the Treaty ot Versailles (1783), and the above declaration of the same date, and authorize the King in Council to give from time to time such " orders and instructions" as may seem necessary to fulfil the purposes of these various conventions. 2 See Note 4, p 284. 3 What that footing was, in the opinion of the British Government, may be seen from a note sent by Lord Palmerstou in 1838 to Count Sebastiani, the French Ambassador. See Pedley's " History of Newfoundland," Appendix VI. In 1857, a Convention between Great Britain and France, " relative to the rights of fishery on the Coast of Newfoundland and the neighbouring coasts," was concluded at London in 1857 (Hertslet's Treaties, vol. X.. pp. 749-7.55), subject to ratification by the "Imperial Parliament of Great Britain and by the Provincial Legislature of Newfoundland, Her Britannic Majesty engaging to use her best endeavours to procure the passing of such laws," The additional concessions made to France by this convention aroused such opposition in the Newfoundland Legislature that the convention itself became a dead letter (See Pedley's "History of Newfound- land," p. 432, for the despatch withdrawing the proposals.) * See p. 268 above. 286 APPENDIX C. the said Capo Ray to the Quirpon Islands, on the shores of the Maf,'dalcn Islands, and also on the coasts, bays, harbours, and creeks, from Mount .Toly on the southern coast of Labrador to and through the Streights of Bclk-isle, and thence northwardly indefinitely along the coast, without prejudice, how- ever, to any of the exclusive rights of the Hudson Bay Company : And that the American fishermen shall also have liberty forever to dry and cure fish in any of the unsettled bays, fiarbours, and creeks of the southern part of the coast of Newfoundland hereabove described, and of the coast of Labrador ; l)ut so soon as the same, or any portion thereof shall be settled, it shall not be lawful for the said fishermen to dry or cure fish at such jxirtidii so settled, without pre- vious agreement for such purpose with the inliabitauts, projjrietors, or posses- sors of the ground. And the L^nited .States licreby renounce forever any liberty heretofore enjoyed or claimed by the inhabitants thereof to take, dry, or cure fish, on or within three marine miles of any of the coasts, bay, creeks, or harbours, of his Britannic Majesty's dominions in America, not included within the above mentioned limits : Provided, however, that the American fishermen shall be admitted to enter sucli bays or harbours for the purpose of shelter and of repairing damages therein, of purchasing wood, and of obtaining water, and for no other purpose whatever. But they shall be under such restrictions as may be necessary to prevent their taking, drying, or curing fish therein, or in any other manner whatever abusing the privileges hereby reserved to them.i 3, The Treaty' of Washington, 1854. I. it is agreed liy tile high eontr;u;ting parties, tliat in addition to the liberty .secured to the United States fishermen by the Convention of October 20, 1818, of taking, curing, and drying fish on certain coasts of the British North Ameri- can colonies therein defined, the inhabitants of the United States shall have, in common with the subjects of her Britannic Majesty, the liberty to take fish of every kind, except shell-fish, on the sea coasts and shores, and in the bays, harbours, and creeks of Canada, New Brunswick, Nova Scotia, Prince Edward Island, and of the several islands thereunto adjacent, without being restricted to any di.stance from the shore ; with permi.ssion to land upon the coa.sts and shores of those colonies and the islands thereof, and also upon the Magdalen Islands, for the piiriiose of drying their nets and curing their fish ; provided that in so doing they do not interfere with the rights of private property, or with British fishermen in the peaceable use of any part of the said coast in their occupancy for the same purjiose. It is understood that the above 1 The convention of 1818 was supplemented in 1819 bv an Act of tlio Kritish Par- liament (59 George III. cap :38), to enable the British Government to make regu- lations for its effective enforcement. Under the aui liority of this .Vet an Imperial Orcler-iu-Council was passeil in the same year in-oliibitiuK all molestation of United States fishermen so long as they kept within the limits assigned to them by treaty (Hertslet's Treaties. Vol. X., pp. (i:)") (a!!). In 1814, an Imperial Order-in-Ccnineil was passed confirming an .Vet passed in 181.i by the Prince Edward Island Legislature (G Vict. cap. 14i to regulatp fishing by United States citizens in the vicinity of that Province (Hertslet's " Treaties," Vol. X., pp. G36-638) i Better known as the " Reciprocity " Treaty. EXTKADITIONS AND FISHERIES. 287 mentioned liberty applies solely to the sea fishery, and that the salmon and shad fisheries, and all fisheries in rivers and the mouths of rivers, are here- by reserved exclusively for British fishei-men. * * * II. It is agreed by the hif^h contracting parties that British subjects shall have, in common with the citizens of the United States, the liberty to take fish of every kind, except shell-fish, on the eastern sea-coasts and shores of the United States north of the 36th parallel of north latitude, and on the shores of the several islands thereunto adjacent, and in the bays, harbours, and creeks of the said sea-coasts and shores of the United States and of the said islands, without bemg restricted to any distance from the shore ; with permission to land upon the said coasts of the United States and of the islands aforesaid for the purpose of drying their nets and curing their fish, provided tliat in so doing they do not interfere with the rights of private property, or with the fishermen of the United States in the peaceable use of any part of the said coasts in their occu- pancy fur the same purpose. It is understood that the above-mentioned liberty applies solely to the sea fishery, and that salmon and shad fisheries and all fisheries in rivers and mouths of rivers, are hereby reserved exclusively for fishermen of the United States, i 4. The Treaty of Washington, 1871.^ 1 Article V. provided that the treaty should remain iu force ten years from the date when it came into operation, and further until the expiration of twelve months after either of the high contracting parties should give notice to the other of its wish to terminate it; each party being at liberty to give such notice to the other at the end of the said term of ten years, or at any time afterwards. The United States gave notice under this Article on the 17th of March, 1665, and the treaty lapsed on the 17th of March, 1806. For the Act of Congress of the United States, and the Acts of the Parliaments of Canada. Nova Scotia, New Brunswick, Prince Edward Island. Newfoundland, and Great Britain, giving effect to the Treaty of 1S54. see Hertslet's " Treaties," Vol. X. pp. 647-655. 2 The fishing privileges extended to the fishermen of each country under Articles XVIII-XX of this treaty were co-extensive, geographically and otherwise, with those embodied in the treaty of 1854 above. Article XVI. secured the admission of flsh-oil and fish (except fresh water fish and fish preserved in oil) into the United States, and Articles XXII. -XXV. provided for the settlement by arbitration of the amount that should be paid by the United States to compensate for the greater value of the British concession. The articles dealing with the fisheries were to continue in force for ten years, after which either party might give two years' notice of its wish to terminate them. The treaty took effect from the first of July, 1873, and the United States Government having given notice as jirovided, the fisheries articles lapsed in 1885. A treaty dealing with the fisheries question was negotiated at Washington iu 1888 (Dom. Sess. Papers for 1888, No. 30), but it was not approved of by the United States Senate. An arrangement was proffered by the British plenipotentiaries as a riwduK Vivendi pending the ratification of the treaty, and this arrangement was in 18S0 embodied in an Act of the Canadian Parliament (53 Vict. cap. 19). 288 APPENDIX C. TV. TREATY STIPITLATIONS WITH RUSSIA RESPECTING FISHERIES. 1. Convention of St. Petersburg,' 1824. I. It is agreed that in any part of tlie Great Ocean, commonly called the Pacific Ocean, or South Sea, the rj^spective citiz(!ns or subjects of the high contracting powers shall be neither disturbed nor restrained, either m naviga- tion or in fishing, or in tlie power of resorting to the coasts, upon jioints which may not already have been occupied, for the purpose of trading with the natives, saving always the restrictions and conditions determined by the following articles. IV. It is nevertheless understood that during a term of ten years, counting from the signature of the present convention, the ships of both Powers, or which belong to their citizens or subjects, respectively, may reciprocally frequent, without any hindrance whatever, the interior seas, gulfs, harbours, and creeks, upon the coasts^ mentioned in the preceding article, for the pur- lX)se of fishing and trading with the iiativf\s of tlie country. 2. Convention of St- Petersburg, 1825. I. It is agreed that the respective subjects of tlie high contracting parties shall not be troubled or molested, in any part of the ocean, commonly called the Pacific Ocean, either in luivigating tlie same, in fishing therein, or in landing at such parts of the coast as shall not have been already occupied, in order to trade with the natives, under the restrictions and condition.s specified in the following articles. 1 Between Russia and the United States. As to its effect, Wharton (Interna- tional Law Digest, vol. I„ p. Ill) says: " Russia Imving asserted, ni 18-22-24, an exclusive .iurisdictioii over the northwest coast and waters of .\inerica from HehrinK strait to the tifty-first defjjree of nortli latitude, this claiin was resisted by the United States and Great Hritain, and was surrendorod in a convention between Hussia and the United States, in April. lS-24,for ten years (not technically renewed) and in a convention l)etvveen (inmt Britain and Kussia, in February, 1825, for ten years, re established bv the treaty of June, 1743. The Kussian claim was disputed by J. Q. Adams, in liis iiote to the Kussian Minister of March 30, 1822." i The " Northwest coast of America " and the islands adjacent to it. » Between Great Britain and Kussia. BXTRAmXION AND FISHEBIBS. 289 VI. It is understood that the subjects of His Britannic Majesty, from whatever quarter they may arrive, whether from the ocean, or from the interior of the continent, shall forever enjoy the right of navigating freely, and without any hindrance whatever, all the rivers and streams which in their course towards the Pacific Ocean may cross the line of demarcation upon the line of coast described in Article III. of the present convention, i VII. It is also understood that, for the space of ten^ years from the signa- ture of the present convention, the vessels of the two powers, or those belonging to their respective subjects, shall mutually be at liberty to frequent, without any hindrance whatever, all the inland seas, the gulfs, havens, and creeks, on the coast^ mentioned in Article III., for the purpose, of fishing and of trading with the natives. 1 From the southern point of Prince of VVales island up the Portland Channel to the 56th degree of north latitude and thence along the summit of the Rocky Mountains to their intersection by the 141st meridian. 2 As to this limit see Note 1, p. 288. -- 3 See Note 1 above. 290 APPENDIX D. APPENDIX D. I. The Introduction of English Law into Upper Canada. An Act^ to repeal certain parts of an Act passed in the fourteenth year of His Majesty's Reign, entitled '^ An Act^ for mala ny more effectual provision for the Government of the Province of Quebec in North America, ' and to introduce the English Law as the Rule of Decision in all matters of con- troversy relating to Property and Civil Rights. [15th October, 1792. Whekeas by an Act passed in the fourteenth year of his present Majesty, intituled " An Act for making more effectual Provision for the Government of the Province of Quebec in North America," it was amongst other things pro- vided, "that in all matters of controversy relative to property and civil rights resort should be had to the laws of Canada'' as the rule for the decision of the same," such provision being manifestly and avowedly intended for the accom- modati(m of His Majesty's Canadian subjects : And Whereas, since the pass- ing of the Act aforesaid, that part of the late Province of Quebec, now compre- hended within t\n: Province of Upper Canada, having become inhabited prin- cipally by British subjects born and educated in countries where the English laws were established, and who are unaccustomed to the laws of Canada, it is inexpedient that the provision aforesaid, contained in the said Act of the four- teenth year of his present Majesty, should be continued in this Province : Be it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled Vjy virtue of and under the authority of an Act*iJassed in the I'arliament of Great liritain, intituled " An Act to repeal 1 Passed by the first Parliament of Upper Canada as the first Act of its first session, and known as '&2 George III. cap. 1. 2 The Quebec Act. 1774. 3 These were the hiws of French Canada. See the Quebec Act, 1774, section VIII. * The Constitutional Act, 1701. ENGLISH LAW IN UPPER CANADA. 291 ■certain parts of an Act passed in the fourteenth year of His Majesty's Reign, intituled ' An Act for making more effectual provision for the Government of the Province of Quebec in North America,' and to make further provision for the Government of the said Province," and by the authority of the same, that from and after the passing of this Act the said provision, contained in the said Act of the fourteenth year of his present Majesty, be, and the same is hereby repealed ; and the authority of the said laws of Canada, and every part thereof, as forming a rule of decision in all matters of controversy relative to property and civil rights, shall be annulled, made void, and abolished through- out this Province, and that the said laws, nor any part thereof as such, shall be of any force or authority within the said Province, nor binding on any of the inhabitants thereof. II. Provided always, and be it enacted by the authority aforesaid, that nothing in this Act shall extend to extinguish, release or discharge, or other- wise affect any existing right, lawful claim or incumbrance, to and upon any lands, tenements or hereditaments within the said Province, or to rescind or vacate, or otherwise affect any contract or security already made and executed conformably to the usages prescribed by the said Laws of Canada. III. And be it further enacted by the authority aforesaid, that from and rafter the passing of this Act, in all matters of controversy relative to property and civil rights, resort shall be had to the laws of England, as the rule for the decision of the same. IV. Provided always, and be it enacted by the authority aforesaid, that nothing in this Act shall extend, or be construed to extend, to repeal or vary any of the Ordinances made and passed by the Governor and Legislative Coun- cil of the Province of Quebec previous to the division of the same into the Provinces of Upper and Lower Canada, otherwise than as they are necessarily varied by the provisions herein mentioned. V. And be it further enacted by the authority aforesaid, that all matters relative to testimony and legal proof in the investigation of fact, and the forms thereof, in the several Courts of Law and Equity within this Province, be regulated by the rules of evidence established in England. VI. Provided always, and be it enacted by the authority aforesaid, that nothing in this Act contained shall vary or interfere, or be construed to vary or interfere with any of the subsisting provisions respecting Ecclesiastical rights or dues within this Province, or with the forms of proceeding in civil actions, or the jurisdiction of Courts already established, or to introduce any of the laws of England respecting the maintenance of the poor, or respecting bankrupts. H.C.C. 19 292 APPKNDIX D. 2. The Introduction of Trial by Jury into Upper Canada. An Act^ In Kstnhliifh Trials hij Jiirij. Whkhkas till" trial hy jury lias been long established and ai)pr()ved in our Mother Countrj', and is one of the chief benefits to be attained by a free Constitution ; Fie it therefore enacted by tlie King's ^[ost Excellent Majesty, by and with tile advice and consent of the Legislative Council and Assembly of the Province of Upper Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of ( Jreat Britain, intituled, " An Act to repeal certain parts of an Act jjassed in thci fourteentli year of His Majesty's reign, intituled, ' An Act for making more effectual provision for the Government of the Province of Quebec in North America,' and to make further jirovision for the government of the said Province,'" and by the authority of the same, that from aiul after the first day of December in this ])resent year of Our Lord, one thousand seven hundred and ninety-two, all and every issue and issues of fact, wliicli sliall be joined in any action, real, personal, (H- tiiixeil, and brouglit in any of His Majesty's courts of justice within tlie I'roviiice aforesaid, sliall be tried and determined by the unani- iuo\is verdict of twelve jurors, duly sworn for the trial of sucli issue or issues, which jurors shall be summoned and taken coiifoniiably to the law and custom of England. 11. J'rovided always, and be it further enacted by the authority aforesaid, that nothing herein contained shall prevent, or be con.strued to prevint, the said jurors from bringing in a special verdict. 1 The second .\ct passed by the tirst Parliament i)f Upper l.'anada at itt first eession. and known as 3'2 George III. cap. -i. RESPONSIBLE GOVERNMENT IN CANADA. 293 APPENDIX E. THE INTRODl'CTION OF RESPONSIBLE GOVERN- MENT INTO CANADA. I. Lord Durham's Reporc' * * •* » • * * Sucli are tlie lamentable results uf the political and social evils"^ which have so long agitated the Canadas ; and such is their condition that at the present moment we are called on to take immediate ])recautions against dangers so alarming as those of rebellion, foreign invasi(jn, and utter exhaustion and depopulation. =^ When I look on the various and deep-rooted causes of mis- chief which the past inquiry has pointed out as existing in every institution, in the constitutions, anfl in the very composition of society throughout a great part of these Provinces, I almost shrink from the apparent presumption of grappling with these gigantic diflBculties. Nor shall I attempt to do so in detail. I rely on the efficacy of reform in the constitutional system by which these colonies are governed, for the removal of every abuse in their adminis- tration which defective institutions have engendered. If a system can be devised which shall lay in these countries the foundation of an efficient and popular government, ensure harmony in place of collision between the various powers of the State, and bring tlie influence of a vigorous public opinion to 1 These extracts are reprinted froui the British Parliamentary paper, printed by order of tile House of Commons. The Report is dated " London, aist January, 18.39," and the order for printing was made on the 11th of February of the same year. •J The "results" and " evils " here mentioned are described in the previous part of the report. Amongst them are the struggle between the French and Engiish races in Lower Canada, collisions between the Executive and the Legislative Assembly in different Provinces, collisions between the Legislative Councils and the Legislative Assemlilies, abuse of the system of Provincial grants for local public works, want of vigorous administration of the royal prerogative, inter- ference of the Colonial Department in the details of Colonial Government, irresponsibility of the Executive Council, the absence of any division of the public service into regular ministerial departments, the want of municipal insti- tutions, the inefficient administration of justice in Lower Canada, defective means of education, the clergy reserves and the establishment of rectories, the want of means of communication between different parts of each Province, wasteful mis- appropriation of Crown lands, and lack of proper arrangements for the reception and disposition of immigrants. Some of these matters are dealt with at great length in the Appendixes to the Report. 3 Lord Durham felt and expressed the fear that an emigration of English speaking settlers from Upper Canada to the United states was likelv to take place. He cites, in support of his position a number of cases which had come to his knowledge, and avows his belief that these emigrants were not all politically dis- affected towards the Government. 294 APPENDIX E. bear on every detail of public affairs, we may rely on sufficient remedies being found for the present vices of the administrative sj-stem. The preceding pages have sufficiently pointed out the nature of those evils, to the extensive operation of which I attribute the various practical grievances, and the present unsatisfactory condition of the North American colonies. It is not by weakening, but strengthening the influence of the people on its government ; by confining within much narrower bounds than those hitherto allotted to it, and not by extending the interference of the imjierial authorities in the details of colonial affairs, that I believe that hannony is to be restored, where dissension has so long prevailed ; and regularity and vigour, hitherto unknown, introduced into the administration of these Pro- vinces. It needs no change in the principles of government, no invention of a new constitutional thef)ry, to sui)ply the remedy which would, in my opinion, comjjletely remove the existing i)olitical disorders. It needs but to follow out consistently the principles of tlie Britisli constitutic^n, and introduce into the government of these great colonies tliose wise provisions, by which alone the working of tlie rei)resentative system can in any country be rendered har- monious and efficient. We are not now to consider the policy of establishing representative government in tlie North American colonies. That has been irrevocably done ;^ and the exjjeriment of dei)riv'ing the ])eople of their present constitutional power is not to be thought of. To conduct their government harmoniously, in accordance with its established principles, is now the business of its rulers ; and T know not how it is jjossible to secui-e that har- monj' in any other way than by administering the government on tho.se princi- ples which have been found perfectly efficacious in Great Britain. "■^ I would not impair a single prerogative of the Crown ; on the contrary I believe that the interests of the people of these colonies require the protection of prerogatives wfiich have not hitherto been exercised.* But the Crown must on the other hand, submit to the necessary consequences of rei)resentative institutions ; and if it has to carry on the government in unison with a rei)resentative body, it must consent to carry it on by means of those in whom that representative body has confidence. 1 See pp. 7-25, and 112-148. 2 Klsewbero in liis Keport (p. 29 of the British Parliamentary paper) Lord Durham, speakinj,' of tlie freedom of the administration from the inlluenco of the IiBgislativo Assembly, says " This eutire separation of the legislative and execu- tive iiowers of a State is the natural error of givornments desirous of being free from the check of representative institutions. Since the Kevolutioii of 1GH8, the stability of the lOnghsh Constitution lias been secured by that wise principle of our government which has vested the direction of the national policy, and the distribution of patronage, in the leaders of the parliamentary majority." 3 On p. 37 of the llcport he says: "The defective system of administratioa in Lower Canada commences at the very source of power ; and the efliciency of the public service is impaired throughout by the entire want in the Colony of any vigorous administration of the prerogative of the Crown. The fact is that, according to the present system, theriMS no real representative of the Crown iu in the Province ; there is in it, literally no power which originates and conducts the lOxecutive goverumeut. The Governor, it is true, is said to represent the Sovereign, and the authority of the Crown is, to a certain extent, delegated to him ; but he is. in fact, a mere subordinate officer, receiving his orders from the Secretary of State, responsible to him for his conduct, and guided by his instruc- tions." RESPONSIBLE GOVERNMENT IN CANADA. 295 In England this principle has been so long considered an indisputable and essential part of our constitution, that it has really hardly ever been found necessary to inquire into the means by which its observance is enforced. When a ministry ceases to command a majority in Parliament on great questions of policy, its doom is immediately sealed ; and it would appear to us as strange to attempt for any time, to carry on a government by means of ministers perpetually in a minority, as it would be to pass laws with a majority of votes against them. The ancient constitutional remedies, by impeachment and stoppage of the supplies, have never since the reign of William III. been brought into operation for the purpose of removing a ministry. They have never been called for, because in fact it has been the habit of ministers rather to anticipate the occurrence of an absolutely hostile vote, and to retire when supported only by a bare and uncertain majority. If colonial legislatures have frequently stopped the supplies, if they have harassed public servants by unjust or harsh impeachments, it was because the removal of an unpopular administration could not be effected in the colonies by those milder indications of a want of confidence, which have always sufficed to attain the end in the Mother Country. The means which have occasionally been proposed in the Colonies themselves appear to me by no means calculated to attain the desired end in the best way. These proposals indicate such a want of reliance on the willingness of the Imperial Government to acquiesce in the adoption of a better system, as, if warranted, would render an harmonious adjustment of the different powers of the State utterly hopeless. An elective Executive Council would not only be utterly inconsistent with monarchical government, but would really, under the nominal authority of the Crown, deprive the community of one of the great advantages of an hereditary monarchy. Every purpose of popular control might be coml^ined with every advantage of vesting the immediate choice of advisers in the Crown, were the Colonial Governor to be instructed to secure the CO- )peration of the Assembly in his policy, by intrusting its administration to such men as could command a majority ; and if he were given to understand that he need count on no aid from home in any difference with the Assem- bly, that should not directly involve the relations between the Mother Country and the colony. This change might be effected by a single despatch i contain- ing such instructions ; or if any legal enactment were requisite, it would only be one that would render it necessary that the official acts of the Governor should be countersigned by some public functionary. This would induce responsibility for every act of the Government, and, as a natural consequence, it would necessitate the substitution of a system of administration, by means of competent heads of departments, for the present rude machinery of an Exe- cutive Council.2 The Governor, it he wished to retain advisers not possessing 1 See despatches of Lord John Russell to Lord Sydenham (pp. 299-302 below). 2 In a previous part of his report, Lord Durham gives this description of the Executive Council (p. 39): " It is a body of which the constitution somewhat resembles that of the Privy Council ; it is bound by a similar oath of secresy ; it discharges in the same manner certain anomalous judicial functions ; and its ' consent and advice ' are required in some cases in which the observance of that form has been thought a requisite check on the exercise of particular prerogatives 296 AIM'ENDIX R. the confidence of tlie existing Assembly, might rfl\- on th(^ ctfi-et of ;in appeal to the people,* and, if unsuccessful, he might be coerced by a refusal of siipplies, or his advisers might be terrified by the prosj)ect of inipcaehment. Hut there can be no reason for ai)preiiending that either party woukl enter on a contest, when each would find its interests in the maintenance of harmony ; and the abuse of the ])Owers which each would constitutionally possess, would cease when the struggle for larger powers became unnecessary. Nor can 1 conceive that it would be found impossible or difficult to conduct a Colonial Government with precisely that liuiitatioii of the resp(>ctivc jiowers whicii has been so long and so easily maintained m (ireat Britain. T know that it has been urged that the iirincijjles which are productive of hai-mony and good govennnent in the M(jther Country, are by no means applicaJ)le to a cohmial dependency. It is said that it is necessary that the administration of a colony should be carried on by jjersons nominated without any reference to the wishes of its people ; that they have to carry into elTect the policy, not of that peojilc, liut of the authorities at home ; and that a colony which should name all its own administrative ftuictionaries w ould in fact cease to be dei)endent. I admit that the system which I propose would in fact place the internal government of tlie colony in the hands of the colonists themselves; and that we should thus leave to them the execution of the laws, of which we have long entrusted the making solely to them. Perfectly aware of the value of our colonial possessions, and strongly im- l>ressed with the necessity of maintaining our cimnexion with them, T know not in what respect it can be desirable that we should interfere with their internal legislation in matters which do not affect their relations with the Mother Country. The matters which so concern us are v(-ry few.- The constitution of the form of government, — the regulatiim of foreign relations, and of trade with the Mother Country, the other British colonies and foreign nations, — and the? disjjosal of the public lands, are the only jKiints on which the Mother Country requires a control.'^ This control is n(nv sufficiently of the Crown. But in other respects it beai-s a greater resemblance to a Cabinet, the Governor bemg in the liabit of taking its advice on most of the important questions of his policy. J^ut as tliere is no division into departments in tlie Coun- cil there is no individual responsibility and no individual sni)erintrder that a Governor or Secretary of State may be able to confer colonial appointments on one rather than another set of jjersons in the colonies. For this is really the only question at issue. The slightest acquaintance with these colonies proves the fallacy of the common notion, that any considerable amount of patronage in them is distributed among strangers from the Mother Country. Whatever inconvenience a consequent frequency of changes among the holders of office may produce is a necessary disadavantage of free govern- ment, which will be amply compensated by the perpetual harmony which the -system must produce between the people and its riders. Xor d I'etitions and Addresses ui)on this subject. I cannot better commence this Despatcli than by a reference to the Resolutions of both Hcu.ses of Parliament' of the 2Sth .Vpril and !)th May in the year 1887. Tiie Assembly of Lrnver Canada having repeatedly pressed this point. Her Majesty's Confidential Advisers at that period tht)ught it necesary not only to exjilain their views in the comnninications of the Secretary of State, but expres.sly called for the opinion of J'arlianient on the subject. The Crown and the two Houses of Lords and Common.s have thus decisively jironounced a judgment u))(>n the question ; you will consider yourself precluded from enter- taining any proposition on the subject. It does not apju-ar indeed, that any very definite meaning is generally agreed upon by those who call themselves the advocates of this principle, but its very vagueness is a source of delusion, and if at all encouraged, would ])rove the cause of embarrassment and danger. The Constitution of Kugland after lung struggles and alternate succes.s, has settled into a form of (iovernment in which the prerogative of the Crown is undisputtni, but is never exercised without advice. Hence the exercise only is questioned, and however the use of the authority may be condemned, the authority itself remains untouched. This is the jU'actical solution i>f a great problem the result of a contest which from 1(»10 to 1(>!I() slmok the Monai'chy and disturbed tlie peace of the Country. But if we seek to a|)i>ly such .i practice to a ("olojiy, we shall at iium' find ourselves at favdt. The power for which a Minister is responsible in Kugland, is not his own power, but the [)ower of the Crown, of which he is for tiie time the organ. It is obvious that tiie Executive Coimcillor of the Colony is in a situa- tion totally different. The (ioveriu)r tnider whom luf serves receives his oi-ders from the Crown of Kugland. But can the (Colonial Council be the Advisers of the Crown of Kugland ? Kvidently not, for the Crown has other Advisers for the same functinns. and with sujierior autiiority. It may iiajipi-n, tlierefore, that the (Jovernor receives at one and tiie same time instructions from tiie <,Jueen and advice from his Executive Council, totally at variance with each other. It' lie is to obey his instructions from England, the pui'.illel of coustitutiuiia! respnnsibility entirely fails ; if on the 1 The Imperial Parliament. Amendments looking to the recognition of respon- sible giivernment were moved in tiie House of Connnons, but voted down, and Lord i to 7, the members of the minority beiiis Messrs. Burnett, Cart- wright, MacNab (Sir .\. N.;, :\IcLeaii. MotTatt (Hon. G.), Sherwood. Watts. For the HUbsecnieiit history of res|)()iiKihle (iuvcriaiieiit till its final recognitiuii by Lord Klgin, see Kaye's "]jifo of Metcalfe," mid Dent's "Forty Years," and Hinck's "Reminiscences." Lord Metcalfe in one of his papers, entitled "The System of Government, ' formulated an argument against the system, and in another, "Resignation of the lOxc^cutive Council," he gave his version of the rupture between him and tlio first Baldwin-Lafontaine administration. See also Kyerson's and Sullivan's letters on the same subject, coupled with the pen-names respectively of "LeonidaB " and " Legion." CONFEDERATION RESOLUTIONS. 805 APPENDIX F. QUEBEC CONFERENCE RESOLUTIONS,' 1804. 1. Tlie best intei'ests and pi-esent and future jirospenty of British Nurth America mil be promoted by a federal- imion, under the Crown of Great Britain, provided such uni(jn can be effected on principles just to the several Provinces. 2. In the federation of the British North American Provinces, the system of Government best adapted under existing circumstances to protect the diversified intei-ests in the several Provinces, and secure efficiency, harmony and permanency in the working of the union, would be a general Government, charged with matters of common interest to the whole country ; and Local Governments for each of the Canadas, and for the Provinces of Nova Scotia, New Brunswick, and Prince Edward Island, charged with the control of local matters in their respective sections ; provision being made for the admission into the union, on equitable terms, of Newfoundland, the North-West Terri- tory, British Columbia, and Vancouver. '^ 3. In framing a constitution for the general Government, the Conference, with a view to the perjietuation of our connection with the mother country, 1 The text of these resolutious is reprinted from the ■rournals of the Legislative Assembly of Canada, 1S65 (pp. 202-209). They were adopted as part of an address to the Queen, prayiug for the submission to the Imperial Parliament of a measure to unite into one Government the " Colonies of Canada. Nova Scotia, New Brunswick, Newfoundland, and Prince FIdward Island " The ordinary histories of Canada give ample information as to the events which brought about the Quebec Con- ference. The best special narrative of the whole period is contained in Gray's " Confederation ; or the Political and Parliamentary History of Canada from the Conference at Quebec to the admission of British Columbia " (vol. I,). The author, Hon. John Hamilton Gray, was one of the delegates to the Conference from New Brunswick. The resolutions were adopted by the Conference on the 10th of October, 1864, and by the Legislative Assembly of Canada, after a long discussion and many unsuccessful attempts to secure modifications, on the 14th of March, 1865. A full rex)ort of the debates was in 186-5 published " by oixler of the Legisla- ture," under the title " Parliamentary Debates on the subject of the Confedera- tion of the British North .\mericau Provinces." The text has been carefully com- pared with the versions of the resolutions given in Gray's •' Confederation " and the " Debates on Confederation," the points of difference being noted where they occur. 2 For a definition of the term " Federal," see Fi-eeman's " History of Federal Government," vol. I, first two chapters. See also the essays of Hamilton and Madison in the " Federalist " ; Story's " Commentaries on the Constitution of the United States " ; Cooley's " Constitutional Law in the United States " ; and numer- ous decisions of the United States Supreme Court, the Canadian Supreme Court, and the Judicial Committee of the Privy Council. 3 Prince Edward Island as well as Newfoundland afterwards declined to come into the union. British Columbia and Vancouver were then separate Provinces. See Note 30, pp. 2:33-2.34 above. 306 APPENDIX F. and to the promotion of the best interests of the {people of these Provinces, desire to follow the model of the British constitution ho far as our circum- stances will permit. 4. The Executive authority or government sluill be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well-understood principles of the British constitution, by the Sovereign personally, or by the representative of the Sovereign didy authorized. 5. The Sovereign or Representative of the Sovereign^ shall be Commander in Chief of the land and naval militia forces. 6. There shall be a General Legislature or Parliament for the federated Provinces, composed of- a Legislative Council and a House of Commons. 7. For the jnirpose of fonning the Legislative Council, the federated Provinces shall be considered as consisting of three divisions : 1st, Upi)er Canada, 2nd, Lower Canada, 3rd, Nova Scotia, New Brunswick, and Prince Edward Island : each division with an equal representation in the Legislative Council. 8. Upper Canada shall be represented in the Legislative Council bj 24 members. Lower Canada by 24 members, and the three maritime Provinces by 24 m€>nibei's, of which Nova Scotia shall have 10, New Brunswick 10, and Prince Edward Island 4members.:* 9. The Colony of Newfoundland sliall be entitled to enter the proposed / union, with a representation in the Legislative Council of 4 members. 10. The North-West Territory, British Columbia and Vancouver shall be admitted into the union on such terms and conditions as the Parliament of the federated Provinces shall deem e(|uit;ible, and as shall receive the assentof Her Majesty ; and, in the case of the l'n)vince of British Columbia or Van- couver, as shall be agreed to by the Legislature of such Province.'* 11. The members of the Legislative Council shall be appointed by the Crown under the great seal of the general goveriuneiit, and shall hold office during life ; if anj- Legislative Councillor shall, for two consecutive sessions of Parliament, fail to give his attendance in the said Council, his seat shall there- by become vacant. 1 In November, 18C6, representatives from Canada, New Brunswick, and Nova Scotia met in London to aid in tlie preparation of a confederation measure for submission to tlio Imiierial rarlianieut. As a result of their coufereuees several clianges were made in the text of the resolutions, amongst them the omission of these words "or representative of the Sovereifin." See Gray's "Confederation," p. 3a5. 2 The words " the Sovereign," were here inserted at the London Conference. See Note 1 above. 3 On account ot tlie refusal of Prince Edward Island to join tlie Union tliis reso- lution was altered at the Ijondoii Conference so as to give Nova Scotia and New Brunswick 12 members encli, until the tliird Province should conie in- * See Notes 68 and 09, p. 238 above. CONFEDERATION RESOLUTIONS. 307 12. The members of the Legislative Council shall be British subjects by birth or naturalization, of the full age of thirty years, shall possess a continuous real property qualification of four thousand dollars over and above all incum- brances, and shall be and continue worth that sum over and above their debts and liabilities, but in the case of Newfoundland and Prince Edward Island the property may be either real or personal. ^ 13. If any question shall arise as to the qualification of a Legislative Coun- cillor, the same shall be determined by the Council. 14. The first selection of the members of the Legislative Council shall be made, except as regards Prince Edward Island, from the Legislative Councils of the various Provinces, so far as a sufficient number be found qualified and willing to serve ; such members shall be appointed by the Crown at the recom- mendation of the general executive Government, upon the nomination cf the respective local Governments, and in such nomination due regard shall be had to the claims of the members of the Legislative Council of the opposition in each Province, so that all political parties may as nearly as possible be fairly represented. 15. The Speaker of the Legislative Council (unless otherwise provided by Parliament) shall be appointed by the Crown from among the members of the Legislative Council, and shall hold office during pleasure, and shall only be entitled to a casting vote on an equality of votes. 16. Each of the twenty-four Legislative Councillors representing Lower Canada in the Legislative Council of the general Legislature, shall be ap- pointed to represent one of the twenty-four electoral divisions mentioned in Schedule A of chapter first of the Consolidated Statutes-* of Canada, and such Councillor sliall reside or possess his qualification in the division he is ap- pointed to represent. 17. The basis of representation in the House of Commons shall be popula- tion, as determined by the official census every ten years ; and the number of members at first shall be 194, distributed as follows : — Upper Canada 82 Lower Canada 65 Nova Scotia 19 New Brunswick 15 Newfoundland 8 Prince Edward Island 5 18. Until the official census of 1S71 has been made \\p, there shall be no change in the number of representatives from the several sections. 1 In the conference of delegates at London (Note 1, p. 306) the twelfth resolution was changed so as to make the necessary qualifications of a senator embrace both a coutiDUOus property possession and continuous residence in the Province for which he was appointed, except in case of an official residence at the Capital (Gray's '• Confederation," p. 385). •2 Of 1859. H.c.c. 20 308 APPENDIX F. 19. Immediately after the completion of the census of 1871, and immediately after every decennial census thereafter, the representation from each section in the House of Commons shall be readjusted on the basis of iwpulation. 20. For the purpose of such re-adjustments, Lower Canada shall always be assigned sixty-five members, and each of the other sections shall at each re- adjustment receive, for the ten years then next succeeding, the number of members to which it will be entitled on the same ratio of representation to population as Lower Canada will enjoy according to the census last taken by having sixty-five members. 21 . No reduction shall be made in the number of members returned by any section, unless its population shall have decreased, relatively to the population of the whole union, to the extent of five per centum. 22. In computing at each decennial i)eriod tlie number of members to which each section is entitled, no fractional parts shall be considered, unless when exceeding one-half the number entitling to a member, in which case a mem- ber shall be given for each such fractional part. 2.3. The Legislature of each Province shall divide such Province into the proper number of constituencies, and define the boundaries of each of them. 24. The local Legislature of each Province may, from time to time, alter the electoral districts for the purposes of representation in such local Legislature, and distribute the representatives to which the Province is entitled in such local Legislature, in any manner such Legislature may see fit.i 25. The number of members may at any time be increased by the general Parliament, — regard being had to the proportionate rights then existing. 20. Until provisions are made by the General Parliament, all the laws which, at the date of the proclamation constituting the union, are in force in the Provinces respectively, relating to the qualification and disqualification of any person to be elected, or to sit or vote as a member of the Assembly in the said Provinces respectively; and relating to the qualification or disqualification of voters and to the oaths to be taken by voters, and to returning officers and their powers and duties, — and relating to the proceedings at elections, and to the period during which such elections may be continued, — and relating t~> the trial of controverted elections, and the proceedings incident thereto, — and relating to the vacating of seats of members, and to the issuing and execution of new writs, in case of any seat being vacated otherwise than by a dissolution, — shall respectively apply to elections of members to serve in the House of Commona, for places situate in those Provinces respectively. 1 The twenty-third and twenty-fourth resolutions were omitted at the London Conference. (See Note 1, p. 30fi.) The text of the twenty-fourth as given in Gray's "Confederation," p. 69, differs materially from the one given above ; it is as follows : " The local Legislature of each Province may from time to time alter the electoral districts for the purposes of representation in the House of Commons, and dis- tribute the representatives to which the Province is entitled in any manner such Legislature may think fit." CONFEDERATION RESOLUTIONS. 309 27. Every House of Commons shall continue for five years from the day of the return of the writs choosing the same, and no longer ; subject, neverthe- less, to be sooner prorogued or dissolved by the Governor. 28. There shall be a session of the general Parliament once, at least, in •every year, so that a period of twelve calendar months shall not intervene between the last sitting of the general Parliament in one session, and the iirst sitting thereof in the next session. 29. The general Parliament shall have power to make laws for the peace, welfare, and good government of the federated provinces (saving the sovereignty of England), and especially laws respecting the following sub- jects : — (1) The public debt and property. (2) The regulation of trade and commerce. (3) The imposition or regulation of duties of customs on imports and exports, — except on exports of timber, logs, masts, spars, deals and sawn lumber from New Brunswick, and of coal and other minerals from Nova Scotia, i {4) The imposition or regulation of excise duties. (5) The raising of money by all or any other modes or systems of taxa- tion. (6) The borrowing of money on the public credit. (7) Postal service. (8) Lines of steam or other ships, railways, canals and other works, connecting any two or more of the Provinces together or extending beyond the limits of any Province. ^9) Lines of steamships between the federated provinces and other countries. (10) Telegraphic communication and the incorporation of telegraphic com- panies. ill) All such works as shall, although lying wholly within any Province be specially declared by the Acts authorizing them to be for the general advantage. (12) The census. {IS) Militia — military and naval service and defence. (14) Beacons, buoys and light houses. (15) Navigation and shipping. {16) Quarantine. (17) Sea-coast and inland fisheries. (18) Ferries between any province and a foreign country, or between any two provinces. 1 The words " from New Brunswick," and " from Nova Scotia." are omitted in •Gray's text. 810 APPENDIX F. (19) Currency and coinage. (20) Banking — incorporation of banks, and the issue of paper money, (21) Savings banks. (22) Weights and measures. (23) Bills of exchange and promissory notes. (24) Interest. (25) Legal tender. (26) Bankruptcy and insolvency. (27) Patents of invention and discovery. (28) Copyrights. (29) Indians and lands reserved for the Indians. (30) Naturalization and aliens. (31) Marriage and divorce. ^ (32) The criminal law, excepting the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters. (33) Rendering uniform all or any of the laws relative to i)roperty and civil rights in Upper Canada, Nova Scotia, New Brunswick, Newfoundland, and Prince Edward Island, and rendering uniform the procedure of all or any of the courts in these Provinces ; but any statute for this purpose shall have no force or authority in any Province until sanc- tioned by the Legislature thereof. ^ (34) The establishment of a general Court of Appeal for the federated Provinces. (35) Immigration. (36) Agriculture. (37) And generally respecting all matters of a general character, not specially and exclusively reserved for the local Governments and Legislatures. 30. The general Government and Parliament shall have all powers necessary or proper for performing the obligations of the federated Provinces, as part of the British Empire, to foreign countries arising under treaties between Great Britain and such countries. 31. The general Parliament may also, from time to time, establish addi- tional courts, and the general Government may appoint judges and officers thereof, when the same shall appear necessary or for the public advantage, in order to the due execution of the laws of Parliament. 32. All courts, judges and officers of the several Provinces shall aid, assist and obey the general Government in the exercise of its rights and powers, and 1 At the London Conference it was resolved to place " solemnization of mar- riage " under the jurisdiction of the local Legislatures. See Note 1, p. 306. 2 To this sub-section was added at the Loudon Conference a clause providing that the power of altering, repealing, or amending laws so legislated upon " should thereafter remain with the general Government only." CONFEDERATION RESOLUTIONS. 311 for such purposes shall be held to be courts, judges and officers of the general Government. 33. The general Government shall appoint and pay the judges of the Superior Courts in each Province, and of the County Courts In Upper Canada, and Parliament shall fix their salaries. 34. Until the consolidation of the lavi^s of Upper Canada, New Brunswick, Nova Scotia, Newfoundland and Prince Edward Island, the judges of these Provinces appointed by the general Government shall be selected from their respective bars. 35. The judges of the courts of Lower Canada shall be selected from the bar of Lower Canada. 36. The judges of the Court of Admiralty now receiving salaries shall be paid by the general Government. 37. The judges of the Superior Courts shall hold their offices during good behaviour, and shall be removable only on the address of both Houses of Par- liament. LOCAL GOVERNMENT. 38. For each of the Provinces there shall be an executive officer, styled the Lieutenant Governor, who shall be appointed by the Governor General in Council, under the Great Seal of the federated Provinces, during pleasure ; .such pleasure not to be exercised before the expiration of the first five years, ■except for cause ; such cause to be communicated in writing to the Lieutenant Governor immediately after the exercise of the pleasure as aforesaid, and also by message to both Houses of Parliament, within the first week of the first session afterwards. 39. The Lieutenant Governor of each Province shall be paid by the general Government. 40. In undertaking to pay the salaries of the Lieutenant Governors, the Conference does not desire to prejudice the claim of Prince Edward Island upon the Imperial Government for the amount now paid for the salary cf the Lieutenant Governor thereof. 41. The local Government and Legislature ef each Province shall be con- structed in such manner as the existing Legislature of such Province shall provide. 42. The local Legislatures shall have power to alter or amend their consti- tution from time to time. 43. The local Legislatures shall have power to make laws respecting the following subjects : — 812 APPENDIX F. (1) Direct taxation, and in New Brunswick the imposition of duties on the export of timber, logs, masts, spars, deals and sawn lumber ; and in Nova Scotia, on coals and other minerals. ^ (2) Borrowing money on the credit of the Province. (8) The establishment and tenure of local offices, and the appointment and payment of local officers. (4) Agriculture. (.5) Immigration. (G) Education ; saving the rights and privileges which the Protestant or Catholic minority in both Canadas may possess as to their denomina- tional schools, at the time when the union goes into operation.- (7) The sale and management of public lands excepting lands belonging to the general Government. (8) S(\a-coast and inland fisheries.-'' (9) The establishment, maintenance and management of penitentiaries,* and of public and reformatory prisons. (10) The establishment, maintenance and management of hospitals,. asylums, charities, and eleemosynary institutions. (11) Municipal institutions. (12) Shop, saloon, tavern, auctioneer and other licenses. (13) Local works. (14) The incorporation of private or local companies, except such as relate to matters assigned to the general Parliament. (15) Property and civil rights, excepting those portions thereof assigned to the general Parliament. (IG) Inflicting punishment by fine, penalties, imprisonment or otherwise* for the breach of laws passed in relation to any subject within their jurisdiction. (17) The administration of justice, including the constitution, mainte- nance and organization of the courts, — both of civil and criminal jurisdiction, and including also the procedure in civil matters. (18) And generally all matters of a private or local nature, not assigned to the general Parliament. 1 In Gray's text this sub-section reads: " Direct taxation, and the imposition of duties on export of timber, logs, masts, spars, deals, and sawu lumber, and of coals and other iiiiiierals." •i The savint,' i)rovision here applied to " both Canadas " was at the London Con- ference extended to minorities haviuf,' in any I'rovince, when the Union went into operation, legal rights or privileges as to denominational schools. It was at the same time further provided that " in any Province where a system of separate or dissentient schools by law obtains, or where the local Legislatiu'c may hereafter adopt a system of separate or dissentient schools, an appeal shall be to the Governor-General-in-Council of the general government from the acts and decisions of the local authorities, whicli may affect the rights or privileges of the Protestant or Catholic minority in the matter of education, and the general Parliament shall have power in the last resort to legislate on tho subject." 8 This sub-section was omitted at the London Conference. See Note 1, p. 306. < '• Penitentaries" were at the London Conference transferred by resolution to the jurisdiction of the general Parliament. CONFEDERATION RESOLUTIONS. 313 44. The power of respiting, reprieving, and pardoning prisoners convicted of crimes, and of commuting and remitting of sentences in whole or in part which belongs of right to the Crown, shall be administered by the Lieutenant Governor of each Province in Council,^ subject to any instructions he may, from time to time, receive from the general Government, and subject to any provisions that may be made in this behalf by the general Parliament. MISCELLANEOUS. 45. In regard to all subjects over which jurisdiction belongs to both the general and local Legislatures, the laws of the general Parliament shall con- trol and supersede those made by the local Legislature, and the latter shall be void so far as they are repugnant to, or inconsistent with, the former. 46. Both the English and French languages may be employed in the general Parliament and in its proceedings, and in the local Legislature of Lower Canada, and also in the Federal courts and in the courts of Lower Canada. 47. No lands or property belonging to the general or local Governments shall be liable to taxation. 48. All bills for appropriating any part of the public revenue, or for imposing any new tax or impost, shall originate in the House of Commons or House of Assembly, as the case may be. 49. The House of Commons or House of Assembly shall not originate or pass any vote, resolution, address or bill for the appropriation of any part of the public revenue, or of any tax or impost to any purpose, not first recommended by message of the Governor General or the Lieutenant Gover- nor, as the case may be, during the session in which such vote, resolution, address or bill is passed. 50. Any bill of the general Parliament may be reserved in the usual manner for Her Majesty's assent, and any bill of the local Legislatures may, in like manner, be reserved for the consideration of the Governor General. 51. Any bill passed by the general Parliament shall be subject to disallow- ance by Her Majesty within two years, as in the case of bills passed by the Legislatures of the said provinces hitherto ; and, in like manner, any bill passed by a local Legislature shall be subject to disallowance by the Governor general within one year after the passing thereof. 52. The seat of Government of the federated Provinces shall be Ottawa, subject to the Royal Prerogative. 1 By resolution of the London Conference this prerogative of pardon was restricted to cases not " capital." See Note 1, p. 306. 314 APPENDIX F. 53. Subject to any futvire .action of tlie respective local Governments, the seat of the l(K;al Government in Upper Canada shall be Toronto ; of Lower Canada, Quebec ; and the seats of tlie local Governments in the other Provinces shall be as at present. PROPERTY AM) LIAIULITIES. 54. All stocks, cash, bankers' balances and securities for money belonging to each Province at the time of the Union, except as hereinafter mentioned, shall belong to the general Government. 55. The following public works and property of each Province shall belong to the general Government, to wit : — (1) Canals. (2) Public harbours. (3) Light houses and piers. (4) Steamboats, dredges and pviblic vessels. (5) River and lake improvements. (6) Railway and railway stocks, mortgages and other debts due by railway companies. (7) Military roads. (8) Custom houses, post offices and other public buildings, except such as may be set aside by the general Government for the use of the local Legislatures and Governments. (9) Property transferred by the Imperial Government and known as ordnance property. (10) Armories, drill sheds, military clothing and munitions of war ; and (11) Lands set apart for public purposes. 56. All lands, mines, minerals and royalties vested in Her Majesty in the Provinces of Up])er Canada, Lower Canada, Nova Scotia, New Brunswick and Prince Edward Island, for the use of such Provinces, shall belong to the local Government of the territory in which the same are so situate ; subject to any trusts that may exist in resjject to any of such lands or to any interest of other persons in respect of the same. 57. All sums due from purchasers or lessees of such lands, mines or minerals at the time of the union, shall also belong to the local Governments. .58. All assets connected with such portions of the public debt of any Province as are assumed by the local Governments shall also belong to those Governments respectively. 59. The several Provinces shall retain all other public property therein, subject to the right of the general Government to assume any lands or public pnjperty required for fortifications or the defence of the country. CONFEDERATION RESOLUTIONS. 315 (>0. The general government shall assume all the debts and liabilities of each Province. 61. The debt of Canada, not specially assumed by Upper and Lower Canada respectively, shall not exceed, at the time of the vmion, $62,500,000 ; Nova Scotia shall enter the union with a debt not exceeding $8,000,000 ; and New Brunswick with a debt not exceeding $7,000,000. 62. In case Nova Scotia or New Brunswick do not incur liabilities beyond those for which their Governments are now bound, and which shall make their debts at the date of union less than $8,000,000 and $7,000,000 respectively, they shall be entitled to interest at five per cent, on the amount not so incurred, in like manner as is hereinafter provided for Newfoundland and Prince Edward Island ; the foregoing resolution being in no respect intended to limit the powers given to the respective Governments of those Provinces, by Legis- lative authority, but only to limit the maximum amount of charge to be assumed by the general Government ; provided always, that the powers so conferred by the respective Legislatures shall be exercised within five years from this date, or the same shall then lapse. 63. Newfoundland and Prince Edward Island, not having incurred debts equal to those of the other Provinces, shall be entitled to receive, by half- yearly payments, in advance, from the general Government, the interest at five per cent, on the difference between the actual amount of their respective debts at the time of the union, and the average amount of indebtedness per head of the population of Canada, Nova Scotia and New Brunswick. 64. In consideration of the transfer to the general Parliament of the powers of taxation, an annual grant in aid of each Province shall be made, equal to eighty cents per head of the population, as established by the census of 1861 ; the population of Newfoundland being estimated at 130,000. Such aid shall be in full settlement of all future demands upon the general Government for local purposes, and shall be paid half-yearly in advance to each Province. ^ 65. The position of New Brunswick being such as to entail large immediate charges upon her local revenues, it is agreed that for the period of ten years, from the time when the Union takes effect, an additional allowance of $63,000 per annum shall be made to that Province. But that so long as the liability of that Province remains under $7,000,000, a deduction equal to the interest on such deficiency shall be made from the $63,000. 66. In consideration of the surrender to the general Government, by New- foundland, of all its rights in mines and minerals, and of all the imgranted and unoccupied lands of the Crown, it is agreed that the sum of $150,000 shall each year be paid to that Province, by semi-annual payments ; provided that 1 At the London Conference (See Note 1, p. 306) " an increased subsidy, in addition to the 80 cents per head, of .$80,000, S70,000, $60,000 and $50,000 was made severally to Upper Canada, Lower Canada, Nova Scotia, and New Brunswick, and the capitation subsidy of 80 cents in both New Brunswick and Nova Scotia ex- tended until the population reached 400,000." (Gray's " Confederation," p. 386) 316 APPENDIX F. that Colony shall retain the right of opening, constructing and controlling roads and bridges through any of the said lands, subject to any laws which the general Parliament may pass in respect of the same.^ 67. All engagements that may, before the union, be entered into with the Imperial Government for the defence of the country, shall be assumed by the general Government. 68. The general Government shall secure, without delay, the completion of the Intercolonial Railway from Riviere du Loup, through New Brunswick, to Truro in Nova Scotia. 2 69. The communications with the North-Western Territory, and the im- provements required for the development of the trade of the great west with the seaboard, are regarded by this conference as subjects of the highest importance to the federated Provinces, and shall be prosecuted at the earliest possible period that the state of the finances will permit. 70. The sanction of the Imperial and local Parliaments shall be sought for the union of the Provinces, on the principles adopted by the Conference. 71. That Her Majesty the Queen be solicited to determine the rank and name of the federated Provinces. 72. The proceedings of the Conference shall be authenticated by the signa- tures of the delegates, and submitted by each delegation to its own Govern- ment; and the Chairman is authorized to submit a copy to the Governor General for transmission to the Secretary of State for the Colonies. 1 For the " statement and figures " used in the Quebec Conference as a means of arriving at the financial settlement contained in resolutions 51 to GG inclusive, see Appendix to Gray's " Confoderaiion," pp. 398-105. 2 The delegates to the London Conference agreed with the Imperial Government as to the terms on which a loan to the United Provinces of £:i. 000,000 stg. for the construction of the Intercolonial Kailway should be guaranteed. In 1867, these terms were embodied in an Act of the Imperial Parliament ^30 & 31 Vict. cap. 16). UNITED STATES CONSTITUTION. 317 APPENDIX G. CONSTITUTION^ OF THE UNITED STATES OF AMERICA. We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. Section 1. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Represen- tatives. Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature. No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen. 1 This document-iis re-printed frona the text in the " History of the origin, for- mation, and adoption of the Constitution of the United States," by George Ticknor Curtis; but it has been carefully compared with several other texts, and especially with the official one contained in Poore's "Federal and State constitutions, colonial charters, and other organic laws of the United States." Curtis states that his text " has been compared with the Rolls in the Department of State." It is the third great national document in the evolution of the United States, the first being the " Declaration of Independence " of July 4, 1776, and the second the " Articles of Confederation " of July 9, 1778. All three documents were prepared and promul- gated at Philadelphia, the date of the Constitution being September 17, 1787. The history by Curtis above mentioned is still one of the best sources of information on the subject, and another is Baucroft's "History of the Constitution," which has been re-printed as vol vi. of the edition of his " History of the United States," published in 1886. A useful re-print of the Constitution will be found appended to Von Hoist's " Constitutional Law of the United States," with references to the pages of the treatise on which the various topics are discussed, and to the author's great work on the history of the Constitution. Story's " Commentaries on the Constitution," Cooley's " Principles of Constitutional Law " and his " Constitu- tional Limitations," and Kent's " Constitutional Jurisprudence " (re-printed in 1889 as part of the " Blackstone " edition of his " Commentaries on American Law ") are classical expositions of the law of the Constitution. Its practical operation has been described in "Wilson's " Congressional Government," Von Hoist's "Constitutional History," and Bryce's " American Commonwealth." 318 APPENDIX G. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.! The actual enumi^ration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Represen- tative ; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five. New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virgmia ten. North Carolina five. South Carolina five, and Georgia three. ^ When vacancies happen in the representation from any State, the Executive authority thereof shall issue writs of election to fill such vacancies. The House of Representatives shall chuse their Speaker^ and other officers ; and shall have the sole power of impeachment. Section 3. The Senate of the United States shall be composed of two Sena- tors from each State, chosen by the Legislature thereof, for six years ; and •each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first elec- tion, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one-third may be chosen every second year ; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies. No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen. The Vice-President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided. 1 The " other persons " here implied wore the slaves. Compare the fourteenth ameudmeut ip. 331 below) with this part of the above sentence : " Which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." 2 The G.'j members allowed to the first Congress became 105 after the first census was taken, while the unit of representation rose from 30,000 to 33,000 at the same time. 8 The law of the Constitution is silent as to the powers of the Speaker of the House of Representatives. As to the functions assigned to him in practice see Cushing's " Law and Practice of Legislative Assemblies." Wilson's " Congressional •Government " (chaijter ii.), and several articles in the North American Review for 1890. UNITED STATES CONSTITUTION. 319 The Senate shall chuse their other officers, and also a President pro tempore, in the absence of the Vice-President, or when he shall exercise the office of President of the United States. ^ The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affiimation. When the President of the United States is tried, the Chief Justice shall preside : And no person shall be convicted without the concurrence of two-thirds of the members present.^ Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honour, trust or profit under the United States ; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law. Section 4. The times, places and manner of holding elections for Senators and Representatives, shall be prescribed m each State by the Legislature thereof ; but the Congress may at any time by law make or alter such regu- lations, except as to the places of chusing Senators. The Congress shall assemble at least once in every year, and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day. Section 5. Each House shall be the judge of the elections, returns, and qualifications of its own members, and a majority of each shall constitute a quorum to do business ; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each House may provide. Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and with the concurrence of two-thirds, expel a member. Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy, and the yeas and nays of the members of either House on any ques- tion shall, at the desire of one-fifth of those present, be entered on the journal. Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting. 1 It has become tbe custom for the Vice-Presideut to allow the Senate before the close of each session to appoint a president pro tempore, so that the organiza- tion of that body may not be affected during the recess by the death of either the President or the Vice-Presideut. 2 There have been five impeachments under the joint authority of this sub- section and the last sub-section of section 2, namely : (1) Of Senator William Blount, in 1799; (2) of Judge John Pickering, in 1803 ; (3) of Judge Samuel Chase, in 1804; (4) of Judge James H. Peck, in 1830; and ^5) of President Andrew Johnson, in 1868. In the last case, the only one of impeachment of a President, Chief Justice Chase presided. A good account of the proceedings is to be found in Blaine's " Twenty Years of Congress," vol. II, chapter XIV., and in McCulloch's " Men and Measures of Half a Century," chapter XXVI. The vote stood 35 for conviction, and 19 for acquittal. 320 APPENDIX G. Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. i They shall in all cases except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going and returning from the same ; and for any speech or debate in either House, they shall not be questioned in any other place. No Senator or Representative shall, during the time for which he was elected, be api)ointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been in- creased during such time ; and no person holding any office under the United States, shall be a member of either house during his continuance in office.'' Section 7. All bills for raising revenue shall originate in the House of Rep- resentatives ; but the Senate may propose or concur with amendments as on otlier bills." Every bill which shall have passed the House of Representatives and the Senate, shall, before it becomes law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return' it, with his objec- tions to that House in which it shall have originated, who shall enter the objec- tions at large on their journal, and proceed to reconsider it. If after such reconsideration two-thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall like- wise be reconsidered, and if approved by two-thirds of that House, it shall become a law. But in all cases the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law. Every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjourn- ment) shall be presented to the President of the United States ; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill. 1 Since July, 1866, the salary of a member of Congress has been $5,000 a year, except for a few months in 1H73-71 when it was raised to #7,500. Public indignation caused a return almost immediately to the former amount. Each member is allowed 20 cents a mile for the journey to and from Washington. 2 Compare this provision with sections 11, 41, 63, 64, 84, and 88 of the Confedera- tion Act, 1867, and the documents in Appendix E, relating to responsible govern- ment (pp. 293-304 above). 8 Under cover of the term " raising revenue," the House of Representatives has successfully asserted its exclusive rignt to initiate proposals to spend money. 4 The word " veto," popularly used in connection with the President's action here specified, nowhere occurs m the constitution, and does not correctly describe his functions in the matter. UNITED STATES CONSTITUTION. 321 Section 8. The Congress shall have poweri to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States ; but all duties, imposts and excises shall be uniform throughout the United States ; To borrow money on the credit of the United States ; To regulate commerce with foreign nations, and among the several States, and with the Indian tribes ; To establish an uniform rule of naturalization, ^ and uniform laws on the sub- ject of bankruptcies throughout the United States ; To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures ; To provide for the punishment of counterfeiting the securities and current coin of the United States ; To establish post offices and post roads ; To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings^ and discoveries^ ; To constitute tribunals inferior to the Supreme Court ; To define and punish piracies and felonies committed on the high seas, and offences against the laws of nations ; To declare war, grant letters of marque and reprisal, and make rules con- cerning captures on land and water ; To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years^ ; To provide and maintain a navj' ; To make rules for the government and regulation of the land and naval forces ; To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions ; To provide for organizing, arming, and disciplining the militia, and for govern- ing such i:)art of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress ; To exercise exclusive legislation in all cases whatsoever, over such district^ {not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United 1 For an account of the manner in which this power has been exercised see Belles' "Financial History of the United States "and Sumner's "History of American Currency." 2 See Morse's " Treatise on Citizenship," and Sir Alexander Cockbum's " Nationality," 3 See Morgan's " Law of Literature." i See Walker's " Patent Laws of the United States," edition of 1889. 5 Compare the statute passed annually by the British Parliament under the title of " An Act to provide, during twelve months for the discipline and regulation of the army." 6 The District of Columbia, chosen for this purpose in June, 1790, belonged to Maryland and Virginia, 64 square miles having been ceded by the former and 36 by the latter. 322 APPENDIX G. States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings ; — and To make all laws which shall be necessary and proper for carrying into exe- cution tlie foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof. Section 9. The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person. 1 The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. No bill of attainder or ex post facto law shall be passed. No capitation, or other direct tax shall be laid, unless in proportion to the census or enumeration hereinbefore directed to be taken. No tax or duty shall be laid on articles exported from any State.2 No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another : nor shall vessels bound to, or from, one State, be obliged to enter, clear, or pay duties in another. No money shall be drawn from the Treasury, but in consequence of appro- priations made by law ; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time. No title of nobility shall be granted by the United States : and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State. Section 10. No State shall enter into any treaty, alliance, or confederation ; grant letters of marque and rejirisal ; coin money ; emit bills of credit ; make anything but gold and silver coin a tender in payment of debts ; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobilitj'. No State shall, without the consent of the Congress, lay any imjrasts or duties on imports or exports, except what may be absolutely necessary for exe- cuting its inspection laws : and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the Treasiny of the United States ; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the con.sent of Congress, lay any duty of tonnage, keep trooi)s, or shii>s of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. 1 In the Convention which framed the Constitution a keen discussion took place on this sub-sectiou, the Hist of many discussions on the question of slavery. 2 Inserted in compliance with the demand of the delegates from the South as a. measure of protection against adverse fiscal legislation. UNITED STATES CONSTITUTION. 323 ARTICLE II. Section 1. The executive power shall be vested in a President of the United States of America. He shall hold his office during the termi of four years, and, together with the Vice-President, chosen for the same term, be elected, as follows : — Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electoi's, equal to the whole number of Senators and Repre- sentatives to which the State may be entitled in the Congress : but no Senator or Representative, or Person holding an office of trust or profit under the United States, shall be appointed an Elector. The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one at least shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each ; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the Pre- sident of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed ; and if there be more than one who have such majority and have an equal number of votes, then the House of Representatives shall immediately chuse by ballot one of them for President ; and if no person have a majority, then from the five highest on the list the said hovtse shall in like manner chuse the President. But in chusing the President, the votes shall be taken by States, the representation from each State having one vote ; a quorum for this purpose shall consist of a member or members from two-thirds of the States, and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors shall be the Vice-President. But if there should remain two or more who have equal votes, the Senate shall chuse from them by ballot the Vice-President.^ The Congress may determine the time of chusing the Electors, and the day on which they shall give their votes ; which day shall be the same throughout the United States. No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this Constitution, shall be eligible to the office of President ; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States. In case of the removal of the President from office, or of his death, resigna- tion, or inability to discharge the powers and duties of the said office, the same 1 For legislation fixing the beginning and end of the presidenti,n, in writing, of the jjrincipal officer in each of the executive Departments, upon any subject relating to the duties of their respective offices, and he shall have power to grant reprieves and pardons far offences against the United States, except in cases of impeachment. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur ; and he shall nominate, and by and with the advice and consent of the Senate, shall appoint. Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose a])point- ments are not herein otherwise provided for, and which shall be established by law : but the Congress may by law vest the appointment of such inferior officers, as tiiey think proper, in the President alone, in the courts of law, or in the heads of Departments. The President shall have power to fill up all vacancies that may happen during the recess of the senate, by granting commissions which shall expire at the end of their next session. Section 3. He shall from time to time give to the Congress information of the state ot the Union, and reconnnend to their consideration such measures as he sliall judge necessary and expedient ; he may, on extraordinary occasions, convene both Houses, or either of tiieni, and in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper ; he shall receive Ambassadors and other public Ministers ; he shall take care that the laws be faithfully executed, and shall commission all the officers of the United States. 1 It lias been provided by Act of Congress that in the last resort the Speaker of the House of llepresentatives shall assume the duties of President, until a new President is elected. UNITED STATES CONSTITUTION. 825 Section 4. The President, Vice-President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors. ^ ARTICLE III. Section 1. The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation which shall not be diminished during their continuance in office.- Section 2. The judicial power shall extend to all cases, in law and equity, made, arising under this Constitution, the laws of the United States, and treaties or which shall be made, under their authority ; to all cases afifecting ambassadors, other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. In all cases affecting ambassadors, other jjublic ministers and consuls, and those in which a State shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact ; with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury ; and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. Section 3. Treason against the United States shall consist only in levj'ing war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two wit- nesses to the same overt act, or on confession in open court. The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood or forfeiture except during the life of the person attainted. 1 See Note 2, p. 319 above. 2 In addition to the works enumerated in Note 1, p. 317 above, the student may usefully consult a monograph on " The Supreme Court of the United States," one of the John Hopklus historical studies, by W. W. Willoughby; aud also " Con- stitutional History as seen in American Law," a course of lectures delivered by Judge Cooley and others before the Political Science Association of the University of Michigan, 1889. See also Curtis' " Jurisdiction, Practice, and Peculiar Juris- prudence of the Courts of the United States." 326 Ain>KNi)ix G. ARTICLE IV. Section 1. l''iill faith and crt'dit shall be g'ivt-n ill each State to the puhlic acts, records, and judicial procerdings of every otiicr State. .\nd the Congress may by general laws prescribe the niaiinei- in wiiich sucii acts, records and i)roceed- ings shall be proved, and the effect thereof. Section 2. The citizens of eacii State shall be entitled to all pri\ilef.'es and immunities of citizens in the several States. A person charged in any State with treason, felony, or otluu' crime, who- shall flee from justice, and be found in another State, shall, on demand of the- executive authority of the State from which he fled, be delivered uji, Tm he removed to the State having jurisdiction of the crime. No person held to service' or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due. Section 3. New States may be admitted by the Cemcress into this Uni(m ; Init no new State shall be formed or erected within tiie jurisdiction of any otiier State ; nor any State be fonned by the junction of two or more States, or parts of States, without the ccmsent of the Legislatures of the States concerned as well as of the Congress. The Congress shall have power to dis[)ose of and make all needful rules and regulations respecting the t(!rritory or other property belonging to the United States ; and nothing in this Constitution shall be so construed as to piejudice any claims of the United States, or of any particular State. Section 4. The; I'nited States shall guarantee to every State in this l^nion a rejniblican form of government, and shall protect each of them against invasion, and on application of tlu^ Legislature, or f)f the P]xecutive, (when tlie Legislature cannot be convened,) against domestic violence. ARTICLE V. The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of tiie- Legislatures of two-thiids of the several States, shall call a Convention for pro- posing amendments, whicli in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congi-ess ; provided that no amendment which may be made prior to the year one thousand eight lunidred and eight, sliall in any manner aflfect the first and 1 The term " service " in this sub-section was, accorcling to Madison, substituted for •■ servitude" in the original draft. UNITED STATES CONSTITUTION. 327 fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ^ ARTICLE VI. All debts contracted and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States under this Con- stitution, as under the Confederation. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land ; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirma- tion, to support this Constitution ; but no religious test shall ever be required AS a qualification to any office or public trust under the United States. ARTICLE VII. The ratification of the conventions of nine States shall be siafficient for the •establishment of this Constitution between the States so ratifying the same.'^ Done in Convention by the unanimous consent of the States present the seven- teenth day of September in the year of our Lord one thousand seven hundred and eighty-seven-^ and of the independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names.* GO. WASHINGTON— Presidt and deputy from Virginia. 1 Randolph and Mason, of Virginia, and Gerry of Massachusetts, refused to sign the Constitution because uo provision was made for allowing State Conventions to offer amendments which should be submitted to and finally decided by another general Convention, before the Constitution was adopted. Under this article as it ■stands the first Congress, on the 25th of September, 1789, proposed to the Legisla- tures of the several states the first ten of the " Amendments " given below, which were ratified by more than the necessary three-fouths of the States. The other five amendments were adopted at later dates. See Notes on pp. 329-38'2 below. 2 The date fixed for the beginning of the operations of Government under the new Constitution was March 4, 178'J, and by that day it had been ratified by Con- ■ventions chosen for that purpose in Delaware, Pennsylvania, New Jersey, Georgia, Connecticut, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, .and New York. This was two states more than the necessary number, and North Carolina and Rhode Island, all that were left of the original 13, ratified it a few months afterwards. Veimout, after having in Convention ratified the Constitu- tion, was in 1791, by Act of Congress, admitted into the Union " as a new and entire member of the United titates." The old Congress in September, 1788, », 01 ; aiuiexed to Nova Scotia by Royal Proclamatif)n, 08 ; placed under the reijime of a Lieutenant-Coveinior and Council, 272 ; re-anne.\ed to Nova Scotia, 272. •Ca])itulation of Quebec, 26 ; of Mont- real, 32. Olergy Reserves ; Establishment of Protestant religion by (^ueliec Act (1774), 02 ; establishment confirmed by Constitutional Act (1701), 125 ; lands to be reserved for maintenance of Protestant clergy, 120 ; endow- ment of i)arsonages provided for, 127; (xovernor to ])resent incumbents, 128; -subject to jurisdiction of Bishop of Nova Scotia, 128; endowment of rectories, 147" ; clergy reserves secu- larized, 147/'; ecclesiastical bills to be submitted to Inii)erial Parliament, 1()3 ; Imjierial clergy reservt? Act (1840), 184/; ; legality of rectory en- dowments, 184»(. Colonial laws, validity of, 241 ; except so far as rei)ngnant to Imjierial legis- lation, 242; colonial laws not void for inconsistency witii instructions, 242 ; colonial constitution may V)e altered by rejirescTitative legislature, 243 ; evidence of passage of colonial law, 248 ; I'.r jxi.i/. /(/(■/'( tjpt-ration of Colonial Laws Validity Act (1805), 243. Confederation Act (1807) ; Declara- tion of Union, 187; uniting Pro- vinces, 187; division of Canada into Ontario and Quebec, 187 ; executive power. 1.S7-180 ; Privy Council, 188 ; (Toveriior-(reneral and Coimcil, 188; legislative ))ower, 184-107; privileges of I'arliament, 180, 227 ; annual ses- si(ms, 189; constitutit)n of Senate, 180-102 ; qualification of Senator, liM); vacation of seat in Senate, 101; con- stitiition of Hoii.se of Commons, 192- 107 ; electoral districts for, 103,218- 223; first election of, 104; election and functions of Speaker of, 104-105; duration ot, 105; ((uorum of, 105; readjustment of represeiitatidii in, 105; increase in membership of, 100; mcmey votes, lOli ; Rnyal assent, 106 ; Provincial (constitutions, 107-203 ; Lieutenant-doveriiors office, 107-108; Executive Council, 1.S8; Lieut. -(iov- ernor and Council, 108-100; Ontario Legislature, 1!)0; (Quebec Legislature, 100-201; Legislatures of Ontario and (Quebec, 201-202 ; Legislatures of Nova Scotia and New Brunswick, 202 ; first elections in Provinces, 203 ; moiu^V votes, 303 ; Royal assent, 203 ; legislative powers of l)omiiiion Par- liament, 204; of Provincial Legis- lature.s, 205 ; control of education, 200 ; uniformity of Provincial laws, 200; control of agriculture and im- migration, 207 ; judicature of Pro- vinces, 207; of Dominion, 208; re- venues of Dominion, 208; consoli- dated revenue fund of Canada, 208 ; charges tliereon, 208 ; debts of Pro- vinces and of the Dominion, 209, INDEX. 335^ 237», 314-316 ; Provincial revenues, 20!) ; Provincial subsidies, 210 : inter- provincial trade, 211 ; non-liability of public property to taxation, 211 ; treatj' obligations, 213 ; use of French language, 213 ; powers and duties of executive officers of Ontario and Que- bec, 211, 237 ; financial adjustment as between Ontario and t^^iebec, 216, 238 ; creation of townships in Quebec, 216 ; intercolonial railway, 216 ; ad- mission of other colonies, 217 ; repre- sentation of Provinces in Senate, 217 ; establishment of new Provinces, 225 ; representation of Territories in Do- minion Parliament, 229. Conseil Superieur de Quebec, 52, 60». Constitutional Act (1791), 112 ; Quebec divided, 112 ; separate legislatures for Upper and Lower Canada, 112 ; Legislative Council, 113-117 ; heredi- tary 'titles, 114-116 ; Legislative As- sembly, 117-122 ; electoral districts, 117 ; electoral constituency, 119 ; eligibility for membership, 120 ; dura- tion of Parliament, 121 ; oath of membership, 122; Royal assent, 122; reservation of bill-;, 123 ; establish- ment of Provincial Courts, 124 ; clergy reserves, 126; endowment of rectories, 127 ; Royal and Parliamentary assent to bills dealing with clergy reserves, 129 ; free and common soccage tenure, 130 ; conversion of feudal tenure to free and cc^mmon soccage, 130 ; navi- gation Acts, 131 ; date of meeting of Provincial Parliaments, 134. Copyright, governed in Canada by Imperial Act, 244/; ; Smiles rv. Bel- ford, 244?i; assigned to jurisdiction of Dominion Parliament, 204, 310. Council, executive ; of Nova Scotia to consist of 12 members, 10 ; to be virtually a Legislative Council also, 11 ; legislative authority questioned, 16 ; adverse fipinion of Crown law officers, 17 ; council authorized for Quebec, 74 ; also to have legislative functions, 75 ; council under Quebec Act (1774) both executive and legisla- tive, 9.5 ; to be, with Governor, a court of appeal in Upper and Lower Canada, 124; advisory function in relation to rectories, 127 ; judicial functions continued under Union Act (1840), 165 ; advisory functions continued under Union Act, 167; Lord Durham's opini ;n of, 293-298 ; responsibility of Council secared by Governor's instruction, 299 ; Legisla- tive Assembly's resolutions respecting responsibility of, 303 ; to be a " Privy Council " of the Dominion, 188 ; rela- tion of privy council to Governor, 247, 249, 257, 261h : " Executive Council " for each Province, 197 ; composition of, 198 ; functions of, 198 ; responsibility of executive councils provided for, 199. Council, legislative ; identical with executive in Nova Scotia, 10, 11, 15 ; in Quebec, 74 ; created by (j>ue- bec Act (1774) with executive func- tions, 95 ; created by Constitutional Act (1791) for Upper and Lower Can- ada, 112 ; constitution of, 113-117 ; oath for members of, 122 ; naturalized subjects eligible for niembershij) in, 134 ; suspended in Lower Canada, 136 ; one council for Canada under Union Act (1840), 150 ; constitiition of, 151- 152 ; change of constitution author- ized, 177 ; made elective, 185« : change in mode of appointing Sjjeaker author- ized, ISO; change made by Canadian Parliament, 185« ; Legislative Council created in Quebec by Confederation Act (1867), 199 ; continued in New Brunswick and Nova Scotia, 202 ; continued in Prince Edward Island, 233h ; created in Manitoba but after- wards abolished, 183/1 ; abolished in British Columbia prior to union with Canada. Council, Special, created in Lower Canada, 137 ; first council called liy Sir John Colborne, 148/; ; Lord Dur- ham's Special Council, 148/; ; charge in constitution of Council, 143 ; Coun- cil abolished under LTnion Act (1840), 150. Cornwallis, Governor of Nova Scotia, 9, 24/1. Cuba, restored to Spain by Britain, (U. D UEHAM, Earl of, indemnified by Imperial statute for illegal exile of rebels to Bermuda, 140, 148/; ; mem- bers of Special Council of, 148// ; Union Act (1840), based on report of, 182; Charles Buller, M.P., secretary to, 183/1 ; remarks of on " responsible government," 293-298 ; on executive council, 295. ENGLISHlaw introduced intoUpjer Canada, 290. Expenditure of colonial revenues : Nova Scotia, 15; Quebec (1774). 99; Upper and Lower Canada (1831), 107; ibid (1791), 132 ; consolidated revenue fund of Canada, 169-172 ; financial . 336 INDEX. basis of tho Canadian Confederation, l.'0!S-"J12 ; financial arrangements in Quebec resolutions (1>S(;4), 814-;^10. Extradition : treaty of Londun (17!)4), 2S2 ; treaty of "Washington (1842), 283. rlSIIKRIKS ; French excluded from on coasts of Nova Scotia, 4 ; French rights reserved on coast of Xewfound- lan7 ; Lord Mansfield's judgment in Campbell vs. Hall, 79-89. HABKAS Corpus, writ not to issue from England to colonies or for- eign dominions, 240 ; this prohibition not to affect right of a])peal, 240. Hudson Bay Company allowed dam- ages inider treaty (>f Utrecht (1713), 4. Huds7-H() ; to pnmiote set- tlement in (irenada, 80 ; to divide Quebec, 14()»( ; to reunite theCanadas, lS2»i ; to give effect to Confederation, 231/1. / \UK1'.KC' .\ct (1774), !MI ; boundaries \J of the I'rovince, ItO-'.H ; Koyal Tro- claniationof 17C>3revoked,il2 ; status of Roman Catholics under the Act, 92 ; riglits of Roman Catholic clergy, 92 ; estal)lishment of Protestant re- ligion, 92 ; oath prescribed for Roman Catholic subjects, 93 ; laws of Canada established, 93 ; religious orders ex- cepted in regard to ownershii) of pro- perty, 93 ; temn-e of land, 94 ; alien- ation of goods by will, 94; criminal law of England established, 94 ; Leg- islative Council created, 95 ; Provin- cial Government de])rived of ptnyer to levy taxes and duties, 95 ; ])rovision as to Royal assent, 9() ; provision for establishment of Courts of law, 9(5 ; navigation Acts to ap])ly to Qi^f^'^fC) 90. Quebec, capitulation of, 20 ; Province of, created by proclamation (1703), 07; Murray first civil (iovernor of, 71; Province enlarged by Quebec Act (1774), 90 ; Revenue Acts, 97-103 ; divided into Upper and Lower Can- ada by Constitutional Act (1791), 112; Canadas remiited l)y Union Act (1840), 149 ; Canada divided into On- tario and Quebec by Confederation Act (1S()7), 187; see "Confederation Act"; boundaries of, 273. ECTORIES; see "Clergy Reser- R Roman Catholic religion, free exercise of, allowed to French subjects in colonies surrendei-ed to Britain, 5, 20, 45, 02-05; fret^dom of worshi]) under (^ueliec .\ct (1774), 92 ; privileges con- firmed inider Constitutional Act (1791), 125; ])rotection granted under Union Act (1840), 103; ed\icational |)rivileges under Confederation ^\.ct (1807), 200, 23()//. Rupert's Land ; see " Hutlson Hay ter- ritory." Ryswick, treaty of (1097), 205. ST. .ICirX, see "Prince Kdward Island." St. Petersljurg, treaty of (1824), 288 ; treaty of (1825), 288. St. Pierre, with Mi(pielon, ceded l)y I'ritain to France, 02 ; Seven Years' War, 59n. State cliurch ; see "Clergy Reserves," " Roman Catholic religion." rn.VXATIONof colonies ; riglitof king- X to impose taxes, 87, 89« ; Iief,'isla- tive Council of Quebecnot empowered to levy taxes, 95; Imperial Parliament miglit impose taxes for regulation of connnerce, 90 ; C^.ueV>ec Reveime Act (1774), 97, taxation ctmtrolled by lnij)erial Parliament, 104, llO/i ; tax- ation for reguhition of commi'rce, 131, 104. TeiHin? of land ; fee simple In Nova Scotia, 7; conditions in articles of cai>itulatioii of .Montreal, 49 ; con- ditions under Ivoyal Proclamation (1703), 09 ; laws of Canada established by (^le.bec Act (1774), 93 ; not to extend to lands held in free and com- mon soccage, 94 ; feiuhd teiuires, ]()9h; grants under free and common .soc- cage title provided for by Constitu- tional Act (1791), 130, 147u. Trade, freedom of, granted to Indians, 5 ; freedom of, on the Mississijipi, 270. Trade and plantations, Lords of; see "Lords." UNION Act (1840); Union of Upper and Lower Canada, 149 ; ccjmpcsi- tion and powers of Legislatiu'e of Can- ada, 150; constitution of Legislative Council, 151 ; constitution of Legisla- tive Assembly, 153; electoral divisions, 153-155 ; legislative ])owers to altersys- tem of representation, 15() ; cpialifica- tions of meml)ers, 158 ; duration of I'arliainent, 159 ; oath of memlx'rship, lOO ; Royal assent, KiO ; reservation of bills, 101; autliority of (ioveinor, 102, 107, 172 ; language of legislative records, 102 ; ecclesiastical and (.'i\ )vvn rigiits, 103 ; colonial taxation, l(i4 ^ law courts, 1()5, 1()8 ; consolidated revenue fund, 1()9 ; hereditary Ciown revenues, 171 ; payments to Protes- tant clergy, 171 ; townsiiips to be creat(^d, 172. Upi)er Canada: see "Ontario." Utrecht, treaty of, 3-0. ^TAl^DREUIL, Marquis de : capitu- V lation of Quebec, 28, 130; capitu- lation of Montreal, 33, 3(), 57, 58/(. 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