CLXX ELGIN TO THE DUKE OF NEWCASTLE [Trans. T. Walrond, op. cit.] Quebec, February 18, 1853. Now that the bonds formed by commercial protection and the disposal of local offices are severed, it is very desirable that the prerogative of the Crown, as the fountain of honour, should be employed, in so far as this can properly be done, as a means of attaching the outlying parts of the empire to the throne. Of the soundness of this proposition as a general principle no doubt can, I presume, be entertained. It is not, indeed, always easy to apply it in these communities, where fortunes are precarious, the social system so much based on equality, and public services so generally mixed up with party conflicts. But it should never, in my opinion, be lost sight of, and advantage should be taken of all favourable opportunities to act upon it. There are two principles which ought, I think, as a general rule to be attended to in the distribution of Imperial honours among colonists. Firstly, they should appear to emanate directly from the Crown, on the advice, if you will, of the Governors and Imperial Ministers, but not on the recommendation of the local executives. And, secondly, they should be conferred, as much as possible, on the eminent persons who are no longer actively engaged in political life. If these principles be neglected, such distinctions will, I fear, soon lose their value. CLXXI ELGIN TO THE DUKE OF NEWCASTLE. [Trans. T. Walrond, op. cit.] March 26, 1853. It is argued that, by the severance of the connection, British statesmen would be relieved of an onerous responsibility for colonial acts of which they cannot otherwise rid themselves. Is there not, however, some fallacy in this? If by conceding absolute independence the British Parliament can acquit itself of the obligation to impose its will upon the Colonists, in the matter, for instance, of a Church Establishment, can it not attain the same end by declaring that, as respects such local questions, the Colonists are free to judge for themselves? How can it be justifiable to adopt the former of these expedients, and sacriligious to act upon the latter? The true policy, in my humble judgment, is to throw the whole weight of responsibility on those who exercise the real power, for, after all, the sense of responsibility is the best security against the abuse of power; and, as respects the connection, to act and speak on this hypothesis that there is nothing in it to check the development of healthy national life, in these young communities. I believe that this policy will be found to be not only the safest, but also (an important consideration in these days) the most economical. CLXXII ELGIN TO THE COLONIAL SECRETARY, SIR GEORGE GREY [Trans. T. Walrond, op. cit.] : Quebec, December 18, 1854. I readily admit that the maintenance of the position and due influence of the Governor is one of the most critical problems that have to be solved in the adaptation of Parliamentary Government to the Colonial system: and that it is difficult to over-estimate the importance which attaches to its satisfactory solution. As the Imperial Government and Parliament gradually withdraw from legislative interference, and from the exercise of patronage in Colonial affairs, the office of Governor tends to become, in the most emphatic sense of the term, the link which connects the Mother Country and the Colony, and his influence the means by which harmony of action between the local and Imperial authorities is to be preserved. It is not, however, in my humble judgment, by evincing an axious desire to stretch to the utmost constitutional principles in his favour, but, on the contrary, by the frank acceptance of the conditions of the Parliamentry system, that this influence can be most surely extended and confirmed. Placed by his position above the strife of parties-holding office by a tenure less precarious than the ministers who surround him-having no political interests to serve but that of the community whose affairs he is appointed to administer-his opinion cannot fail, when all cause for suspicion and jealousy is removed, to have great weight in the Colonial Councils, while he is set at liberty to constitute himself in an especial manner the patron of those larger and higher interests-such interests, for example, as those of education, and of moral and material progress in all its branches-which, unlike the contests of party, unite instead of dividing the members of the body politic. The mention of such influences as an appreciable force in the administration of public affairs may provoke a sneer on the part of persons who have no faith in any appeal which is not addressed to the lowest motives of human conduct; but those who have juster views of our common nature, and who have seen influences that are purely moral wielded with judgment, will not be disposed to deny to them a high degree of efficacy. CLXXIII THE UNION ACT AMENDMENT ACT, 1848 (11 & 12 Victoria, c. 56.) An Act to repeal so much of an Act of the Third and Fourth Years of Her present Majesty, to re-unite the Provinces of Upper and Lower Canada, as relates to the use of the English Language in Instruments relating to the Legislative Council and Legislative Assembly of the Province of Canada. 14th August, 1848. Whereas by an Act' past in the session of Parliament held in the 3 and 4 Vict., third and fourth years of Her Present Majesty, intituled "An Act to re- c. 35. 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 Legislative Council and Legislative Assembly of the Province of Canada, and for prorguing and dissolving the same, and all writs of summons and elections, 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, 1 See No. CLIII. So much of recited Act as enacts that all writs, etc., shall be in English, repealed. Act may be amended, etc. Power to the Legislature of Canada to alter the Constitution of the Legis lative Council. 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 respectively, 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 copy 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 therefor 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, that from and after the passing of this Act so much of the said recited Act as is hereinbefore recited shall be repealed.1 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. CLXXIV THE UNION ACT AMENDMENT ACT, 1854 (17 & 18 Victoria, c. 118.) An Act to empower the Legislature of Canada to alter the Constitution of Whereas an Act 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," provides 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 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 Act or Acts to be hereinafter for that purpose passed, to alter the manner of composing the Legislative Council of the said Province, and to make it consist of such number of members appointed or to be appointed or elected by 1 This repeal was due to the fact that the Speaker of the Canadian House of Assembly (1854-5) found himself compelled under the Act of Union, Section 41, to refuse a motion written in French. As a result of this refusal an address was sent to England praying for repeal. Gladstone replied, saying that the address would be fav ourably received (3 February, 1846), and this Act was accordingly passed without protest, except from Lord Stanley in the House of Lords, who said that the official recognition of French which would follow would constitute "a permanent barrier between two portions of the country." Elgin, who favoured the use of French, announced the repeal of section 41 of the Act of Union to the Canadian Parliament on January 18, 1849. (See inter alia, Journals of the House of Assembly of Canada; Hansard, Vol. C (III Series); Bourinot's Life of Elgin). This Imperial Statute did much to allay the fear of the French-Canadians, who had not forgotten Lord Durham's suggestion that the future should contain a gradual effort "to establish an English population with English laws and language....and to trust government to none but a decidedly English legislature." 2 This Act was passed in response to an address from the Canadian House of Assembly (see Journals, 1853, and Hansard, Vol. CXXXIV, III Series). An Act was passed in 1856 by the Canadian Legislature, providing for an elective Legislative Council. No. CLIII. such persons and in such 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 Council 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 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 the third and fourth years of her Majesty, chapter thirtyfive, section thirty-nine, which relate to bills so reserved for the signification of her Majesty's pleasure. II. As soon as the constitution of the Legislative Council Provisions of of the Province of Canada shall have been altered under such Act former Acts of Parliament or Acts so assented to by her Majesty as aforesaid, all provisions of the to apply to said recited Act of Parliament of the third and fourth years of her Ma- the new Legisjesty, chapter thirty-five, and of any other Act of Parliament now in force lative Council. 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. III. It shall be lawful for the Legislature of Canada from time to Legislature of Canada may time to vary and repeal all or any of the provisions of the Act or Acts vary Acts altering the constitution of the said Legislative Council: Provided always, constituting that any bill for any such purpose, which shall vary the qualification of the new Legiscouncillors, 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. lative Council; IV. It shall be lawful for the Legislature of Canada, by any Act or and may vary, etc., the proActs reserved for the signification of her Majesty's pleasure, and whereto perty qualificaher Majesty shall have assented as hereinbefore provided, to vary or repeal tion of memany of the provisions of the recited Act of Parliament of the third and bers of Assembly. fourth years of her Majesty, which relate to the property qualification of members of the Legislative Assembly. section 26 of V. So much of the twenty-sixth section of the said recited Act of Proviso in Parliament as provides that it shall not be lawful to present to the Gover-3 and 4 Vict., nor of the Province of Canada, for her Majesty's assent, any bill of the c. 35, repealed. 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 Legislative Council and Legislative Assembly shall have been passed with the concurrence of twothirds 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. 3 and 4 Vict., VI. The forty-second section of the said recited Act of Parliament, Section 42 of providing that in certain cases Bills of the Legislative Council and Assem-c. 35, repealed. bly 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 Legislature 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 LL Interpretation of terms. 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 understood as comprehending the Governor and in his absence the Lieutenant-Governor, or person authorized to execute the office or the functions of the Governor of Canada. 3 and 4 Vict., c. 35. CLXXV THE UNION ACT AMENTMENT ACT, 1859 (22 & 23 Victoria, c. 10.) An Act to empower the Legislature of Canada to make laws regulating 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 things 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 appoint one member of the said Legislative Council to be Speaker of the said Legislative Council, and to remove him and appoint another in his stead: And, whereas Vict., c. 118. by an Act passed in the Session of Parliament holden in the seventeenth 17 and 18 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 purposes," 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 the first-recited Act, and of any other Act of Parliament now in force which relate to the constitution 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 Governor: 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 constitution 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 Parliament, to alter the constitution of the Legislative Council of the said Province by providing for the appointment or 1 No. CLIII. 2 No. CLXXIV. |