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Chapter X - The British North America Act

ONE of the great objects of confederation was the construction of the Intercolonial Railway from St. John and Halifax to Quebec. It was thought that there could be no real union between the several colonies of British North America unless a good means of communication existed, and such a means was to be obtained only through the construction of this line of railway. The Intercolonial Railway, as we have seen, had been a part of the policy of successive governments in the province for many years, and it became an essential part of the scheme of confederation. When confederation was accepted by the people of New Brunswick in 1866, the Intercolonial Railway had yet to be built. Western Extension, as the line to the Maine border was called, had only been commenced; Eastern Extension, from the Shediac line towards Halifax, was in the same condition; in fact, the total mileage of the railways in New Brunswick did not exceed two hundred miles, and these lines were isolated and formed no part of any complete system. New Brunswick now has three separate lines of railway leading to Quebec and Montreal; it is connected with the great railway systems of the continent; there is no county in the province which has not a line of railway traversing it; and the mileage has risen from less than two hundred to more than fourteen hundred.

Mr. Tilley realized that the time had come when the communities which form the British provinces of North America must either become politically connected or else fall, one by one, beneath the influence of the United States. After confederation had been brought about between Canada, New Brunswick and Nova Scotia, enough was seen in the conduct of American statesmen towards Prince Edward Island to show that their design was to try to create a separate interest in this colony apart from the general interest of Canada. The acceptance of the scheme of confederation by Prince Edward Island, at a comparatively early period, put an end to the plots in that quarter; but in the case of Newfoundland the same thing has been repeated, and an attempt was made by American statesmen to cause the people of that island to believe that their interests and those of Canada are not identical, and that they would be specially favoured by the United States if they held aloof from the great Dominion. The attitude of the people and congress of the United States towards Canada has not been marked, for the most part, by any great friendliness. They saw in confederation an arrangement that was likely to prevent this country from ever becoming absorbed by their own, and they believed that by creating difficulties for us with respect to the tariff and other matters, and limiting the area of our commercial relations, they could put such pressure upon Canada as would compel our people to unite with them. This scheme has failed because it was based on a misconception of the spirit of our people; but who will say that it would not have succeeded if the several provinces which now form the confederation had been disunited and inharmonious in their relations and had pursued different lines of policy ?

It is unfortunate that, owing to the absence of verbatim reports, it is impossible to reproduce any of Tilley’s speeches during the confederation campaign. No speaker that New Brunswick has ever produced has been more generally acceptable than was Tilley. His speeches were pointed, and so clear .that they could not be misunderstood. He possessed, to a very large extent, that magnetism which enabled him to retain the attention and to awaken the sympathy of his audience. At all the meetings which he addressed, there were many who regarded themselves always as his friends and supporters and who formed a phalanx around him, giving him a confidence and political strength which few statesmen have ever enjoyed to a like extent. Although his addresses frequently provoked the bitter animosity of his enemies, he had always enough friends to counteract their influence; and during the many contests which he had to fight for his seat in the city of St. John, he was always able to rely on the loyalty of those who were his early associates and who remained his supporters until the end of his career. It is quite safe to assert that confederation could not have been carried had it not been for the personal efforts of Mr. Tilley. As the leader of the government which had consented to the Quebec scheme, he was properly looked upon as the chief promoter of confederation in New Brunswick, and his name will go down to future generations identified with that large and necessary measure of colonial statesmanship.

Although the vote of the electors had been taken on the question, much remained to be done before confederation could become an accomplished fact. The last elections, which were those of Kings and Charlotte, were held on June 12th, but more than a year was to elapse before the union was effected, and the result which the election was intended to bring about realized. The first thing to be done was to call the legislature together and complete the business of the province, which had been interrupted by the dissolution. The legislature met on June 21st, and the Hon. John H. Gray, who had been an active advocate of confederation, and who was one of the members for the county of St. John, was made Speaker. In the speech from the throne the following reference was made to the question of confederation:—

“Her Majesty’s government have already expressed their strong and deliberate opinion that the union of the British North American provinces under one government is an object much to be desired. The legislatures of Canada and Nova Scotia have formed the same judgment, and you will now shortly be invited to express your concurrence with or dissent from the view taken of this great question by those provinces.”

The address in reply was moved by Mr. Kerr, of Northumberland, and seconded by Mr. Beveridge of Victoria, and its consideration was made the order of the day for the following Saturday. When it came up for discussion the Hon. Albert J. Smith was not in his place, and Mr. Botsford, one of his colleagues from Westmorland, endeavoured to have the consideration of the matter postponed; but the House was in no humour to await the convenience of any single member, and the address was passed the same day by a vote of thirty to seven. Attorney-General Fisher, immediately on the passage of the address, gave notice of the following resolution, which was to be made the order of the day for Monday, June 26th:—

“Resolved, That an humble address be presented to His Excellency, the lieutenant-governor, praying that His Excellency be pleased to appoint delegates to unite with delegates from the other provinces in arranging with the imperial government for the union of British North America, upon such terms as will secure the just rights and interests of New Brunswick, accompanied with provision for the immediate construction of the Intercolonial Railway; each province to have an equal voice in such delegation, Upper and Lower Canada to be considered as separate provinces.”

Mr. Fisher moved the resolution in question in a very brief speech, and was replied to by the Hon. Mr. Smith, who spoke at great length and continued his speech bn the following day. Mr. Smith took exception to giving the delegates power to fix the destinies of the provinces forever, without again submitting the scheme of union to the people. He proceeded to discuss the Quebec scheme, and took exception to the construction of the Upper House of the proposed legislature of the confederation, declaring that each province should have an equal number of representatives in it, as was the case in the United States. After going over the ground pretty thoroughly and criticizing most of the terms of the scheme of confederation, he moved an amendment, to the effect that no Act or measure for a union with Canada take effect until approved by the legislature or the people of the province. The Hon. Mr. Tilley replied to the leader of the Opposition in one of the most effective speeches that he ever delivered in the legislature. He first took up Mr. Smith’s allusion to the constitutional question, and, with immense power and solemnity, he charged that any want of constitutional action which existed was due to Mr. Smith and his colleagues. He stated that the governor’s sympathies were with the late government, and that he had endeavoured to aid and not to injure them. Mr. Smith had alluded to the Hon. Joseph Howe, who was then an opponent of confederation, in terms of praise, and Mr. Tilley, in reply, read from Mr. Howe’s speech, made in 1861, a magnificent paragraph on the union of British America. Mr. Tilley stated that the government would take the Quebec scheme for a basis, and would seek concessions to meet the views of those who found objection to parts of it. He mentioned the various counties of the province to show that they were either expressly or potentially favourable to the Quebec scheme. He was convinced that even his friend, the ex-attorney-general and member for Westmorland, was hardly against union. He asked, “Was there one anti-unionist on the floor of the House? Where was Mr. Anglin? Mr. Needham? Mr. Hill and all the rest of the anti-unionists? They were all swept away and unionists had taken their places, and when the arrangements for union were carried out, the feeling in its favour would be deeper and deeper.” Mr. Tilley showed the great advantages which would accrue to New Brunswick eventually in consequence of confederation. He combated the statement made by Mr. Smith that after confederation the provincial legislature would become a mere farce, showing that of all the Acts passed during the previous two years there were only seven which would have come under the control of the general legislature. Mr. Tilley closed by dwelling on the impression of power which union would have on the minds of those abroad who were plotting our ruin. The speech was listened to with the utmost attention by the members of the legislature and by a very large audience which completely filled the galleries, and it was generally considered to have been one of his greatest efforts.

The resolution was finally carried by a vote of thirty to eight, only two members, both of whom would have voted for the resolution, being absent. As soon as the confederation resolution was passed the Hon. A. J. Smith moved a resolution which, after reciting the steps which had already been taken in favour of union with Canada, continued as follows:—

“Therefore, Resolved, as the deliberate opinion of this House, that no measure for such union should be adopted which does not contain the following provisions, viz.: first, an equal number of legislative councillors for each province; second, such legislative councillors to be required to reside in the province which they represent and for which they are appointed; third, the number of representatives in the federal parliament to be limited; fourth, the establishment of a court for the determination of questions and disputes that may arise between the federal and local governments as to the meaning of the Act of Union; fifth, exemption of this province from taxation for the construction and enlargement of canals in Upper Canada, and for the payment of money for the mines and minerals and lands of Newfoundland; sixth, eighty cents per head to be on the population as it increases and not to be confined to the census of 1861; seventh, securing to each of the Maritime Provinces the right to have at least one executive councillor in the federal government; eighth, the commencing of the Intercolonial Railway before the right shall exist to increase taxation upon the people of the province.”

Mr. Smith supported his resolution in a lengthy speech in which he predicted increased taxation as the result of confederation. He said that the House, instead of being a deliberative assembly, had to surrender its judgment to the government. Confederation was a great experiment at best, and called for the exercise of other men’s judgment. The government were going on in the most highhanded manner and were not justified in withholding information asked for. He elaborated the idea that Canada was pledged to issue treasury notes to pay present liabilities, and asserted that the government was altogether under the control of Canadian politicians. He insisted particularly on a provision in ' the Act of Union that each of the Maritime Provinces have an executive councillor in the federal government. Finally the vote was taken and the following amendment, which had been moved by the Hon. Mr. Fisher, was carried, only eight members voting against it:—

“Resolved, That the people of this province having, after due deliberation, determined that the union of British North America was desirable, and the House having agreed to request His Excellency the lieutenant-governor to appoint delegates for the purpose of considering the plan of union upon such terms as will secure the just rights of New Brunswick, and having confidence that the action of His Excellency under the advice of his constitutional advisers will be directed to the attainment of that end, sound policy and a due regard to the interests of this province require that the responsibility of such action should be left unfettered by an expression of opinion other than what has already been given by the people and their representatives.” This ended the battle for confederation in New Brunswick, for what remained to be done was merely the arrangement of the details of the union by the delegates who had received full powers for that purpose. The session of the legislature, which must be considered one of the most important ever held in New Brunswick, came to a close on Monday, July 7th. At a meeting of the government held immediately after the prorogation, the Hon. Messrs. Tilley, Wilmot, Fisher, Mitchell, Johnson and Chandler were appointed to go to England as delegates for the purpose of meeting delegates from Canada and Nova Scotia, and framing the bill which was to be passed by the imperial parliament for the consummation of confederation. It was understood that there would be no delay on the part of the delegates from Canada, but Sir John A. Macdonald and the other Canadian delegates were unable to leave at the time appointed, and did not meet the Maritime Provinces delegation in England until many months after the latter had arrived there. This unfortunate circumstance produced much comment at the time, because it looked as if the government of Canada was treating the delegates of New Brunswick and Nova Scotia with discourtesy. Instead of the business being completed promptly, as was expected, and the bill passed by the parliament during the autumn season, the whole matter was thrown over until the following year, and the New Brunswick delegates, most of whom were prominent members of the government, had to remain in England for about ten months at great expense and inconvenience.

The delegates from the three provinces, Canada, Nova Scotia and New Brunswick, met at the Westminster Palace Hotel, London, in December, I860, the Hon. John A. Macdonald in the chair and Lieut.-Col. Hewitt Bernard acting as secretary. The resolution passed at the Quebec conference held in 1864 was read, and amendments were moved in accordance with the suggestions made in the several legislatures during the discussions at the previous sessions. It was conceded by all that the Intercolonial Railway, by which facilities for interprovincial commercial intercourse should be secured, must be built by the united provinces and without delay. It was also conceded that in the provinces where separate schools were established by law, that principle should not be disturbed. In the discussion it was claimed that the sole right of imposing an export duty should be vested in the federal authority. This was objected to by the New Brunswick delegates, on the ground that as the people of that province had expended a large sum of money in the improving of the navigation of the upper St. John, they had to recoup themselves by imposing an export duty on lumber shipped from the province. A considerable portion of the income thus received was paid by the lumbermen of the state of Maine, the advantage derived by them from such improvements being very great. The claim thus presented by the New Brunswick delegates was conceded, and the province was permitted to retain the right. This right was abandoned after confederation, the Dominion paying therefor a hundred and fifty thousand dollars per annum to the New Brunswick government.

During the sitting of the delegates, which lasted for two months, many conferences were held with Lord Carnarvon, then secretary of state for the colonies, and the law officers of the Crown, in regard to objections which were taken to some of the resolutions adopted by the delegates. The governor-general of Canada, Viscount Monck, was in London at the time, and was able to render valuable assistance during the conference, owing to his intimate knowledge of the previous negotiations at Quebec. The arrangements there made, in regard to the strengthening of the central government, founded on the experience of the United States during the War of Secession, were adhered to in the London resolutions and accepted by the imperial authorities. When the bill reached parliament some amendments were suggested, but when it was pointed out that the bill as presented was the result of the most careful consideration of both the imperial authorities and the colonial representatives, the suggested amendments were not pressed and the measure passed through both Houses with very little discussion. But one spirit seemed to animate both the imperial government and the members of parliament, and that was to give the provinces interested the fullest powers consistent with their relation to the Empire. The parliamentary opposition to the measure was much less than might have been expected, when it is remembered that the opponents of confederation had representatives in London, well able to present objections from their standpoint, who had the ear of Mr. Bright and other members of the House of Commons. Her Majesty took a deep interest in the measure and expressed that interest to members of the delegation, adding that she felt a great affection for her loyal Canadian subjects. While the bill was before the House of Lords, Messrs. Macdonald, Cartier, Galt, Tupper and Tilley were honoured by a private presentation to Her Majesty, at Buckingham Palace, and shortly afterwards all the members of the conference were presented at a drawing-room at the same place.

The New Brunswick delegates returned to Canada in the spring of 1867, having completed their labours, and the legislature was called together on May '8th. The business before it was of great importance, for the province was entering upon a new era as a member of the Canadian confederation, and the legislature was about to lose that portion of its powers which was delegated to the federal parliament. It is not, however, necessary to enter into any details of the work of the session, which was carried through without any particular difficulty, the Opposition being too weak to oppose seriously the measures of the government. It was felt on all sides that, as twelve members of the legislative council were about to become members of the senate of Canada, and as fifteen representatives were to be elected to the House of Commons, most of whom would come from the House of Assembly, a striking change would take place in the composition of the legislature, which would be deprived of the services of a large number of its ablest men. One of the important bills of the session was the passage of the Act establishing county courts in the province, and in respect to this measure a difference of opinion took place between Mr. John M. Johnson, one of the delegates and member for Northumberland, and his fellow delegates to England. He thought that the legislature had no authority under -the terms of confederation, or from any understanding between the delegates while in England, to create county courts, while the other delegates held a different view. The Act was passed, however, and has proved to be one of the most useful ever placed upon the statute-book, relieving the supreme court of many cases, both civil and criminal, which would otherwise block its business, and enabling them to be disposed of more rapidly than before. The county court judges appointed under this Act were, with one exception, taken from the legislature, and this made another serious drain upon its experienced members.

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